Court File and Parties

CITATION: Lamothe v. Sudbury Trail Plan Association, 2023 ONSC 3176 COURT FILE NO.: C-3523-14 DATE: 2023-05-26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gaetan Lamothe and Cheryl Lamothe, Plaintiffs AND: Sudbury Trail Plan Association, Ontario Federation of Snowmobile Clubs, Coniston-Wahnapitae Driftbusters Snowmobile Association, John Doe and Shelley Talevi and Guy Carriere, Defendants

BEFORE: The Honourable Mr. Justice P.J. Boucher

COUNSEL: James Wallbridge, for the plaintiffs/responding parties James Simmons for the defendant/moving party, Shelley Talevi (“Talevi”) Bonnie Clarke for the defendants/moving parties, Sudbury Trail Plan Association, Ontario Federation of Snowmobile Clubs and Coniston-Wahnapitae Driftbusters Snowmobile Association (collectively the “STPA”)

HEARD: May 12, 2023, via zoom

Endorsement on Motions

1STPA and Talevi move for the following orders:

a. Leave to bring their motions; b. An order requiring the plaintiff, Gaetan Lamothe, to attend four independent medical assessments; and c. Leave to deliver late expert reports if the assessments are ordered.

2The plaintiffs oppose the motions and seek their costs.

Issues

3Should leave be granted to bring these motions? More specifically, has there been a substantial or unexpected change of circumstances or is granting leave appropriate and just in the circumstances of this case?

4Should leave be granted to deliver late expert reports? Put another way, have the moving parties demonstrated:

a. there is a reasonable explanation for the failure to serve an expert report; b. granting leave will not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment; and c. it will not cause undue delay in the conduct of the trial?

Background

5This action arises from a snowmobile accident that occurred on February 04, 2014. The plaintiff Gaetan Lamothe alleges the accident caused trauma to his abdomen, necessitating surgery that required him to be fitted with an ileostomy bag, which drains his small intestine. Further, he is unable to absorb sufficient calories by mouth and accordingly he is fed intravenously (total parental nutrition “TPN”) through a catheter inserted into his chest.

6According to his family doctor, Gaetan Lamothe is severely immunocompromised and has had several life-threatening illnesses as a result. It is accordingly strongly recommended he not travel except for medical reasons.

7The statement of claim was issued September 12, 2014. The trial record was filed in November 2018 and the judicial pre-trial took place in June 2019. At the time of the judicial pre-trial, the plaintiffs had delivered several expert reports, including one from a gastroenterologist. None of the defendants have delivered expert reports to date.

8At the request of STPA’s former counsel, the regional senior judge accommodated the request for set trial dates for an eight-week jury trial (Sudbury normally has running civil trial lists). In December 2019 counsel consented to the action being set for an eight-week jury trial beginning September 01, 2021.

9The pandemic and the resulting suspension of jury trials resulted in the trial being rescheduled. Counsel for the plaintiffs was not available for this trial until 2023. In March 2022 counsel consented to a fixed-date eight-week jury trial beginning September 05, 2023. This date was confirmed in assignment court by the trial coordinator in June 2022.

10On February 01, 2023 counsel for STPA asked counsel for the plaintiffs whether they would consent to a defence medical. Details of the assessor (a gastroenterologist) and the time and place of the proposed assessment (June 02, 2023 via zoom, with an expected one month turn around for the report) were not provided to the plaintiffs until April 20, 2023.

11Talevi asked for defence orthopedic, psychiatric and gastroenterology assessments on April 11, 2023, though she substituted the last of these assessments for an occupational therapy report. Details of the assessors and the proposed times of the assessments were provided in Matthew Leef’s affidavit sworn May 04, 2023:

a. Psychologist, virtually, last week of June or the first week of July, with a report within four to six weeks; b. Occupational therapist, virtually May 2023 or an in-person assessment in June 2023 with a report produced within 30 days; c. Orthopedic surgeon, in person in Sudbury July 17, 2023. No details were provided about the time required for the report.

12The plaintiffs consulted their experts and report the following:

a. Their occupational therapist and orthopedic surgeon will be unable to respond to the reports prior to trial; and b. Their gastroenterologist and psychologist may be able to respond prior to trial but this will depend on when they receive the reports, what issues are raised in them and whether they will need to re-assess Gaetan Lamothe.

Positions of the Parties

13STPA argues a substantial or unexpected change necessitated their late request for a gastroenterologist report. That change, they submit, was discovered when the plaintiff served over a thousand pages of medical updates in late February 2023. Upon review of these updates, they discovered, among other things, that Gaetan Lamothe received TPN four days per week rather than seven. They also discovered that Gaetan Lamothe was considering surgery to reverse his ileostomy bag dependance.

14STPA further argues the right to provide a responding report is a substantive right that should not be lightly denied. The jury will benefit from updated medical reports and trial fairness requires they be permitted to challenge the plaintiff’s medical evidence. Finally, they submit their defence medical will not delay the start of the trial.

15Talevi submits that proper evidence must be available for the trier of fact and she should not be denied her right to deliver responding medical reports. She further argues that surveillance evidence of the plaintiff has resulted in a change in circumstances. She is willing to accommodate Gaetan Lamothe and have the assessments proceed virtually or in Sudbury. She provided a general range of dates that she believes will ensure reports are available prior to trial. If the plaintiffs experience delays or difficulties in getting reply reports, she is prepared to consent to their late delivery.

16The plaintiffs argue the defendants are out of time and the motions should be dismissed. They submit that the record does not reveal any explanation for the defendants’ failure to obtain medical reports prior to their requests on February 01, 2023 and April 11, 2023. This failure must be considered together with the fact that fixed trial dates were set twice, both in 2021 and 2023. In fact, the defendants waited essentially a year from the date they agreed to the 2023 trial dates before they sought defence medicals.

17The plaintiffs further submit that they will not be able to obtain the necessary reply medicals on time to preserve the current trial dates. This will necessitate an adjournment of the lengthy jury trial that will not be quickly rescheduled, resulting in real prejudice to Gaetan Lamothe in the form of lost pre-trial income as well as the indexation of the statutory deductible.

The Law

Leave to bring the motion

18Rule 48 of the Rules of Civil Procedure provides that, after an action has been set down for trial, leave is required to bring motions. While there is some debate in the jurisprudence about whether this applies to parties that did not set the action down (such as the defendants in this case), in oral argument counsel for the defendants conceded leave is required.

19The test for leave was recently confirmed in Nelson v. Chadwick, 2019 ONSC 2063 at para. 35 as follows:

a. The court should consider the facts known to the party seeking leave as of the date that the party consented to the action being placed on the trial list; b. Whether there has been an important change in the facts since the party consented to the action being placed on the trial list; c. The object of the request for leave; and d. Whether the relief sought would likely be granted if leave were given to bring the motion, notwithstanding the party’s consent that the matter be placed on the trial list.

Compelling attendance for the assessments

20Subsection 105(2) of the Courts of Justice Act provides that “where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”

21The right to respond to the plaintiff’s case is a substantive one and the purpose of defence medicals is to put the parties on an equal footing: Rysyk v. Booth Fisheries Canadian Co. Ltd., [1970] O.J. No. 1628 (Ont. C.A.), para. 8; Bellamy v. Johnson (1992), 8 O.R. (3d) 591 (Ont. C.A.) at paras. 16-18.

22The party seeking a defence medical must demonstrate it is sought for a legitimate purpose and not to delay trial of the action. Legitimacy includes changes in the other party’s condition since a previous medical and to provide a more current assessment prior to trial: Walti v. Ellahi, 2021 ONSC 3914 at para. 52.

Extending the time for service of expert reports

23Rule 53.03 provides that parties must deliver expert reports not fewer than 90 days prior to the judicial pre-trial; reply reports, 60-days prior to the judicial pre-trial. Rule 53.03(4) permits the parties, on consent, or the court, on motion, to extend the time to deliver expert reports. Pursuant to Rule 53.03(3) experts cannot testify at trial without leave if their report is not filed in accordance with the Rules.

24In determining whether leave should be granted, Rule 53.08 provides that the party seeking leave must satisfy the trial judge that:

a. There is a reasonable explanation for the failure; and b. Granting leave would not, i. Cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or ii. Cause undue delay in the conduct of the trial

25Timeliness of the defence request for medical assessments must be considered on motions for leave to file late expert reports: Kendall v. Sirard, 2007 ONCA 468 at para. 40.

Analysis

Leave to bring the motions

26For the reasons that follow, I would not grant leave to the defendants to bring their motions.

27This case has been before the court for almost nine years. It has been set for an eight-week jury trial on two occasions. None of the defendants requested medical assessments prior to setting the matter for trial the first time, and I note it was STPA that pushed for trial dates to be set. None of the defendants requested defence medicals prior to consenting to the second trial dates. It took essentially a year after consenting to the second trial dates before the defendants sought the plaintiffs’ consent to defence medicals.

28STPA argues that changes to the plaintiff’s condition, as revealed by medical records disclosed in late February 2023, prompted their request. With respect, I reject this argument. STPA sought consent from the plaintiffs on February 01, 2023, prior to the delivery of the updated medical records. The defendants’ request for medical assessments came almost four years after the delivery of the plaintiffs’ expert reports. The record contains no explanation for this delay.

29STPA has also failed to satisfy me that a reduction in Gaetan Lamothe’s TPN feeding frequency is a substantial or unexpected change that requires an update or expert response from the defendants. Gaetan Lamothe continues to receive daily injections through the catheter in his chest: he receives TPN four times per week and potassium chloride and vitamins (KCL) three times per week. The medical records also demonstrate that while Gaetan Lamothe inquired about reversal surgery, he has not followed through with it.

30Further, Talevi has not delivered evidence sufficient to convince me that recent surveillance of Gaetan Lamothe demonstrates a substantial or unexpected change in his condition. In fact, the only evidence is a reference in counsel for Talevi’s letter of April 11, 2023 to “surveillance materials” that “reflect a considerable difference from the medical evidence heretofore presented.” As well, the letter contains reference to the “significantly changed level of health of the Plaintiff over the past five years.” No evidence was proffered to support these alleged changes.

31While I appreciate the defendants’ substantive right to counter the evidence of the plaintiffs, this must be considered in light of the defendants’ unexplained decision to wait almost four years from receipt of the plaintiffs’ reports, after twice setting the matter for trial with fixed trial dates. While the pandemic may explain part of the delay, the judicial pre-trial took place prior to it and the defendants chose to set the trial dates without their own reports. Add to that the fact that they waited until the trial was essentially six months away to seek consent. With the indulgence of the court and at the request of the plaintiff (the two motions did not belong on a short motion list) the motions proceeded expeditiously but were heard fewer than four months prior to the start of trial.

32As I will discuss in greater detail, it cannot be said that it would be likely the relief sought would be granted if leave was granted. In my view, the request to deliver late expert reports must also fail.

33Nor can it be said that granting leave would be just in the circumstances of this case. The timeline proposed by the defendants will derail the trial. There is simply not enough time for the plaintiffs to adequately consider defence expert reports and provide their reply reports. If he is successful at trial, Gaetan Lamothe will suffer prejudice if the trial is delayed: he will lose pre-trial income as well as be impacted by the indexation of the statutory deductible.

Extending the time for service of expert reports

34As I mentioned to counsel, through sheer coincidence, I was scheduled to preside over the short motions list on May 12, 2023 as well as over the eight-week jury trial of this action. I am therefore able to decide this issue as required by Rule 53.08. For the reasons that follow, I find that I would not grant leave to deliver late expert reports.

35As I have already discussed, there is no explanation, reasonable or otherwise, for the defendants’ failure to request these reports before February and April 2023, despite setting the matter for fixed-date trials twice. I also find that the delivery of updated medicals in February 2023 and the suggestion that there is important surveillance evidence do not provide a reasonable explanation for the late request. Gaetan Lamothe continues to receive daily injections through the catheter in his chest. He continues to require an ileostomy bag to drain his small intestine. While he considered and sought advice about possible reversal surgery, he has not followed through.

36The defendants submit the late delivery of their expert reports will not delay the trial. I respectfully disagree. The trial is almost three months away. Most of that time covers the summer months when vacations impact the regular pace of work. Two of the plaintiffs’ experts do not believe they can provide a reply report. The others are cautious. Their ability to adequately respond prior to trial depends on the timing of the defendants’ reports as well as whether they will need to meet again with Gaetan Lamothe to fairly respond. It is unrealistic to expect the plaintiffs’ experts to be able to properly respond given the extremely short timeframe.

37The inevitable adjournment will cause undue delay in the completion of the trial. The length of this jury trial complicates the trial coordinator’s ability to find timely dates that coincide with the schedules of at least three law firms and the court. Recall that the courts in Sudbury continue to grapple with an unprecedented backlog because of the pandemic and the suspension of jury trials. Consider that the first trial dates were scheduled to start 21 months after the dates were secured; the second, 18 months. As the local administrative judge in the Superior Court in Sudbury, I find it would be unrealistic to expect we could reschedule this eight-week jury trial in less than twelve months. It is more likely that the trial would be pushed into 2025, particularly when we consider the prior history of scheduling the action for trial.

38If they are successful at trial, this delay would cause real prejudice to the plaintiffs, as I have already explained. Gaetan Lamothe would be impacted by the loss of pre-trial income and the indexation of the statutory deductible. The length of time this matter has been outstanding is also an important consideration. It is now over nine years since the accident. An adjournment would likely push it into the 11-year range before the trial could be completed. This delay could also pose a serious issue regarding the availability of witnesses and their recollection of events that took place over a decade earlier.

39The substantive right to respond to the plaintiffs’ case is not without limits. The defendants chose, for reasons unknown, to delay their request for medicals to a point in the litigation that made it impossible to save the second trial dates. This situation is of the defendants’ own making and it cannot be used to justify the prejudice that would be visited upon the plaintiffs by an adjournment of the trial. Prejudice to the plaintiff could not be compensated by costs, and would be aggravated by an adjournment.

Conclusion

40In light of my decisions regarding leave to bring the motion and to file late expert evidence, the decision about whether I would compel the plaintiff to submit to defence medicals is moot.

41The defendants’ motions are accordingly dismissed.

42If the parties cannot agree on costs, the plaintiff may deliver within 15 days submissions on costs, no more than 2 pages, double-spaced, together with a bill of costs and any offers to settle. The defendants will have 30 days from the date of this endorsement to deliver their materials. There will be no reply.

The Honourable Mr. Justice P.J. Boucher