The Court of Appeal for Ontario Applies the Mohan and Abbey Tests: Meady v Greyhound Canada
In Meady v Greyhound Canada Transportation Corp, 2015 ONCA 6, the Ontario Court of Appeal upheld a trial judge’s decision to disallow evidence from two experts. The appeal arose from a Greyhound bus accident that occurred in Northern Ontario in December 2000. The appellants in this case are passengers who chose to sue the respondents: the bus driver, Greyhound, the police officers involved, the Crown employer, and the passenger responsible for causing the crash.
Facts and Judicial History
Shaun Davis was travelling from Alberta to Nova Scotia for the holidays. While stopped in Ontario, Davis told the bus driver Albert Dolph that he thought someone had searched bags and that people were going to hurt him. The police were called and Constable Parrish arrived. He determined that no one went though Davis’ bags and observed that Davis was exhibiting symptoms of anxiety and mild paranoia. Parrish spent further time with Davis and asked him if he wanted to see a doctor.
Davis later called the police again and Parrish along with Constable Singleton arrived back to the bus station. Davis again stated that he felt people were going to hurt him. Parrish informed the bus driver that Davis was exhibiting symptoms of paranoia but that he was not a safety risk. At one point in the bus ride Davis got out of his seat, expressing the same paranoid thoughts. While Dolph told Davis to go back to his seat, he did not do so and eventually jumped into the driver’s area, grabbed the steering wheel and caused the bus to roll into a ditch.
The trial began in 2010, and focused much on the standard of care the respondents owed the appellants. The trial judge refused to admit expert evidence from neither Steven Summerville, a police officer who has knowledge of use of force principles, nor from Arthur Atkinson, a transportation safety consultant who was familiar with accident investigation and bus standards. In short, while Davis was noted in default in the action, the trial judge dismissed the claims against all the other parties. In his view, the officers exercised the proper standard of care in relation to their interaction with Davis, the bus driver exercised reasonable care and skill in operating the bus and Greyhound did not improperly train Dolph. An appeal was sought in the Court of Appeal for Ontario.
The Trial Judges’ Decision Attracts Deference
The admissibility of expert evidence is governed by the Supreme Court of Canada’s decision in R v Mohan,  2 SCR 9 and the Ontario Court of Appeal’s decision in R v Abbey, 2009 ONCA 624. The test for admissibility contains four parts:
(a) the evidence must be relevant;
(b) it must be necessary to assist the trier of fact;
(c) it must not be subject to an exclusionary rule; and
(d) the expert must be properly qualified.
The admissibility of both experts turns on the trial judge’s decision on the second requirement of the test. As written by Chief Justice Strathy, speaking for the Court in this case: “The application of the necessity criterion asks whether the trier is able to form a correct judgment about the issue without the assistance of persons with special knowledge.”
While the standard of care for professionals is a question of law, the specific requirements of the standard are questions of fact. While expert evidence is usually used by the trier of fact, the trial judge in this case used the exception for “non technical matters or those which an ordinary person may be expected to have knowledge” to refuse to hear the evidence.
All in all, Chief Justice Strathy concludes that the trial judge’s decision requires deference as indicated by the relevant principles. For instance, judges must be astute to disallow experts that are unnecessary as this is a waste of judicial resources (see Johnson v Milton (Town), 2008 ONCA 440) and there is “no exact way to draw the line” in these sorts of inquiries (see R v DSF (1999), 43 OR (3d) 609 (CA)).
Summerville’s Expert Evidence
In the appellant’s view, Summerville’s evidence pertaining to police crisis management techniques should not have been excluded. In their view, this would have allowed the trier of fact to conclude that the officers breached their standard of care as they were deficient in their investigation and should have used crisis intervention techniques to prevent Davis from riding the bus. Chief Justice Strathy rejects this argument, holding that the trial judge properly performed his gatekeeping function. He notes that the trial judge was able to make findings of fact relating to the interactions between officers and Davis. For example, the trial judge concluded that there were no grounds to detain Davis and that based on Davis’ demeanour, the officers acted reasonably.
Atkinson’s Expert Evidence
The appellants asserted that the trial judge should have included evidence that would have allowed him to conclude that the driver, Dolph, should have slowed down when Davis was out of his seat. Again, Chief Justice Strathy upheld the trial judge’s decision. Since the trial judge concluded that the speed at which Dolph was driving was reasonable, it was not necessary for him to admit expert evidence relating to this issue.
The Standard of Care
Finally, the appellants challenged the trial judge’s articulation of the standard of care. The trial judge found that the standard of care applicable to the bus driver was that of a “reasonable bus driver in the circumstances” and “whether the bus driver used all due, proper and reasonable care and skill in the circumstances” [Day v Toronto Transportation Commission,  SCR 433]. In regards to the officers, the standard was that of “the reasonable officer in like circumstances” and the officer “must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances” [Hill v Hamilton-Wentworth Regional Police Services Board,  3 SCR 129]. Chief Justice Strathy found no issues with the trial judge’s findings.
Given the above findings, the Court dismissed this appeal. This case applies the Mohan and Abbey tests and clarifies the principles relating to the necessity wing of the test. This decision by Chief Justice Strathy upholding the trial judge’s decision further emphasizes the deference accorded to trial judges in conducting these inquiries. Finally, this case highlights the embedded concerns of trial efficiency and judicial resources, endorsing a position that trial judges should appropriately use their gatekeeping functions to prevent unnecessary expert evidence.