COURT FILE NO.: 10-19874, 11-26349 & 12-38697
DATE: 20190426
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HOMES OF DISTINCTION (2002) INC. Plaintiff
– and –
ELISA ANGELA ADILI and THE TORONTO-DOMINION BANK Defendants
Gary Kuzyk, for the Plaintiff
Jeffrey J. Long, for the Defendant Elisa Angela Adili
AND BETWEEN:
ANTHONY ADILI and ELISA ANGELA ADILI Plaintiffs
– and –
HOMES OF DISTINCTION (2002) INC., ROBERTO VENIER and CITY OF HAMILTON Defendants
Jeffrey J. Long, for the Plaintiffs
Gary Kuzyk for the Defendants Homes of Distinction (2002) Inc. and Roberto Venier Daron L. Earthy, for the Defendant City of Hamilton
AND BETWEEN:
ANTHONY ADILI and ELISA ANGELA ADILI Plaintiffs
– and –
HOMES OF DISTINCTION INC., ROBERTO VENIER and CITY OF HAMILTON Defendants
Jeffrey J. Long, for the Plaintiffs
Gary Kuzyk, for the Defendants Homes of Distinction Inc. and Roberto Venier Daron L. Earthy, for the Defendant City of Hamilton
HEARD: April 23 and 26, 2019
Corrected Decision on December 10, 2020: Reference to file no. 12-26349 in the citation information has been corrected to 12-38697. No change to content has been made.
R. A. LOCOCO J. (orally)
[1] Anthony Adili and Elisa Adili have brought a motion for leave to provide additional expert reports outside the time permitted by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Adilis are the plaintiffs in two actions against Homes of Distinction (2002) Inc. and related parties. Those actions relate to alleged deficiencies in construction work Homes of Distinction carried out at the Adilis’ residence in Ancaster from 2008 to 2010. The City of Hamilton is also a defendant in those actions. The trial of the actions, together with Homes of Distinction’s related construction lien action, commenced in October 2018 for a period of three weeks. The only witness to testify during that period was one of the plaintiffs, Dr. Anthony Adili. The trial is scheduled to continue for an additional five weeks in July and September 2019, commencing July 2.
[2] Prior to trial, the parties commissioned and served on one another various expert reports, including in the areas of structural engineering and quantity surveying. Those experts will be testifying at the trial, once it resumes. The Adilis now seek leave to provide an additional expert report from a new structural engineer, Gerry Genge of Aritech Inc., as well as a supplemental report from their existing engineering expert, Carlo Lancia of Lanhack Consultants Inc. They also seek leave to provide a supplemental report from their existing quantity surveyor with respect to the costs of certain alleged new deficiencies set out in Mr. Genge’s report.
Position of the parties
[3] The Adilis say that an expert report from an additional structural engineer is necessary in this case in order to address an allegation of bias against Mr. Lancia that Homes of Distinction raised for the first time in September 2018, two weeks before the commencement of trial. The bias allegation arises from Mr. Lancia’s previous social relationship with Dr. Anthony Adili, calling into question the admissibility of Mr. Lancia’s expert evidence or the weight the court should attach to that evidence. Since expert engineering evidence is a necessary element of the Adilis’ case against the defendants, the Adilis say their ability to establish their case on the merits would be seriously prejudiced if they are not permitted to retain another qualified structural engineer with no previous relationship with the Adilis. They also say that the defendants would not be prejudiced if leave is granted, since the time left until the trial resumes in July affords the defendants sufficient time to arrange for supplemental expert reports, without interfering with the previously-established trial schedule.
[4] Dr. Adili’s affidavit also states that after the trial’s adjournment in October 2018, the Adilis noticed for the first time new and larger cracks in their residence, which Mr. Lancia reviewed and evaluated in December 2018. Mr. Lancia prepared a supplemental report, which was provided to opposing counsel on March 12, 2019, together with Mr. Genge’s proposed report. The Adilis say that the information set out in Mr. Lancia’s supplemental report updates the status of the damage to their residence and would assist the court in determining structural integrity issues.
[5] The defendants Homes of Distinction and the City of Hamilton submit that the Adilis’ motion should be dismissed. The defendants say that it was the Adilis’ choice to retain an engineering expert with whom Dr. Adili had a prior undisclosed relationship, and that Homes of Distinction, through its counsel, provided notice of its bias concern as soon as Dr. Adili’s prior relationship with Mr. Lancia came to its attention. Among other things, the defendants also challenge the Adilis’ assertions relating to prejudice and delay. The defendants say that the Adilis have not established that there is no prejudice to the defendants nor that it would not be necessary to delay the trial to allow them to provide responding expert reports.
Applicable law
[6] Turning now to the applicable law, the procedural requirements relating to the evidence of expert witnesses are set out in r. 53.03 of the Rules of Civil Procedure. Those requirements include deadlines for serving opposition parties with an expert report that sets out the substance of the witness’ intended testimony. The court may extend or abridge the time for service on a motion under r. 53.03(4).
[7] In particular, r. 53.01(1) requires a party who intends to call an expert witness to serve a report on every other party at least 90 days before the pre-trial conference. Under r. 53.03(2), parties who intend to call a responding expert witness are required to serve a responding expert report at least 60 days before the pre-trial conference. Those deadlines are significantly earlier in the process than they were in the procedural rules in place prior to 2010, when the 90-day and 60-day periods were measured from the trial’s commencement rather than the pre-trial date. If a party fails to comply, r. 53.03(3) prohibits an expert witness from testifying with respect to an issue, except with the leave of the court, unless the substance of the witness’ testimony is set out in an expert report served under that rule or in a supplemental report served at least 30 days before the trial’s commencement.
[8] Where the leave of the court is sought to permit an expert witness’ testimony, r. 53.08 provided 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.” As indicated by the Court of Appeal in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 81, the test in r. 53.08 is mandatory. To paraphrase the court in Marchand, “notwithstanding non-compliance with [the requirement for timely delivery of an expert report], a trial judge must grant leave unless to do so would cause prejudice that could not be overcome by an adjournment or costs.”
[9] When considering the issue of prejudice, the case law also indicates that the prejudice to the opposing party in admitting the disputed evidence must be weighed against the prejudice to the proffering party in excluding it. Relevant evidence should not be excluded on technical grounds unless the court is satisfied the prejudice in receiving the evidence exceeds the prejudice in excluding it: see Rolley v. MacDonnell, 2018 ONSC 163, at para. 29.
[10] By way of contrast, on a motion to extend or abridge the time for service of an expert report under r. 53.04(4), the court’s authority is discretionary rather than mandatory. Rule 53.04(4) states that the time for service may be extended or abridged, without indicating the test for doing so. However, there is no dispute between the parties that the mandatory test in r. 53.08 applies in this case, since the leave motion is being brought during the trial to the trial judge, as contemplated by r. 53.03(3). In any case, even where a pre-trial motion is brought to extend the time for providing an expert report, previous authority suggests that the mandatory test in r. 53.08 should still be applied in order to avoid the possibility of inconsistent results, depending on the timing of the motion: see Canadian Imperial Bank of Commerce v. Wicks (2000), 2 C.P.C. (5th) 271 (Ont. S.C.), at paras. 8-10.
[11] As noted during submissions, mandatory language similar to that in r. 53.08 also appears elsewhere in the Rules of Civil Procedure, for example, where a party seeks leave to amend a pleading under r. 26.01. In that context, the Court of Appeal has indicated that even though the test is cast in mandatory terms, the court has a residual right to deny leave where appropriate: see Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251, at para. 19. On a leave motion under r. 53.08(3), the basis for that residual discretion would be found within the language of that rule, including the references to “prejudice”, “undue delay”, and “such terms as are just”. As well, I agree with counsel for the City of Hamilton that when determining whether to exercise the court’s residual discretion, it is appropriate to take into account the moving party’s reason for seeking leave and whether a satisfactory explanation has been provided for the fact that the usual timelines were not being followed: see Shuster v. Dr. R. Kilislian Dentistry Professional Corp., 2017 ONSC 1941, at para. 26, citing Castronovo v. Sunnybrook & Women’s College Health Sciences Centre, 2016 ONSC 6275, aff’d 2017 ONCA 212.
Analysis and conclusion
[12] Having considered counsel’s submissions based on the record before me, I have concluded that the moving parties’ motion should be dismissed.
[13] As the moving parties on this motion, the burden is on the Adilis to establish that leave should be granted under r. 53.03(3) to permit Mr. Genge and Mr. Lancia to testify with respect to matters to be included in their proposed expert reports. Under r. 53.08, I am required to grant the requested leave on such terms are just and with an adjournment if necessary unless to do so would cause prejudice or undue delay. While the language in r. 53.08 is mandatory, the burden remains on the Adilis to satisfy the court that granting leave will not cause prejudice to the defendants or undue delay in the conduct of the trial. I have concluded that the Adilis have not discharged their burden of doing so.
[14] In particular, contrary to the Adilis’ position, I am not satisfied on the evidence that it will not be necessary to delay the current trial schedule if I grant the requested leave. In order to respond to new or supplemental reports from Mr. Genge, Mr. Lancia and the quantity surveyor, it will be necessary for the defendants to obtain responding expert reports from their own experts. I agree with the defendants that it would not be reasonable to expect them to instruct their experts to prepare responding reports unless or until the Adilis are granted leave to provide additional expert reports, given the extraordinary nature of the relief sough. In all the circumstances, I am not satisfied on the evidence that it will be feasible for the defendants to obtain reports from their own experts that would adequately address the new or supplemental reports from the Adilis’ experts in sufficient time to allow the trial to resume in just over two months’ time on July 2. Without the expert evidence that would form the basis for the responding reports, the prejudice to the defendants in meeting the Adilis’ case is obvious.
[15] In reaching that conclusion, I considered the Adilis’ submissions that when determining whether there was sufficient time for the defendants’ experts to prepare responding reports, I should consider the implicit guidance provided by the additional 30-day period in r. 53.03(2) for opposing parties to provide a responding expert report. Clearly, however, that factor alone is not sufficient to establish there would be sufficient time to respond in this case, the onus being on the moving parties to provide an evidentiary basis for the relief they seek.
[16] I also considered whether I should grant the requested leave and postpone resumption of the trial until the time previously scheduled in September, leaving the balance of the trial to be postponed to a later time. However, once again, there is no evidence to indicate that a delay to September will be sufficient to permit the defendants’ experts to adequately respond to the Adilis’ new and supplemental expert reports, nor is there any assurance with respect to a timely resumption of the trial after the two weeks currently scheduled in September.
[17] In reaching the conclusions I have, I am mindful of the potential prejudice to the Adilis of excluding relevant evidence on procedural grounds, the concern being that doing so may compromise the court’s ability to reach a just verdict. However, in this case, there are other factors that militate against granting the requested leave.
[18] In that regard, I agree with the defendants that the Adilis have not provided an adequate explanation of why the report and supplemental reports they are now seeking could not have been obtained or at least leave sought prior to the commencement of the trial, if not in strict compliance with the required timing deadlines. The Adilis say that even though Homes of Distinction first received an expert report from Mr. Lancia in October 2014, the defendants did not raise any concern about alleged bias until only two weeks before the trial commenced. However, as the defendants point out, it was the Adilis’ choice to retain an engineering expert with whom Dr. Adili had a prior undisclosed relationship. Homes of Distinction through its counsel raised its bias concern as soon as Dr. Adili’s prior relationship with Mr. Lancia came to its attention shortly before the trial’s commencement. In these circumstances, I have difficulty seeing the merit in the Adilis’ position that they should now be permitted to line up a back-up engineering expert. That is especially the case once the trial has commenced and Dr. Adili has already testified.
[19] In addition, but without deciding the issue, I have difficulty seeing how the prior non-professional relationship between Mr. Adili and Mr. Lancia in isolation would render his opinion evidence inadmissible or significantly diminished by reason of a lack of independence. To the limited extent that this consideration may affect the weight that may be attached to Mr. Lancia’s opinion evidence, the overriding considerations would be whether the proffered evidence is persuasive on its merits, that is, whether the evidence draws properly founded conclusions based on correct assumptions that take all relevant information into account. If such is the case, any prior social relationship between Mr. Lancia and Dr. Adili would be inconsequential, in all likelihood.
[20] As well, I am not satisfied on the evidence that the Adilis have established that they should be permitted to provide a supplemental report from Mr. Lancia to address new or expanded cracks in their residence. According to Dr. Adili, these cracks did not come to his attention until late in 2018, after the trial had already been adjourned to July 2019. The Adilis say that these cracks are evidence of continued structural integrity problems with the original home and the additional structure arising from the work that Homes of Distinction performed. At the same time, it is relevant that the work in question occurred in a period that ended over nine years ago. The new or expanded cracks are in areas that are already in issue in these proceedings. The evidence before me, being general in nature, is in my view insufficient to establish that Mr. Lancia would be materially hampered in providing expert evidence on the damage in those areas based on the contents of his previously-prepared expert report without further supplement. Therefore, in all the circumstances, I am not persuaded that leave to provide a supplemental report from Mr. Lancia is warranted.
[21] As an additional consideration, as I have already indicated, the timing of this motion is relevant to the issues of prejudice and undue delay. The events that form the basis for this action occurred in the period from 2008 to 2010, ending over nine years ago. In 2010, Homes of Distinction commenced its construction lien action, which is intended to provide an expeditious framework for determining outstanding claims. That action together with the Adilis’ two actions finally made their way to trial in October 2018. In the circumstances of this case, the appropriate time to address the question of leave to provide additional expert reports was at latest before the trial commenced, not some weeks later, after one of the plaintiffs had already testified. I am not satisfied that permitting the additional expert reports now will not cause undue delay, prejudicing the fair trial of these actions. Therefore, in all the circumstances, I have concluded that the prejudice to the defendants in granting leave would outweigh any prejudice that the Adilis would suffer by exclusion of the evidence they now seek leave to provide.
[22] As well, in my view, granting the requested leave would not be consistent with the objectives of the Rules of Civil Procedure as indicated in the general interpretation principle in r. 1.04, that is, to secure the just, most expeditious and least expensive determination of the proceedings on their merits, nor would it be consistent with the proportionality principle also set out in that rule. As counsel for the City of Hamilton put it in her closing submissions, the goal of the rules is to provide proportionate justice, rather than perfect justice. Viewed through that prism, denying leave serves the interests of justice in this case.
[23] Accordingly, the Adilis’ motion is dismissed.
[24] At the conclusion of the motion hearing, counsel advised that the parties have agreed in advance on costs of the motion. Therefore, it is unnecessary for me to address that issue.
The Honourable Mr. Justice R. A. Lococo
Decision date: April 26, 2019
Release date: September 16, 2020
COURT FILE NO.: 10-19874, 11-26349 & 12-38697
DATE: 20190426
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HOMES OF DISTINCTION (2002) INC. Plaintiff
– and –
ELISA ANGELA ADILI and THE TORONTO-DOMINION BANK Defendants
AND BETWEEN:
ANTHONY ADILI and ELISA ANGELA ADILI Plaintiffs
-and-
HOMES OF DISTINCTION (2002) INC., ROBERTO VENIER and CITY OF HAMILTON Defendants
AND BETWEEN:
ANTHONY ADILI and ELISA ANGELA ADILI Plaintiffs
-and-
HOMES OF DISTINCTION INC., ROBERTO VENIER and CITY OF HAMILTON Defendants
REASONS FOR DECISON
R. A. LOCOCO J.
Decision date: April 26, 2019
Release date: September 16, 2020