Court File and Parties

COURT FILE NO.: CV-09-393987

DATE: 20190221

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MYKHAYLO STADNYK, Plaintiff

AND:

BEP DRESHAJ, 1413777 ONTARIO INC. OPERATING AS DOLLAR THRIFTY CAR RENTAL and 967961 ONTARIO LTD. OPERATING AS DAVE WOOD LEASING/DAVE WOOD MAZDA, Defendants

AND BETWEEN:

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY added by order pursuant to section 258(14) of the Insurance Act, R.S.O. 1990, c. I.8, with all rights that are conferred upon such party pursuant to section 258(15) of said Act, Statutory Third Party

BEFORE: Mr. Justice Stephen E. Firestone

COUNSEL: Bruce Day, for the Plaintiff

R. Shawn Stringer, for State Farm Mutual Insurance Company

HEARD: In Writing

ENDORSEMENT

[1] This case is illustrative of the consequences that flow from the parties’ failure to comply with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) regarding the delivery of expert reports.

[2] The first pretrial conference in this action took place on May 30, 2018. On October 2, 2018, a second pretrial conference took place before me with a further attendance on October 3, 2018. At that time, it became apparent that the “interests of justice” required that the trial date fixed in the October 2018 jury sittings be vacated as a result of the late delivery of expert reports. A new trial date was fixed in the June 2019 jury sittings.

[3] State Farm seeks its costs thrown away as a result of this last minute trial adjournment.

[4] The plaintiff failed to serve all of its expert reports 90 days before the pretrial as required by rule 53.03(1). The plaintiff says the Statutory Third Party State Farm Mutual Automobile Insurance Company (“State Farm”) served one of its medical reports outside the 60 day time period under rule 53.03(2), raising for the first time a causation issue that necessitated a response from the plaintiff. State Farm states that such report was “supplemental” and was therefore served in accordance with the Rules.

[5] The record makes clear that prior to the first pretrial, which took place on May 30, 2018, the plaintiff had not served any medical reports in support of the claim for general damages and income loss. The plaintiff then served various reports late, one of which was served 11 days prior to the fixed trial date of October 9, 2018.

[6] At the pretrial before me, the parties, for the very first time, agreed to a timetable (schedule) for the delivery of expert reports. At no time prior to this pretrial had this been done.

[7] Rule 53.03(2.2) specifically requires that “within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1), (2) and (3), unless the court orders otherwise.” [Emphasis added.]

[8] It is the joint responsibility of all parties to comply with rule 53.03(2.2) in order to avoid disputes such as the one before me.

[9] In a situation where one side or the other will not agree to the required schedule for the delivery of expert reports, counsel should immediately request a chambers appointment (case conference) pursuant to rule 50.13 in order to have the court fix one.

[10] As stated in Balasingham v. Desjardins Financial Security, 2018 ONSC 1792, at para. 9:

To ensure that the parties meet the deadlines far in advance of the pretrial, subrule 53.03(2.2) requires that within 60 days after an action [is] set down for trial, the parties shall agree to a schedule setting out the dates for the service of expert reports in order to meet the requirements of subrules 53.03(1) and (2), unless the court orders otherwise. This rule effectively reminds counsel about the filing deadlines and requires them to turn their minds to their delivery obligations and agree on a schedule.

[11] Irrespective of whether one of State Farm’s reports is supplemental or not and notwithstanding that neither party complied with rule 53.03(2.2), it is the plaintiff’s late delivery of its expert reports, which on balance, set the chain of events in motion that ultimately necessitated this trial adjournment.

[12] Based on the factual matrix and procedural history before me, I find that State Farm is entitled to its costs thrown away as a result of this trial adjournment, which occurred on the eve of trial.

[13] Costs thrown away is a request for payment of a party’s costs for trial preparation that have been wasted and any trial preparation that will have to be redone as a result of the trial adjournment: Pittiglio v. Pittiglio, 2015 ONSC 3603.

[14] The purpose of awarding costs thrown away is not to penalize a party who sought an adjournment of the trial or who was at fault for such adjournment due to a mistrial, but is rather meant to indemnify a party for the wasted time incurred for trial preparation or trial work arising from the adjournment or mistrial: Graziano v. Ciccone, 2017 ONSC 362, at para. 8.

[15] In Graziano, at para. 18, the court confirms that the assessment of costs thrown away is not a task of precision or a scientific endeavor but is rather speculative and intuitive. The court is required to review the bill of costs carefully to ascertain what work intuitively falls within the category of costs thrown away as wasted time and work that does not fall within such category.

[16] State Farm seeks its costs thrown away in the amount of $5,000.00 all-inclusive, payable forthwith. The plaintiff submits that there are no costs thrown away. Should the court determine that there are, it submits that such amount should be $2,500.00 all-inclusive.

[17] Based on the record before me, I order that the plaintiff pay to State Farm its costs thrown away in the amount of $2,900.00 all-inclusive within 60 days.

Firestone J.

Date: February 21, 2019