Court File and Parties

COURT FILE NO.: CV-12-455581; CV-14-501198 DATE: 20170329 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Court File No. CV-12-455581 DR. WILLIAM SHUSTER Plaintiff – and – DR. R. KILISLIAN DENISTRY PROFESSIONAL CORPORATION Defendant

AND BETWEEN:

Court File No. CV-14-501198 DR. R. KILISLIAN DENISTRY PROFESSIONAL CORPORATION and DR. RITA KILISLIAN Plaintiffs – and – WILLIAM SHUSTER also known as WILLIAM DAVID SHUSTER, SHUSTER DENTAL, MARK SOKALSKY, CHERYL SHUSTER and VESI LEAL Defendants

Counsel: John D. Campbell, for the Plaintiff Avrum Slodovnick, for the Defendant Avrum Slodovnick, for the Plaintiffs John D. Campbell, for the Defendants William Shuster also known as William David Shuster, Shuster Dental and Cheryl Shuster

HEARD: March 24, 2017

Endorsement

DIAMOND J.:

Overview

[1] Pursuant to the order dated January 27, 2016 of Madam Justice Wilson, I have been overseeing these two proceedings as Case Management Judge. On February 10, 2016, I released a Case Conference Endorsement which, inter alia, ordered Dr. Rita Kilislian (“Dr. Kilislian”) to deliver all expert reports being relied upon at trial by no later than September 30, 2016. That order was made (a) on consent of all parties, and (b) with a view to ensuring that outstanding matters arising from Dr. Kilislian’s examination for discovery were completed well in advance of the trial of these proceedings set to commence on November 17, 2017.

[2] On September 30, 2016, counsel for Dr. Kilislian served two expert reports. A damages report was not included in the expert reports served on that day.

[3] On February 8, 2017, a telephone case conference proceeded before me as Dr. Kilislian now wished to serve a damages report well past the September 30, 2016 deadline. On February 9, 2017, I released a further Case Conference Endorsement on February 9, 2017 ordering (a) Dr. Kilislian to serve a damages report by no later than February 17, 2017, and (b) Dr. William Shuster (“Dr. Shuster”) to confirm by no later than February 24, 2017 whether he took the position that Dr. Kilislian required leave of the Court to vary the timetable in my original Case Conference Endorsement (to permit the late delivery of the damages report).

[4] Dr. Kilislian served a damages report on February 17, 2017. On February 22, 2017, Dr. Shuster took the position that Dr. Kilislian was required to seek leave of the Court by way of formal motion.

[5] That motion was eventually argued before me on March 24, 2017, and I took my decision under reserve.

Leave to Vary a Consent Timetable

[6] In support of her motion, Dr. Kilislian relies on Rules 3.02(1) and 53.03(4) of the Rules of Civil Procedure. Those Rules provide as follows:

3.02(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.

5.03(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.

[7] Although Rule 77.04(1)(d) was not raised or argued before me, I note that it permits a Case Management Judge to establish or amend an existing timetable.

[8] During the hearing of the motion, neither party took issue with the governing jurisprudence on a motion seeking leave to extend or vary a timetable. The case law relied upon by Dr. Kilislian is relatively clear: in the absence of prejudice caused by a delay in serving an expert report, the Court will generally avoid excluding expert evidence on technical grounds and grant leave to extend the deadline for service (albeit often with terms).

[9] In the face of that jurisprudence, Dr. Shuster opposes this motion on the grounds that (a) the jurisprudence applies to cases where a moving party’s failure to deliver an expert report in accordance with a court-ordered deadline arises from an error, inadvertent act or omission, and (b) on the record before me, Dr. Kilislian’s failure to deliver her damages report by September 30, 2016 was not a result of an error, inadvertent act or omission, but rather a conscious decision not to comply with the court-ordered deadline.

[10] For the reasons which follow, I agree with Dr. Shuster and dismiss Dr. Kilislian’s motion for leave to vary the timetable to deliver a damages report.

Background

[11] In her action, Dr. Kilislian seeks damages equivalent to an abatement of the purchase price she paid for buying Dr. Shuster’s dental practice. On March 12, 2015 (nearly one year before the release of my original Case Conference Endorsement), Dr. Kilislian’s husband, Andrew Curnew (“Curnew”) was examined for discovery. At his discovery, Curnew undertook to “advise the amount of the abatement being sought, provide the calculation for that abatement, and deliver any additional documents upon which the calculation was based.” Initially, when asked to produce the dental practice’s monthly gross revenue reports from September 2000 onward, Curnew took that question under advisement.

[12] On July 8, 2015, Dr. Kilislian delivered a set of answers to undertakings. In response to Curnew’s undertaking to provide the abatement calculation, Dr. Kilislian advised “the calculation of this amount will be provided prior to trial,”

[13] On March 9, 2016, Dr. Kilislian delivered further answers to undertakings. Notably, in answering Curnew’s undertakings to advise of the abatement calculation, Dr. Kilislian stated (my emphasis in bold) “this will be addressed in an expert report,”

[14] By that day (March 9, 2016) Dr. Kilislian was thus aware of the September 30, 2016 deadline to serve all expert reports, and intended to answer her undertaking to provide the abatement calculation by way of an expert damages report.

Evidence on this Motion

[15] There is no affidavit from Dr. Kilislian filed on this motion. The only evidence filed in support of this motion is an affidavit sworn by Curnew on February 24, 2017. Curnew was subsequently cross-examined upon that affidavit on March 7, 2017.

[16] Notwithstanding Dr. Kilislian advising that she would provide an expert damages report to answer her undertaking given at discovery, Curnew’s evidence on this and other issues is confusing at best, and contrary at worst.

[17] Curnew testified that after receiving my original Case Conference Endorsement, “it was the intention of the Kilislian parties to deliver an expert report on the issue of damages” by the September 30, 2016 deadline. Curnew further testified that even though the Kilislian parties did not deliver a damages report by September 30, 2016, by that date they had “determined Ms. Jackie Joachim as an expert for the purposes of damages.” It is unclear whether Ms. Joachim was formally retained by the Kilislian parties in advance of the September 30, 2016 deadline, or what steps, if any, Ms. Joachim had undertaken by then.

[18] In any event, Curnew then testified that from February - November, 2016 (two months after the deadline), he and Dr. Kilislian “went back and forth on whether or not an expert report on damages would be necessary” as they:

a) sincerely believed that the case would settle without a trial; and b) felt that the issue of damages was straight forward and that Curnew’s evidence on discovery was sufficient.

[19] With respect to (a), that evidence is completely irrelevant. It is trite to state that most parties would hope that their legal actions settle without a trial. The entire purpose of assigning these proceedings into case management was to ensure that in the event no settlement was reached, all necessary steps would be completed prior to the trial scheduled for November 17, 2017. In addition, there is no evidence whatsoever in the record before me that settlement negotiations were even taking place at that or any other time.

[20] With respect to (b), this evidence may show a difference of opinion between Curnew and Dr. Kilislian, in that Curnew did not believe a damages report was necessary while Dr. Kilislian did. If there was any such debate between the Kilislian parties, that debate needed to be resolved well in advance of September 30, 2016, especially since the Kilislian parties consented to delivering all expert reports by that deadline.

[21] There is no responsive evidence explaining why the Kilislian parties waited until after September 30, 2016 to determine that a damages report was necessary. This lack of evidence is made even worse by the contents of the cover letter enclosing the two expert reports delivered on September 30, 2016. In that letter, counsel for the Kilislian parties stated as follows (my emphasis in bold):

“Our client has also engaged an expert to provide a report on damages which we had understood would be available by today. If we do not receive it in time, we will have to provide it to you next week. Please note, however, that I will be out of the office on Monday and Tuesday for religious observance.”

[22] In his supporting affidavit filed on this motion, Curnew stated (again, my emphasis in bold):

“In December 2016, we accepted that an expert report should be prepared having re-evaluated our assumptions as set out above. Thereafter, I am advised and verily believe that our counsel sought a report on damages from Ms. Jackie Joachim who, I am advised and verily believe, was away for travel for several weeks.”

[23] The contents of the cover letter cannot be reconciled with Curnew’s evidence. Curnew was clear that it was not until December, 2016 that the Kilislian parties decided that a damages report was necessary, and then sought a damages report from Ms. Joachim. Yet on September 30, 2016, the Kilislian parties represented through their counsel that Ms. Joachim had already been engaged to provide a damages report, and that Ms. Joachim’s damages report was to be available on September 30, 2016 (or within a few days thereafter).

[24] Ms. Joachim’s damages report was either completed and ready for delivery by September 30, 2016, or it was not. The Kilislian parties have offered no explanation to try and reconcile their positions, which are not simply conflicting but appear to live in two different universes.

[25] Compounding this irreconcilable evidence is the fact that in answering further undertakings, the Kilislian parties advised that they did not have any monthly gross revenue reports. Yet somehow Ms. Joachim listed those monthly reports from October 2011 - February 2017 as part of the documents she had reviewed in arriving in her opinion.

Decision

[26] As held by my colleague Justice Myers in Castronovo v. Sunnybrook & Women’s College Health Sciences Centre 2016 ONSC 6275, appeal dismissed 2017 ONCA 2012, to satisfy the relatively low threshold required to extend a deadline, a moving party must still submit the necessary evidence to explain the reasons for the delay in compliance.

[27] The consent timetable was part of a court order. Orders must mean something, especially in proceedings where case management has been imposed.

[28] On the record before me, the Kilislian parties have not explained their reasons for failing to comply with the September 30, 2016 deadline. On the contrary, Curnew’s evidence seems to show that the Kilislian parties simply chose not to comply with the deadline until they unilaterally concluded that it was time for them to deliver a damages report. Such a position arguably borders on being cavalier, and in my view fails to satisfy the test for leave.

[29] Accordingly, the Kilislian parties’ motion for leave is dismissed.

[30] This Endorsement does not preclude the Kilislian parties from requesting leave of the trial judge to file Ms. Joachim’s damages report, although presumably that motion for leave would need to be based upon (a) different evidence than that in the record filed before me, and (b) evidence which was not readily available to the Kilislian parties at this time.

Costs

[31] With respect to the costs of this motion, I find that Dr. Shuster was justified in resisting the motion, and as the successful party he is entitled to his costs on a substantial indemnity basis. Failure to comply with a court order, especially given the irreconcilable positions taken by the Kilislian parties, warrants a higher costs scale.

[32] I have reviewed Dr. Shuster’s Cost Outline, and find the rates charged and the hours incurred to be reasonable. I order the Kilislian parties to pay Dr. Shuster his costs of this motion fixed on a substantial indemnity basis in the all-inclusive amount of $11,500.00 and payable forthwith.

Diamond J. Released: March 29, 2017