Pederson v. Forget, 2026 ONCA 118 (CanLII)
Background
The Ontario Court of Appeal dismissed an appeal of an Occupiers’ Liability case. The underlying action arose when the plaintiff, Janet Pederson, slipped at the top of a wooden staircase and suffered personal injuries. Liability was hotly contested between the parties.
Pederson alleged that the stairs were dangerously slippery due to the application of cleaning products, while the defendants, the Forgets, denied any negligence and maintained that their stairs were reasonably safe.
The key issue centred on whether the condition of the stairs breached the Occupiers’ Liability Act, R.S.O. 1990 c. O.2 and if the Forgets were negligent in their maintenance. Both parties presented expert engineering evidence regarding the slip resistance of the stairs after various cleaning products were applied. Pederson’s expert, Gord Jenish, was permitted to testify about most of his slip resistance testing, except for his first report. The trial judge excluded the first report due to differences between the test conditions and the actual circumstances of the incident.
The facts revealed conflicting testimony about the cleaning products used. Pederson claimed she overheard, in French, that Pledge had been applied to the stairs, allegedly making them slippery. The Forgets denied using Pledge, stating they always used Vim and did not employ a cleaning lady. Expert testing was conducted at both the Forget home and Jenish’s own residence, with results showing surprising outcomes regarding slip resistance after product application. The trial judge, after a voir dire, qualified Jenish as an expert but excluded his first report, finding it unreliable due to differences in testing conditions.
Issue on Appeal
Pederson appealed the verdict. She submitted that the trial judge erred in excluding the first set of testing done by Jenish and that this resulted in a miscarriage of justice requiring a new trial.
Held
The appeal was dismissed.
Reasons
Pederson asserted that the trial judge failed to properly follow the test for admission of expert evidence, resulting in an error of law when he ruled that Janish could not refer to his 2020 testing in his evidence.
The Ontario Court of Appeal rejected that assertion. The trial judge properly exercised his role as a gatekeeper of the evidence. He followed the White Burgess two-part test for the admission of expert opinion evidence. The two steps are:
- Consideration of the threshold requirements for admissibility:
- Relevance;
- Necessity; and
- Absence of an exclusionary rule
- A properly qualified expert.
The trial judge’s conduct of the voir dire of Jenish and his analysis and application of the test for admitting expert evidence held no errors. In his discretion, he determined that the risks of admitting the first testing outweighed the benefits because a number of the factors that were used in the testing were not the same as those that existed at the time of Pederson’s fall. His ruling was a discretionary decision which was entitled to deference absent an error of law.
The Ontario Court of Appeal went on to say that even if the first report was improperly excluded, there was no resulting miscarriage of justice and no new trial would be warranted.
Where evidence has been improperly excluded, the question is whether the excluded evidence would have made a different to the outcome, so that its exclusion caused a miscarriage of justice. This contextual assessment requires consideration of the entire record. The critical issue at trial was the credibility of the parties. There was ample evidence outside the expert evidence upon which the jury could have concluded that the stairs were reasonably safe for use at the time of Pederson’s fall.