Court File and Parties

COURT FILE NO.: CV-18-00594523-0000

DATE: 2022-08-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Almeida, Plaintiff AND: Melnyk, Defendant

BEFORE: D.A. Wilson J.

COUNSEL: Rebecca Nelson, for the Plaintiff Paul Omeziri, for the Defendant

HEARD via Teleconference: August 3, 2022

ENDORSEMENT

[1] This is a claim for damages for personal injuries allegedly sustained in a motor vehicle accident. It is fixed to commence trial at the Jury sittings in Toronto which are scheduled for October 2022. The pretrial is set for August 8, 2022.

[2] The trial coordinator received a request to adjourn both the pretrial and the trial date on consent. When she inquired what the reason was for the adjournment, she was advised there was service of an expert report which did not comply with the timetable that had been put in place. As a result, I convened a case conference.

Factual Background

[3] In March 2021, counsel appeared before me and fixed the trial for October 2022. They agreed on a pretrial date of August 8, 2022 and also filed a consent timetable for the delivery of expert reports. That timetable required the Plaintiff’s expert reports to be served by May 31, 2021 and the defence reports by November 30, 2021. Counsel agreed that no new expert reports would be served after March 25, 2022, on behalf of the Plaintiff and May 31, 2022 on behalf of the Defendant.

[4] On July 25, 2022, Ms. Nelson wrote to the trial coordinator advising that one of her experts, the orthopedic surgeon Dr. Alpert, was ill and she had been advised on April 5, 2022 that he would not be able to testify at trial. As a result, she retained Dr. Djuric, a physiatrist, who rendered a report on July 1, 2022 and Ms. Nelson served it on July 4, 2022.

[5] The Defendant had a defence medical undertaken by Dr. Clarke, a physiatrist, and his report was served in August 2020. Mr. Omeziri submits that Dr. Clarke is unable to review the new report and provide his comments prior to the trial in October. As a result, he submits the new report ought not to be allowed in evidence at trial. If it is, it will result in great prejudice to the defence because Dr. Clarke will not be able to provide his commentary on the report.

[6] As a result, both counsel are content to adjourn both the pretrial and the trial dates.

Analysis

[7] There are a number of matters in this consent request which are unacceptable. While I understand that Ms. Nelson served the report of Dr. Alpert in 2018, so it complied with the expert timetable, she did not apparently seek to have Dr. Alpert review the defence medical of Dr. Clarke until April of 2022, although she had the report from Dr. Clarke since 2020. If she intended to elicit evidence from Dr. Alpert concerning the opinion of the defence expert, she ought to have made that request in August 2020 when she received the report. Any report from Dr. Alpert would have been received 2 years ago or if Dr. Alpert was ill, Ms. Nelson would have learned of this in a timely fashion and could have retained another expert and served the report in compliance with the timetable she agreed to in March 2021. It appears that Ms. Nelson had no contact with Dr. Alpert’s office from 2018 when his report was secured until April 2022. I do not understand that, given that in this time frame, the trial and pretrial dates were fixed.

[8] I also do not understand why Ms. Nelson felt it was necessary to secure a report from a different kind of expert after she learned Dr. Alpert would not be able to testify at the trial. Dr. Alpert is an orthopedic surgeon and Dr. Djuric is a physiatrist. No explanation was provided in response to my inquiry, apart from advising that Dr. Djuric was the “only” expert she could retain on such short notice.

[9] Mr. Omeziri’s position at the conference was that Dr. Clarke could not provide his comments on the Dr. Djuric report before trial. I found that to be surprising. Mr. Omeziri was unable to advise me when Dr. Clarke was contacted to provide his supplementary report, why he could not do it before a trial set to start in October or when he would be able to provide the report. That is unacceptable, in my opinion. Dr. Clarke is an expert retained pursuant to Rule 53 to testify at trial; that carries with it certain obligations and one of them is to provide reports that comply with timetables and with the Rules of Civil Procedure. If an expert is too busy to respond to counsel’s requests, then perhaps that practitioner ought not to be offering his or her services as an expert for the purposes of trial.

[10] Dr. Clarke is of the same specialty as Dr. Djuric so it should not be difficult for him to review the report and provide his opinion on the views and conclusions of Dr. Djuric. While I recognize that the Plaintiff has clearly breached the timetable for service of expert reports and the report of Dr. Djuric does not comply with the Rules, I am also not persuaded that the defence has acted with dispatch in attempting to get the commentary of Dr. Clarke. Attending a case conference without being able to provide details about when the further report of Dr. Clarke will be available is not acceptable.

[11] The amendments to the Rules governing service of expert reports that came into effect in March 2022 provide that counsel can agree to a new timetable as long as the trial date is not affected. That is what should have occurred in this case. If the defence is able to secure the comments of Dr. Clarke on the new report by August 30, 2022, then there is no prejudice to the defence in allowing the expert report of Dr. Djuric into evidence. I make this statement not to countenance the actions of the Plaintiff in this case, but in an attempt to move this 2018 action forward to trial in October. The trial should proceed if possible; in Toronto, adjournments of fixed trial dates are only granted in extenuating circumstances. The illness and inability of Dr. Alpert to testify at trial was not anticipated by counsel; however, counsel should cooperate to see if both parties can have the evidence they require at trial available by October.

Order

[12] The pretrial set for August 8 is adjourned to a date in September. Counsel for the Defendant is directed to write to Dr. Clarke requesting his comments on the Dr. Djuric report forthwith and to inquire when that report will be available. Mr. Omeziri is to advise the Court of the date that Dr. Clarke will be able to serve his further report. In my view, the report should be available by August 31, 2022; if Dr. Clarke cannot comply with that date, Mr. Omeziri is to contact the trial coordinator and request a further case conference before me.

Date: August 5, 2022