Court File and Parties

Court File No.: CV-13-486486 Date: 20181214 Superior Court of Justice - Ontario

Re: Derek Cowitz and Ashley Vanvlack, Plaintiffs And: Stephen Jaikaran, Defendant

Before: D.A. Wilson J.

Counsel: A. Goldberg, Counsel for the Plaintiffs Z. Vorontsova, Counsel for the Defendant

Heard: December 5, 2018

Endorsement

[1] This is an action commenced by the Plaintiff Derek Cowitz for damages for personal injuries sustained in a car accident that occurred on September 13, 2011 in Peterborough. Both the Plaintiff and the Defendant reside in Peterborough. In its Statement of Defence the defendant objected to Toronto as the place of trial for this action.

[2] The Plaintiff set this action down for trial and counsel appeared before me on October 25, 2017. On that date, I fixed the trial date for January 27, 2020 and the pretrial conference for November 27, 2019. In Toronto, counsel must agree on a schedule for the delivery of expert reports at the time the trial date is fixed.

[3] I endorsed on the record, “Counsel advise they intend to bring a consent motion to transfer the action to Peterborough. If that motion is successful, counsel are to advise Janice Dickie who will vacate this trial date. Timetable approved.” The consent timetable provides the following timelines: service of Plaintiff expert reports by November 1, 2018; service of Defendant expert reports by December 1, 2018; service of Plaintiff expert reply reports by January 1, 2019; Plaintiff updated damage reports by December 1, 2019; Defendant updated damage reports by January 1, 2019.

[4] I was asked by the trial co-ordinator to meet with counsel on December 5, 2018 for a consent amendment to the timetable. I arranged a chambers appointment and when I inquired about the status of the expert reports, I was advised that counsel had not delivered any new expert reports since appearing before me more than a year ago. No particular reason was provided for this, apart from the submission that the trial date was a long way off and there would have to be updated reports from the experts, so it did not seem to make sense to adhere to the consent timetable.

[5] I was also advised by the solicitor for the Plaintiffs that Mr. Cowitz had been involved in a subsequent accident on December 3, 2015, an action had been commenced, discoveries were held. And it was proceeding to mediation in June, 2019. Although I was informed that Mr. Cowitz has overlapping injuries from the 2 accidents, no order for trial together of the 2 actions has been taken out. This information was not conveyed to me in October 2017 when counsel attended to fix the trial date, even though clearly it would impact on the length of time required for the trial. Furthermore, no consent motion to transfer the action to Peterborough has been brought. I was advised that counsel were “considering” this step.

[6] What transpired at the chambers appointment is wholly unacceptable. The accident giving rise to this claim occurred more than 7 years ago. It was more than a year ago that counsel attended before me to fix a trial date. At that time, as is required by the Rules of Civil Procedure, counsel agreed on the timing for delivery of their respective expert reports. They had advised me that counsel agreed the trial should take place in Peterborough and a motion on consent was being brought to effect this.

[7] Instead, counsel did not proceed with the motion and did not obtain the expert reports in accordance with the timelines they agreed to when they fixed the trial date. Seemingly, they ignored both of these matters.

[8] When appearing before me to request the amendment to the timetable on consent, counsel evinced a cavalier attitude about the breach of their own agreement and their submissions to me at the time the trial date was fixed. In Ismail v. Ismail et al., 2018 ONSC 6489, Justice Grace commented “… a too casual approach fosters a culture of complacency which delays or extends proceedings to the detriment of the people the system is intended to serve. Expert reports illustrate the point.”

[9] In Balasingham v. Desjardins Financial Security, 2018 ONSC 1792 Firestone J. observed, “…the practice of late delivery of expert reports despite the passage of agreed upon and scheduled delivery dates must stop.” Indeed, this frequently encountered problem in Toronto led to the requirement that counsel agree on a schedule for the delivery of expert reports when a trial date is fixed.

[10] The accident giving rise to this action occurred more than 7 years ago. The solicitor for the Plaintiff is well aware that in order to succeed in this claim, expert evidence concerning the injuries sustained by the Plaintiff is necessary. Despite this, the Plaintiff has failed to deliver any expert reports since the trial date was fixed in October 2017. As a result, the defendant has not arranged defence medical examinations and has not delivered its expert reports. Counsel attended before me more than a year ago, advised me the case was likely being transferred to Peterborough and gave me a consent schedule for the delivery of expert reports. Then, counsel did nothing, presumably because the trial date is not until 2020. Although counsel for the Plaintiff has another action with the same Plaintiff and overlapping injuries, the court was not informed of this and no order for trial together of the actions has been taken out.

[11] It seems that counsel believed that as long as they both agreed, they could decide not to follow the timelines set out in the expert report schedule and presumably, simply wait until they were closer to the trial date, at which time they would serve reports. That is not what the Rules of Civil Procedure requires, it is not what counsel agreed to when they fixed the trial date and it is an abuse of the court system. It reflects the attitude of complacency that Justice Grace wrote about in Ismail, which cannot and must not continue.

[12] The solicitor for the Plaintiff signed the solicitor’s certificate indicating the case was ready to proceed to trial in 2016; clearly, it is not. This action is struck from the trial list, not to be restored until it is truly ready for trial. The trial date of January 27, 2020 is vacated. Before a new trial date is selected, counsel must appear before a judge and satisfy the court of the following: a new timetable for the delivery of expert reports has been done and will be complied with; a decision has been made concerning whether a motion will be brought to move the trial to Peterborough; and an order for trial together with the companion action has been secured.

D.A. Wilson J. Date: December 14, 2018