Edmonton (City) v. Lovat Tunnel Equipment Inc. IN THE MATTER OF the use of photographic evidence

Between The City of Edmonton, plaintiff, and Lovat Tunnel Equipment Inc. and Rotek Incorporated, defendants, and Lovat Tunnel Equipment Inc., Hoover Precision Products Inc. and Rotek Inc., third parties

[2000] A.J. No. 379
2000 ABQB 206
Action No. 8803-05078

Alberta Court of Queen's Bench
Judicial District of Edmonton
Lee J.

Heard: March 23, 2000.
Judgment: April 4, 2000. Filed: April 5, 2000.
(41 paras.)

Counsel:

P. Mousseau and S. Anderson, for the defendant/third party Rotek Inc.
R. Maxwell and L. Zurowski, for the defendant Lovat Tunnel Equipment Inc.
D. Bonora and W. Barclay, for the plaintiff.

REASONS

LEE J.:-

INTRODUCTION

1. Lovat has requested that two sets of photographs referred to in the testimony of Mr. McGuigan be entered as exhibits at trial. The photographs form a part of two expert reports whose author has not been and will not be called as a witness at trial. Mr. McGuigan was present with the author of the reports when these photographs were taken, and in fact took certain of the photographs himself. Rotek claims privilege over the photographs and also objects to their admission on the ground that this would allow hearsay admission of the contents of the reports.

BACKGROUND

2. Mr. McGuigan is Rotek's investigator and employee. On the instructions of counsel for Rotek, he attended with Mr. Rumbarger, Rotek's metallurgical expert, at the site where the bearing, which is the subject of this litigation, is stored. One set of photographs of the bearing were taken by Mr. McGuigan at the direction of Mr. Rumbarger. These pictures eventually were incorporated into the Rebuttal Expert Report of Mr. Rumbarger, disclosed by Rotek to the other parties to the action under Rule 218.6. Mr. McGuigan's four photographs have been marked as Exhibit 54 at the trial of this matter. Another set of two photographs, taken by someone other than Mr. McGuigan, also was incorporated into the Expert Report of Mr. Rumbarger. Again, this set of photographs was disclosed by Rotek to the other parties to the action under Rule 218.6. The two photographs have been marked as Exhibit A for identification. Mr. McGuigan has testified that he was present when these photographs were taken and that he has knowledge of the contents of the photographs. Mr. Rumbarger has not been, and will not be called to testify at trial.



3. During the course of the trial, counsel for Lovat sought to question Mr. McGuigan in relation to the photographs contained in Mr. Rumbarger's reports and attempted to introduce the photographs into evidence through Mr. McGuigan.

ISSUES

4. The following issues arise in relation to this application:
   
   1. Is there any subsisting litigation privilege with respect to the contents of Mr. Rumbarger's expert reports?
   
   
   2. Is Lovat able to enter the photographs contained in the Rumbarger reports through Mr. McGuigan?
   
   
   3. Is Mr. McGuigan, a lay witness, being asked to provide opinion evidence?

ANALYSIS

1. Privilege


5. Counsel for Rotek argues that the photographs are bound by litigation privilege as they were taken for the primary purpose of assisting counsel in this litigation.



6. However, these photographs were included in the Expert Report of Mr. Rumbarger, which was disclosed pursuant to Rule 218.6. As I concluded in my Reasons for Judgment of February 25, 2000 in this matter ([2000] A.J. No. 214), there is no remaining litigation privilege in the contents of an expert report disclosed under Part 15.1 of the Rules of Court. Counsel for Rotek argued and won this point earlier in the trial. It now applies equally to the contents of expert reports by Rotek's experts.



2. Admissibility of the Photographs



7. Counsel for Rotek argues that Lovat, in attempting to put the photographs into evidence through Mr. McGuigan, is seeking to admit hearsay evidence as the author of the expert reports will not be called to testify.



8. In my view, this argument must fail on two counts.



9. First, what is sought to be admitted are not the reports themselves, but rather what would be equivalent to facts which underlay the reports. It would be a strange proposition to state that once a fact has been relied upon by an expert in forming their opinion, any attempt to put that fact into evidence through another witness would be hearsay. Any witness who can testify to a fact can do so, whether it appears in an expert report or not.



10. Second, the argument must fail as the contents of the report sought to be admitted in this case are photographs. Simply put, photographs are real evidence, not hearsay.



11. Once the issue of privilege is dealt with, the fact that the photographs appeared as part of the basis for an expert opinion is irrelevant. The real question facing the Court is whether the photographs can properly be admitted into evidence through Mr. McGuigan.



12. I have reviewed the cases cited to me by counsel, including R. v. Bannister, [1936] 2 D.L.R. 795 (N.B.S.C.A.D.) and R. v. Davis (1969), 69 W.W.R. 638 (Alta. C.A.). R. v. Bannister, supra, is cited by the authors for the proposition that a capable witness under oath may authenticate visual evidence.



13. In R. v. Bannister, supra photographs depicting the remains of a human body were admitted into evidence without any proof as to the identity of the photographer, when or where they were taken, or where they had been developed. The photographs were allowed into evidence following the acknowledgement by medical personnel that the photos accurately depicted the subject matter in question.



14. In admitting the photographs into evidence, Baxter, C.J. stated at pl 798:
    
    We think that the photographs were properly admitted in evidence. Dr. Paul Melanson, who made a post mortem examination of the remains of Philip Lake, swore that exs. nos. 24 and 25 were true photographs of those remains, and his testimony is supported by that of Dr. A.R. Landry. When these gentlemen recognize the photographs as being accurate portrayals of the condition of the charred remains, it seems immaterial to inquire as to the person who had taken them or when they were taken or as to those engaged in their development.



15. The admission of photographs or videotape evidence by a person who has knowledge of the facts depicted but is not an eye-witness has been referred to as the `Silent Witness Theory', E. Goldstein, Visual Evidence, A Practitioner's Manual, Vol. 1 (Scarborough: Carswell) at p. 2-6:
    The `Silent Witness Theory' allows a photograph, videotape or motion picture film to `speak for itself' once a proper foundation has been laid for its admission. Under this theory, the courts treat visual evidence as `substantive evidence'. There is no admissibility requirement than an eye-witness first testify that the visual evidence truly and accurately depicts its subject.
    



16. The decisions in Bannister and R. v. Davis, supra, are cited by Goldstein as examples of the Court's acceptance of visual evidence without the requirement for eye-witness verification. In Davis, the Alberta Court of Appeal allowed into evidence photographs without eye-witness verification. McDermid, J.A. held at p. 639:
    
    In such a case photographs may be tendered by the person who has found them in such possession and are prima facie admissible. I have said prima facie admissible, for the photographs must be relevant to the charge and not excluded by some other exclusionary rule.



17. Rotek latterly draws a distinction between actual photographs and photographs which are reproduced xeroxed copies from the report of Mr. Rumbarger. While there is a distinction as to form there is no distinction at law. The fact that the photographs are reproduced copies does not detract from the fact that Mr. McGuigan acknowledged and provided verification under oath that he was familiar with the objects depicted in the photographs. Rotek has not called into evidence the quality of the photographic evidence.



18. If Rotek is against the admission of the xeroxed copies of the photographs, Rotek can provide the actual photographs such that they may be entered into evidence.



19. I am of the view that the proper test for the admission of photographic evidence is that stated in J. Sopinka, S.N. Lederman & A.W. Bryan, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1998) at 1038:
    
    
    19. 18.79 It has been held that the admissibility of photographs depends upon: (1) their accuracy in truly representing facts; (2) their fairness and absence of any intention to mislead; (3) their verification on oath by a person capable of doing so. It is not always necessary to have the sworn evidence of the person who took the photograph. Another witness who is familiar with the objects shown in the photograph may be permitted to identify it.


20. The photographs which Mr. McGuigan testifies that he took are admissible. Further, Mr. McGuigan was able to testify as to the contents of the other photographs, as he was at the site at the same time as the photographer of those photographs and is familiar with their content. Therefore, Exhibit 54 was properly admitted and the photographs contained in Exhibit "A" for identification are admissible as an exhibit.
    
    3. Opinion Evidence



21. On or about March 23rd, 2000, Mr. McGuigan was also asked about portions of the objects depicted in the photographs. Mr. McGuigan was asked to describe certain portions of things depicted in these photographs and to compare and contrast them with the subject matter in other photographs he had not taken, but for which he was on site at the time the photographs were taken and the contents of which photographs he stated that he was familiar with. Rotek objected to these comparisons as requiring the witness to give opinion evidence.



22. Although the Court certainly agrees as a general principle that opinion evidence may not be led from a lay witness, and although counsel for Rotek pointed out that this principle had been upheld in respect of Mr. McGuigan's evidence at examination for discovery by Master Funduk in an application before him in which both Rotek and Lovat were the successful respondents, I permitted the examination to proceed.



23. The relevant part of the decision by Master Funduk referred to me by Rotek's counsel reads only:
    An employee of Rotek, Charles McGuigan, was examined as an employee. He was asked a number of questions calling for technical opinions, regardless of the labels counsel attach to it. He was also asked questions about his views on the report of the Plaintiff's expert, which is 53 pages long.
    It is not necessary to decide if a corporate litigant can have opinions and if so whether it can be required to given them. Having said that, I would point out that I am not bound by decisions of courts of other provinces. I am bound by decisions of the Court of Appeal of Alberta. See Quality Investments Ltd. v. Curtis Engineering and Testing Ltd., (1986) 65 A.R. 57 (C.A.).
    Here, McGuigan is examined merely as an employee. He does not speak for Rotek. He is a mere witness. It is Rotek's designated officer who speaks as Rotek: R. v. N.M. Paterson & Sons, [1980] 2 S.C.R. 679.
    McGuigan's opinions are irrelevant. That includes his opinions (if he has any) on the opinion of the Plaintiff's expert.
    



24. I have no reason to disagree with Master Funduk's decision quoted to me, but clearly before me Mr. McGuigan is not being asked for his technical opinions. Mr. McGuigan was Rotek's investigator and these few photographs are part of the investigation he conducted. He was simply asked about items and things depicted in the photographs, and he was comfortable in being able to answer questions about his memory of what he saw and his recollection of what the picture depicted.



25. Rotek then submits on March 31st and April 3rd, 2000 that because of the extraordinary latitude permitted Lovat and the Plaintiff in examining Mr. McGuigan, Rotek has suffered substantial prejudice which has, in turn, impacted upon the decisions Rotek has had to make in determining whom it would call or not call to testify at trial. Rotek has, accordingly, reduced the list of lay witnesses it was planning to call in its case.



26. One would have thought that if these seemingly minor rulings had been so egregious to Rotek's case and witness list that this would have been pointed out at the time some eight to ten days earlier. While numerous objections were made by Rotek's counsel at the time with respect to the admissibility of the few photographs in issue, nowhere is the possible severe prejudice and their affect on their witness list mentioned to my recollection.



27. Rotek's counsel also submits that he commented at the end of that day in question March 23, 2000 to the effect that they would have to reevaluate their position. However with the greatest of respect, this was hardly clear or definitive assuming that this was actually said at the end of the day when the photographs were being dealt with. It would have been also somewhat uncharacteristic of counsel who has otherwise been clear and direct in putting forward his objections in this trial.



28. I am surprised by this submission given that it is being made long after the objections in question and has not previously been argued. Rotek in fact is still in its case and can call whatever evidence it seeks. My understanding of Rotek's reduced witness list is based on scheduling problems for which no adjournment has been sought.



29. As I recall the expert witnesses Doctors Weiss and Rombarger were to be called throughout this trial, and at one point at the beginning of Rotek's case one or both were either actually physically on their way to Edmonton or about to come from Wisconsin and Ohio respectively.



30. However, Rotek's counsel advised the Court that they were not calling these expert witnesses prior to the issue of the admissibility of the photographs coming up in Lovat's cross-examination of Mr. McGuigan.



31. As to Rotek's ordinary witness changes, I was advised by counsel for Rotek shortly before their evidence began that they were rescheduling witnesses due to availability issues.



32. No specific reasons were listed in paragraph 13 of the letter submission of Friday, March 31, 2000 from counsel for Rotek as to the severe alleged prejudice. I note also that it was the Court that had to persistently request Rotek's counsel everyday for a week (or more in some cases) for its views, if any, on this issue along with some other outstanding matters that I had specifically reserved on, some of which dealt with Rotek's own objections.



33. While I recognize that all counsel and the Court have been very busy throughout this trial on a wide variety of matters, the problem here seemed to be more of a recollection or awareness problem of the number and extent of the six outstanding motions and issues to be dealt with, as opposed to a timing issue. Obviously, and I advised counsel of this earlier, I wanted to conclude all of these relatively confined issues, if possible, before the evidence was concluded, or certainly before submissions begin.



34. Upon counsel for the Plaintiff City of Edmonton objecting to this submission on Monday April 3, 2000, counsel for Rotek named the only witness who was sent away back to Ohio as being Mr. Lynn Meyers.



35. On Monday April 3, 2000, Rotek's counsel submitted that the Court and opposing counsel had disclosure with respect to Mr. Meyers evidence in its Opening Statement material. After the Court was not able to find the evidence summary for Mr. Meyers, on Tuesday April 4, 2000 Rotek's counsel then advised that the Court and opposing counsel never did have this disclosure, and that Mr. Meyers' evidence was going to be similar to Mr. Steven Aaronson's evidence for which there was a disclosure summary in the Opening Statement.


36. That disclosure summary for Mr. Aaronson reads as follows:
    
    Evidence Expected to Give:
    
    Steven Aaronson is currently in the employ of the United States Mint, Washington, DC. He joined Rotek in May of 1979; in 1986 he held the office of Vice President of Engineering, Rotek Inc.
    He attended Drexel University; he there obtained a Bachelor of Science in mechanical engineering and a Master's Degree in the same discipline.
    Mr. Aaronson will say that Richard Lovat more often than not purchased bearings from Rotek's inventory of bearings which had been manufactured for persons or entities who did not take delivery of them. His purchases appeared to be premised, in large part, on size, availability and price.
    Mr. Aaronson attended at the Lovat plant and there saw Rotek bearings hanging from the walls of the plant. Mr. Aaronson warned Mr. Lovat that this practice was contrary to Rotek's "storage" instructions in that this practice would tend to make the ring elliptical.
    


37. Clearly Mr. Aaronson's evidence has nothing to do with the photographic evidence in question. However Rotek's counsel submits that it was their concern that since Mr. Meyers had read the Rombarger expert report that he would be asked his "opinion" about that report.



38. Laterally, Rotek's counsel named two other ordinary witnesses with respect to the prejudice issue namely Bob Hurtsku and Terry Hart. Clearly their disclosure summaries also contain nothing related to the photographic evidence and counsel have no information as to whether they even read the expert report. It is also conceded that they would not have been physically available to testify in any event.



39. Clearly, opinion evidence given by ordinary witnesses about expert reports is generally not admissible or useful, so I find it unusual that Rotek's experienced counsel would be under such a misapprehension or fear.



40. Accordingly, without more, I must reject the motion of severe prejudice arising from the admissibility of the photographs issue.



41. Finally, I am of the opinion that the questions asked of Mr. McGuigan were not questions which improperly called for the opinion evidence of a lay witness, but which ask for Mr. McGuigan's observations, actions and understanding of events.

LEE J.

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