Court File and Parties

Court File No.: 26091/13 Date: 2023-01-10 Ontario Superior Court of Justice

Between: Myron William Cepecawer, Plaintiff And: McKevitt Trucking Ltd. and Justin Hall, Defendants

Counsel: Kenneth G. Walker, for the Plaintiff Rose Muscolino, for the Defendants

Heard: December 12, 2022

Varpio J.

Reasons for Decision

[1] The matter is set for a jury trial commencing in March 2023. The matter is approximately ten years old and has had a number of trial dates adjourned for a variety of reasons. I need not recite the particulars thereof at this point in these reasons but, suffice it to say, the matter has not proceeded in an efficient fashion.

[2] The plaintiff brought this motion in July of 2022 but, because of my trial schedule and plaintiff counsel’s unavailability during part of the fall, the matter was not heard until December.

[3] The plaintiff seeks the following relief:

1. An order pursuant to Rule 53.03(4) abridging the time for service and validating service of a report prepared by Ms. Kate Wainio-Smit, which was served upon the defendant on June 3, 2022;
2. An order pursuant to Rule 53.03(4) abridging the time for service and validating service of an expected expert report prepared by another expert witness which is expected later on this month;
3. An order pursuant to Rule 53.03(4) abridging the time for service and validating service of a report prepared by Dr. Lionel Marks de Chabris, which was served upon the defendant on June 3, 2022;
4. An order compelling the defendants to answer all outstanding undertakings; and
5. An order amending the Fresh as Amended Statement of Claim to include a claim for punitive damages as well as reference to the relevant legislation.

Ms. Wainio-Smit and the Unknown Expert

[4] The plaintiff initially retained Ms. Margaret Bumphrey, a Registered Rehabilitation expert and Certified Vocational Rehabilitation expert, to prepare a report. On December 4, 2019, the plaintiff served an expert report from Ms. Bumphrey, some four weeks prior to a scheduled trial. The trial was adjourned and responding reports were produced by the defendants.

[5] A further trial date was ultimately set for February 2022.

[6] On November 30, 2021, the plaintiff’s counsel advised the defendant that Ms. Bumphrey would not be able to testify for trial because her husband had passed away and that she was not coping well. The February 2022 trial was adjourned to March 2023. A new expert, Ms. Wainio-Smit, saw the plaintiff in December of 2021.

[7] On May 6, 2022, plaintiff’s counsel advised the defendant that Ms. Bumphrey was now retired and that Ms. Wainio-Smit would provide a report in place of Ms. Bumphrey’s report. Ms. Wainio-Smit’s report was served on June 3, 2022.

[8] In submissions before me, plaintiff’s counsel advised that Ms. Bumphrey was in a frail state, that she was caring for her child and that she had retired from litigation services altogether.

[9] The defendant objects to the abridgment of time to serve Ms. Wainio-Smit’s report and the validation of same because:

1. There is insufficient evidence that Ms. Bumphrey is incapable of testifying at trial. Ms. Bumphrey is an expert who signed the Acknowledgment of the Expert’s Duties and, as a consequence, Ms. Bumphrey knows that she is required to attend and assist the trier of fact;
2. Ms. Wainio-Smit’s report makes reference to Ms. Bumphrey’s report; and
3. There is insufficient explanation for the delay in serving Ms. Wainio-Smit’s report (December 2021 to June 2022).

[10] In March of 2022, Rule 53 of the Rules of Civil Procedure was amended. The relevant portions of Rule 53.03 of the Rules of Civil Procedure state:

53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48; O. Reg. 170/14, s. 17.

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.

Schedule for Service of Reports

(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1), (2) and (3), unless the court orders otherwise. O. Reg. 438/08, s. 48; O. Reg. 537/18, s. 8 (1).

[11] Rule 53(4) provides for extensions and abridgments of time:

Extension or Abridgment of Time

(4) The time provided for service of a report or supplementary report under this rule may be extended or abridged,

(a) by the judge or associate judge at the pre-trial conference or at any conference under Rule 77;

(b) by the court, on motion; or

(c) on the written consent of the parties, except that the parties may not consent to an extension that would affect the scheduled trial date.

O. Reg. 570/98. s. 3; O. Reg. 186/10, s. 4; O. Reg. 383/21, s. 15; O. Reg. 18/22, s. 9.

[12] Rule 53.08 of the Rules of Civil Procedure deals with the granting of leave:

Evidence Admissible only with Leave

53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,

(a) there is a reasonable explanation for the failure; and

(b) granting the leave would not,

(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or

(ii) cause undue delay in the conduct of the trial. O. Reg. 18/22, s. 10 (1).

(2) Subrule (1) applies with respect to the following provisions:

5. Subrule 53.03 (3) (failure to comply with requirements re experts’ reports).

O. Reg. 284/01, s. 13; O. Reg. 260/05, s. 11; O. Reg. 18/22, s. 10 (2).

[13] Edwards R.S.J. commented upon the interplay of these rules in Agha v. Munroe, [2022] O.J. No. 1897. At paras 18 and 19, Edwards R.S.J. stated:

Fundamentally, the aforesaid amendment [Rule 53], in my view, will result in a change in how trial judges will be required to consider motions that essentially ask for an indulgence resulting from the late service of an expert report and the admissibility of that evidence at trial. Where the old rule provided that leave of the trial judge "shall be granted", the new rule now is permissive using the language "may be granted".

In addition, the new rule sets forth a new test which will guide the trial judge's exercise of his or her discretion. The onus will be on the party seeking the indulgence to allow for the late service of the expert report and the admissibility of the expert's evidence at trial. The party who is in default of their obligations with respect to the timely service of an expert's report will have to show that there is a reasonable explanation for the failure to serve an expert report, and that the granting of leave will not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment, or cause any undue delay in the conduct of the trial.

[14] Edwards R.S.J. then stated at paras. 30 to 32:

For these reasons, this court refused to allow the Plaintiff's request to late serve expert reports. The purpose of the new rule is, in my view, clear and obvious. The first purpose is to send a very loud and clear message to all sides of the Bar, that expert reports are to be served in a timely manner and in accordance with the provisions of Rule 53.03(1) and (2).

There is a good reason to require the timely exchange of expert reports prior to the pre-trial. A pre-trial is not just an administrative step in a proceeding. It is a step that has two fundamental purposes. The first is to explore the possibility of settlement. The second important purpose is to deal with trial management issues. The comments of Stinson J. in Prabaharan, at paras. 2 and 3, are worth repeating, as in my view they are equally applicable to the new rule:

A PTC is an occasion and an opportunity for each side to develop a better understanding of their own and their opponent's case. More importantly, it is also an opportunity for each side to receive guidance and feedback from the presiding PTC judge. Based upon the contents of the PTC memos and other evidence (such as copies of expert reports) the presiding judge can discuss with a party the strengths and weaknesses of their case and assist them in re-evaluating their (and their opponent's) position on settlement.

Where one or both parties fail to follow the rules, the purpose of the PTC cannot be achieved. This is unfair to the opponent and the Court, because the time of each is wasted and the otherwise useful feedback cannot be provided. It also has the possible result of clogging the system with a case that should have settled at (or in the wake of) the PTC, but could not because inadequate information was available at the relevant time.

Lawyers and litigants need to adapt to the new rule immediately. The late delivery of expert reports simply will not be rubber-stamped by the court. By shifting the onus to the party seeking the indulgence and changing the word "shall" to "may", the exercise of the court's discretion will, in my view, result in far fewer adjournments and more productive pre-trials. There will always be circumstances that are beyond the control of counsel and the parties which will fall within the definition of a "reasonable explanation" for failing to comply with the timelines for the service of expert reports. In this case, no such reasonable explanation was provided to the court.

[15] With respect to the defendant’s submissions, I accept that Ms. Bumphrey has lost her husband and that she is not able to testify. Plaintiff’s counsel, as an officer of the court, advised the defendant a long time ago that Ms. Bumphrey was not testifying. While the evidence called by the plaintiff is not fulsome in this regard, given the explanation provided by counsel about Ms. Bumphrey’s condition, I will not require further evidence on this point because to do so would be unduly pedantic. Accordingly, I find that the plaintiff’s explanation for the late service of Ms. Wainio-Smit’s report is reasonable and that the time in which it was served is also reasonable.

[16] I also find that any prejudice to the defendant can be cured by an adjournment and/or an award of costs. I will entertain any applications in that regard if the defendants so choose. Although this matter has gone on for far too long, the nature of Ms. Bumphrey’s circumstances are such that my hesitation in validating the service of Ms. Wainio-Smit’s report is overborne.

[17] Ergo, I hereby abridge the timeline for service and validate the service of Ms. Wainio-Smit’s report with some caveats. First, Ms. Wainio-Smit’s report makes reference to Ms. Bumphrey’s report. It could well be that those portions of Ms. Wainio-Smit’s report that make reference to Ms. Bumphrey’s report are not admissible in evidence. I leave that for counsel to argue prior to Ms. Wainio-Smit’s testimony, preferably before trial. I also note that it could well be that Ms. Wainio-Smit testifies but does not file her report. These are issues that can be sorted out once the plaintiff’s other expert report is served.

[18] Secondly, I do not yet know whether the forthcoming report will be admitted. While the time for service of Ms. Wainio-Smit’s report was eminently reasonable (some ten months prior to trial), the defendant is not yet aware of the contents of the unserved report and the March 2023 trial date is looming. Accordingly, I hereby adjourn the motion regarding the as yet unserved expert report to a subsequent date to be determined by the trial coordinator.

Dr. Marks de Chabris

[19] Dr. Cisa was initially retained by the plaintiff as a litigation expert. Dr. Cisa is an orthopedic surgeon. He saw the plaintiff regularly and, on December 3, 2019, Dr. Cisa provided a report which states in part:

Mr. Cepecawer presents other issues outside of my area of expertise, and I suspect that they are also having a very negative impact on returning to work. Apparently before he had been diagnosed with depression and anxiety but he stated that was related to illness in his family and the stress of having rental properties with tenants. Mr. Cepecawer stated that he was not diagnosed by a psychiatrist prior to this forklift impact. After the accident his depression and anxiety have been much worse, and have a larger impact on his ability to function and recuperate from his injuries.

[20] The plaintiff submitted that his view of the case has shifted over time and that Mr. Cepecawer’s issues are not an orthopedic injury per se, but rather his issues stem from chronic pain suffered as a result of an orthopedic injury. Accordingly, in June 2022, the plaintiff served the expert report of Dr. Marks de Chabris, whose CV qualifications include a statement that Dr. Marks de Chabris is “[r]ecognized by the Ontario Superior Court as an expert in chronic pain management and addiction medicine”.

[21] The defendants oppose the plaintiff’s motion in this regard because:

1. Dr. Cisa previously made observations regarding Mr. Cepecawer’s pain and made reference to a possible “chronic pain”-type issues; and
2. Dr. Cisa made observations that may be needed for the trier of fact.

[22] With respect to the defendant’s first argument, it is clear that while Dr. Cisa made observations regarding Mr. Cepecawer’s pain, CRPS, and Mr. Cepecawer’s functionality. It is also clear that Dr. Cisa was confident that “Mr. Cepecawer presents other issues outside of my area of expertise”.

[23] In the prognoses portion of his report, Dr. Marks de Chabris states:

In terms of prognosis, Mr. Cepecawer has had significant pain in his left foot for over 11 years. He has had significant low back pain for almost as long. The centrally mediated changes associated with severe chronic pain over that period mean in all likelihood Mr. Cepecawer will continue to have pain for the remainder of his life.

Exercise is vital for recovery and maintenance of wellbeing in people struggling with chronic pain conditions…

Cognitive behavioural therapy, mindfulness meditation, and chronic disease self-management programs are very good at helping people cope with their pain problems and should be started as soon as possible.

[24] Further, Dr. Marks de Chabris states that the defendant’s former litigation expert, Dr. Marks, was not able to go beyond orthopedic inquiry in order to determine the root of Mr. Cepecawer’s alleged injuries:

Dr. Marks did not assess Mr. Cepecawer using the accepted Budapest criteria for CRPS and appears to have instead relied on an imaging technology with low sensitivity that was unable to rule out a diagnosis of CRPS. As such, Dr. Marks’ opinion that there was no evidence for the diagnosis of CRPS was flawed.

Dr. Marks is careful to couch his comments purely in specifically orthopedic terms. He does not provide any reason for Mr. Cepecawer’s functional limitations. Despite this, Dr. Marks stated, “I would not consider him specifically functionally limited or medically restricted for pursuing all of his usual activities of daily living at this time”. Dr. Marks however also stated “I have no other alternate opinions from an orthopedic perspective to explain his circumstances and/or presentation”.

[25] Dr. Marks de Chabris, therefore, is effectively testifying that there are root causes of Mr. Cepecawer’s alleged pain and suffering that exist outside the orthopedic perspective provided by Dr. Marks. I also note that Dr. Cisa opined regarding some pain-related concerns, but he was of the opinion that Mr. Cepecawer’s alleged issues were beyond his scope of learned analysis as an orthopedic surgeon.

[26] As per the above-noted discussion in Agha v. Munroe, the shift in litigation strategy occurred well in advance of the trial but some considerable period of time after the pretrial. In the circumstances of this case, this is not a particular issue since Dr. Cisa’s December 3, 2019 report effectively indicates that the limits of his orthopedic analysis had been reached and that consideration beyond Dr. Cisa’s orthopedic understanding was required to explain Mr. Cepecawer’s situation. Therefore, the plaintiff’s decision to secure a different expert was eminently reasonable and the timing of service (approximately ten months prior to trial) was also reasonable.

[27] There is no prejudice to the defendant that cannot be cured by an adjournment and/or costs. Again, I will entertain any motion in this regard forthwith.

[28] As with the other expert reports, I note that Dr. Marks de Chabris comments upon Dr. Cisa’s report and the reports of other physicians, some of whom may or may not be called as experts. It is possible that portions of Dr. Marks de Chabris’ report may need to be excised and/or the evidence of certain physicians may need to be called as treating or non-litigation experts. Equally, it is possible that Dr. Marks de Chabris may testify without filing a report. I will deal with these issues at a later date, but prior to trial.

Undertakings

[29] The plaintiff submits that the defendants have not answered all of their undertakings. The plaintiff’s materials do not specify which undertakings remain unanswered.

[30] The defendants’ materials indicate that the only undertakings which were not “answered” were undertakings to provide documents that the defendants cannot locate, specifically the defendant operator’s training certification and an incident report that was sent to the governing regulatory body.

[31] Accordingly, this portion of the motion is dismissed for insufficient evidentiary basis.

The Amended Pleadings

[32] The plaintiff seeks to amend its pleadings to include a claim for punitive damages. The plaintiff bases the claim for punitive damages upon the following evidence and/or inferences:

1. The defendants state that the forklift operator was trained to operate the forklift that caused the plaintiff’s injuries;
2. The defendant Hall and a representative of the corporate defendant both testified at examination for discovery in 2016 that Mr. Hall was trained in forklift operation at a location known as Equipment World;
3. The defendants cannot locate documentation confirming same;
4. Via letter dated June 3, 2022, Equipment World wrote to plaintiff’s counsel stating that the writer had searched the Equipment World database and could not find any documentation to prove that the defendant Hall “has taken forklift operator safety training at our establishment”;
5. The plaintiff hopes to plead that the defendants are “covering up and lying about Defendant Hall not being trained to operate a forklift”; and
6. The plaintiff hopes to plead that the defendants are “covering up and lying about the existence of requested relevant documentation, specifically, an incident report, when such documentation exists..."

[33] The plaintiff also seeks to amend the Statement of Claim to specifically plead the allegedly governing statutes and regulations including the Occupational Health and Safety Act, R.S.O. 1990 and the Canada Labour Code, R.S.C. 1985, c. L-2.

[34] Rule 26 of the Rules of Civil Procedure deals with amendments:

General Power of Court

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01.

When Amendments may be Made

26.02 A party may amend the party’s pleading,

(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;

(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or

(c) with leave of the court. R.R.O. 1990, Reg. 194, r. 26.02.

[35] As noted earlier, Rule 53.08 deals with the granting of leave. In 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, 135 O.R. (3d) 681, the Court of Appeal of Ontario considered leave to amend pleadings and stated at para. 19:

The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., 2009 ONCA 517, at paras. 15-16, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 367, 2010 CarswellOnt 425; and Andersen Consulting Ltd. v. Canada (Attorney General), at para. 37. [page688]

The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 27 O.R. (3d) 479, [1996] O.J. No. 227 (Gen. Div.), vard (1999), , 42 O.R. (3d) 641, [1999] O.J. No. 237 (C.A.), revd [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18.

There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21; and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.), at para. 65.

The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King's Gate Developments Inc. v. Drake (1994), 17 O.R. (3d) 841, [1994] O.J. No. 633 (C.A.), at paras. 5-7; and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 9.

Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky, [1996] O.J. No. 4049, 95 O.A.C. 297 (C.A.), at para. 2; and Andersen Consulting, at paras. 36-37.

At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), [2006] O.J. No. 669, at para. 6.

The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.

The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.

[Emphasis added.]

[36] In Whiten v. Pilot Insurance Co., 2002 SCC 18, the Supreme Court of Canada addressed the test for punitive damages. Punitive damages may be awarded in cases where the defendant engages in malicious, oppressive or high-handed misconduct that offends the court’s sense of decency. It requires a marked departure from ordinary standards of decent behaviour. At para. 113 the Supreme Court listed examples of conduct that warrant punitive damages and the Supreme Court specifically stated that situations where “the defendant concealed or attempted to cover up its misconduct” meets the threshold for punitive damages.

[37] In Horani v. Manulife Financial Corporation, 2022 ONSC 2350, at paras. 51 and 52, the presiding justice dismissed a motion to amend pleadings to include a claim for punitive damages on the following basis:

However, I reach a different conclusion with respect to the request to amend the Amended Statement of Claim to add a claim for punitive damages. In this regard, I find that the Plaintiffs have not rebutted the presumption of prejudice. Contrary to the amendment increasing the amount of compensatory damages, the claim for punitive damages depends on additional facts that were not pleaded (including facts related to the conduct of the investigation by the Defendant) and new legal arguments. I am not satisfied that the claim for $2 million in punitive damages would not have affected the way in which the Defendant responded to the claim. See B. (M.) at para. 74. Among other things, the Defendant may have produced additional documents and sought additional information from the Plaintiffs regarding the bases for their claim for punitive damages. As stated by Justice Binnie in Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 86 ("Whiten"): it is a "basic proposition in our justice system that before someone is punished they ought to have advance notice of the charge sufficient to allow them to consider the scope of their jeopardy as well as the opportunity to respond to it." [Emphasis in the original.] See also Whiten at para. 87.

If leave were to be granted to add a claim for punitive damages, the Defendant would need to be given an opportunity to respond to it. The Statement of Defence would need to be amended, additional documents may have to be produced and, ordinarily, the Defendant would be allowed to ask questions of the Plaintiffs on an examination for discovery with respect to the bases for these new allegations. Additional documentary and/or oral discovery could not take place without jeopardizing the trial date and I have no evidence as to how far in the future a new trial date could be obtained for this matter, a 32-day jury trial. The risks of adjourning the trial for a second time and incurring additional and potentially significant delay on top of the delay already incurred in this matter strengthen the presumption of prejudice in this case. The Plaintiffs have not adduced evidence that rebuts this presumption. See State Farm at paras. 43-46.

The cases relied upon by the Plaintiffs with respect to amendments adding a claim for punitive damages are all distinguishable as none of them deal with the issue of presumed prejudice.

[38] The defendants oppose the granting of leave because:

1. The proposed amendment would require an adjournment of the trial;
2. The defendants would require other legal counsel given the fact that policy limits would be exceeded;
3. Procedural issues like further examinations for discovery and production would have to be canvassed; and
4. The matter is so dated that the level of inferred prejudice defeats the plaintiff’s motion.

[39] With respect to the defendants’ arguments, I note the following. First, there is evidentiary basis for the plaintiff’s proposed amendment given the divergence between the defendants’ testimony and the letter from Equipment World. Secondly, the amendment, if proven, would represent a marked departure from the ordinary standards of decent behaviour. Third, the defendants have not adduced any meaningful evidence that any real prejudice will flow from granting leave to amend: no witnesses are in ill health such that their testimony at a future trial is questionable, no litigation strategy has been described that will be thwarted by the amendment, etc. Accordingly, the tests described in 1588444 Ontario Ltd. and Whiten have largely been met for the purposes of Rules 26.02 and 53.08. But for the issue of presumed prejudice, I would normally have granted leave to amend.

[40] Presumed prejudice is, however, a live issue. The matter before me is quite dated, and it requires an adjudication as soon as reasonably possible. The trial date is a mere nine-and-a-half weeks away. Given these two factors, the presumed prejudice is high and I would normally dismiss the motion for leave for the reasons as set out in Horani. This is especially the case when I consider the fact that trial dates were adjourned as a result of, inter alia, short-served expert reports by the plaintiff as well as the need for the defence to change experts given the fact that the plaintiff complained to the College of Physicians and Surgeons about the defendant’s initial expert, Dr. Marks.

[41] However, I note that I have validated service of two other expert reports and that the plaintiff is awaiting delivery of a third expert report. This validation may yet require the defendant to seek an adjournment in order to respond to same.

[42] If the trial is adjourned because of the expert report issue, the inferred prejudice described in 1588444 Ontario Ltd. is rebutted because the trial date be adjourned irrespective of the proposed amendment. While the matter could be delayed considerably because of issues like policy limits, extra retainers for other legal counsel, new examinations for discovery and the like, there appears to be little, if any, prejudice that would flow to the defendants from a trial being delayed for a possible 12 months (as a result of the delivery of new expert reports) or a possible 18 or 24 months in order to respond to an amendment to the statement of claim.

[43] Further, any prejudice to the defendant in such a situation can be alleviated by an order for costs thrown away as a result of this amendment, which will be a condition precedent for granting the motion to amend. Put another way, if the statement of claim is amended and an adjournment is secured, there will be an order for costs. The plaintiff’s conduct of litigation appears to be contributing to the delay in hearing this matter and, while Equipment World only responded to the plaintiff in June of 2022, I do not know when the plaintiff reached out to Equipment World. Indeed, it would appear that the plaintiff would have been aware of a potential claim for punitive damages as far back as 2016 (during examinations and undertaking responses) and the plaintiff ought to have made the appropriate moves at that juncture.

[44] Ergo, if the trial is adjourned as a result of the late service of expert reports and the validation of same, I will grant the motion for leave to amend but there will be a costs order in favour of the defendants as a result of said motion for leave. Quantum to be determined. Conversely, if the trial is not adjourned, the motion for leave to amend is dismissed for those reasons largely discussed in Horani.

Future Hearing

[45] The parties will secure a date forthwith to address these reasons prior to trial.

Released: January 10, 2023 Varpio J.