Court File and Parties

COURT FILE NO.: CV-17-00583607-0000 DATE: 2024-08-02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MI KYUNG SEO, Plaintiff – and – OHIGIMENTON OMOH FRANCIS, AND MAINLINE PLUMBING SERVICES INC., Defendants

Counsel: Fabio Longo, for the Plaintiff Elka Dadmand, for the Defendants

HEARD: August 1, 2024

PAPAGEORGIOU J.

Endorsement

Overview

[1] I presided over this pretrial in respect of this motor vehicle accident proceeding where the plaintiff claims she sustained significant injuries.

[2] The pretrial could not proceed because of the late delivery of reports.

[3] This endorsement is written to address the defendants’ arguments that the plaintiff will be unable to call their experts at trial because of noncompliance with r. 53.03(3).

[4] There were changes to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) in 2022 to address a significant problem in the civil justice system of late delivery of expert reports and the impact that this has had on the system. Several courts have considered the way in which these changes should apply.

[5] I add my voice to these decisions, with this endorsement.

Decision

[6] For the reasons that follow, I am varying the timetable established by Justice Wilson (as she then was) and also abridging the time period set out in r. 53.03(3) for the delivery of expert reports in accordance with r. 53.03(4) in line with the dates that the plaintiff has submitted her expert reports below.

Analysis

[7] Pursuant to Justice Wilson’s endorsement the plaintiff was required to submit expert reports by January 1, 2024, and the defendants were required to submit responding reports by March 1, 2024.

[8] The plaintiff did not comply with this timetable and delivered the following reports on the following dates:

1. Expert psychiatrist report on April 23, 2024;
2. A further expert psychiatrist report and TMJ report on May 15, 2024; and
3. Income loss report on July 12, 2024.

[9] The defendants say that they then scrambled to obtain responding psychiatrist and TMJ reports. They have been unable to obtain an income loss report as they say the plaintiff has not provided necessary back up documentation. The plaintiff says that she will provide this material within a week and the defendants have advised that it will take a few weeks to provide a responding income loss report.

[10] The defendants are correct that not only has the plaintiff failed to comply with the timetable, but she has also failed to comply with r. 53.03(3) that provides that an expert cannot testify at trial, except with leave of the trial judge, unless the substance of their testimony is set out in a report served in compliance with timelines set out therein. Based upon r. 53.03(3), the expert psychiatrist report has been served on time, the further psychiatrist and TMJ reports have been served 6 days late and the income loss report has been served 75 days late.

[11] However, r. 53.03(4) provides that the time provided for service of a report or supplementary report in r. 53.03(3) may be extended or abridged by the judge at a pretrial. I am a judge at a pretrial.

[12] The defendants primarily reference the changes to the Rules set out in r. 53.08(1) that say that where evidence is only admissible with leave of the trial judge under subrule (2), leave may be granted by the trial judge if the party responsible for the applicable failure satisfies the judge that there is a reasonable explanation for the failure and that granting leave will not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment or cause undue delay in the conduct of the trial.

[13] The defendants are correct that the purpose of this change in r. 53.08(1) was to send a very clear message that expert reports are to be served in a timely manner in accordance with the Rules. As noted by the court in Mohamud v Juskey et al, 2023 ONSC 4414, quoting RSJ Edwards in Agha v. Munroe, 2022 ONSC 2508 at para 30:

[30] .... 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…

[14] The defendants also reference Tyner v. Phillips, 2023 ONSC 5207 and Forsung v. Neadow, 2023 ONSC 5873.

[15] However, the facts of the above cases are not apposite.

[16] Agha v. Munroe, relied upon in Mohamud v. Juskey, involved a jury trial where the plaintiff did not have expert reports. After the jury had been selected, the plaintiff’s counsel advised it had deliberately not obtained expert reports because of the prohibitive expense of doing so. He advised the trial judge that he had spoken to unnamed experts who indicated that they could provide him with reports sometime during the trial. The defendant would not have time to obtain responding reports and there would be an adjournment for some considerable time. The court concluded that the resulting delay would be unfair to the jury and cause undue delay.

[17] In Mohamud v. Juskey, the plaintiff had delivered her expert reports, and the defendant sought orders requiring the plaintiff to attend defence medical examinations at the pretrial. The pretrial judge did not and could not have exercised any discretion to order defence medical examinations pursuant to r. 53.03(4) because r. 53.03(4) does not provide this authority. It simply gives the pretrial judge the power to abridge the time period set out in r. 53.03(3). As such, the pretrial judge directed that the matter be sent to a motion which proceeded approximately three months before trial pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and r. 33 of the Rules of Civil Procedure.

[18] The motions judge considered the fact that even though there is a presumptive entitlement to a first defence medical examination, s. 105 is discretionary and that in exercising its discretion, the court must always consider the interests of justice which may include a wide range of considerations as well as whether the defendants are in compliance with the rules of court relating to the delivery of expert reports. The motions judge applied the test in r. 53.08(1) and exercised its discretion to not order a defence medical examination because any reports generated would be presumptively inadmissible at trial.

[19] Tyner v. Phillips also involved a motion by the defendant to compel the plaintiff to attend a defence medical examination shortly before a four-week jury trial. The motions judge referenced Mohamad v. Juskey and similarly exercised his discretion to not order defence medical examinations on the basis that any reports generated would be presumptively inadmissible at trial pursuant to r. 53.08(1).

[20] Forsung v. Neadow, 2023 ONSC 5873 involved a situation where a plaintiff had failed to serve its expert reports 90 days before the pretrial. Instead, they were served 21 days before the pre-trial. At the commencement of a jury trial the defendant objected to these reports. In its decision, the court noted that there was no pre-trial order permitting the late delivery of the reports. The court also considered that granting leave would cause undue delay in the conduct of the trial as an adjournment would be necessary to permit the defendant to respond and there was no evidence as to when the matter would be placed back on the trial list.

[21] I agree with the above courts that there is a crisis in the civil justice system and that the amendments to r. 53.08(1) were designed to address adjournments necessitated by the late delivery of expert reports. I also agree that even though r. 53.03(4) regarding a pre-trial judge’s ability to abridge the time for service of an expert report does not set out the same factors as r. 53.08(1), the pre-trial judge’s discretion may be informed by the same factors, although perhaps not to the exact same degree. A pre-trial judge is not faced with the same concerns that are before a trial judge. Where leave is sought at trial for the delivery of late expert reports, there will invariably be the need for an adjournment if such reports are permitted. Adjournments at the commencement of lengthy trials, particularly jury trials reverberate through the justice system.

[22] But I am not faced with a situation where there will be any impact on the justice system or any need for an adjournment of the scheduled trial. As noted, the defendants have already obtained reports in response to the psychiatric and TMJ reports, and they indicate that they will be able to respond to the income report within the month.

[23] The party who will actually be prejudiced by my failure to abridge the time period is the plaintiff. The only real prejudice to the defendants is that they will have to respond to this matter on its merits. In my view, this is not the kind of prejudice that the legislature was referring to in the changes to r. 53.08(1).

[24] As set out in r. 1.04, one of the guiding principles of the Rules:

These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[25] Rule 53.03(4) and r. 53.08(1) must be interpreted taking into account r. 1.04.

[26] I also note that when the legislature chose to amend r. 53.08(1) and inserted the criteria that are applicable to the exercise of a trial judge’s discretion to grant leave, it chose not to cross reference and include these criteria in r. 53.03(4). As such, in my view, the criterion, in particular the requirement for a reasonable excuse, is not as applicable to the pretrial judge’s exercise of her discretion and/or more relaxed if it is.

[27] At the pretrial before me, the plaintiff’s counsel indicated that the reason for the delay was turnover within his law firm with different counsel handling it from day to day as well as personal issues. I agree that this is on the low end of being a reasonable excuse, but a client should not be penalized for a lawyer’s mistake particularly where there is no real prejudice to the other side. It would not assist the backlog or the civil justice system to replace a lawsuit by a plaintiff against a defendant with a lawsuit by a plaintiff against her lawyer.

[28] I echo the views of the court in Quinn v. Rogers, 2024 ONSC 1967 where the defence physicians served reports shortly before the pretrial such that they were 19 days late. The court concluded that solicitor’s inadvertence can constitute a reasonable excuse noting that “it is a fact of life that mistakes can happen to us all. Sometimes, mere inadvertence is the sole cause of a mistake.”

[29] I also see no reason to send this matter to a motion rather than simply abridge the time in accordance with r. 53.03(4), which expressly permits a pretrial judge to do so at a pretrial without requiring a formal motion.

[30] As a final point, I reject the argument that the defendants are being penalized for obtaining responding reports after the plaintiff’s noncompliance. The defendants surely obtained these because it was possible that the trial judge would permit the experts to testify notwithstanding the noncompliance. The defendants obtained these reports to curb that risk and to serve their own interests.

[31] Accordingly, pursuant to r. 53.03(4) I exercise my discretion to abridge the time period set out in r. 53.03(3) in accordance with the dates that the plaintiff served its reports, because the technical noncompliance in this case has not occasioned any injustice or real prejudice. I also abridge the time for the defendants’ delivery of their reports.

[32] However, because the pre-trial did have to be adjourned to permit meaningful discussions after the defendants obtained an income report, I am awarding the defendant $1,500 in costs payable within 45 days.

[33] Further, the plaintiff shall produce the information and documents required by the defendants in respect of her income loss by August 7, 2024.

[34] The pretrial is adjourned to September 3, 2024, at 2:00 before me.

Papageorgiou J. Released: August 02, 2024