Court File and Parties

COURT FILE NO.: 13-1002 DATE: 2017/05/31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David A. McEwen, Plaintiff – and – Her Majesty in Right of Ontario, London Police Services Board, Chief of Police Murray Faulkner, P.C. Christopher Golder, S/SGT. Drouillard, P.C. Ian A. Johnson, P.C. Chris Newton, P.C. D. Jeffrey Dunham, P.C. D. Jeffrey, P.C. Scott A. Chantler, P.C. Ron Grasman, P.C. Kevin Diachina, P.C. Martin Lessick, SGT. Daniel Holek, P.C. Donald Woodley, P.C. Ross, P.C. Hilldenbrand, P.C. Barret Willis, P.C. Brian Armstrong, P.C. Nash, P.C. Joel Pavoni, P.C. David McKay, P.C. James Earl Pottruff, P.C. Paul Yovicic, P.C. Pamela Burke, P.C. Kell O’Callaghan, P.C. Robert Brown, P.C. Jeffrey Brown, P.C. James Forsythe, Kelly Mills, Sissy Steeves, Mary-Ellen Emery, Vicki Redden, P.C. John Doe, and P.C. Jane Doe, Defendants

BEFORE: Justice H. A. Rady

COUNSEL: Melissa Scott, for the plaintiff Dagmara Wozniak, for the defendants

HEARD: May 29, 2017

Endorsement

Introduction

[1] The plaintiff moves for an order abridging the time for service of three expert reports and granting leave to call them as experts. In the event leave is granted, the plaintiff has included a request for an adjournment of the trial so that the defendants can obtain responding reports. The defendants oppose leave being granted. They say that they are prejudiced and cannot be compensated in the circumstances.

[2] This motion presents a significant challenge in balancing the interests of the parties. The plaintiff will be obviously disadvantaged if he cannot lead the proposed evidence of the three experts. On the other hand, the defendants have not been able to respond and therefore, they will be clearly prejudiced in their ability to defend the claim.

[3] The case is very old, memories matter, and the trial has been already been adjourned at least twice before. The plaintiff has previously been late serving documentation in support of his claim during the course of the litigation. In fact, and most recently, the late service of material relating to his alleged economic loss claim derailed a trial for which a fixed date had been scheduled for June 2016. And a defence adjournment request has already been adjudicated by Justice Grace on April 3, 2017 and dismissed.

The Facts

[4] The plaintiff alleges that he was injured by the police defendants when he was arrested on July 23, 2007 for careless use, handling or storage of a firearm. The charge was later withdrawn.

[5] The chronology of the progress of the litigation need not be recited in detail here because Justice Grace did so in his comprehensive endorsement of April 3, 2017. It is fair to say that its pace has been glacial, at least until Mr. Millar’s firm was retained to assume carriage of the file in October 2016.

[6] Following receipt of the file in November, counsel must have soon realized that much work was necessary to ready the case for the already scheduled trial date of June 12, 2017 – which had been marked peremptory on the parties.

[7] Plaintiff’s counsel alerted counsel opposite of his intention to engage experts. Mr. Phelps prepared a forensic economic loss report dated February 14, 2017. Dr. Sapienza prepared a medical-legal psychological report dated January 30, 2017.

[8] On February 27, 2017, those reports were served. As an aside, it is not clear to me why Dr. Sapienza’s report was not served until some four weeks after its receipt. In any event, the plaintiff was prepared to consent to late filing of any reply reports.

[9] A second judicial pre-trial was held on March 9, 2017 at which time the pre-trial conference report was completed. In it, the pre-trial judge noted:

Plaintiff recently served damages reports. Defendants seeking responding reports. Plaintiff to serve any further expert reports by June 9, 2017. Defendants responding reports by September 30, 2017. Defendants to move to adjourn a trial due to late delivery of expert reports by Plaintiff and will do so soon.

[10] As Justice Grace noted, the pretrial judge could not have been made aware that the June trial date had been marked peremptory on the parties when he made that endorsement.

[11] The defence brought the necessary motion with the plaintiff’s consent. It was dismissed by Justice Grace on April 3, 2017. When the issue of the late served expert reports and their admissibility were raised, Justice Grace made it clear that this was a matter for the trial judge to determine. In his endorsement, he noted:

41 I cannot impose another sanction on the plaintiff for the far too late delivery of further expert reports. Rules 53.03(3) and 53.08 apply. The trial judge is the one who will determine whether the plaintiff will be given leave to call the authors of the late served reports (Gary Phelps and Dr. Melanie Sapienza) as witnesses.

[12] The plaintiff then delivered another expert report, this one on the standard of care on May 11, 2017. The defence has not yet been in a position to deliver any responding reports. They have engaged an accountant whose report has not yet been finalized. Some of the material which Mr. Phelps reviewed was not delivered to the defendants until April 11, 2017. A psychological assessment with Dr. Martin Resnick has yet to take place. The defendants have not had an opportunity to retain a standard of care expert although I was advised that the defendants have spoken to a potential expert.

[13] This motion followed. The parties would like a ruling on the reports’ admissibility in advance of trial because of its obvious impact on the respective parties’ potential for success, on trial preparation and the length of trial.

[14] I am essentially being asked to determine the matter as if I were the trial judge. They rely on Rule 53.03 (4) of the Rules of Civil Procedure which provides:

(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.

[15] The plaintiff argued, albeit less than forcefully, that the defendants had advance notice of his intent to serve expert reports and that they have had ample opportunity to respond. He suggests that they have ready access to experts – particularly on the standard of care.

[16] There is an obvious irony in the plaintiff’s position and two points must be made. First, there is no evidence before me about the availability of experts to the defence. I am being asked to speculate. Secondly, the prejudice to the defence has already been found to exist. It is irremediable, absent an adjournment, which has already been refused. In that regard, I note this passage from Justice Grace’s endorsement:

18 It is clear from what I have written so far that the defendants will be prejudiced if the plaintiff is allowed to call the authors of the late served reports unless the trial is adjourned.

19 However, if the trial is not adjourned, if the parties are held to the term I imposed as a precondition and with their full knowledge, the likelihood of the plaintiff obtaining leave falls significantly.

[17] When one balances the competing considerations, the scale tips in favour of an order refusing to permit the introduction of the proposed expert evidence by the plaintiff. The unfortunate result is that the plaintiff is disadvantaged and significantly so. He may be unable to discharge his burden of proof at trial. It is true that he may have recourse elsewhere, but I recognize that is, in reality, cold comfort. It would serve to prolong any resolution of this already long delayed matter. On the other hand, the defendants have no remedy whatsoever (absent an adjournment that has already been refused).

[18] Justice Grace could not have been clearer about the court’s position on the late delivery of expert reports and its negative impact on trial scheduling. This has been a serious, recurring problem in London. Many times, the timelines in Rule 53.03 are more honoured in the breach. He also noted that Mr. Millar accepted his retainer on the terms that had been imposed by that time. It is difficult to quarrel with those observations.

[19] In the circumstances, I refuse to grant an abridgement of the time to serve expert reports or leave to call them at trial.

“Justice H. A. Rady” Justice H. A. Rady Released: May 31, 2017