Court File and Parties

COURT FILE NO.: CV-12-112416-00 DATE: 20160519 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: AMANDEO TALLUTO Plaintiff – and – SANDRA MARCUS Defendant

Counsel: Diana Edmonds, for the Plaintiff Joanne Blacklock, for the Defendant

HEARD: May 16, 2016

REASONS FOR DECISION

MCKELVEY J.:

Introduction

[1] This case involves a claim for personal injury by the plaintiff Amadeo Tulluto which is alleged to arise out of a motor vehicle accident on November 29, 2011. The trial commenced on May 16, 2016, with the selection of a jury. Following jury selection the following issues were raised and addressed in argument before me:

1. The right of the plaintiff to introduce opinion evidence, by an economic loss expert Steven Polisuk, on the value of an alleged pension loss;
2. The right of the plaintiff’s family doctor, Dr. John Castiglione to give an opinion on whether the motor vehicle accident affected the plaintiff’s pre-existing back condition.
3. The right of the plaintiff to file two reports from a treating psychiatrist, Dr. Mallia, pursuant to s.52 of The Evidence Act.

[2] It is significant to note that this case was originally scheduled to be tried in the November, 2015 sittings. It was adjourned after the plaintiff served a medical report approximately one week in advance of the anticipated trial date. When the defence advised that it would object to the late filing of the report the plaintiff advised that he would be seeking an adjournment of the trial. The defence consented to the plaintiff’s adjournment on condition that the trial be put over to the next sittings which commenced on May 16, 2016.

[3] At the conclusion of argument I advised the parties of my decision and that written reasons would follow. These are those written reasons.

The right of the plaintiff to introduce opinion evidence from Steven Polisuk on the value of the alleged pension loss

[4] The plaintiff served an economic loss report from Steven Polisuk with respect to the alleged pension loss on March 29, 2016. An earlier report with respect to other pecuniary losses had earlier been served on July 20, 2015. The report served on March 29th updated figures from the earlier report and also included the quantification for an alleged pension loss which had not been referenced in the earlier report. The first occasion on which the defence was advised of a claim for pension loss was in a letter dated March 28, 2016. In that letter the plaintiff’s solicitor enclosed documents relating to the plaintiffs pension entitlement and advised that they were having a calculation of the present value of the future loss of pension income prepared and would provide it to defence counsel. A courier receipt provided by the plaintiff’s solicitor suggests that this letter was delivered to defence counsel on March 29, 2016. However, the evidence from defence counsel is that this letter together with the attached documentation was not received. When the letter dated March 29, 2016 was sent by the plaintiff’s solicitor to defence counsel on March 29, 2016, it attached a copy of Mr. Polisuk’s report of March 29th but did not specifically alert defence counsel to the fact that the report contained an opinion for a new heading of damages. Defence counsel did not immediately review the report and only became aware of the fact that a new heading of damages was being claimed on April 14th. At that point she sent a letter to the plaintiff’s counsel objecting to the introduction of the report as it relates to the pension loss claim.

[5] The plaintiff’s position is that while service of the report was not in accordance with the time prescribed by Rule 53.03, Rule 53.08 governs and absent any prejudice leave must be granted to rely on the report on terms that are just.

[6] The defence takes the position that it has in fact been prejudiced. It states that the additional pension loss now takes this claim above the policy limits for the named defendant who is insured. The defence points out that the defendant has been participating throughout this litigation on the premise that his insurer was providing full indemnity and he therefore has never been given an opportunity to retain counsel to protect his interests.

[7] Rule 53.03 governs the time limits for delivery of expert reports. Subsection 3 provides that a supplementary report of an expert shall be served not less than 30 days before the commencement of the trial. The plaintiff takes the position that the report of Mr. Polisuk which was delivered on March 29th was a supplementary report because his initial report was delivered in July, 2015. If this position is correct then the report which was delivered on March 29, 2016 did meet the timeline provided for under the rules. I disagree however, with the plaintiff’s position that this was a supplementary report with respect to the opinions expressed on the pension loss. The claim for the pension loss was not referenced in Mr. Polisuk’s earlier report. In connection with the pension loss claim it cannot be said that the opinions expressed by Mr. Polisuk were supplemental to what was contained in the earlier report. There was in fact no reference to a pension loss claim in the earlier report. The applicable time limit for delivery of such a report would, in my view, be covered by Rule 53.03 (1) which requires the report to be delivered no less than 90 days before the pre-trial conference. As the pre-trial in this action was held on October 22, 2015 the opinion related to the pension loss ought to have been delivered in July, 2015. I therefore do not view this case as one where the plaintiff’s breach in complying with Rule 53 was trivial or of no consequence. The delivery of this report was a serious breach of the plaintiff’s obligations under the rules and the defendant has been unfairly put in a position where it has had almost no time to respond to the report.

[8] Rule 53.03(4) provides that the time provided for service of an expert report may be extended by the court on a motion. Such a motion has been brought by the plaintiff. The test on such a motion is set out under Rule 53.08. This rule provides that where evidence is admissible only with leave of the trial judge, “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”.

[9] The case law makes it clear that in considering whether leave should be granted under Rule 53.08, a trial judge must grant leave unless to do so will cause prejudice that cannot be overcome by an adjournment or costs. See Marchand (Litigation Guardian of) v. The Public General Hospital Society of Chatham, [2000], 51 OR (3rd) 97 (ONCA). The Marchand decision was recently referred to in the Court of Appeal decision Iannarella v. Corbett, 2015 ONCA 110. Although that decision dealt with the disclosure of surveillance evidence the court once again noted that the mandatory orientation of Rule 53.08 is understandable since relevant evidence is ordinarily admissible.

[10] In Gardner v. Hann, 2011 ONSC 3350 Justice Wilson adopts the comments of Justice Barr in Hunter v. Ellenberger, 1988 CarswellOnt 340 where the court noted that anytime a court excludes relevant evidence the court’s ability to reach a just verdict is compromised. The court went on to state that relevant evidence should not be excluded on technical grounds, such as lack of timely delivery of a report, unless the court is satisfied that the prejudice to justice in receiving the evidence exceeds the prejudice to justice involved in excluding it.

[11] The main issue with respect to prejudice raised by the defence in this case is that the addition of the claim for lost pension income will raise the overall value of the claim beyond the defendant’s insurance limits. In this regard, however the plaintiff has undertaken to limit the economic loss claims to the amount pleaded in in its statement of claim which is $500,000. By virtue of this undertaking the plaintiff has effectively limited its claim to that which is within the defendant’s policy limits. Thus, the defendant will not be exposed to a claim in excess of his available coverage. This effectively eliminates any prejudice to the defendant in relation to his insurance coverage.

[12] In addition, any prejudicial effect by the late service of the expert report can be addressed through an adjournment of the trial if requested by the defence. The case can be put on the trial list for the November, 2016 sittings. This should allow the defendant to properly respond to the report. While it is unfortunate that there would be a six-month delay this must be balanced against the prejudice to the plaintiff of not being able to include a claim for pension loss which is asserted to be in the area of $180,000. In the circumstances I do not view a delay of six months to constitute undue delay in the trial of this action.

[13] I have also taken into account the fact that in this case no steps have been taken at trial beyond selection of the jury. This means that no steps have been taken by either of the parties to disclose their trial strategy in a way that might compromise their position if the trial is adjourned to the next sittings.

[14] Taking all of these factors into account and balancing the respective prejudice which could flow to either the plaintiff or defendant, I have concluded that the balance favours permitting the plaintiff’s expert to give evidence on the alleged pension loss and allowing an adjournment of the trial if requested by the defendant’s solicitor. The quantum of the alleged pension loss is substantial and represents just under 20 percent of the plaintiff’s claim. To deny the plaintiff the opportunity to pursue this claim could result in a real injustice for the plaintiff.

[15] There must, however, be some recognition that the conduct of the plaintiff in delivering the expert report on the pension loss so close to trial is not an acceptable practice. The rules with respect to delivery of expert reports were not meant to be ignored. The purpose and intent of the rules is to ensure that expert reports will be delivered well in advance of the pre-trial and the trial itself so that there can be meaningful discussion of the issues in the case and also so that counsel will be prepared to try the case if it does not resolve. When counsel deliver expert reports which are not in compliance with the rules it increases the likelihood that an adjournment may be required. In the event that an adjournment is required because of a party’s failure to comply with the rules it is appropriate to make an order with respect to costs that addresses this issue. The plaintiff argues that an order for costs payable forthwith may deprive the plaintiff of his right to pursue his claim through to trial. The plaintiff argues that the injuries caused by the defendant’s negligence have resulted in him not being able to work and that he is required to now live on long term disability benefits as well as a CPP disability pension. However, no evidence has been introduced by the plaintiff with respect to his other assets which would potentially be available to satisfy a judgement for costs. Thus, there is no evidence before me that the plaintiff is in fact impecunious and would not be able to satisfy an order for costs. In light of the absence of adequate evidence before me on the state of the plaintiff’s ability to pay, I leave this issue to be addressed by the court if the situation arises.

[16] I would also note that if the defendant elects to adjourn the case this will be the second occasion that an adjournment has been necessitated by the plaintiff’s failure to comply with the rules with respect to the delivery of expert reports. The plaintiff should be aware that the court will be reluctant to consider any further adjournments based on a failure to comply with the rules. At that point the issue of undue delay would become a serious issue which might well preclude any further consideration of an adjournment.

The right of the family doctor, Dr. Castiglione to give opinion evidence on whether the motor vehicle accident affected the plaintiff’s pre-existing back condition

[17] The plaintiff is proposing to file two reports from the plaintiff’s family doctor, Dr. Castiglione. The first report is dated June 21, 2015 and no objection has been taken by the defence to the plaintiff’s right to file this report in accordance with s.52 of The Ontario Evidence Act. The second report is dated January 1, 2016. The defendant objects to the filing of this report on the basis that it is an expert opinion and is not Rule 53 compliant. It is agreed that no acknowledgement of an expert’s duty (Form 53) signed by Dr. Castiglione has been delivered by the plaintiff’s solicitor.

[18] The plaintiff’s position is that the opinions expressed in Dr. Castiglione’s report are that of a treating physician and therefore compliance with Rule 53.03 is not required.

[19] The distinction between participant experts and experts covered by Rule 53.03 was considered by the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206. In that decision the court stated that a witness who is an expert by reason of their special skill and knowledge and who has not been engaged by or on behalf of a party to the litigation may give opinion evidence without complying with Rule 53.03 where:

• The opinion to be given is based on the witness’s observation of or participation in the events at issue; and,
• The witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[20] Such witnesses are referred to by The Court of Appeal as “participant experts”.

[21] The court goes on to state, however:

If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with Rule 53.03 with respect to the portion of their opinions extending beyond those limits. (Emphasis added)

[22] I have concluded that the expert opinion set out in Dr. Castiglione’s report of January 1, 2016, goes beyond the limits of a participant expert and therefore compliance with Rule 53.03 is required. In his report of January 1, 2016, Dr. Castiglione gives the following opinion:

With regard to the question as to whether the motor vehicle accident of November 24, 2011 affected Mr. Talluto’s pre-existing back condition and that it and if so, in what manner, I can answer this question in the affirmative in the sense that prior to this accident his complaints of his back were very infrequent and relatively mild. Prior to the accident his medical problems revolved around other issues and not his back.

[23] Dr. Castiglione then goes on in his report to outline the evidence which in his view supports his conclusion as noted above. In my view the opinions expressed by Dr. Castiglione go clearly to the question as to what extent the plaintiff’s post-accident symptoms can be related to the motor vehicle accident as opposed to a pre-existing back condition. I would not consider these opinions to be part of his ordinary practice in treating the plaintiff as his family physician. Rather this opinion is directed to the issue of causation which will be a significant issue in the law suit.

[24] My conclusion that Dr. Castiglione is not expressing an opinion as a participant expert is further reinforced by the instructing letter to him from the plaintiff’s solicitor dated December 14, 2015 which refers to the pending trial. In the covering letter from plaintiff’s counsel it states:

Would you kindly provide us with a medical legal report providing your opinion as to whether the motor vehicle collision of November 24, 2011 affected Mr. Talluto’s pre-existing back condition, and, if so, in what manner.

[25] The fact that Dr. Castiglione has previously provided a report on his treatment of the plaintiff further supports a conclusion that the opinion he expressed in his report of January 1, 2016 was given for purposes of litigation as opposed to an opinion he had formed at the time of treatment.

[26] The Westerhof decision makes it clear that where an expert proffers an opinion which extends beyond his role as a participant expert he “must comply with Rule 53.03” with respect to that opinion. This is a mandatory obligation. As the plaintiff has not delivered an acknowledgement signed by Dr. Castliglione of his expert’s duty he is not qualified as a Rule 53.03 expert. As he is not a Rule 53.03 compliant expert he is not entitled to give the opinions expressed in his report of January 1, 2016, if the trial proceeds at these sittings.

The right of the plaintiff to file two reports from a treating psychiatrist, Dr. Mallia under s. 52 of The Evidence Act

[27] Dr. Mallia is a psychiatrist and has been treating the plaintiff since November, 2015. The plaintiff seeks to introduce these reports under s. 52 of The Evidence Act. The defence objects on the basis that the reports from Dr. Mallia were served shortly before the commencement of trial although one of the reports was also included in the long term disability file.

[28] The plaintiff appears to have made reasonable efforts to obtain the reports of Dr. Mallia since January 28, 2016. In the affidavit material before me it suggests that there was considerable difficulty in getting Dr. Mallia’s records. However, from the defence perspective it is apparent that the delivery of the reports by Dr. Mallia raise a significant new issue as the plaintiff had not seen a psychiatrist since 2012 before he started treatment with Dr. Mallia in late 2015. The defence argues that the reports should not go in or that alternatively an adjournment is required by the defence to deal with the psychiatric issue.

[29] I have concluded that the reports of Dr. Mallia should be admissible at the trial of the action. However, in light of the fact that these reports were only recently produced to the defence and raise a significant new issue I find that the defendant should be entitled to an adjournment of the trial on this basis as well. I accept the defence position that the inclusion of a report from Dr. Mallia in long term disability file was not sufficient to put the defence on notice that the plaintiff would be pursuing a claim based on a psychiatric illness which extended beyond 2012. However, excluding the evidence of Dr. Mallia which is otherwise admissible could result in significant prejudice to the plaintiff.

Order

[30] For the reasons set out above I have made the following orders:

1. The plaintiff is entitled to rely on the opinions of Mr. Polisuk with respect to the value of the alleged pension loss.
2. The plaintiff is not entitled to rely on the causation opinion provided by Dr. Castiglione in his report dated January 1, 2016 if the trial proceeds at these sittings.
3. The plaintiff is entitled to rely upon the reports of Dr. Mallia as a participant expert pursuant to s.52 of The Ontario Evidence Act.
4. The defendant is entitled to an adjournment of the trial. If the defendant exercises his right to an adjournment the defendant will be granted an order for its costs thrown away as a result of the adjournment to be paid by the plaintiff.

Justice M. McKelvey

Released: May 19, 2016