K.J. v. The Regional Municipality of Halton and Tad Nelson

COURT FILE NO.: CV-18-00601537

DATE: 20211022

ONTARIO SUPERIOR COURT OF JUSTICE

RE: K.J., Plaintiff

– and –

The Regional Municipality of Halton and Tad Nelson, Defendants

BEFORE: F.L. Myers J.

COUNSEL: Doug Smith for the Regional Municipality of Halton Kayla A. Carr, for Tad Nelson

HEARD: October 22, 2021

Endorsement

[1] The plaintiff alleges that she was sexually assaulted by the defendant Nelson while he was employed by Halton.

[2] Halton has settled with the plaintiff and moves for summary judgment on its crossclaim against Mr. Nelson. Under s. 2 of the Negligence Act, RSO 1990, c. N1, Halton bears the burden “satisfy the court that the amount of the settlement was reasonable”.

[3] Mr. Nelson cross-moves to stay the action on the basis that Halton was required to disclose the settlement to Mr. Nelson immediately as required under Handley Estate v. DTE Industries Limited, 2018 ONCA 324.

[4] At a June 22, 2021 appearance in Civil Practice Court, Chalmers J. scheduled the two motions to be heard on December 21 and 22, 2021. He also implemented a timetable for deliverables for the motions.

[5] Under the timetable ordered, Mr. Nelson’s evidence was due August 13, 2021. His counsel made no mention of any expert evidence to Chalmers J.

[6] On September 13, 2021, counsel attended a case conference with me. Counsel for Mr. Nelson advised that she had decided to obtain expert evidence for Mr. Nelson on the issue of vocational rehabilitation. By endorsement dated September 14, 2021, I provided for the expert evidence to be delivered by October 15, 2021. I also scheduled a case conference for October 22, 2021 to determine if Halton would require time to obtain expert evidence to respond to Mr. Nelson’s expert evidence.

[7] At the case conference today, counsel for Halton advised that his client has the expert it needs and is prepared to proceed with the motions as scheduled.

[8] However, now, Mr. Nelson seeks to amend the schedule again, to obtain expert evidence of a personal injury lawyer to opine on whether the settlement was reasonable.

[9] Halton objects. The matter was in CPC four months ago with no mention of any experts. A month ago I altered the schedule to accommodate Mr. Nelson’s desire to obtain expert vocational rehabilitation evidence. There was no mention of yet a further lawyer expert even then.

[10] Nothing has changed between CPC and today to give a sudden or new need for expert evidence that did not exist then. The deadline for Mr. Nelson to deliver evidence was in August.

[11] Motion timetables matter. If the summary judgment motion is to be adjourned, the next available date is in May or June, 2022. Mr. Nelson’s counsel said that it was difficult to find a lawyer who would agree to testify. But she never even mentioned the possibility or sought to build it into the schedule before today.

[12] Counsel is not free to ignore a schedule and just decide to bolster the record late. There is no real reason to require Halton to wait another half-year for a hearing except that counsel took more time than was available to collect evidence and did not mention the problem to the other side or to the court despite a prior attendance expressly to amend the schedule for other late expert evidence.

[13] I have no evidence of whether interest would compensate Halton or whether Mr. Nelson could pay it anyway. But focusing only on financial prejudice ignores the other important piece of the goal of proportionality – timeliness. Civil actions already take too long. The court is suffering a significant backlog due to the volume of cases generally and the pandemic in particular. Counsel would have the court lose a day in December which may or may not be back-filled if this matter adjourns.

[14] I do not see how it is fair, reasonable, in the interest of justice, consonant with access to justice, or the perception and appearance of justice to allow a party to simply ignore a court-ordered schedule to add evidence after the deadline for doing so has passed so to cause a six-month adjournment.

[15] The profession is clamouring for the enforcement of the Rules to prevent delays, all-too-frequent abuse of the Rules, and concomitant costs.

[16] The perception that the Rules do not matter and can be ignored has to be reigned-in to ensure efficient, affordable, and proportional civil justice. The idea that achieving “justice on the merits” always trumps procedure ignores the fact that a decision on the merits, in a system that is so delayed and so expensive as to be inaccessible to most Canadians, may not be justice at all.

[17] As a separate matter, I am very dubious of the admissibility of the proposed expert evidence. Expert testimony provides the court with an inference that is not available to it without the special education or experience of an expert witness. The reasonableness of a damages settlement in a personal injury case, including sexual assault cases, is the heart of the business of the court. A very high proportion of all civil cases in Toronto are personal injury cases. As many as four to six judges per week work on settling personal injury cases in pretrial conferences or conducting personal injury trials.

[18] While I do not find that expert lawyer’s evidence can never be available to assess the reasonableness of a settlement of a personal injury case, nothing about this case makes it fair or appropriate for Mr. Nelson to have ignored the schedule and held back this proposal until this many months later for evidence for which there is no apparent need. Counsel provided no reasons for not mentioning the request for this evidence either at CPC or to me a month ago when she already sought the indulgence of the other side and the court.

[19] Considering the principles laid out by Laskin JA in Khimji v. Dhanani (2004), 2004 12037 (ON CA) and the factors delineated by Perell J. at para. 34 of Ariston Realty Corp. v. Elcarim Inc., 2007 13360 (ON SC), as discussed in the narrative above, in my view it is not in the interests of justice to further amend the timetable established by Chalmers J. or to adjourn the summary judgment motion.

FL Myers

Date: October 22, 2021