Most litigators are aware of the importance of building a complete trial record to support a potential future appeal of the trial decision. Appeal courts do not conduct trials de novo; their role is to review the record of the underlying proceeding and assess the correctness or reasonableness of the underlying decision, a task that can be completed only where a fulsome factual and evidentiary record is available to them. Absent a complete record of the underlying proceeding, an appeal court cannot assess the issues through the eyes of the trial judge. For this reason, trial counsel must be vigilant in ensuring all materials that were before the trial judge are marked as appropriate to permit their inclusion in an appeal book.
However, with the variety of types of evidence that may come before a trial judge, it may not always be evident whether or how a particular type of document should be marked as an exhibit at trial. This issue recently arose before the Ontario Court of Appeal in Wasylyk v Simcoe (County),[1] leading the court to provide practical guidance on how expert reports placed before the trial judge as aides memoire, rather than as evidence, ought to be marked.
This decision arose from a two-week trial in which the trial judge found that a motor vehicle accident had been caused by the defendant County’s failure to maintain a road in good repair. The County appealed, in part based on an assertion that the trial judge misapprehended the evidence of an expert witness who had testified about the adequacy of the County’s winter maintenance operations.
The County’s appeal book and compendium contained copies of the expert’s two reports. The respondents brought a motion seeking to strike those two expert reports from the County’s appeal book and compendium, on the basis that they were not marked as exhibits (numbered or lettered) at trial and therefore were not evidence properly forming part of the record on appeal. Of note, the parties had agreed that the reports were only provided to the trial judge as aides memoire, and were not evidence.
The Court of Appeal acknowledged the principle arising from its earlier decision in Moore v Getahun, that “If an expert's report has not been entered into evidence as an exhibit, it has no evidentiary value, even if provided to the trial judge as an aide memoire.”[2] However, the County did not assert that the expert reports constituted evidence, and it was not attempting to use them as such; rather, the reports were included in the appeal book to provide background and context for the County’s argument on appeal.
The Court held that, in such circumstances, the proper procedure would have been for the trial judge to mark the expert reports as lettered exhibits. This would have allowed the expert reports to be included in appeal materials. Because the trial judge should have made the expert reports lettered exhibits, the Court treated the reports as though they had been.
Further, a party including such documents in their appeal materials must take care to mark them clearly, and ensure they are not inadvertently presented as evidence. The County, in including the expert reports in its appeal materials, failed to provide any description or identification that differentiated them from documents that had evidentiary value. It instead should have clearly articulated the non-evidentiary status of the reports, making clear that the reports were provided to the trial judge as aides memoire and were not evidence. The Court held that such explanatory statements are “necessary”.
The Court therefore allowed the respondents’ motion in part, directing the County to amend the description of the expert reports in the appeal book and compendium (and references to them in its factum) in accordance with the directions provided.
This decision should serve as a reminder to litigators of the importance of creating a clean and comprehensive record of all materials put before the trial judge at trial, even materials that may not have evidentiary value, to put their clients in the best position in the event of a potential appeal. In circumstances where expert reports have been provided to the judge as aides memoires, counsel should ensure that the reports are assigned exhibit letters, and that their evidentiary value (or lack thereof) is made clear in any future appeal book.
[1] Wasylyk v Simcoe (County), 2023 ONCA 473.
[2] Moore v Getahun, 2015 ONCA 55 at para 86, leave to appeal to SCC ref’d [2015] SCCA No. 119.
