Court File and Parties

Court File No.: CV-19-615606 Date: 2023-11-24 Ontario Superior Court of Justice

Between: Jamshid Nayyer, Plaintiff And: Danping Wang also known as Linda Wang and Shi Gang Ni also known as Simon Ni, Defendants

Counsel: Joel Levitt, for the Plaintiff David M. Goodman, for the Defendants

Heard: November 20, 2023 (Orally)

Before: Papageorgiou J.

Endorsement

[1] On the fifth day of trial in this matter, defence counsel indicated that he wished to call a handwriting expert, Ms. Petty, with respect to one document dated January 17, 2017. The plaintiff alleges that he wrote the document dated June 17, 2017, but that the defendant Linda Wang printed her name and date at the bottom. His trial evidence is that this was not Linda’s signature. He was specifically asked if Linda signed the document and he said that she did not. He said that “Linda wrote her name” and date under her name.

[2] Counsel for the defendants said that he had not intended to call Ms. Petty as an expert witness, but in reviewing his notes over the weekend he determined that he would. I have reviewed the report which is approximately 48 pages long.

[3] Counsel for the defendants says there is no prejudice because Ms. Petty’s report was served on the plaintiff on December 6, 2022. And so, the plaintiff has had this document for some time.

[4] The plaintiff says that there is significant prejudice.

[5] The following chronology is relevant to the issue before me:

• Rule 50.04 of the Rules of Civil Procedure requires that a party shall file a pre-trial conference brief that lists all witnesses that the party is likely to call as well as the evidence these witnesses will give.
• Rule 50.11 of the Rules of Civil Procedure states that “all documents intended to be used at trial or hearing that may be of assistance in achieving the purposes of a pre-trial conference, such as any medical reports or reports of experts, shall be provided to the presiding judge at the conference.
• Two pre-trial conferences took place and Ms. Petty’s name was not on the list of witnesses, nor was her report provided to the pre-trial conference judge, (although it was mentioned in the pre-trial conference memo).
• Rule 53.03(2.2) of the Rules of Civil Procedure provides that within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out the dates for service of expert reports to meet the requirements of subrules (1), (2) and (3), which subrules set out the timelines for both expert reports and responding expert reports. There was no such schedule put in place because the defendants never indicated that they intended to call this expert, even though they served the report.
• The trial coordinator requested a list of witnesses from the defendants. They submitted one and Ms. Petty’s name was not on the list.
• The trial management form completed sometime prior to or on March 27, 2023, did not list Ms. Petty as a witness.
• I held a trial management conference on the Friday before the trial commenced. The defendants confirmed that they would be calling only the defendants Linda Wang, Simon Ni, and Linda’s mother, Grace Wang, as witnesses. There was no mention of calling any handwriting expert.
• In their opening statements, the parties set out who the witnesses would be, consistent with the trial management form completed sometime prior to or on March 27, 2023. The defendants made no mention of calling Ms. Petty as a handwriting expert.
• One of the purposes of this expert is to challenge the plaintiff’s credibility. This is a case of “he said, they said”. All parties have always known that the credibility of the parties is a central issue in this proceeding and there is no satisfactory explanation as to why the defendants have changed their mind as to the need for this witness to testify so late in the day.
• Another purpose appears to be to undermine the use of the January 17, 2017 document as a note made in furtherance of an agreement so as to show that the document was “signed by the parties” such that the requirements of the Statute of Frauds would be met. This was already known by the defendants to be a live issue from the inception of this proceeding. Again, there is no satisfactory explanation as to why the defendants have changed their minds as to the need for this witness to testify so late in the day with regards to issues of which it has been aware for a long time.
• Had the defendants indicated on the trial management report completed prior to March 27, 2023, that Ms. Petty would be called as a witness, the plaintiff would have had time to consider getting his own expert report. He did not need to do this because at no time was he advised that Ms. Petty would be called as a witness.

[6] I add that if Ms. Petty’s evidence goes in now, there may need to be an adjournment of this trial to permit the plaintiff to obtain his own expert. There will likely be a need to permit the plaintiff to testify again related to this issue, and to potentially be cross examined again. There will also likely be further cross examinations of the defendants. Thus, this trial, which was scheduled to be completed on November 22, 2023, will have to continue on additional dates in the future.

[7] Permitting this would be unfair, would result in trial by ambush, is inconsistent with the spirit of the Rules, if not the express requirements, and would result in the need to extend this trial, resulting in a waste of scarce court resources.

[8] It would also be inconsistent with the Supreme Court of Canada’s direction that there needs to be a culture shift to make trials timelier and more affordable: Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. Admission of this type of evidence near the conclusion of a trial, would mean that parties will have to spend money on expert reports to respond to experts on the other side, even when the other side has confirmed through the trial management form that they will not be calling an expert who wrote a report. Parties will thus have to obtain responding reports on the off chance that during the trial, the other party will change its mind as to whether they will call this expert. This will result in less affordable trials, uncertainty, and the need for adjournments when and if this happens.

[9] The situation is not exactly the same as Iannarella v. Corbett, 2015 ONCA 110 which involved late production of a surveillance report, but the Court’s comments are nevertheless instructive. In that case a surveillance report had not been produced but the trial judge admitted the report for the purpose of impeaching the plaintiff. The Court of Appeal held that the trial judge erred by admitting the surveillance report in part because she did not consider fairness and prejudice. The Court concluded that the prejudice was baked in because the trial was well underway and the plaintiff’s counsel did not have sufficient time to prepare an appropriate examination in chief of the plaintiff: at para 83.

[10] Here, the plaintiff has already testified and the cross examination of the defendants has already been concluded. The plaintiff indicates that he prepared his examination in chief as well as his cross examination and trial strategy on the evidence that he thought would be called at trial as set out in the trial management form completed prior to or on March 27, 2023.

[11] The prejudice is also “baked in” here.

[12] The defendants were represented by competent counsel who knows the Rules of Civil Procedure. If he had had any intention to call this expert witness, or even if there had been some possibility that he might, he should have said so. He could have changed his mind later and not called the witness. It is unacceptable for him to say that he thought about it over the weekend and now wants to call this expert after the plaintiff has testified, after the plaintiff has already determined which portions of the defendants’ discovery evidence would be read in, closed his case, and after the two defendants have already testified, been cross examined and when the trial is close to being finished.

Papageorgiou J.

Read Orally: November 20, 2023 Released: November 24, 2023