Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought summary judgment on liability for property damage allegedly caused by unsealed underground service ducts.

• Defendant challenged the admissibility of the plaintiff's expert affidavit and requested it be struck for procedural and evidentiary deficiencies.

• The amended affidavit failed to meet standards for expert opinion evidence, lacking analysis, clear sourcing, and scientific rigor.

• The plaintiff did not properly disclose key materials relied upon in the affidavit, triggering a request for a further and better affidavit of documents.

• Court permitted the affidavits to be considered procedurally but rejected them as admissible expert evidence.

• Costs of $2,000 were awarded against the plaintiff due to late filings and procedural non-compliance.

Facts and outcome of the case

Background and parties involved

The case involves a property damage dispute between Macro Properties Inc. (the plaintiff) and Bell Aliant (the defendant), with Vistacare Communication Services of Canada Inc. added as a third party. The plaintiff owned two properties in Sussex, New Brunswick, which were flooded during a major rain event on January 24, 2019. The plaintiff alleged that underground service ducts used by Bell Aliant were not properly sealed, allowing rainwater to enter the buildings. It was further alleged that this failure violated the Canadian Electrical Code.

Bell Aliant denied liability and brought a third-party claim against Vistacare, alleging it was involved in the relevant infrastructure work. Vistacare also defended the claim and supported Bell Aliant’s procedural motions.

Procedural developments

The litigation began with a Notice of Action filed on September 17, 2020. The plaintiff later brought a motion for summary judgment (Motion #1) and attempted to introduce expert opinion evidence through an affidavit by Robert Baird Vale. The plaintiff also submitted amended and further amended materials leading up to the hearing.

The defendant filed Motion #2 seeking to strike out the Vale affidavit or parts of it, arguing that the affidavit contained vague, unsourced, or inadmissible expert opinion. It also sought a further and better affidavit of documents from the plaintiff. The third party supported these procedural objections and joined the motion.

The court’s reasoning and findings

The court allowed the amended affidavits to be considered for the purposes of the motion but ultimately found that the affidavit of Robert Baird Vale could not be admitted as expert opinion evidence. The affidavit failed to meet procedural and evidentiary standards for expert testimony. It lacked proper sourcing, scientific analysis, and failed to demonstrate the expert's qualifications to opine on water infiltration and electrical standards.

The court found that the materials relied upon in the affidavit had not been properly disclosed, contrary to the plaintiff’s obligations under the Rules of Court. It ordered the plaintiff to provide a further and better affidavit of documents before its summary judgment motion could proceed.

Costs and outcome

The court ruled in favor of the defendant on Motion #2 and awarded it costs in the amount of $2,000, payable by the plaintiff. The motions for summary judgment by the plaintiff and third party (Motions #1 and #3) were deferred pending compliance with disclosure requirements. Thus, no final determination on liability or damages was made at this stage.