Kushnir v. Macari, 2018 ONSC 6128 (CanLII)

Conflicting Expert Evidence and the Importance of a Jury Notice in Summary Judgment Motions.  

Date Heard: September 6, 2018 | Full Decision [PDF]

This decision is a reaffirmation of the principle that where there are conflicting expert opinions, such a case is generally not amenable to summary judgment.  The motion judge also specifically considered whether the presence of a jury notice was to be considered in deciding a summary judgment motion.

In this summary judgment motion, the defendant “occupiers” of the area where the plaintiff was injured in a pedestrian-motor vehicle collision sought to have the claims against them dismissed.  The motion was dismissed.

The plaintiff was injured while crossing a private access road near a Loblaws store. She was not crossing in a demarcated crosswalk.  Both sides retained experts who prepared written reports and were cross-examined for the motion.  The plaintiff’s expert opined that there is a “desire line” in proximity to the accident scene which would result in pedestrians crossing at this point instead of the marked crosswalks. The defence expert defines a “desire line” as “the place people would like to walk” and disputes that one existed in the location where the plaintiff crossed the access road.  The experts also opined on proposed remedial measures to the area.

The motion judge considered the general principles applicable in a summary judgment motion from Hryniak v Mauldin and specifically considered the discrete issue of whether a jury notice matters in a motion for summary judgment.

In responding to the question of “Does a jury notice matter?”, Justice Hurley noted that trial by jury is a substantive right, which should not be lightly interfered with, citing McDonald v. John/Jane Doe, 2015 ONSC 2607.  Justice Hurley quoted Justice Edwards in Mitusev et al. v. General Motors et al., 2014 ONSC 2342 (CanLII) at para. 91:

Juries are told every day that they may draw reasonable inferences from the evidence even though there is no direct evidence on a particular point. On a motion for summary judgment, while it is clear that the motion judge is required to determine whether there is no genuine issue for trial – even in the face of a jury notice, where the motion judge is unable from the evidence filed to make findings of fact, and to thereafter apply the law, it seems to me that it would be the exceptional case that the motion judge would exercise the expanded fact-finding allowed by rule 20.04 (2.1) and (2.2) to effectively usurp the fact-finding role of the jury.

Justice Hurley relied on the following approach from Roy v. Ottawa Capital Area Crimestoppers, 2018 ONSC 4207 in deciding whether a genuine issue for trial exists in a jury case: “If factual findings are to be made on a summary judgment motion, particularly in the face of a jury notice, summary judgment should only be granted if the evidence is such that no reasonable jury properly instructed could find for the plaintiff.”

There are also decisions where judges have “arguably” disagreed with the notion that there is any difference in the interpretation and application of rule 20.04 because the parties have chosen trial by jury (Mehlenbacher v. Cooper, 2017 ONSC 3434 at paras. 38- 40 and B. (R) v. S. (E), 2017 ONSC 7866 at paras. 16-18).

Justice Hurley also considered the role of expert evidence in a summary judgment motion, noting that the existence of conflicting expert opinions does not preclude summary judgment, but it is a factor for the motion judge to consider.  Justice Hurley quoted Justice Henderson’s remarks in Frame, et al v. Watt et al., 2016 ONSC 718 (CanLII) at paras. 33 – 34:

I start my analysis by observing that it is very difficult for any court to resolve an issue where there is conflicting expert evidence. Conflicting evidence as between lay witnesses can often be resolved by considering inconsistencies in the sworn evidence, bias, her credibility problems. However, in the present case, I am presented with two sets of qualified experts who have no significant credibility issues, but differing opinions.

In that regard, I adopt the comments of Edwards J in the case of Paul v. Oliver Fuels Ltd. [2012] O. J. N0. 540 at para. 44 as follows:

While there may very well be cases in the future with conflicting expert opinions that are amenable to a motion for summary judgment, it strikes me that where there are conflicting experts opinions, in general, such a case is not,… amenable to summary judgment.


Read the full decision [PDF]
Written by

Lara completed her undergraduate degree at the University of Toronto in Ethics, Society, and Law and International Relations. She obtained her Juris Doctor and Master of Public Administration at Queen’s University and also completed the International Business Law program at the Bader International Study Centre in England. Lara was called to the bar in 2013.

Lara joined Oatley Vigmond after practicing insurance defence at a leading national firm. The experience of representing many of Canada’s largest insurers has provided Lara with valuable insight into personal injury claims, allowing her to better serve her clients.