Court File and Parties

COURT FILE NO.: CV-16-558517

DATE: 20200520

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Smith, Plaintiff

AND:

Qaiser Khurshid and Katharine Reti, Defendants

BEFORE: Darla A. Wilson J.

COUNSEL: C. Sax, Counsel for the Plaintiffs J. Cosentino, Counsel for the Defendant

HEARD: May 14, 2020

ENDORSEMENT

[1] There are two claims arising from a motor vehicle accident that occurred October 22, 2105; this one and Firmino v. Khurshid (CV-17-583588). There is a fixed trial date for these actions commencing October 1, 2020 with a jury for a period of 6 weeks.

[2] There was a pretrial conference originally set for April 29, which was adjourned because various assessments arranged by the defence could not be completed due to COVID-19. The pretrial was rescheduled for July 8, 2020 and counsel for the Defendants requested a chambers appointment to discuss the issue of the outstanding assessments and another pretrial date.

[3] As I learned from counsel, the examinations for discovery were conducted in 2017 and the action was set down for trial in 2018. Counsel agreed on a schedule for the delivery of expert reports. The Plaintiffs served the bulk of its expert reports in January and February 2020.

[4] The defence had conducted a defence orthopedic assessment and a psychiatric evaluation. They arranged a vocational assessment, a future care costs evaluation and an assessment by a physiatrist to be done in March 2020. Unfortunately, due to the pandemic, these appointments were cancelled and rescheduled for July and August, which meant that the reports from these experts would not be available for the July 8 pretrial. Thus, a new date for the pretrial was requested for sometime after September 2020.

[5] These are unprecedented times, and the court’s regular services have been suspended since March 15, 2020. Pretrial conferences are being conducted virtually. One pretrial was cancelled because the defence assessments were not available and there is another pretrial set for July 8. While I understand counsel would prefer an in-person assessment by the experts for use at trial, at this moment in time that is impossible. The defence wishes to have expert opinions available at the pretrial on the issues of employability, loss of income and nature and extent of the injuries suffered by the Plaintiff in the accident, and they are entitled to have these assessments.

[6] It is unclear when the experts will be able to conduct evaluations of the Plaintiff in person. In my view, the experts retained by the defence should conduct paper reviews or perhaps do a virtual assessment of the Plaintiff in order to provide an expert opinion. These opinions should be available at the time of the pretrial so that a meaningful discussion of the issues in the lawsuit can be held with the pretrial judge.

[7] I appreciate that if the action does not resolve and proceeds to trial, it would be unfair to require the defence to call expert opinion at trial from specialists who have not had the benefit of an in-person examination of the Plaintiff. Thus, fairness dictates that if the defence wishes to avail itself of the opportunity of having its experts meet with the Plaintiff to finalize opinions in reports for use at trial, and if that is possible, the Plaintiff shall make herself available for such assessments. I wish to make it clear that if the defence experts have done a virtual examination of the Plaintiff or a paper review of the documentation and produced a report, the in-person examination shall only include areas that were absent from the initial report and shall not be construed as a brand-new examination by the expert.

[8] If counsel encounter any issues arising from my endorsement, I may be contacted.

Darla A. Wilson J.

Date: May 20, 2020