Sheikh et al. v. 1579959 Ontario Inc.

Decision 1: Group the appeal grounds by standard of review — do not respond ground-by-ground

The appellants raised seven distinct grounds. The natural reaction is to mirror the appellants’ structure and write seven response sections. We did the opposite.

We grouped the grounds by their applicable standard of review: pure law (correctness) for any extricable legal error; mixed fact and law (palpable and overriding error unless an extricable legal question) for contract interpretation; pure fact and discretionary findings (high deference) for completion, repudiation, credibility, and the bundle of “various factual findings”; and a separate, highly deferential frame for costs (leave required).

Once the standard-of-review frame was on the page, most grounds answered themselves. Construction trials are largely fact-driven; very little of the appellants’ factum could be extracted as a question of pure law. The factum-structure choice was upstream of every substantive argument, and it shortened the disposition considerably.

Decision 2: On expert exclusion — pivot to “discretionary exercise,” do not relitigate Mohan

The appellants’ strongest single ground was the expert exclusion. Their angle was to relitigate the Mohan/White Burgess factors at length: that their proposed expert had relevant qualifications, that any concerns went to weight rather than admissibility, that the trial judge had applied the wrong test. The natural response is to re-engage on those factors and re-prove the inadequacy of the expert’s CV.

We did not. Engaging on the merits of qualification would invite the Divisional Court into the multi-factor weighing that the appellants wanted — and would expose us to the risk that the panel might disagree with the trial judge on one or two factors and find an extricable legal error.

Instead, we pivoted to the threshold characterization: the qualification of an expert witness is a discretionary exercise. The trial judge gave thorough reasons. The appellate court does not re-weigh expert qualification; it asks only whether the discretion was exercised on a proper basis. That framing dissolved the “weight not admissibility” submission — the trial judge was not required to qualify the expert and then weigh his evidence; he was entitled to find him unqualified and exclude the evidence outright. The Divisional Court adopted that framing in para. 4 of its endorsement.

Decision 3: On the cost order — concede Rule 49.10, anchor on Rule 49.13 / 57

Our trial offer to settle did not strictly comply with Rule 49.10’s formal requirements. The appellants seized this and sought leave to appeal the entire $82,368.35 cost order on that basis.

The aggressive response would have been to contest whether the offer technically met 49.10 anyway. We did not. Instead, we conceded the technicality and pivoted: even where 49.10 does not strictly apply, Rule 49.13 and Rule 57 give the trial judge discretion in how offers to settle are treated for costs purposes.

We then anchored on the only fact that mattered: our trial offer was “almost as favorable as the ultimate judgment awarded.” That is the situation in which a trial judge’s discretion to award substantial costs is most defensible — the offer effectively gave the appellants a chance to capture the same outcome without trial, and they refused. The Divisional Court agreed and refused leave to appeal the cost order (para. 10).

1. In appellate work, group grounds by standard of review before writing the factum. Most respondents’ factums are organized ground-by-ground because that is how the appellant wrote theirs. That mirroring is the wrong frame. Group by standard of review first — the deferential standards do most of the work for you. This is especially true on construction trials, where most findings are fact-driven and reviewable only for palpable and overriding error.

2. A “discretionary exercise” defence is more durable than a merits defence. Once a trial decision is properly characterized as discretionary, the appellate court does not re-weigh; it asks only whether discretion was exercised on a proper basis. That frame is harder to dislodge than any merits argument. The expert-exclusion in this case may have been arguable on the merits; it was not arguable as a discretionary exercise with thorough reasons.

3. An offer to settle that does not technically meet Rule 49.10 can still anchor a substantial cost award. Rule 49.13 and Rule 57 give the trial judge discretion to weigh offers that fall short of strict 49.10 requirements. The decisive question is whether the offer was close to the actual judgment. If it was, the cost order based on it is defensible — even on appeal — and leave to appeal the costs will likely be refused.