Court File and Parties
COURT FILE NO.: CV-15-540037 DATE: 20220210 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Khary White and Miguel Downer, Plaintiffs AND: Wesley Stanford and The Personal Insurance Company, Defendants
BEFORE: D.A. Wilson J.
COUNSEL: Christopher D. Finlay, for the Plaintiff, Khary White Eric B. Heath, for the Defendant, Wesley Stanford
HEARD via Telephone: February 9, 2022
ENDORSEMENT
[1] This action appeared in trial scheduling court February 7 and counsel fixed a date for trial. It will be tried at the jury sittings in October 2023. Mr. Heath indicated that he would be bringing a motion for productions, so I convened today’s case conference.
[2] This is a claim for damages for personal injuries allegedly sustained by the Plaintiff White arising from a motor vehicle accident that occurred in 2013. There is another Plaintiff Mr. Downer, but the law firm has been removed from the record for this Plaintiff, who has not appointed other counsel or filed a notice that he will act for himself.
[3] The examinations for discovery took place and the solicitor for the Plaintiffs delivered the trial record in November 2021. Mr. Heath submits today that no expert report has been served by the Plaintiff offering the opinion that the injuries from the 2013 accident are serious and permanent and as a result, the Plaintiff meets the criteria under the legislation, the so-called “threshold” issue. Mr. Finlay was uncertain, but after checking his file, he confirmed that no such report has been served by the Plaintiff White. There are other expert reports that arose in the context of the accident benefits claims.
[4] The law is clear that in order to succeed on a claim for damages arising from a motor vehicle accident, the injured party must have an expert opinion stating that the injuries meet the statutory threshold. Mr. Finlay advised that he had sufficient time to secure such an opinion prior to the deadlines set out in the expert report timetable. In my view, this is not an acceptable response. This action was commenced 7 years ago, and the injuries arise from an accident that happened 9 years ago. The solicitor for the Plaintiff is aware that it is necessary to have an opinion from an expert on the threshold issue in order to succeed at trial. It serves no-one’s interests to delay in serving such a report until the matter is on the verge of trial. A Defendant knows that without a threshold opinion there is really no case to meet, so the chances of settlement at an early stage are remote, or non-existent. I am not prepared to permit the Plaintiff to deliver a threshold opinion in 2023. I direct that any report from an expert on the threshold issue is to be served on or before May 31, 2022.
[5] I was advised that the Plaintiff was involved in another motor vehicle accident in 2012 and a further one in 2019, after the discoveries were conducted. Mr. Finlay has agreed to request the police report from the 2019 accident and to update the clinical notes and records from the treating doctors of the Plaintiff to include any treatment for the 2019 accident. After review of these records, Mr. Heath will be in a position to determine if a further discovery is necessary. Counsel indicated they should be able to work together on this issue. If not, I may be contacted for a further case conference. As I noted to counsel, once a case is fixed for trial, there should not be motions for productions, expert examinations, or further assessments. These motions take a great toll on the limited court resources and should not be necessary after a matter is fixed for trial.
[6] Mr. Heath indicated that he wishes to bring a motion to dismiss the claim of the other Plaintiff, Downer, given he has not complied with Rule 15. Leave is granted to bring that motion, which could not have been anticipated.
Date: February 10, 2022