Court File and Parties

COURT FILE NO.: CV-20-1376 DATE: 20240709 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SYLVIE LONGO, Plaintiff AND: WESTIN HOTEL MANAGEMENT L.P., DALY’S RESTAURANT, ABC INC. , SERVEGREEN CLEANING SERVICES LTD. , JOHN DOE, and JANE DOES, Defendants

BEFORE: Regional Senior Justice Edwards

COUNSEL: Kenneth Ciupka, for the Plaintiff Allison Gaw, for the Defendants, Westin Hotel Management L.P., and Daly’s Restaurant

HEARD via videoconference: June 25, 2024

Endorsement

Overview

[1] A pretrial in this matter was heard by Sutherland J. on February 9, 2024. The parties were unable to settle. The Defendants failed to serve defence expert reports prior to the pretrial and now seek an order from this Court requiring the Plaintiff to attend three defence medical assessments with an orthopedic specialist, a physiatrist, and a psychiatrist. Appointments have been arranged for those defence medicals to take place in July of this year. The trial is scheduled to proceed in January 2025.

Facts

[2] The action itself arises out of an alleged slip-and-fall which occurred on October 4, 2019, when the Plaintiff was a customer at Daly’s Restaurant, which is located within the Westin Hotel in Ottawa. As a result of the slip-and-fall, the Plaintiff alleges that she has suffered injuries to her knee and that she has developed an adjustment disorder with depressed mood and anxiety with features of PTSD.

[3] The action was commenced on October 8, 2020. A Statement of Defence was filed by Westin Hotel Management L.P. and Daly’s Restaurant on September 15, 2021. Examinations for discovery were completed in January 2022. The trial record was filed on February 16, 2022.

[4] The expert reports that the Plaintiff has commissioned include an Orthopedic Assessment Report of Dr. Getahun, dated June 30, 2022, a Pain Medical Independent Evaluation of Dr. Friedlander, dated November 2, 2022, and a Psychovocational Assessment Report of Dr. Miller and Mr. Walton, dated August 20, 2022. In addition to these medical reports, the Plaintiff has served an Economic Loss Report, which is dated July 27, 2023, and a Future Cost of Care Report, which is dated September 13, 2022.

[5] The report of Dr. Getahun was served on July 18, 2022; the report of Dr. Miller was served on December 22, 2022; the cost of care report was served on December 22, 2022; the economic loss report was served on August 1, 2023; and the report of Dr. Friedlander was served on August 17, 2023.

[6] What is apparent, from a review of the affidavit evidence filed by both the Plaintiff and the Defendants, was a common goal that the parties attend a mediation. What is equally clear, from the affidavit evidence, is the individuals from the Defendants’ law firm, who had carriage of this matter, failed in their responsibilities to provide timely responses to Plaintiff’s counsel about the timing of a mediation and pretrial.

[7] Counsel for the Defendants, who argued this motion quite correctly conceded that those persons from her firm who had the day-to-day responsibility for this matter failed to respond to numerous emails from the Plaintiff’s lawyer. These emails included efforts to schedule a mediation and pretrial as well working out a timetable for the orderly completion of this matter. Ms. Gaw argues that the failures of her staff provide the explanation as to why the defence now seeks an indulgence of this Court to allow for defence medical examinations to take place after the pretrial and thus outside the timelines required for service of expert reports mandated by Rule 53.03.

Analysis

[8] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), set forth timelines within which expert reports must be served. Those timelines are found in Rule 53.03. The timelines are not new. Rule 53.03 requires any party who intends to call an expert at trial to serve their report not less than 90-days before the pretrial. Any party who intends to call an expert to respond to the expert of another party must serve a responding report not less than 60-days before the pretrial.

[9] What has changed, as it relates to the timelines for service of expert reports, is r. 53.03.08. The Court can still grant an indulgence for the late service of an expert report, but only where the moving party can establish a “reasonable explanation for the failure” to comply with the timelines set forth in r. 53.03.

[10] The change to r. 53.08 occurred in 2022. Since that change, a number of cases have come before the Court where parties have sought an indulgence under r. 53.08. In that regard, in a case that I decided, Agha v. Monroe, 2022 ONSC 2508, I explained how the new rule has fundamentally changed how the Bar must adapt to the deadlines for service of expert reports. I finished my Reasons with the following admonition:

Lawyers and litigants need to adapt to the new rule immediately. The late delivery of expert reports simply will not be rubber-stamped by the court. By shifting the onus to the party seeking the indulgence and changing the word “shall” to “may”, the exercise of the court’s discretion will, in my view, result in far fewer adjournments and more productive pre-trials. There will always be circumstances that are beyond the control of counsel and the parties which will fall within the definition of a “reasonable explanation” for failing to comply with the timelines for the service of expert reports. In this case, no such reasonable explanation was provided to the court.

[11] The so-called reasonable explanation that was argued by Ms. Gaw on behalf of her client, was to suggest that junior counsel had failed in his responsibilities. Junior counsel has a responsibility to ensure that a file is being properly handled on a day-to-day basis. This includes timely responses to emails and phone calls from opposing counsel. However, to lay the blame at the feet of Junior counsel or a law clerk does not meet the definition of a “reasonable explanation”. With respect I suggest that supervising counsel also have a responsibility to ensure that junior counsel is fulfilling his or her responsibilities to the client and to the Court. In this case, that does not appear to have occurred.

[12] The reasonableness of the type of explanation advanced before me was addressed by Boswell J. in Mohamud v. Juskey, 2023 ONSC 4414, at para. 58 as follows:

While I understand it is harsh to say, my view is that the problem here was largely the result of an inattentiveness to the requirements of the file. And that can surely not rise to the level of reasonableness when one is assessing the explanation for non-compliance with r. 53.01.

[13] The motion before Boswell J. in Mohamud was similar to the motion before this Court where the defence sought an order to compel the plaintiff to attend a defence medical examination. Justice Boswell, in reaching the decision that he did, applied the provisions of r. 53.08 and concluded that the defence had not offered a reasonable explanation. Justice Boswell went on, in his Reasons, to note that but for the fact r. 53.08 imposes a two-step process to the moving party he would have found that there was no prejudice to the plaintiff had he made the order.

[14] I am of the same view as Boswell J. that the defence has failed to offer a reasonable explanation as to why defence medical examinations were not completed in a more timely fashion. Many of the expert reports had been in possession of the defence for well over a year and, in some cases, much longer. The defence had ample opportunity to have sought out and obtained the consent of the Plaintiff to attend defence medical examinations. If that consent had not been forthcoming, the defence could have then brought a motion to obtain an order to compel the plaintiff to attend a defence medical examination. That motion could and should have been brought in a more timely fashion well in advance of the pretrial.

[15] For these Reasons, the Defendants’ motion seeking orders to compel the Plaintiff to attend various defence medical examinations is dismissed. If the issue of costs cannot be resolved, the parties may submit written submissions to be received by the Court no later than two weeks from the date of receiving these Reasons, which submissions are to be limited to no more than two pages in length.

Regional Senior Justice Edwards Date: July 9, 2024