Court File and Parties

COURT FILE NO.: CV-13-482156

DATE: 2020-11-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sabrina Mattiucci and Giancarlo Mattiucci, Plaintiffs

AND:

Stephen Roman, Jennifer Mantello-Roman, Stewart Title Guaranty Company, Steven Carcasole carrying on business as Ampwood Home Inspections; and The Corporation of the Township of King, Defendants

BEFORE: Pinto J.

COUNSEL: Emilio Bisceglia and Adrian DiBiase, for the Plaintiffs

Stephan Roman, self-represented Defendant

HEARD: November 16, 2020

ENDORSEMENT

[1] The trial of this action is set to commence on November 23, 2020. I am the trial judge. In the action, the Mattiucci plaintiffs claim that the residential property in King City that they purchased from the Roman defendants in 2012 had several serious and latent structural defects. Stephan Roman ("Roman") is the only defendant left in this action. The other defendants have settled with the plaintiffs.

[2] This is my decision with respect to two pre-trial motions that were argued before me via Zoom on November 16, 2020. I provided my decision at the Zoom hearing with written reasons to follow. These are those reasons.

[3] The plaintiffs bring a motion to, inter alia, strike out Roman's defence for failure to comply with a requirement of the Rule 50.08 Trial Management Report, and to exclude a late filed expert report from Elio Mazzolin ("the Mazzolin Report") that Roman wishes to have admitted.

[4] Roman brings his own motion seeking leave to file the Mazzolin Report, and to present the evidence of more than 3 experts at trial.

[5] Complicating the picture is the fact that Roman sent a Supplementary Affidavit of Documents to the plaintiffs on November 13, 2020 referencing over 50 photographs of the residential property. As Roman found these photographs in a file maintained by his previous lawyer, neither he nor the plaintiffs can presently confirm whether these photographs have been previously produced. The plaintiffs request, depending on my ruling on the motions, that they be permitted to further discover Roman about these photographs.

[6] I deal with the motions and related trial management issues in the following order:

(1) Should Roman's defence be struck for failure to comply with the terms of the Rule 50.08 Trial Management Report?

(2) Should the Mazzolin Report be permitted to be filed late?

(3) How should the parties deal with the photographs recently found by Roman that he seeks to include in a Supplementary Affidavit of Documents?

(4) What are the next steps in terms of trial preparation?

1. Should Roman's defence be struck for failure to comply with the terms of the Rule 50.08 Trial Management Report?

[7] Following the pre-trial conducted by Stinson J. on October 23, 27 and 28, 2020, the parties agreed on a number of steps to prepare for the trial. The Rule 50.08 Trial Management Report was filed on November 4, 2020.

[8] Roman was to notify all of the 22 witnesses that he intends to call by October 30, 2020. Plaintiff's counsel sent Roman a letter dated November 3, 2020 asking for written confirmation that Roman had notified his witnesses, and for contact information for the witnesses. As of November 11, 2020, Roman had not replied to this correspondence. Accordingly, the plaintiffs request that Roman's defence be struck due to his failure to comply with the Trial Management Report.

[9] Roman filed a Responding Motion Record on November 15. He responded that he was not aware from the Trial Management Report that he was to respond to the plaintiffs after contacting his witnesses but that, in any event, he had been in contact with 12 witnesses, whom he named. Roman explained that he was only able to retrieve his legal file from his former lawyer on October 19, 2020 after his ex-wife consented to the file being released. Roman submitted that it would be a drastic and disproportionate consequence to strike out his defence.

[10] I do not consider it fair, in the circumstances, to strike Roman's defence and decline to do so. While there is no doubt that Roman did not keep the plaintiffs apprised in a timely manner concerning his witnesses, the consequence that the plaintiffs call for should only be used as a last resort and here, the better response is to ensure that Roman proceeds in a more compliant manner going forward: Koohestani v. Mahmood, 2015 ONCA 56 at para. 54.

2. Should the Mazzolin Report be permitted to be filed late?

[11] On October 30, 2020, Roman sent plaintiffs' counsel the Mazzolin Report together with an Acknowledgment of Expert Duty. The plaintiffs object to the late filing of the Mazzolin Report and request that I disallow it from being admitted at trial.

[12] The plaintiffs submit that:

(a) Roman failed to comply with the order of Firestone J. dated January 16, 2019 which required that any expert report be delivered by March 30, 2020.

(b) Roman, now self-represented, was represented by counsel at the time of Firestone J.'s order and for several months thereafter, yet he did not advise that he intended on relying on the Mazzolin Report until late October 2020 during the pre-trial before Stinson J.

(c) While it is true that a draft of the Mazzolin Report was disclosed on February 28, 2017 as part of Roman's answers to undertakings, the plaintiffs reasonably assumed that Roman was not relying on the Mazzolin Report, and have prepared their case for trial around this assumption.

(d) The plaintiffs took their obligations regarding expert reports seriously and it would be unfair to allow Roman to file a new expert report so close to trial.

(e) The plaintiffs retained three experts and it is unclear whether their experts could respond to the Mazzolin Report or whether a new expert would have to be retained which would be difficult to do in a timely manner.

(f) In the alternative, if the Mazzolin Report is permitted to be filed late, the trial should be adjourned or the trial schedule varied so that the plaintiffs can properly respond to the Mazzolin Report.

[13] Roman responds that:

(a) There is no material difference between the finalized Mazzolin Report that he now wishes to have admitted and the draft Report that was disclosed in February 2017;

(b) His former lawyer sent plaintiffs' counsel a letter dated December 21, 2012 referring to Mr. Mazzolin as "our expert";

(c) He would be prepared, in the circumstances, to consent to the plaintiffs being granted leave to respond to the Mazzolin Report via their own expert.

[14] My ruling on this issue must be guided by Rule 53.08 and the case law thereunder. Rule 53.08(1) states:

If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), 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.

[15] I read the rule as directing that I must allow the late expert report to be admitted unless I find that the prejudice to the plaintiffs cannot be cured including by an adjournment if necessary. As I find that the prejudice to the plaintiffs (i.e. their reliance and preparation to date based on not having the Mazzolin Report) can be cured by further trial management, discussed below, I grant Roman's motion to permit the Mazzolin Report to be filed late, and I dismiss the plaintiffs' motion.

[16] The factors I have taken into account include:

(a) The finalized Mazzolin Report is the same as the draft report previously provided to the plaintiffs;

(b) Roman's other experts cannot cover the same issues as Mazzolin and Mazzolin's evidence appears, at least on a preliminary view, to be germane to the issues in the action;

(c) The Mazzolin Report is not very long or seemingly complicated and does not appear to raise issues that would take the plaintiffs completely by surprise.

(d) Plaintiffs' counsel acknowledged that it might be the case that one of the plaintiffs' current experts may be able to respond to the Mazzolin Report but, to be clear, the plaintiffs reserve the right to seek a new expert to respond.

[17] In sum, I agree that the late delivery of an expert report causes all kinds of difficulties for a trial, see Cheesman et al v. Credit Valley Hospital et al, 2019 ONSC 5783. However, any prejudice can be cured by taking further steps in trial management to allow the plaintiffs to respond to the Mazzolin Report.

3. How should the parties deal with the photographs recently found by Roman that he seeks to include in a Supplementary Affidavit of Documents?

[18] Neither party could say whether the photographs recently found by Roman had been produced before. I determined that the proper response was to direct Roman to provide the plaintiffs with information as to these photographs. At a minimum, Roman should answer, with respect to each photograph, the following questions to the extent that he knows:

(a) what was the date when the photograph was taken?

(b) who took the photograph?

(c) what is the photograph of?

[19] Roman may group his answers if they pertain to more than one photograph. I also direct, as my order below indicates, that if the plaintiffs wish to conduct a further discovery of Roman with respect to the issue of the photographs, that they be permitted to do so.

4. What are the next steps in terms of trial preparation?

[20] I advised the plaintiffs that, in light of my decision on the motions, I would be prepared to have the trial commence a few days later than the current start date of November 23, 2020 but, in any event, no later than November 30, 2020. This would permit the plaintiffs to respond to the late filing of the Mazzolin Report. It would also allow the parties to respond to any new information that arises from the newly found photographs.

[21] In light of my ruling, the parties also requested whether another pre-trial conference could be arranged and, having made further inquiries, I understand that Stinson J. is prepared to conduct another pre-trial during the week of November 23, 2020.

[22] In light of the foregoing, an Order shall go as follows:

(1) The plaintiffs’ motion to have Roman's Statement of Defence struck and the Mazzolin Report excluded is dismissed.

(2) Roman is granted leave to file the Mazzolin Report dated July 11, 2013 (sent under cover of Roman's October 30, 2020 email) and to have more than 3 experts testify at trial.

(3) Roman shall provide information in writing to plaintiffs’ counsel concerning the photographs he recently found no later than 1:00 p.m. on Tuesday, November 17, 2020.

(4) Leave is granted for the plaintiffs to conduct a further discovery of Roman concerning the photographs. The plaintiffs shall advise Roman no later than 4:00 p.m. on Wednesday, November 18, 2020 if they require discovery, and the plaintiffs shall arrange for an examination for discovery of Roman to take place virtually at 10:00 a.m. on Thursday, November 19, 2020, which examination shall not exceed 1 hour in length and be limited in scope to the photographs.

(5) The parties shall attend a case conference before me via Zoom under Rule 50.13 at 2:00 p.m. on Thursday, November 19, 2020 to discuss any outstanding trial management issues including:

(i) The anticipated timing by which the plaintiffs can respond to the Mazzolin Report;

(ii) A further review of the witnesses to be called at trial and estimated length of trial;

(iii) The status of the Joint Book of Documents and Agreed Statement of Facts;

(iv) The date the trial should commence if it is not to commence on November 23, 2020;

(v) The venue and format of the trial in light of the evolving COVID-19 situation; and

(vi) Any other trial management issues.

[23] I shall determine the costs of the motions in my capacity as trial judge.

Pinto J.

Date: November 17, 2020