COURT FILE NO.: 1343/18
DATE: 2023-10-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DIANA VAN BELOIS, KATHERINE VAN BELOIS and PETER VAN BELOIS
Plaintiffs
– and –
BARBARA BARTHOLOMEW and BRENDAN VAN BELOIS
Defendants
Dagmara Wozniak, for the Plaintiffs
Matthew Renwick, for the Defendant Bartholomew
HEARD: October 13, 2023, by videoconference, virtually at London
heeney j.:
[1] This is a motion by the defendant Bartholomew (“the defendant”) for an order compelling the plaintiff Diana Van Belois (“Diana”) to attend a neuropsychological assessment with Dr. Tisha Ornstein, neuropsychologist, on November 9 and 10, 2023. In addition, the defendant seeks an order extending the time for service of the report that will be generated by that assessment.
[2] The defendant’s Notice of Motion also seeks an order adjourning the pretrial and the trial, but those claims will be dealt with later by the administrative justice.
[3] Relief had also been claimed relative to the plaintiff Katherine Van Belois, but that was not pursued before me.
Timeline of Relevant Events:
[4] The following key events form the context for this motion:
Motor vehicle accident occurred November 3, 2016;
Statement of Claim was issued June 27, 2018;
The action and all crossclaims against Brendan Van Belois were dismissed in August, 2019;
On October 6, 2021 counsel for Diana served copies of reports from all 6 of her experts, including two reports from her neuropsychologist Dr. Peter Gaskovski;
Trial Record delivered by the plaintiffs on December 14, 2021;
Pursuant to r. 53.03(2.2), the parties agreed to a timetable for service of experts’ reports on February 16, 2022. The agreement provided for the plaintiffs to provide their reports 5 months prior to the pretrial conference, and the defendant to provide her reports 3 months prior to the pretrial conference;
The matter was heard in Assignment Court on March 25, 2022, but counsel could not agree on trial dates;
A case conference was held on April 7, 2022 before Justice Grace. At that time, he fixed the trial for the sittings commencing February 12, 2024. In his endorsement, he stated “I would like the matter to be called in if humanly possible”. He directed counsel to arrange the pretrial date with the Trial Coordinator;
Shortly thereafter, counsel agreed on a pretrial conference date of October 26, 2023. This was confirmed by the Assistant Trial Coordinator on April 19, 2022;
Updated neuropsychology report from Dr. Gaskovski was served April 20, 2023;
On August 15, 2023, counsel for the defendant, for the very first time, contacted counsel for Diana to schedule defence medical examinations. This was approximately 3 weeks after the expiry of the deadline of July 26, 2023 for service of defence expert reports that had been agreed to;
A neuropsychology assessment was booked by the defence for Diana with Dr. Ornstein for August 31 and September 1, 2023, as well as an examination with a physiatrist on September 12, 2023;
Despite short notice, counsel for Diana advised that she would endeavour to attend these examinations, although she would oppose any motion for leave to admit any late expert reports;
Diana attended the assessment on August 31, 2023 as scheduled, but it was over very quickly. According to her report, as the assessment progressed she began to suffer dizziness, nausea, migraines and weakness, causing her head to spin while the room and floor spun wildly. The assessment was not completed;
Diana attended and completed the assessment with the physiatrist on September 12, 2023;
Defence counsel rebooked the neuropsychology assessment with Dr. Ornstein for November 9 and 10, 2023. Diana refuses to attend this assessment, since any report generated by that assessment will not be delivered until well after the pretrial conference, in contravention of both the timetable agreed upon by counsel as well as the deadline set by r. 53.03(2). This would result in prejudice to Diana, including but not limited to, the need to adjourn the pretrial and the trial.
[5] That refusal has led to this motion.
Applicable Rules:
[6] The following rules are relevant to this motion:
3.02 (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.
(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.
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).
(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).
(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,
(a) a report served under this rule;
(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.
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.
(2) Subrule (1) applies with respect to the following provisions:
- Subrule 53.03 (3) (failure to comply with requirements re experts’ reports).
The Law and Analysis:
[7] It is important to recognize that the r. 53.08, respecting the granting of leave for an expert to testify despite the failure of that party to comply with the rules regarding service of the report, was amended effective March 31, 2022. The current version is set out above. The previous version provided as follows:
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.
[8] The impact of the new rule was explained by Edwards R.S.J. in Agha v. Munroe, 2022 ONSC 2508 at paras. 18-19:
Fundamentally, the aforesaid amendment, 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.
[9] These rule amendments were intended to deal with chronic problems arising from the late delivery and service of expert reports, which too often lead to adjournments of trials, backlogs, wasted judicial resources and delays in access to justice. The purpose was “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).”: Agha, at para. 30.
[10] In dismissing the request before him for leave to permit late service of expert reports, Edwards R.S.J. said this, at para. 32:
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.
[11] Regional Senior Justice Edwards made that ruling in his capacity as a trial judge. The wording of r. 53.08 does refer to the granting of leave by “the trial judge”. However, in Mohamud v. Juskey, 2023 ONSC 4414, Boswell J. concluded that the test articulated in r. 53.08(1) was equally applicable to the motion that was before him, which is identical to the motion now before this court. It was a motion by a defendant to compel the plaintiff to attend a defence medical examination, coupled with a request for leave to extend the time for service of the expert report that would follow. As he explained at para. 19:
The defendants are in no position to comply with the timelines imposed by r. 53.03(1). They ask the court to extend the time for service of their expert reports.
[12] He noted at para. 25 that he was not the trial judge, and was not, therefore, in a position to grant leave to call evidence at trial. However, he continued as follows, at paras. 26-7:
Having said that, the relief sought by the defendants on this motion – the extension of the time to comply with r. 53.01 – is the functional equivalent of granting leave to the defendants to adduce late-delivered experts’ reports into evidence at trial. I say that because extending the deadline by which the defendants must serve their experts’ reports will effectively cure any non-compliance with r. 53.01 and the presumptive exclusion of the experts’ reports from evidence will not apply.
In the result, I agree with counsel that it is appropriate to apply the test in r. 53.08 in this instance.
[13] I note that Boswell J. in this passage appears to have inadvertently referred to r. 53.01 when he clearly intended to refer to r. 53.03. Rule 53.01 deals with oral evidence generally, not expert evidence. I included the quote above, at para. 11, to make it clear that it was r. 53.03 that was under consideration by him.
[14] I am in complete agreement with the reasoning of Boswell J. If leave is granted to extend the time for service of the expert report, non-compliance with the requirements of r. 53.03 would be cured. As a result, it would not be necessary to obtain leave of the trial judge to tender that evidence at trial. Since such an order would be the “functional equivalent” of granting such leave, logic dictates that the test articulated in r. 53.08(1) should apply to the motion to extend the time for service.
[15] This approach was considered and endorsed by Muszynski J. in Tyner v. Phillips, 2023 ONSC 5207. That motion, like the one before this court, involved a defence request that the plaintiff attend three medical examinations in the months leading up to the trial, when service of the reports that would be generated from those examinations would contravene both the timetable agreed to by counsel and the deadlines imposed by r. 53.03(2). However, the defendants’ motion only sought an order compelling attendance at the examinations, not an order extending the time for service. The motion judge concluded, at para. 32, that this was “strategic on the part of the defendants to distinguish this motion from cases dealing with late service of expert reports which are, generally, unfavourable to the defence position.”
[16] The motion judge concluded that an order compelling the plaintiff to attend a medical examination could not be divorced from the service of the expert report that would be generated from that examination. She then, at para. 35, dismissed the motion due to the absence of a “reasonable explanation” for the delay, which amounted to an application of the test articulated in r. 53.08(1):
I am not inclined to compel the plaintiff to undergo three separate defence medical examinations when the reports that will arise from those examinations are presumptively inadmissible at trial. This is particularly so due to the absence of evidence of a reasonable explanation for the delay, which is similar to the situation in Mohamud v. Juskey, 2023 ONSC 4414 at para. 61, where Boswell J. denied the defence motion to compel the plaintiff to attend a defence medical examination.
[17] To return to Mohamud, one of the explanations offered by defence counsel for the delay in scheduling defence medicals was that their practice was to wait until closer to the pretrial date to get them. Boswell J. found, at paras. 57-9, that that did not amount to a “reasonable explanation”:
As I noted, counsel who argued the motion advised me that the practice of their firm is generally to wait until closer to the pre-trial conference to obtain defence experts’ reports. And again, it seems to me, in light of the content of r. 53.01 and the recognized significance of the pre-trial conference, that defence counsel ought to have been looking to line up their experts’ reports as soon as the matter was set down for trial.
While I understand it is harsh to say, my view is that the problem here was largely the result of an inattentiveness to the requirements of the file. And that can surely not rise to the level of reasonableness when one is assessing the explanation for non-compliance with r. 53.01.
As I noted, the amendments to r. 53.08 were intended to combat the chronic problem of late-delivered defence experts’ reports. What happened in this case is an illustration of the very problem the rule is meant to address. If r. 53.08(1) offers what defence counsel described as an “escape clause” in the circumstances present here, then it will be diluted to the point of ineffectiveness.
[18] In the case at bar, defence counsel relied on a similar explanation during argument. It can be found in paras. 42 to 45 of the affidavit of Thomas Madison, sworn September 18, 2023:
The trial date for this action was set on April 7, 2022, nearly two years in advance of the trial date of February 12, 2024.
I am advised by William Woodward, and I verily believe it to be true, that defence medical examinations were not scheduled at that time since they would be out of date by the time of pre-trial and trial, which would necessitate updated reports. Mr. Woodward was concerned with unnecessarily inflating the costs of this proceeding.
I am further advised by William Woodward, and I verily believe it to be true, that the scheduling of defence medical examinations was further delayed because the Plaintiffs had not confirmed which specialties they intended to rely on at trial. Up to that date, numerous reports had been served, but there was no indication as to which experts would be relied upon at trial.
I am advised by William Woodward, and I verily believe it to be true, that it was only as the 90-day deadline for the service of Plaintiff reports was about to elapse that he felt reasonably assured about which experts the Plaintiff would rely upon.
[19] I fully agree that it was reasonable not to schedule defence medicals immediately following the setting of the trial date on April 7, 2022, because they would be stale by the time the pretrial and trial arrived. However, it is important to remember that counsel had agreed to a timetable for service of experts’ reports on February 16, 2022, which required service of defence reports three months before the pretrial. Given that counsel would have been equally sensitive then to the need to have expert reports at trial that had not become stale, it must be presumed that counsel was confident that the time frame agreed to would accommodate that need.
[20] The pretrial was scheduled for October 26, 2023, so defence expert medicals were required to be served by July 26, 2023. Had counsel arranged for examinations in May or early June, 2023, they would have had no difficulty meeting that deadline or, at the very least, meeting the 60 day deadline imposed by r. 53.03(2). Such a report would not be considered stale, and would not require updating before the pretrial or trial. There is simply no reasonable explanation offered for why examinations were not scheduled until the end of August.
[21] As to the suggestion that the delay was the result of plaintiffs’ counsel not confirming what experts they were relying upon, they served two reports from Diana’s neuropsychologist, Dr. Peter Gaskovski, on October 6, 2021. By serving those reports on defence counsel, it must be presumed that the plaintiff will be relying on them. Any doubt in that regard should have been eliminated when an updated report from Dr. Gaskovski was served on April 20, 2023. Obviously, it would only be necessary to obtain an update from an expert if the party intended to rely on that expert at trial. If, despite this, defence counsel still had any doubts, all they had to do was contact counsel for the plaintiff and ask. They did not do so.
[22] The defendant argued that the examination scheduled for August 31 and September 1, 2023 was not completed due to the onset of symptoms on the part of Diana, which was not the fault of the defendant. While that is true, it is essentially irrelevant. By the time the appointments took place, the defendant was already 5 weeks late for service of the report according to the agreed-upon timetable, and 5 days late for service according to the deadline imposed by the Rules. By the time the report was prepared and served, a further month or so would have elapsed. Counsel for Diana made it clear that, while they were prepared to produce her for the examination, they would oppose any motion for late service of the report that would be produced. Thus, attendance at the examination did not prejudice Diana’s position on this motion. Her inability to complete the examination did not provide the defendant with a reasonable excuse for having waited so long to arrange the examination.
[23] Furthermore, the fact that Diana experienced difficulties on August 31, 2023 should have come as no surprise to the defendant. Her difficulties in participating in medical assessments was well documented in the many reports served on the defendant, as was her need for accommodations. For example, her initial neuropsychological assessment with Dr. Gaskovski needed to be done over five relatively short sessions stretched out over 4 weeks. Assessments were ended early and, on one occasion at least, were performed while she was laying on the ground in the dark. All of this should have brought home to the defendant that accommodations would be needed, and that there was a risk that her assessment might not be completed as scheduled.
[24] In view of this, the defendant should have scheduled the assessment early enough so that, if Diana experienced difficulties, it could be continued or rescheduled at a later time, but still within the applicable deadlines.
[25] I conclude that the defendant has failed to provide a reasonable explanation for her failure to comply with r. 53.03(2). Since the test set out in 53.08(1) is conjunctive, both subrule (a) and (b) must be met. Thus, the failure to provide a reasonable explanation is determinative of the motion, and it is not necessary to consider prejudice to the plaintiff or undue delay in the conduct of the trial.
[26] Like Boswell J. in Mohamud, had it been necessary to consider subrule (b), I would have found that it had been met. If the examination took place on November 9 and 10, the report could be served by December 10, although that would require adjournment of the pretrial set for October 16, or the scheduling of a second pretrial following service of the report, which is not ideal. The reply report from Dr. Gaskovski would be a paper review, which could hopefully be completed sometime in January, although that is far from certain. Thus, it is arguably reasonable to conclude that the trial might not have to be adjourned if the examination went forward, and the prejudice to the plaintiffs that would flow from that adjournment could be avoided.
[27] In view of the above analysis, though, the defendant’s motion must be dismissed.
[28] I recognize the importance of defence medical examinations to level the playing field and enable the defendant to respond to the case advanced by the plaintiff. However, there are volumes of medical records available to the defendant to assist her in testing the testimony of Diana and her expert witnesses. These include independent medical reports obtained by the accident benefits insurer, and CAT independent medical examination reports. Any disadvantage experienced by the defendant is outweighed by the pressing need of the administration of justice to ensure the timely delivery of expert reports, and to give teeth to the Rules amendments that strive to do so. For that reason, I decline to exercise the general discretion given to me in r. 3.02(1) to relieve against non-compliance with the Rules.
[29] I encourage counsel to agree on the issue of costs. If they are unable to do so, I will accept brief written submissions from the plaintiff within 15 days, with the response from the defendant within 10 days thereafter and any reply within 5 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs as between themselves.
T. A. Heeney J.
Released: October 16, 2023
COURT FILE NO.: 1343/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DIANA VAN BELOIS, KATHERINE VAN BELOIS and PETER VAN BELOIS
Plaintiffs
– and –
BARBARA BARTHOLOMEW and BRENDAN VAN BELOIS
Defendants
REASONS FOR JUDGMENT ON A MOTION
Heeney J.
Released: October 16, 2023