ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-0044

DATE: 2014-01-24

B E T W E E N:

DANIELLE ANDREASON, SARAH ANDREASON, KIMBERLEYANDREASON and DEANNA O’NEILL

Christopher D.J. Hacio, for the Plaintiffs

Plaintiffs

• and -

THE CORPORATION OF THE CITY OF THUNDER BAY, WILLIAM KOSORIS, JOANNE KOSORIS, JEANETTE MESERVIA as Executrix of the Estates of PAUL CHICOINE and OLGA CHICOINE, JOHN BODNIEKS and ROACH’S TAXI (1988) LTD.

Dawne A. Latta, for the Defendant The Corporation of the City of Thunder Bay
Alex W. Demeo, for the Defendant, Jeanette Meservia as Executrix of the Estates of Paul Chicoine and Olga Chicoine

Defendants

HEARD: January 13, 15, 16, 21, 2014,
at Thunder Bay, Ontario

Mr. Justice D.C. Shaw

Reasons on Motion

[1] The plaintiff, Danielle Andreason was injured in an accident on June 1, 2007 in the City of Thunder Bay.

[2] She was riding a bike at night when she came into collision at an intersection with a taxi. She was 15 years of age at the time. She sustained a traumatic brain injury, several fractures, a pulmonary contusion to her left lung and multiple abrasions and lacerations.

[3] An action was brought against the City of Thunder Bay, William and Jeanne Kosoris, who owned a home on the northeast corner of the intersection, Paul and Olga Chicoine, who owned a home on the northwest corner of the intersection, Roach’s Taxi, which owned the taxi and John Bodnieks, the driver of the taxi. The action has been settled as against the Kosoris defendants, Roach’s Taxi and Mr. Bodnieks.

[4] The trial as against the City of Thunder Bay and the Chicoine defendants was scheduled to begin on January 13, 2014, for six weeks. Liability and damages are in issue.

[5] On the opening of trial, the plaintiffs and the City brought several motions, both in writing and orally. One of the motions was the plaintiffs’ motion for an order that the time for service of nine expert reports be abridged and that pursuant to rule 53.08 leave be granted allowing the plaintiffs to call experts’ evidence. These are the reasons on that motion.

[6] The dates of the reports, dates of service and authors of the reports are as follows:

1. November 15, 2013. Served November 18, 2013. Angie Maidment - occupational therapist and treatment team coordinator.

2. November 18, 2013. Served November 19, 2013. Justin Berubé - architectural technologist.

3. November 30, 2013. Served December 2, 2013. Don Middleton - psychological counsellor.

4. December 3, 2013. Served December 4, 2013. Dr. Bakhtiar Moazzami - economist

5. December 16, 2013. Served December 23, 2013 - Angie Maidment

6. December 17, 2013. Served December 23, 2013. Dr. Norman Goldberg – pediatric consultant to the Winnipeg’s Children’s Hospital Pediatric Brain Injury Team

7. December 4, 2013. Served January 6, 2014 – Angie Maidment

8. January 7, 2014. Served January 9, 2014. Lona Beazley – vocation rehabilitation specialist

9. January 10, 2014. Served January 10, 2014. Angie Maidment

[7] Submissions on the several motions, including this motion, were heard January 13, 15, 16 and 21, 2014. The parties filed 12 volumes of materials – motion records, responding motion records, factums, and casebooks. Because of the various motions, no evidence has yet been introduced on the trial.

[8] During submissions, the defendants agreed that they would no longer contest the late filing of reports of Dr. Goldberg, Mr. Berubé, and Dr. Moazzami. Also during submissions, the plaintiffs agreed that they would not tender Mr. Middleton as an expert, but rather as a fact witness in his capacity as a treating health practitioner. Because Mr. Middleton will not be tendered as an expert, a Rule 53 report is not required as a condition to the admissibility of his evidence. These agreements between counsel left only the late service of the reports of Ms. Maidment and Ms. Beazley in issue.

[9] Rule 53.03 provides that a witness to be called as an expert must be qualified as to their expertise and that they must produce a report conforming to certain criteria.

53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 53) signed by the expert.

Schedule for Service of Reports

(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise. O. Reg. 438/08, s. 48.

Sanction for Failure to Address Issue in Report or Supplementary Report

(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,

(a) a report served under this rule; or

(b) a supplementary report served on every other party to the action not less than 30 days before the commencement of the trial. O. Reg. 348/97, s. 3.

Extension or Abridgment of Time

(4) The time provided for service of a report or supplementary report under this rule may be extended or abridged,

(a) by the judge or case management master at the pre-trial conference or at any conference under Rule 77; or

(b) by the court, on motion. O. Reg. 570/98. s. 3; O. Reg. 186/10, s. 4.

[10] Rule 53.08 (1) deals with the failure to serve an expert report in accordance with Rule 53.03:

53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted 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. O. Reg. 284/01, s. 13.

[11] All parties agree that Ms. Beazley would testify as an expert, on a life care plan for Ms. Andreason and the costs of future care. Ms. Maidment also has been tendered by the plaintiffs as an expert. On a separate motion by the plaintiffs under s. 12 of the Evidence Act for leave to call more than three expert witnesses, the defendants have submitted that Ms. Maidment should not be permitted to give expert evidence. I am not deciding that issue at this time. I proceed on the basis that the question on this particular motion is only whether the plaintiffs should be given leave under Rule 53. 08 arising out of the late service of both Ms. Beazley’s report of January 7, 2014 and late service of Ms. Maidment’s reports of November 15, 2013, December 4, 2013, December 6, 2013 and January 10, 2014.

[12] Ms. Beazley first delivered a report dated July 29, 2010, described by the plaintiffs as a “Future Care Costing Report”. This was served by the plaintiffs on the defendants in the summer of 2010, approximately 3 ½ years ago. The affidavit of Lizanne Bienvenue, a law clerk in the office of the plaintiffs’ counsel, dated January 14, 2014, states that Ms. Beazley had no contact with Ms. Andreason since the early months of 2010. Ms. Beazley had been advised that she would be called as an expert at trial and believed it would be important to meet with Ms. Andreason prior to the trial. She travelled to Portage La Prairie on New Year’s Day, January 14, 2014 to the home of Ms. Andreason’s mother, the plaintiff, Deanna O’Neill, and met with Ms. Andreason and Ms. O’Neill. In another affidavit sworn January 12, 2014, Ms. Bienvenue deposes that plaintiffs’ counsel understood that Ms. Beazley had had little or no contact with Ms. Andreason since she completed her report of July 29, 2010. “We thought it was important for this Honourable Court to have the most current information concerning Danielle Andreason’s present status so the Honourable Court could accurately determine Ms. Andreason’s future care needs.”

[13] Ms. Beazley’s report of January 7, 2014 is 24 pages long. Under the heading “Conclusion”, is the following:

“Conclusion

After review of medical documentation since my LCP report dated July 29, 2010 and recent conversations with Danielle and her mother, Deanna, on January 1, 2014, it is apparent that Danielle’s functional ability , namely in her ability to sustain steady employment even with the assistance of others. (sic.) Unfortunately at the time of my original assessment, it was my conclusion that Danielle demonstrated abilities at that time plateaued, as per medical documentation, and conversations with her treatment team. And while it seemed that she made significant gains, in actuality, she did not improve anywhere near the degree projected. Danielle is no doubt a person who desperately wanted to project herself as “normal”. In her desperate attempt to be “normal” she disbanded her treatment team and negated her rehabilitation; illustrating her inability to understand “cause and effect” – a trait repeatedly noted in her life.

To reiterate, the life care plan should:

• Maximize independence;

• Enable the individual to live in the least restrictive environment;

• Minimize medical complications (cost effectiveness of preventative measures); and

• Plan for productive employment activity, if applicable.

Danielle’s functional abilities have, in many areas, deteriorated, and her independence has been minimized”.

[14] The report of Ms. Maidment of November 15, 2013, and the reports of Mr. Middleton of November 20, 2013 and of Dr. Goldberg of December 17, 2013, were prepared for the purpose of compliance with Rule 53.03. Plaintiffs’ counsel had understood that, as treating health practitioners, it was not necessary for Ms. Maidment, Mr. Middleton and Dr. Goldberg to comply with Rule 53.03. However, that understanding was contradicted by the Divisional Court decision of Westerhof v. Gee Estate 2013 ONSC 2093 (Div Ct.), released on June 20, 2013.

[15] Westerhof held that opinion evidence, including opinion evidence from treating health practitioners, required compliance with Rule 53.03; factual evidence did not.

[16] The November 15, 2013 report of Ms. Maidment and the reports of Mr. Middleton and Dr. Goldberg were basically identical in format. Under the heading of “instructions”, they state “To assess and treat Ms. Andreason”. Under the heading “opinion” they state, “As set out in my reports, indexed and attached as Schedule A”. Under the heading “reasons”, they state “My opinion is based on my expertise, my assessment of Ms. Andreason and my review of the medical reports indexed and attached as Schedule “B”.

[17] In the case of Ms. Maidment, Schedule “A” refers to “Case Reports”, “School Recommendations” and “Team Meetings” totalling 78 pages. There is nothing listed in Schedule “B”.

[18] The documents listed in the Schedules of these reports of Ms. Maidment, Mr. Middleton and Dr. Goldberg had been produced to the defendants during the litigation. The names of Ms. Maidment , Mr. Middleton and Dr. Goldberg had not been listed in the plaintiffs’ pre-trial brief filed at a pre-trial conference held in May 2012. However, the plaintiffs did state in their pre-trial brief that they intended to call “Several specialists from Winnipeg who treated her (Danielle) over the past 5 years (3 of them).”

[19] Ms. Maidment’s December 4, 2013 report expressed an opinion as to the life care plan required by Ms. Andreason. The December 16, 2013 report comments on the July 29, 2010 life care plan of Ms. Beazley and a May 9, 2012 life care plan prepared by Sandra Vellone, a rehabilitation vocation expert retained by the City. The January 10, 2014 report expresses an opinion as to the life long supports required by Ms. Andreason.

[20] Counsel for the plaintiffs advised in his submissions that he wanted Ms. Maidment to look at the reports of Ms. Beazley and Ms. Vellone and to give her opinion, as an occupational therapist and treatment co-coordinator, on what would work and what would not. Counsel also wanted Ms. Maidment to update her findings on Ms. Andreason because she had not seen Ms. Andreason since 2012. Ms. Maidment interviewed Ms. Andreason and her mother on January 6, 2014 in connection with her report of January 10, 2014. The report was served on that same date, the Friday before the trial was scheduled to begin on Monday, January 13, 2014.

[21] The thrust of the plaintiffs’ submissions about the late served reports is that there is no prejudice to the defendants.

[22] The plaintiffs submit that they will not seek future care damages at trial beyond the costs originally set out in Ms. Beazley’s report of July 29, 2010 and that they will not rely on the costing for a life care plan set out in Ms. Maidment’s reports. The plaintiffs submit that Ms. Beazley does not recommend anything in her January 7, 2014 report that differs from her July 29, 2010 report. The plaintiffs point to the April 12, 2012 report of Dr. Hawryluk, a neuropsychologist, who will testify at trial, which they say confirms Ms. Beazley’s findings. They submit that because the defendants have had Dr. Hawryluk’s report for almost two years, nothing which Ms. Beazley states in her January 7, 2014 report should come as a surprise.

[23] The plaintiffs submit that Ms. Vellone will be able to comment at trial on Ms. Beazley’s new report which they describe as simply updated information.

[24] The defendants submit that if it is important for the court to be apprised of the most current information on the plaintiff, it is also important for the defendants to be apprised, in accordance with the Rules, so that the trial can proceed in an orderly manner.

[25] The defendants submit that there is no explanation as to why the new reports served shortly before trial could not have been served sooner.

[26] The defendants submit that the cumulative effect of service of nine expert reports in the weeks and days before trial, together with the plaintiffs’ motions on the opening of trial, combined with the plaintiffs’ failure until the last minute to respond to the defendants’ requests to provide a witness list and the order in which the plaintiffs’ witnesses will testify, has made concentration on the trial difficult and that the defendants have had to react rather than prepare for trial.

[27] The Chicoine defendants advise that they wish to refer the new reports of Ms. Beazley and Ms. Maidment to a neuropsychologist and a future care specialist for a paper review, which they have been advised will take approximately three to four weeks. A responding report will be available in approximately six weeks. The Chicoine defendants request that the action be case managed, with the matter returning in eight weeks to be spoken to on issues of further medical examinations of Ms. Andreason and further discoveries and to set a new date for trial.

[28] The City requests an adjournment for one or two weeks so that it can present the reports of Ms. Beazley and Ms. Maidment to Ms. Vellone for her review and response.

[29] The plaintiffs respond that the trial should not be adjourned, but that if it is, then strict conditions should be imposed, including allowing the Chicoine defendants, who have filed no expert reports and who have not required any medical examinations of Ms. Andreason during the litigation, to file only a future care cost report, responsive to Ms. Beazley’s report. The plaintiffs submit that there should be no defence medical examinations of Ms. Andreason nor any further discovery of Ms. Andreason

Discussion

[30] As stated by the Court of Appeal in Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham [2002] O.J. No. 4428 (C.A.), at para. 38, the purpose of Rule 53.03(1) is “… to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial.”

[31] In my opinion, the late service of Ms. Beazley’s report, on the Thursday before trial, and the late service of Ms. Maidment’s reports, the most recent of which was on the Friday before trial, has not given the defendants adequate notice of the opinions that the plaintiff will seek to adduce at trial. Late service has not allowed the defendants to prepare for trial in an orderly manner.

[32] I also agree with the submission of the defendants that this late service of the Beazley and Maidment reports has to be reviewed in the context of the cumulative effect of (a) the late service of reports of Dr. Goldberg, Mr. Middleton, Dr. Moazzami and Mr. Berubé, (b) the motions on the morning of the trial and (c) the failure of the plaintiffs to provide a witness list until just before the trial.

[33] Although the defendants have agreed that Dr. Goldberg may testify as an expert, and I will accept that agreement, I do not believe that the “report” of Dr. Goldberg or the November 15, 2013 “report” of Ms. Maidment or the “report” of Mr. Middleton comply with the requirements of Rule 53.03 (2.1). These “pro forma” documents, which were prepared in an attempt to comply with the decision in Westerhoff, in my view fall well short of the letter and purpose of the Rule. In accepting, as agreed by the defendants, that Dr. Goldberg may testify as an expert, I am not to be taken as approving the form and substance of his “report” as being Rule 53 compliant.

[34] The plaintiffs, understandably, believed that it was important for the court to have information from Ms. Beazley that was more current than set out in her July 29, 2010 report and that it was important for the court to have information from Ms. Maidment that was more current than what she knew in 2012. However, I agree with the defendants that if it was considered important to the plaintiffs’ case that this evidence be adduced, it was also important to the defendants that they have reasonable notice of that current information to be able to fairly answer the plaintiffs ‘case.

[35] I accept that in much of Ms. Beazley’s report she appears to be confirming her 2010 findings and the 2012 findings of Dr. Hawryluk and that the defendants have had Dr. Hawryluk’s report and notice of Ms. Andreason’s’ employment difficulties. However, Ms. Beazley’s conclusions in her January 7, 2014 report are, in my view, of justifiable concern to the defendants in preparing to meet the plaintiffs’ case.

[36] In comparing her July 29, 2010 conclusions with those after meeting with Ms. Andreason on January 1, 2014, Ms. Beazley clearly states that things have not developed as she had expected for Ms. Andreason; “and while it seemed that she made significant gains, in actuality, she did not improve anywhere near the degree she projected.” (emphasis added). And further, “Danielle’s functional abilities have, in many cases, deteriorated, and her independence has been minimized.” If this is the evidence of Ms. Beazley that is now to be adduced in support of the plaintiffs’ claims, it is evidence of which the defendants should have had reasonable notice under Rule 53.

[37] The plaintiffs submit that the evidence in the reports of Ms. Beazley and Ms. Maidment will not increase the plaintiffs’ claim for damages. However, their evidence will most certainly be relied upon to support of the existing claim for damages. Ms. Beazley projects future care costs in her 2010 report at between $1,548,168.22 and $3,584,985.42, dependent on whether the costs are assessed for Manitoba or Ontario and whether they include or do not include Canadian Health Care paid attendant care. The defendants are facing a significant claim for damages based on the evidence of Ms. Beazley and Ms. Maidment.

[38] The evidence that the plaintiffs seek to adduce from Ms. Beazley and Ms. Maidment is relevant and probative to the damages. Rule 53.08 is mandatory. Leave “shall” be granted on such terms as are just and with an adjournment if necessary, unless an adjournment would, in this case, cause prejudice to the defendants or cause undue delay in the conduct of the trial. I am satisfied that it would be prejudicial to the plaintiffs to exclude the evidence of Ms. Beazley based on her new findings. It would also be unworkable for her to testify without referencing the recent information she has acquired and her recent conclusions. But, I am also satisfied that it would cause prejudice to the defendants to permit Ms. Beazley and Ms. Maidment to give opinion evidence based on their recent findings and conclusions without an opportunity for the defendants to consider the new reports and to consult with their own experts. I am concerned about the undue delay of a trial that was scheduled far in advance. However, the defendants are not seeking to exclude the evidence on the basis that the trial will be unduly delayed. Rather, they seek the less draconian, and in my view, not unreasonable, remedy of an adjournment, with case or trial management to get this trial back on track.

[39] An order shall go:

1. Abridging the time required under Rule 53.03 for service of those expert reports of Lona Beazley, Angie Maidment, Dr. Norman Goldberg, Justin Berubé and Dr. Moazzami to which reference has been made in these Reasons.

2. Granting the plaintiffs leave under Rule 53.08 to tender Lona Beazley, Angie Maidment, Dr. Norman Goldberg and Justin Berubé and Dr. Moazzami as expert witnesses at trial, subject to any ruling on the plaintiffs’ motion to call more than three expert witnesses under s. 12 of the Evidence Act.

3. Requiring the defendants to serve within six weeks any expert report on future care costs that they intend to rely upon, responding to those reports of Lona Beazley and Angie Maidment to which reference has been made in these Reasons.

4. Adjourning the trial to a date to be fixed with the Trial Coordinator. If by Thursday, January 30, 2014 the parties are unable to agree on a new trial date they shall attend before me on Monday, February 3, 2014 at 10:00 am to speak to the matter.

5. No further motions may be brought and no further expert reports may be served, other than the future care costs reports referred to in paragraph 3 of this order, without my leave, such leave to be requested on 10 days notice to the other parties.

6. A trial management conference shall be scheduled before me to be held not less than 60 days before commencement of trial.

7. Costs of this motion are reserved, to be spoken to on a date not less than 30 days after the release of my Reasons on the plaintiffs’ motion to call more than three expert witnesses under s. 12 of the Evidence Act and the City’s motion requesting production of the files of each of the experts that the plaintiffs intend to call at trial and directing the plaintiffs to produce their witness list and order of witnesses.

“Original Signed By”

The Hon. Mr. Justice D.C. Shaw

Released: January 24, 2014

COURT FILE NO.: CV-09-0044

DATE: 2014-01-24

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

DANIELLE ANDREASON, SARAH ANDREASON, KIMBERLEYANDREASON and DEANNA O’NEILL

Plaintiffs

• and –

THE CORPORATION OF THE CITY OF THUNDER BAY, WILLIAM KOSORIS, JOANNE KOSORIS, JEANETTE MESERVIA as Executrix of the Estates of PAUL CHICOINE and OLGA CHICOINE, JOHN BODNIEKS and ROACH’S TAXI (1988) LTD

Defendants

REASONS ON MOTION

Shaw, J

Released: January 24, 2014

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