2 total
Divisional Court grants leave for late expert reports, holding Rule 53.08 requires balancing interests of justice.
The appellant physician in a medical malpractice action appealed a motion judge's decision denying leave to file late-served causation and damages expert reports under Rule 53.08.
The motion judge had applied a strict conjunctive test, finding no reasonable explanation for the delay despite acknowledging a lack of prejudice.
The Divisional Court allowed the appeal, holding that the motion judge erred by failing to apply a balanced approach that considers the overall interests of justice, as established in recent jurisprudence.
The Court found that the delay was not tactical, did not prejudice the respondents or delay the trial, and that denying leave would disproportionately prejudice the appellant's ability to defend the action on its merits.
Appeal allowed granting the defendant leave to deliver expert reports on causation and damages.
The defendants appealed a decision regarding the delivery of expert reports.
The Divisional Court allowed the appeal and granted the defendant leave to deliver the expert reports of Dr. Turcotte on causation and Professor Hyatt on damages.
Reasons for the decision were to follow.
As agreed by the parties, no costs were ordered.
