COURT FILE NO.: CV-16-180-00, CV-161-181-00, CV-16-182-00
DATE: 2020-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RUSSELL ET AL.
B. Love, for the Plaintiff
Plaintiff
- and -
MAINVILLE ET AL.
I. Corneil, for the Defendant Fedex
S. Mack, for the Defendants Mainville and Marty Gardner Trucking
Defendant
HEARD: September 11, 2020, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons on Motion
Overview
[1] The defendants bring this motion for an order for leave to serve a responding expert report and to call the author of that report as a witness at trial.
[2] For the following reasons, I allow service of the report and permit the author of the report to be called as a witness at trial. However, in the circumstances, I order that the defendants pay the costs of this motion to the plaintiffs fixed in the amount of $2000 plus HST. These costs are payable within 30 days.
The Facts
[3] The facts are not in dispute.
[4] On April 17, 2014, the main plaintiff, Mr. Russell, was seriously injured in a car accident. Mr. Russell sustained catastrophic injuries, including the loss of a leg above the knee. Not surprisingly, the damages claimed in a statement of claim are significant, well over $5 million, with a significant amount of the claim comprising damages for future care costs.
[5] This action was commenced in April 2016.
[6] Justice Nieckarz presided over a pretrial on October 15, 2019, and made a number of orders for the conduct of the action. One of the orders was that the defendants were to serve responding expert’s reports with respect to liability and damages no later than January 31, 2020, with responding reports from the plaintiffs no later than April 30, 2020. Justice Nieckarz ordered that this action was to be placed on a civil jury sittings running list commencing November 16, 2020. She also directed that a further pretrial was to be held before her in May 2020 and that a trial management conference was to be scheduled no later than 90 days prior to the commencement of trial.
[7] Notwithstanding this deadline, the defendants were not quick to act. They did not agree upon an expert to respond to the future care costs claim until a few weeks before the deadline. An engagement and instructing letter was sent to that expert on January 27, 2020, four days before the deadline set by Justice Nieckarz.
[8] The pretrial set for May 2020 was adjourned because of the suspension of operations caused by the COVID-19 pandemic and the pretrial conference proceeded on June 26, 2020. The expert report which is the subject of this motion was served with the defendants’ pretrial material on June 19, 2020. Although the deadline for delivery of the report passed on January 31, 2020, the defendants did not notify the plaintiffs in the almost 6 months since the deadline that a report would be forthcoming.
[9] After the pretrial in July 2020, Justice Nieckarz advised the parties that this action would not be able to proceed in November 2020, as originally scheduled because of the restrictions placed on court operations and the availability of courtrooms. She noted, “it is not presently certain as to when the trial may proceed if it is to remain a jury trial.”
[10] I am the trial judge for this action and conducted a preliminary trial management conference on September 8, 2020. It is not still known when this trial may proceed if it is to remain a jury trial.
Positions of the Parties
[11] The defendants argue that, despite late delivery, the court should accept the expert report unless the plaintiff can demonstrate significant prejudice to the plaintiff. As the trial has not yet been scheduled, the defendants state that there is no prejudice.
[12] The plaintiffs argue that orders, and in this case, the case management orders, should not be ignored and that to do so would undermine the effectiveness of orders. The plaintiffs rely upon, among others, Justice Wilson’s decision of myNext Corporation v. Pacific Mortgage Group Inc., 2019 ONSC 4431. The plaintiffs argue that there is no justifiable reason for noncompliance with the order and that they are prejudiced because there will be undue delay in reaching trial should the request be allowed, given that a reply or supplementary report will be required. The plaintiffs also argue that it will be difficult to secure a report because of the limitations caused by the current pandemic.
[13] They also raise the issue that an additional expert may be required since the defendants’ expert has raised an issue of potential bias of the plaintiffs’ expert, who will be providing much of the future services being recommended.
Analysis and Disposition
[14] Rule 53.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, addresses evidence admissible only with leave and includes the failure to serve expert reports in the time provided. It provides that the court shall grant leave “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.”
[15] Prejudice has not been demonstrated by the plaintiffs. The delay of the trial is caused by factors unrelated to the timing of delivery of reports and outside the control of any parties. The myNext decision is distinguishable. In that case, Justice Wilson had made an order that no expert reports were to be delivered and a party sought to deliver a report.
[16] The defendants’ reply report was based on a paper review. There is no evidence offered before me to indicate that a rebuttal report would be difficult to prepare given the current pandemic circumstances.
[17] As to the bias issue, the plaintiffs would have been aware that having the potential provider of services opine on the necessity of those services could be perceived as a source of bias.
[18] Accordingly, as no prejudice has been demonstrated, the report may be served and the author of the report may testify at trial. The plaintiffs shall have 60 days from the date of the release of this decision to deliver a responding report if they wish to do so.
Costs
[19] Court orders are not to be ignored. The failure to retain a defence expert until just prior to the deadline demonstrates a cavalier attitude to court orders. The failure of the defendants to advise the plaintiffs that a report was forthcoming after the expiry of the deadline and not to announce that a report was being sought until just immediately prior to the second pretrial demonstrates a cavalier attitude to the civil litigation process. To be efficient, that process requires the cooperation of counsel.
[20] Consequently, although successful, the above-noted behaviour attracts costs. Court orders are to be obeyed and strictly enforced. The plaintiffs shall have their costs of this motion payable by the defendants within 30 days fixed in the amount of $2000 plus HST.
Further Trial Management
[21] Counsel are to contact the trial coordinator to arrange a further trial management conference via ZOOM within the next 30 to 45 days. Issues to be discussed will be:
Whether this action will proceed with or without a jury;
Witnesses to be called and whether any of the witnesses can testify remotely;
Whether there are any evidentiary issues to be addressed, including scope of expert testimony or admissibility of documents;
An agreed statement of facts;
Joint exhibit books/exhibit books;
Any other trial management issues; and
The trial date.
[22] Counsel shall file a brief outline addressing these and any other issues in advance of the trial management conference.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: September 17, 2020
COURT FILE NO.: CV-16-180-00 CV-16-181-00 CV-16-182-00
DATE: 2020-09-17
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
RUSSELL ET AL.
Plaintiff
- and -
MAINVILLE ET AL.
Defendant
REASONS ON MOTION
Newton J.
Released: September 17, 2020
/cjj