SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 4261-1/SR
DATE: 2013/04/24

RE: ROSEMARY THOMPSON (Plaintiff)

• and -

LEAVENS VOLKSWAGEN INC. and BEN ROCH (Defendants)

BEFORE: JUSTICE L. C. LEITCH

COUNSEL:
Marty Rabinovitch, for the Plaintiff

Matthew Dupre, for the Defendant Leavens Volkswagen Inc.

Daniel Mailer, for the Defendant Ben Roch

HEARD: April 23, 2013

ENDORSEMENT

[1] The plaintiff brings a motion for an order granting her leave to deliver an expert report, an order abridging the time for delivery of her expert report, an order adjourning the trial currently scheduled to begin on May 6, 2013 and a signed certificate pursuant to Schedule 2 of the Interprovincial Summonses Act with respect to a witness outside Ontario.

[2] This is an action for wrongful dismissal, discrimination pursuant to the Human Rights Code and for workplace harassment. The plaintiff is claiming damages for emotional and mental distress.

[3] The individual defendant has counter claimed against the plaintiff for damages for slander, defamation of character and damage to his reputation.

[4] A pre-trial of this action was conducted by Grace J. on September 6, 2012. At that time he noted in the pre-trial report that the plaintiff intended to obtain an expert report from a psychiatrist prior to trial.

[5] Apparently, plaintiff’s counsel intended to obtain this expert’s report from the psychiatrist who was treating the plaintiff. Unfortunately, plaintiff’s counsel did not raise this issue with the plaintiff’s psychiatrist until early January 2013 and was caught by surprise when the psychiatrist by correspondence dated January 7, 2013 declined to provide such a report. Since that time, the plaintiff has arranged to be assessed by another psychiatrist and an appointment is scheduled for April 29, 2013.

[6] Counsel for the defendants were alerted to the delay in retaining the plaintiff’s expert report in correspondence dated February 22, 2013 in which plaintiff’s counsel requested that they consent to the adjournment of the trial. In an affidavit of counsel for the corporate defendant filed in response to this motion, he included correspondence from the plaintiff’s counsel dated March 21, 2013 which was not part of the plaintiff’s motion record. In that more recent correspondence, plaintiff’s counsel advised that he would no longer be seeking an adjournment of the trial. However, the plaintiff brought this motion on April 12, 2013. The defendants strenuously resist the adjournment of the trial.

[7] In opposing this motion, the defendants emphasized the fact that the plaintiff’s action has been brought under the Simplified Procedures in Rule 76 and they refer to Rule 1.04(1).1 that provides that orders and directions should be made and given proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

[8] The defendants’ position is that this action ought to proceed as scheduled in fairness to their clients particularly given that this adjournment request has resulted from the unexplained delay in plaintiff’s counsel obtaining the psychiatric report.

[9] It is clear that the plaintiff has failed to comply with the Rules in a number of respects. Firstly the plaintiff did not serve an expert’s report in accordance with Rule 53.03, ninety days prior to the pre-trial conference.

[10] Further, leave for an expert to testify at trial when there has not been compliance with Rule 53.03 must be given by the trial judge and such leave cannot be obtained on this motion.

[11] In addition, plaintiff’s counsel has not done what he indicated he would do at the pre-trial conference, that is, he did not diligently pursue obtaining the expert psychiatric report and only corresponded with the treating psychiatrist a number of months later. His lack of diligence has resulted in the appointment with an expert being scheduled one week before the trial date.

[12] In these circumstances it is understandable that the defendants oppose the adjournment request now before the court.

[13] In resolving this dispute, I am mindful of the fact that if the trial is not adjourned, the most probable likelihood is that the plaintiff would be without expert evidence at her trial because the report may not be available by the May 6, 2013 trial date. If the report is prepared and served by the trial date, then the plaintiff will require leave of the trial judge for that evidence to be admitted. It is important to note that Rule 53.08(1) provides that leave shall be granted to admit that evidence on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.

[14] Rule 53.08 reflects the importance of admitting evidence that would otherwise be inadmissible because of non-compliance with the Rules. The remedy to an opposing party is most often an adjournment unless prejudice or undue delay is established. The prejudice must be something more than inconvenience or discontent with delay.

[15] In this case, I am very sympathetic to the defendants who, until this motion was brought on April 12, 2013, understood the trial was proceeding as scheduled. However, the defendants anticipated a psychiatric report since September 2012 and the request of such an expert does not come as a surprise. While the plaintiff’s counsel ought to have acted more diligently, the interests of his client are paramount. In my view a consideration of her interests balanced against the defendants’ desire to proceed to trial leads me to conclude that the adjournment ought to be granted on the condition that the trial be rescheduled as expeditiously as possible and that the plaintiff pay the costs “thrown away” by the defendants resulting from the adjournment of trial. It is my expectation that counsel will resolve the issue of costs but failing agreement brief written submissions may be made within the next 30 days.

[16] Although the defendants requested that the new trial date be peremptory on the plaintiff, I have not included that condition. Trial adjournments are granted sparingly and only when justice so requires.

[17] The trial is adjourned from the May 6, 2013 sittings. This action will go to the next assignment court on May 17, 2013 to set a new date.

[18] The interprovincial summons sought by the plaintiff shall issue.

“Justice L.C. Leitch”

Justice L. C. Leitch

Date: April 24, 2013