Health Genetic Center Corp. v. New Scientist Magazine, 2017 ONSC 2805

CITATION: Health Genetic Center Corp. v. New Scientist Magazine, 2017 ONSC 2805
COURT FILE NO.: CV-11-430193

DATE: 20170508

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Health Genetic Center Corp. et al., Plaintiffs

-and-

New Scientist Magazine et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: J. Melekhovets and A. Zeilikman, counsel for the plaintiffs

S. Barton and J. Vizzaccaro, counsel for the defendants

HEARD: April 27, 2017

BEFORE: F.L. Myers, J.

ENDORSEMENT

[1] In trial management directions made at a pre-trial conference dated April 26, 2015, reported at 2016 ONSC 2774, the court required the parties’ experts to “hot tub” under Rule 20.05 (2)(k) as incorporated into Rule 50.07 (2)(c) as follows:

Once the parties have exchanged experts’ reports, each pair of competing experts will meet without prejudice under Rule 20.05(2)(k) to produce a list of agreed facts to assist the trial judge understand the acknowledged scientific background facts and the context in which any disagreement(s) arise. They will also produce a list of the points where they disagree; setting out, in very brief, point form only, their respective opposing views.

[2] The parties’ damages experts have met. They had some success narrowing the issues. They agreed to a list of propositions after the meeting as required. On their own, they agreed to meet a second time to try to make further progress. Counsel for the defendants advises that the plaintiffs’ expert made one or more significant concessions at the second meeting. Rather than agreeing to a further statement of agreed facts and disagreed facts as set out in the court’s direction, the plaintiffs’ expert proposes to revise his report.

[3] Counsel for the defendants opposes allowing the plaintiffs’ expert to revise his report. Instead, she proposes that the plaintiffs should bring a motion to seek late delivery of a further report. In that way, she will get to cross-examine the expert on the proposed changes to his report.

[4] Counsel for the plaintiffs submit that the court’s process of hot tubbing the experts was designed at least partly to keep the lawyers out of the experts’ discussions. If their expert believes that his report needs revision, there is no reason to keep the best evidence from the court. Moreover, the defendants’ counsel will be entitled to cross-examine at trial on any change in the expert’s position. The purpose of the case management direction was to narrow the issues; not to create more costly process.

[5] I agree. Moreover, I agree with the plaintiffs that a motion is not required for the court to amend the timetable or to grant leave to the plaintiffs to deliver a further or revised expert report.

[6] The issue of how to deal with the expert’s desire to file a revised report was brought to the court at a case conference that was requested by both counsel. The issue presented by counsel was how to deal with the impasse in their respective positions. That is, they knew the issue that they intended to present to the court at the case conference. Rule 50.13 (6) provides that :

At the case conference, the judge or case management master may, if notice has been given and it is appropriate to do so or on consent of the parties,

(a) make a procedural order;

(b) convene a pre-trial conference;

(c) give directions; and

(d) in the case of a judge,

(i) make an order for interlocutory relief, or

(ii) convene a hearing.

[7] In my view, allowing a motion to be brought is not an efficient or proportional use of counsels’ time or the court’s time. The defendants’ counsel does not seriously oppose the substance of the change in the expert’s evidence. She wants it set out as a disagreement in the point form list of agreed and disagreed facts required by the court’s initial direction and she would like to have a crack at cross-examining the other side’s expert witness before the trial.

[8] Whether the expert’s report is changed or his new position is expressed in a point form document is a question of optics rather than substance. The desire to cross-examine before trial is just taking up an opportunity to obtain a tactical advantage that has presented itself.

[9] Just because opportunities for tactical advantage arise, does not mean that they need to be pursued. Today all proposed steps must be weighed by counsel, the parties, and the court against the goals of efficiency, affordability, and proportionality. If counsel have not internalized the culture shift required by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, Rule 50.13 (6) provides a powerful tool in judges’ case management quivers to maintain the necessary focus. The rule authorizes a judge at a case conference to make any procedural or interlocutory order as is appropriate on consent or if notice has been given. Formal notice is not required. It is consistent with the purpose of the rule - to utilize case management to decrease cost and unnecessary formality - for notice to consist of actual or implicit notice without the formality of service of a notice of motion. Here both counsel knew the purpose of the call was to break the logjam over how the plaintiff’s expert was to proceed. In my view, allowing a full motion to be brought to resolve that issue is inefficient and disproportional to the importance (or lack of importance) of the issue.

[10] Case conferences are frequently held by telephone with no material or formality. Nevertheless, it is frequently the case that expensive, tactical, time consuming motions can be avoided with no unfairness and much benefit by summary decisions being made on case conference calls. Case conferences are particularly apt for decisions where the facts are not in serious dispute and the matter in issue is procedural or tactical. That is not to say that orders cannot be made at case conferences on substantive matters or where facts are in dispute. It is self-evident that an informal process will almost always better meet the goals of efficiency and affordability than a motion. However, an informal process is likely to be proportional when there is little or no substance to the decision and few facts are in dispute. As substantive content or fact disputes mount, proportionality may weigh in favour of greater formality.

[11] In this case, the experts should perform their obligations as set out in the court’s direction. A brief statement of agreed and disagreed points is required for the trial judge’s benefit. Moreover, it is efficient, convenient, and in the interests of justice for the plaintiffs’ expert to deliver a revised report if he thinks that doing so is necessary to properly present his opinion. Sims v Zaitlen, 2017 ONSC 2501 at para. 50. The plaintiffs are therefore granted leave to deliver an amended expert report from their damages expert on or before May 22, 2017 without requiring or allowing a motion to be brought on that issue. The defendants remain at liberty to cross-examine the plaintiffs’ damages expert on any changes from his first report subject to the discretion of the trial judge.

[12] Costs reserved to the trial judge.

F.L. Myers, J.

Date: May 8, 2017