CITATION: Tracey v. Moore et al, 2017 ONSC 6985

BARRIE COURT FILE NO.: CV-09-0222-00

DATE: 20171122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joyce Tracey

Plaintiff

– and –

David Keith Moore, Christopher Davey and York Fire & Casualty Insurance Company

Defendants

Andrew Kerr, for the Plaintiff

Gerard V. Thompson for the Defendants

HEARD: November 21, 2017

ENDORSEMENT

sutherland J.:

Overview

[1] After the jury has been selected, the plaintiff brought a motion requesting leave to file an income loss report prepared by a forensic accountant, Darrell Sherman (the income loss report). The report was served upon the defendant, York Fire & Casualty Insurance Company (York Fire) on Monday, November 13, 2017.

[2] York Fire opposes the motion. York Fire submits that the income loss report was served contrary to Rule 53.03 of the Rules of Civil Procedure[^1] (the Rules) in that it was served less than 90 days before trial. York Fire does not request an adjournment of the trial. York Fire submits that due to delay, the time it took to bring this matter to trial, the plaintiff should not be granted leave to file the income loss report.

[3] The plaintiff agrees that the serving of the income loss report does not comply with Rule 53.03 but argues that since York Fire does not request an adjournment, it would be unfair to the plaintiff and greatly prejudice the plaintiff’s case if leave is not granted to file the income loss report.

[4] On this motion neither the plaintiff nor York Fire filed the income loss report with their motion material.

[5] The other defendants have been noted in default.

[6] For the reasons to follow, I grant leave to the plaintiff to file the income loss report.

Background

[7] The action arises out of a motor vehicle accident that happened on February 28, 2008. The action was commenced on February 13, 2009.

[8] York Fire was added as a named defendant in the action and the Statement of Claim was amended on June 29, 2011.

[9] York Fire filed their Statement of Defence on July 6, 2011.

[10] The Statement of Claim seeks damages for past and future loss of income. Based on the vocational rehabilitation expert report prepared by Christie MacGregor dated December 24, 2012 (the vocational report), the income loss report was commissioned, prepared and ultimately served on November 13, 2017. The vocational report of Ms. MacGregor was served by the plaintiff within the time period set out in the Rules.

[11] The plaintiff and York Fire entered into an agreed timetable that indicated that the plaintiff would serve her reports by March 15, 2017. This agreed timetable is described in the letter of York Fire’s counsel dated September 29, 2016. York Fire and the plaintiff do not know if this timetable became a court order.

[12] Nonetheless, the plaintiff agrees that the date for her to serve her expert reports was March 15, 2017.

Analysis

[13] York Fire opposes the request because the action was commenced on February 13, 2009, more than 8 years before the date of trial, and the date of York Fire’s involvement in this action is more than 6 years. York Fire argues that the plaintiff had ample opportunity to retain an expert and prepare a report for past and future income loss and that the plaintiff failed to do so. Rule 53.08 states that “….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”.

[14] Again, York Fire is not requesting an adjournment.

[15] York Fire has provided numerous cases[^2] to support its submission that the delay in the case prevents the court from exercising its discretion to grant leave to the plaintiff to file the income loss report. Having read the cases provided and Rule 53.08, I do not agree with York Fire’s submission. The Rule contemplates “undue delay in the conduct of the trial”. This delay, in my opinion, is not the delay in prosecuting the action but the delay in the granting of the adjournment and the commencement or conduct of the trial. In other words, it is the undue delay from the day of granting an adjournment to permit the party to obtain its own expert report or conduct examinations. It is the additional time required to bring the matter back for trial or resume the conduct of the trial and not the time that it took to bring the matter to trial.

[16] The cases provided by York Fire support this opinion, in my view. In Dybongco-Rimando Estate, Quinn J. describes “undue delay” and finds in the circumstances of that case: “As for delay under Rule 53.08(1)(e), it will not be undue because counsel have given me a very short time line which will allow the trial to resume in a little more than one week.”[^3]

[17] In David, Kozak J. examined the delay required by an adjournment to resume the trial and stated:

…Should an adjournment of the trial become necessary, then this Court cannot foresee any undue delay in the conduct of the trial. The delay, if it is found to be necessary, would be relatively brief in that it would simply involve the rescheduling of a two day Judge alone trial.[^4]

[18] In Steinburg-Begin, Valin J. in discussing undue delay and the granting of an adjournment wrote:

...Furthermore, I am not satisfied that any adjournment sought or required to permit preparation for the cross-examination of Dr. Wallace will cause undue delay in the conduct of the trial. This is a non-jury case. It can be scheduled to continue within a reasonable time.[^5]

[19] As stated earlier, there is no delay in this matter before the court, be it undue or otherwise.

[20] In addition, the Ontario Court of Appeal in Marshall v. Watson Wyatt & Co.[^6] allowed an appeal where the trial judge refused to allow evidence to be lead at trial which was contrary to a position by the defendant on examination for discovery. In reviewing whether the trial judge should have granted leave to permit the evidence at trial and Rule 53.08, Laskin JA wrote:

[26] Watson Wyatt should have corrected its discovery answer in a subsequent letter to Ms. Marshall’s counsel. But fairness should have been the trial judge’s guide. Although the purpose of discoveries and pretrials differ, in light of what Ms. Marshall’s counsel knew, the trial judge’s ruling was fundamentally unfair to Watch Wyatt. Her ruling ran counter to rule 1.04(1), which requires that all rules be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”; and to rule 53.08(1)(d) which required the trial judge to permit the evidence to be led unless doing so would have prejudiced Ms. Marshall or unduly delayed the trial…[^7]

[21] I find that it would be unfair to the plaintiff and contrary to the principle that every civil proceeding should be determined on its merits if leave is not granted to allow the plaintiff to file the income loss report.

[22] I also find that there is no prejudice suffered by York Fire. York Fire is not requesting an adjournment. The trial is not delayed. The trial will be proceeding immediately.

Disposition

[23] I therefore order that the plaintiff is granted leave to file the forensic accounting expert report of Darrell Sherman.

[24] I will deal with costs of this motion when I hear submissions for costs for the trial.

Justice P.W. Sutherland

Released: November 22, 2017

[^1]: RRO 1990, Reg. 194. [^2]: Dybongco-Rimando Estate v. Lee, [1999] O.J. No. 1426 (Ont. CJ (GD)); David v. Chivers-Wilson (1999), CarswellOnt 1395 (Ont.CJ (GD)) and Steinburg-Begin v. Gramer, [1997] O.J. No.2777 (Ont.CJ (GD)). [^3]: Supra, footnote 2, para. 20. [^4]: Supra, footnote 2, para 17. [^5]: Supra, footnote 2, para. 8. [^6]: 2002 CanLII 13354 (ON CA), 57 O.R. (3d) 813 (CA). [^7]: Ibid., para.26.