Court File and Parties

Court File No.: CV-19-1425 Date: 2022-04-21 Superior Court of Justice - Ontario

Re: Paula Havill, Plaintiff And: Nicole Wilson, Defendant

Before: Justice D.J. Gordon

Counsel: Dwain C. Burns, for Moving Party/the Defendant Bryan M. Sansom, for Responding Party/the Plaintiff

Heard: April 8, 2022 (via Zoom)

Endorsement

[1] In her motion, the defendant sought an order adjourning the pre-trial conference scheduled for May 10, 2022 and related relief. Following submissions of counsel, I reserved my decision. Given the urgency of the matter, I released an endorsement on April 11, 2022, granting the motion, with written reasons to follow.

Background

[2] This is a personal injury action, resulting from a motor vehicle collision occurring on December 8, 2017.

[3] The Statement of Claim was issued on October 18, 2019 and the Statement of Defence and Jury Notice followed on November 7, 2019. Examinations for Discovery occurred on April 29, 2020. The Trial Record was served by the plaintiff’s counsel on January 22, 2021. Counsel arranged for a pre-trial conference, on consent, to be held on April 12, 2022. It was rescheduled, again on consent and at the request of the plaintiff’s counsel, to May 10, 2022.

Medical Reports

[4] It is alleged the plaintiff suffered significant neurological injury as a result of the motor vehicle collision. Her damage claim reflects this event. The plaintiff, or her counsel, arranged numerous medical consultations to address the injury.

[5] In May 2021, plaintiff’s counsel served a number of medical reports, including neurological, physiatry and psychiatry assessments. Further reports were delivered, from November 2021 to February 2022, including a brain scan diagnostic, vocational assessment, economic loss and future care cost. As well, supplementary reports pertaining to those delivered in May 2021 were provided in February 2022.

[6] Plaintiff’s counsel made inquiry on a number of occasions as to whether defence medical assessment would to be arranged. The ultimate response from defendant’s counsel, in January 2022, was to request a settlement proposal. It would appear the defendant was reluctant to incur the significant expense for defence medicals unless necessary.

[7] Defence medical assessments have been scheduled, none of which would allow for reports in a timely manner, unless the pre-trial conference is adjourned. The appointments for psychiatry, neurological and physiatry assessments would be in April and May 2022, with a vocational assessment to be arranged as that assessor requires the other reports. Defence medical reports would be available by September 2022.

Principles

[8] Pursuant to Rule 53.03(1) of the Rules of Civil Procedure, expert reports must be delivered 90 days before the scheduled pre-trial conference.

[9] An adjournment is discretionary. The court must balance the substantive right of the defendant to have a fair chance to reply to the plaintiff’s medical evidence with the plaintiff’s right not to be prejudiced by a last-minute motion or assessment. See Matic v. Timpano, 2019 ONSC 1392, at para. 10 for a summary of the caselaw in this regard.

[10] Plaintiff’s counsel referred to several decisions of a similar nature as here, involving motions for defence medical assessment that were dismissed, including Younan v. Persaud, 2011 ONSC 2129, Vasallo v. Piccinato, 2008 CarswellOnt 6034, Sivagnanasuntharam v. Wong, 2021 ONSC 2100 and Early-Kendall v. Sirad, 2007 ONCA 468. In these cases, a trial date was already scheduled. Reliance was also placed on Matic, supra, where at para. 15, Ramsay J., in reference to the submission of no trial date having been set, identified the scheduling of the pre-trial conference being crucial to the scheduling of the trial.

[11] Defendant’s counsel referred to Tan Duc Ngo v. Mario L. Neves, 2017 ONSC 6130, where the pre-trial conference was adjourned. In that case, the plaintiffs had served expert reports in contravention of the timetable previously imposed. In Edwards v. McCarthy, 2021 ONSC 4270, the plaintiff was directed to attend medical assessment appointments arranged by the defendant where such would not impact the already scheduled trial date.

Analysis

[12] If the pre-trial conference was to proceed as scheduled, in theory, the case could have been put on the trial list for the sittings commencing September 6, 2022. That scheduling would have been addressed by the pre-trial conference judge. The September sittings, in all likelihood, could have accommodated this trial, subject to the other cases on the list. However, it is by no means certain that the pre-trial conference judge would have made such a direction as the discussion with counsel would have included their availability. Defendant’s counsel reports being overbooked already for trials in the 2022 sittings. There is now a matter of concern regarding trial length; whether the trial will be three weeks or less, and be placed on a regular sittings, or more than three weeks, and be placed on the long trial sittings list if approved as such by the Regional Senior Justice Sweeny.

[13] The prejudice to the defendant if the pre-trial conference is not adjourned is obvious. They would have no defence medical assessments, and while there is other medical evidence to work with, there would be an impact on trial fairness.

[14] There is some prejudice to the plaintiff if there is a delay in trial, delay not being a certainty in this case. She is receiving a significant portion of her income loss at present. Such reduces the prejudice.

[15] I am mindful, as well, as to the provisions of Rule 48.04 of the Rules of Civil Procedure. While not directly in issue on this motion, plaintiff’s counsel set the action down for trial prior to serving medical reports. See: Edwards, supra. Further, four of the second set of medical reports served by the plaintiff’s counsel involve new topics. It would have been impossible for the defendant to schedule medical assessment appointments and meet the time limits. Indeed, the plaintiff would have contravened the 90-day requirement had the pre-trial conference not been adjourned to May 10, 2022.

[16] In the circumstances of this case, I conclude trial fairness requires an adjournment of the pre-trial conference. In my view, this has no impact on a realistic trial date in any event. While the plaintiff should have been more diligent in scheduling neurological, physiatry and psychiatric assessments, there are other areas that need to be explored. The plaintiff’s delay is a matter for costs after trial.

[17] It is assumed the appointments scheduled by the defendant will proceed, no objection having been raised by plaintiff’s counsel in the event the motion was granted.

[18] Subsequent to receiving submissions from counsel and my earlier endorsement, I have been made aware of the amendment to Rule 50.02 of the Rules of Civil Procedure, effective March 31, 2022. While not applying to this case, as the action was already set down for trial, pre-trial conferences in future cases will be “tethered” to the trial sittings instead, namely, to be scheduled 30 to 120 days before the sittings when the trial is expected to be held. My ruling, in essence, is consistent with that amendment.

[19] It is anticipated the defence medical assessment reports will be served by September 2022. Subject to the plaintiff seeking to update her assessment reports, a pre-trial conference can be scheduled so that the trial can occur at the February or April 2023 sittings, or, if a long trial, at the Spring sittings as approved by Regional Senior Justice Sweeny. It is also expected that counsel an agree on a timetable or consider requesting the Regional Senior Justice to assign a case management judge. The parties might also consider mediation and, if so, such should be addressed in the timetable.

Summary

[20] For these reasons, the defendant’s motion is granted on the following terms:

a) the pre-trial conference date of May 10, 2022 is vacated;

b) counsel shall arrange a new pre-trial conference date with the trial co-ordinator;

c) counsel shall agree on a timetable, failing which, they shall consider requesting a case management judge being assigned prior to any motion; and

d) no order as to costs.

Justice D.J. Gordon