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The tort of negligence requires a plaintiff to allege and prove four elements. They are 1) a duty of care, 2) a breach of the standard of care, 3) injury caused by the breach and finally, 4) the damages suffered as a result. In many cases, some or all of these elements are obvious and apparent from the facts of the matter. Such is the case where the defendant runs a red light and injuries the plaintiff or a lawyer misses a limitation period on behalf of a client.

The applicable standard of care is not always so obvious in actions alleging negligence against professionals like architects, doctors, accountants, and similar experts.

Determining the Standard of Care of an Expert Defendant

Professionals are defendants with special skills and expertise that are beyond the court’s ability to assess and judge their conduct.

The question asked is “did the defendant proceed with such reasonable caution and skill as a reasonable expert should? The answer is closely dependant on the particular circumstances of the retainer. It is a question of fact to be determined by the trier of fact be it a judge or a jury.

That’s a hard, if not an impossible task, without the benefit of hearing evidence from experts in the same field, as to what should, or should not, have been done in the circumstances. This explains the need for expert evidence to prove the negligence of an expert at a trial.

Who Must Have Expert Evidence on a Motion for Summary Judgment?

The defendant is not always content to wait for the trial. They often wish to shut the action down at an early stage. As it is the plaintiff’s obligation to prove the applicable standard of care and its breach, the usual attack is on the lack of expert opinion produced by the plaintiff.

The defendant does so by bringing a motion for summary judgment seeking to have the claim dismissed. That is done after filing their defense to define the issues and with supporting evidence to show there is no genuine issue requiring a trial. The plaintiff must then respond with their own evidence clearly showing that there is a least one real issue for trial.

If expert evidence is needed at the trial, it stands to reason that it would equally be necessary for the summary judgment motion. If the plaintiff has no expert evidence to file in support of their claim it should be dismissed says the defendant. There would be no genuine issue for trial. Despite this apparent initial logic, that is not always the result.

The question of whether the evidence available to the court on a summary judgment motion allows for a “full appreciation” of the matter is highly fact-dependent and varies on a case by case basis.  As the Ontario Court of Appeal observed in Combined Air:

“Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the “interest of justice”, the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties.  In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial.  In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools that are now available to the motion judge.  In such cases, a just result can only be achieved through the trial process.  This pivotal determination must be made on a case-by-case basis”.

The court begins with who has the initial onus of proof on the motion for summary judgment and when, if at all, the burden shifts on a motion for summary judgment.

The defendant bears the initial burden to show that there is no genuine issue for trial. It is their motion after all. They cannot rely solely on the allegations in their pleadings but must put forth real evidence. It is only then that the burden shifts to the plaintiff to show that a real issue for trial still exists. This is known as both sides “putting their best foot forward”.

The court is entitled to assume that the “feet” put forward contain all the evidence both parties would lead at trial. If the defendant has not placed expert evidence before the court they have not put their best foot forward. The court is left with no evidence to assess the standard of care. As the initial onus is on the defendant their motion would fail.

Some Exceptions

Obvious Negligence:

Where the judge hearing the motion can determine from the evidence that there clearly was professional conduct “that obviously” fell below the standard of care, expert evidence need not be filed by the plaintiff.

Early Summary Judgment Motions:

Summary judgment motions brought at an early stage of the action are considered exceptions to the “best foot forward” necessity. As the Ontario Court of Appeal further stated in the Combined Air decision:

“However, we add an important caveat to the “best foot forward” principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.”

Being the subject of a client complaint to a regulatory body and a subsequent investigation and hearing is undoubtedly one of the most stressful situations a professional can face. A discipline hearing at a regulatory board or tribunal is serious. It can be as lengthy and complex as a court trial, can have serious consequences, and can permanently affect both your livelihood and reputation. At Milosevic Fiske LLP, our Toronto professional misconduct lawyers are intimately familiar with discipline across a number of professions and have successfully represented many professionals, including other lawyers, investment advisors, as well as directors and officers in such circumstances. Call us at 416-916-1387 or contact us online to learn more about how we can help.