COURT FILE NO.: CV-17-73992

DATE: 20231018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Blessings Forsung and Bernard Minimah, Plaintiffs AND: Daryn Neadow, Defendant

BEFORE: Muszynski J.

COUNSEL: Patrick Snelling, for the Plaintiffs Siobhan McClelland and Sophie Paradis, for the Defendant

HEARD: October 10, 2023

ruling re: late service of expert reports

OVERVIEW

[1] This decision highlights the potential consequences of late serving expert reports, particularly considering the 2022 amendments to the Rules of Civil Procedure.[^1]

[2] The plaintiff, Blessings Forsung, was a pedestrian on January 20, 2017, when she was injured in an accident involving a motor vehicle operated by the defendant, Daryn Neadow. The statement of claim was issued on September 21, 2017. The action has been litigated for the last six years. The jury trial finally commenced on October 10, 2023, in Ottawa.

[3] This motion was brought by the plaintiffs at the outset of trial in the absence of the jury. The plaintiffs sought leave to adduce expert evidence at trial from Emma Bingham, an occupational therapist who authored a future care costs report, and Jim Muccilli and Adrianne Markell, who jointly authored an economic loss report and a report calculating the present value of future care needs. The defendant opposed the motion on the basis that the reports were served outside the timeline contemplated in the Rules.

[4] I gave the parties an oral ruling on the morning of October 11, 2023, wherein I dismissed the plaintiffs’ motion with the understanding that I would release written reasons at a later date. These are my reasons.

BACKGROUND

[5] The statement of claim alleges that the defendant is liable for the accident and seeks $2 million for Ms. Forsung’s damages and $50,000 in damages for the Family Law Act[^2] claims of Bernard Minimah, Ms. Forsung’s husband.

[6] The parties exchanged expert physiatry reports in compliance with the Rules. The plaintiffs’ report of Dr. Djuric was served on November 29, 2021, and the defendant’s report of Dr. Cheng was served on June 8, 2022.

[7] On June 22, 2023, the plaintiffs served the reports of Ms. Bingham and Mr. Muccilli and Ms. Markell.

[8] On June 26, 2023, counsel for the defendant acknowledged receipt of the recently served reports and identified they were not compliant with Rule 53.03 in that they were not served 90 days before the pre-trial conference, which was scheduled for July 12, 2023.

[9] The issue of late service of the expert reports was raised again in the defendant’s pre-trial memorandum, which also commented substantively on the reports.

[10] The pre-trial took place on July 12, 2023. The Pre-trial Conference Report completed by the presiding judge does not mention the issue of late service of the reports and does not identify one way or another whether any motions were anticipated leading up to trial.

[11] On October 4, 2023, I conducted a trial management conference wherein counsel for the defendant objected to Ms. Bingham, Mr. Muccilli, and Ms. Markell’s testifying at trial due to the late service of their reports. Counsel for the plaintiffs was advised that a motion for leave to call these witnesses would be required due to non-compliance with the Rules.

[12] In support of the motion for leave, the plaintiffs filed the affidavit of Jackson Kohne, an associate lawyer who works with counsel for the plaintiffs, Patrick Snelling. Mr. Kohne’s affidavit attaches correspondence from Mr. Snelling to counsel for the defendant dated October 5, 2023, wherein Mr. Snelling explained that the late service of the reports was due to inadvertence.

[13] Jury selection took place on the morning of October 10, 2023, after which time the jury was excused and the plaintiffs’ motion was heard.

POSITIONS OF THE PARTIES

[14] Counsel for the plaintiffs explained that the reports were obtained late, and served late, due to inadvertence. Further, he claimed that he was caught by surprise that the defendant objected to the admissibility of the testimony of the experts due to non-compliance with the Rules. The plaintiffs claimed the defendant was not prejudiced by the late delivery of the reports because there was sufficient time to obtain responding reports prior to the trial, and that the plaintiffs would consent to late delivery of responding reports even up to the day before the anticipated testimony of the responding expert. If the defendant was unable to retain a responding expert in time, the plaintiffs proposed that an adjournment of trial was appropriate.

[15] The defendant took the position that the plaintiffs failed to put forward a reasonable explanation for the late service of the expert reports and that it was not feasible to obtain responding reports and continue with the trial as scheduled. The defendant urged the court to deny the plaintiffs’ motion and order that the trial proceed. If the court was inclined to grant leave, the defendant requested an adjournment of trial and costs thrown away.

ANALYSIS

[16] The timelines for delivery of expert reports set out in the Rules are clear and unambiguous. To comply, the plaintiffs had to serve the future care costs report and economic loss report / report calculating the present value of future care needs 90 days before the pre-trial.[^3] Instead, the reports were served 21 days before the pre-trial.

[17] I reject the plaintiffs’ submission that they were caught by surprise by the defendant’s position with respect to late service of the reports. The defendant put the plaintiffs on notice that the reports were non-compliant with the Rules on at least three occasions: (1) in correspondence sent to counsel on June 26, 2023; (2) in the defendant’s pre-trial memorandum; and (3) at the trial management conference on October 4, 2023.

[18] The time provided for service of expert reports under the Rules can be extended or abridged by a judge or associate judge at the pre-trial, by the court on a motion, or on consent.[^4] In this case, there was no pre-trial order, order arising from a prior motion, or consent to amend the timelines for delivery of expert reports.

[19] Without a sanctioned extension or abridgment of time to serve a late report, an expert witness cannot testify at trial unless leave is granted by the trial judge.[^5]

[20] Due to a change in the Rules that occurred on March 31, 2022, a party in breach of the timelines seeking leave must satisfy the trial judge that there is both a reasonable explanation for the delay and that granting leave would not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment or cause undue delay before a late-served expert report may be admitted at trial.[^6] Recently, Edwards R.S.J. wrote: “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).”[^7]

[21] The plaintiffs relied on James Bay Resources v. Mak Mera Nigeria[^8] in their submission that inadvertence can constitute a reasonable explanation for delay. In James Bay, the moving party brought a motion at trial for leave to rely on previously undisclosed documents that were relevant to the claims against the defendants for breach of contract and libel. The explanation for the delay in producing the documentation was inadvertence. Having found that the documents were highly relevant, and their production did not constitute unfair surprise, the presiding judge noted “the explanation of inadvertence is on what I would consider the very low end of being reasonable”.[^9] The documents were ultimately admitted after permitting a further and focused examination for discovery.

[22] The inadvertence associated with timely production of three documents in what is described as complex commercial litigation is, in my view, significantly different from the current scenario, where reports that establish the foundation of the plaintiffs’ claims for future care costs and economic loss were simply commissioned late and served late. I find that inadvertence does not constitute a reasonable explanation in these circumstances. On this basis alone, the plaintiffs’ motion must fail.

[23] While not strictly necessary to consider, I also note that granting leave would have caused undue delay in the conduct of trial as an adjournment would have been necessary to permit the defendant an opportunity to obtain responding reports. There was no evidence on the motion as to when the action might get back on the trial list if adjourned. Further, there seemed to be no real appreciation that the plaintiffs would be responsible for trial costs thrown away arising from an adjournment of trial at this late stage.

[24] The plaintiffs ought to have been aware that the reports were non-compliant with the Rules when they were served. They were aware of the defendant’s position as of June 26, 2023. It was open to the plaintiffs to obtain an order to abridge the time provided for service of the reports, either at the pre-trial, on motion, or on consent pursuant to Rule 53.03(4). Had the plaintiffs taken timely steps to address their non-compliance, it is likely that they would not be in this position. Instead, the plaintiffs did nothing until the outset of trial. Seeking leave from the trial judge to admit evidence contained in a late-served expert report pursuant to Rule 53.08(1) should be the last resort. It puts the trial in jeopardy by leaving the parties unclear as to what case they have to meet and creates a situation that is ripe for adjournment requests to allow the non-defaulting party time to obtain responding reports.

[25] The consequences of late adjournments of lengthy trials, particularly jury trials, reverberate through the entire justice system. Before a jury trial, court staff send out notices to prospective jurors. Parties must obtain summonses and arrange for service on their potential witnesses. The lives of prospective jurors are disrupted when they are required to attend in court. Judges, staff, and courtrooms are scheduled for the trial, and may be difficult to reschedule on short notice when a matter is adjourned. The resources consumed are enormous. Consequently, when a trial gets adjourned late and must be rescheduled, the waste is staggering.

[26] There is a crisis in the civil justice system in this province. The amendments to the Rules were meant to address the problems associated with late adjournments of trial due to non-compliance. To achieve this objective, in my view, the Rules must be strictly applied.

[27] The plaintiffs’ motion for leave to adduce expert evidence at trial from Emma Bingham, Jim Muccilli, and Adrianne Markell is dismissed.

Muszynski J.

Date: October 18, 2023

[^1]: R.R.O. 1990, Reg. 194. [^2]: R.S.O. 1990, c. F. 3, s. 61. [^3]: Rules, r. 53.03(1). [^4]: Rules, r. 53.03(4). [^5]: Rules, r. 53.03(3). [^6]: Rules, r. 53.08. [^7]: Agha v. Munroe, 2022 ONSC 2508, 23 C.C.L.I. (6th) 118, at para. 30. [^8]: 2023 ONSC 2398, at paras. 62, 76. [^9]: James Bay, at para. 76.