COURT FILE NO.: CV-19-367-00 DATE: 2024-03-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jeremy Veran, Shawn Veran and Renee Veran Paul Harte, Maria Damiano and Ron Bohm, for the Plaintiffs Plaintiffs

- and -

George Derbyshire, John McPherson, Russell Clark, Uday Chadha, Susan Graham, Theresa Clinton, Francis Denson, Ralph Suke and Thunder Bay Regional Health Sciences Centre Brendan Morrison, Eli Lederman, Madison Robins and Alexa Jarvis, for the Defendants Defendants

HEARD: March 4, 2024, at Thunder Bay, Ontario

Mr. Justice S.J. Wojciechowski

Reasons On Motion

Introduction

[1] This Motion, brought by the Plaintiffs, Jeremy Veran, Shawn Veran and Renee Veran (“the Plaintiffs”), seeks an Order precluding the Defendants, George Derbyshire and John McPherson (“the Defendant Physicians”), from introducing evidence set out in fifteen expert reports (“15 Expert Reports”) which were served on the Plaintiffs between the dates of January 29, 2024 and February 8, 2024.

[2] A jury trial was originally scheduled to commence April 8, 2024, but this start date has since been moved to April 15, 2024.

[3] The dates for the jury trial were scheduled by the Trial Coordinator on June 27, 2023, and eight (8) weeks are now set aside to adjudicate the outstanding issues as between the parties. The Plaintiffs do not consent to the use of the 15 Expert Reports at trial, and object to the service of these 15 Expert Reports at a point in the litigation which is approximately two months from the date the jury trial is set to commence.

[4] For the following reasons, I am not prepared to exclude all the evidence in the 15 Expert Reports from trial. However, I share the Plaintiffs’ concerns with respect to the timing of the delivery of some reports. Not all of the proposed expert evidence from the Defendant Physicians will be presented to the jury.

Background

[5] The Plaintiff, Jeremy Veran (“Jeremy”), was born in Thunder Bay on March 14, 1995 at 35 weeks gestation. While five weeks early, there was nothing remarkable about his birth, and Jeremy went home with his mother two days following his delivery.

[6] When Jeremy was approximately eight months of age, he was seen by the Defendant, George Derbyshire (“Dr. Derbyshire”). At that time, Jeremy was diagnosed by Dr. Derbyshire with cerebral palsy.

[7] The Defendant, John McPherson (“Dr. McPherson”), saw Jeremy in October 1997 when he was 2 years 7 months of age. At that time, Dr. McPherson confirmed the diagnosis of cerebral palsy.

[8] Over the ensuing years, Jeremy’s condition continued to deteriorate, and in December 2004 he was assessed at the Hospital for Sick Children in Toronto. The medical team which attended to Jeremy eventually determined that the cerebral palsy diagnosis was incorrect, and that Jeremy had a cervical cord lesion. While surgery was attempted to correct the problem, Jeremy’s nerves had been permanently damaged by that time, leaving him a ventilator dependent quadriplegic.

[9] The trial which is scheduled to commence April 15, 2024 will therefore address:

(a) whether Dr. Derbyshire or Dr. McPherson were in breach of the applicable standard of care in their original diagnoses of Jeremy’s medical condition, and

(b) the nature and quantum of Jeremy’s damages resulting from the alleged negligence of Dr. Derbyshire and Dr. McPherson which will necessarily consider the probable outcome had the spinal cord lesion been discovered earlier than December 2004.

Procedural History

[10] The Statement of Claim was issued on August 16, 2013, naming Dr. Derbyshire as a defendant.

[11] An Amended Statement of Claim was issued on January 7, 2015, adding Dr. McPherson and other defendants who have since been released.

[12] The Statement of Defence was served on August 20, 2015.

[13] Examinations of the Defendant Physicians took place between 2015 and early 2016 together with examinations of Jeremy’s parents, Renee and Shawn Veran.

[14] Six years later, two attempts were made to proceed with Jeremy’s discovery virtually on August 18, 2022 and September 21, 2022. Due to communication challenges, both were adjourned and it was ultimately decided that his discovery would proceed in person, on April 17, 2023.

[15] A Pre-Trial Conference in this matter was scheduled for November 20, 2022, but due to technical difficulties, it did not proceed as planned. Instead of rescheduling the Pre-Trial Conference, a Case Management Conference was scheduled for the parties on January 20, 2023.

[16] Early in 2023, Fregeau J. presided over the Case Management Conference, and the resulting endorsement acknowledged that the Defendant Physicians had not yet served their expert reports on damages. It was agreed that they would do so as soon as possible following the completion of Jeremy’s discovery.

[17] On April 17, 2023, Jeremy was examined for discovery. On May 26, 2023, the Defendant Physicians requested that a neuropsychological assessment of Jeremy be undertaken. After the Plaintiffs denied this request, a second Case Management Conference was held on June 7, 2023, during which the Defendant Physicians confirmed a motion would be brought seeking the expert assessment which had been requested.

[18] During this June 2023 Case Management Conference, Fregeau J. directed the Defendant Physicians to include in their motion a request for a revised litigation timetable.

[19] The Defendant Physician’s motion was heard by Newton J. (as he then was) who dismissed the motion in reasons delivered August 28, 2023. The Defendant Physicians sought leave to appeal this decision, which was denied on January 26, 2024.

[20] In the Motion before Newton J., no relief requesting a revised litigation timetable was sought. Instead, a revised litigation timetable was proposed in the Defendant Physician’s factum. No order reflecting a litigation timetable was made pursuant to this motion.

[21] The Defendant Physicians served materials on November 30, 2023, for a motion requesting an adjournment of the trial. This second motion was scheduled to be heard on February 8, 2024, but was abandoned on January 29, 2024.

[22] A Case Management Conference was held in front of Newton J. on February 8, 2024, during which the issue of late served expert reports was raised. Between January 29, 2024 and February 9, 2024, the 15 Expert Reports were served.

Expert Reports

[23] The 15 Expert Reports which the Plaintiffs seek to address in this Motion are the following:

Reports Addressing Liability Issues

1. Report of Dr. Jerome Yager, paediatric neurologist, dated February 4, 2024 and served on February 6, 2024.
2. Report of Dr. Ken Kontio, orthopaedic surgeon, dated February 6, 2024 and served on February 7, 2024.

Reports Addressing Damages’ Issues

3. Report of Dr. Michael Shevell, paediatric neurologist, dated September 11, 2023 and served on January 20, 2024.
4. Report of Dr. David Strauss addressing life expectancy issues, dated January 18, 2024 and served on January 28, 2024.
5. Report of Dr. David Strauss addressing life expectancy issues, dated February 1, 2024 and served on February 1, 2024.
6. Report of Christie MacGregor, vocational rehabilitation assessment, dated February 5, 2024 and served on February 7, 2024.
7. Report of Angie Blazkowski, occupational therapist, addressing Future Care – Normal Baseline Report dated January 31, 2024 and served on February 1, 2024.
8. Report of Angie Blazkowski, occupational therapist, addressing Future Care – SCI Baseline Report dated January 31, 2024 and served on February 1, 2024.
9. Report of Angie Blazkowski, occupational therapist, addressing Future Care – Normal Baseline Report dated February 6, 2024 and served on February 6, 2024.
10. Report of Mary Ann Mountain, neuropsychologist, dated February 5, 2024 and served on February 6, 2024.
11. Report of Randy Sora from EZ Access Incorporated, addressing family home housing costs, dated February 5, 2024 and served on February 5, 2024.
12. Report of Randy Sora from EZ Access Incorporated, addressing cottage housing costs, dated February 5, 2024 and served on February 5, 2024.
13. Report of Professor Hyatt, addressing economic losses for extraordinary costs, dated February 7, 2024 and served on February 7, 2024.
14. Report of Professor Hyatt, addressing economic losses for earnings, dated February 7, 2024 and served on February 7, 2024.
15. Report of Professor Hyatt, addressing extraordinary costs described in the Plaintiffs’ expert report from Angela Fleming, dated February 9, 2024 and served on February 9, 2024.

Position of the Plaintiffs

[24] The Plaintiffs submit that the 15 Expert Reports were served outside the time parametres provided by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) without the consent of the Plaintiffs.

[25] The Plaintiffs also maintain that the 15 Expert Reports raise new issues within the litigation which, given the scheduled trial date, is prejudicial to the Plaintiffs ability to advance their claims without sufficient time to respond to the new issues.

[26] The Plaintiffs rely upon the decision of Newton J. who did not allow a neuropsychological examination of Jeremy which, in part, was based upon the serious risk of disrupting the fair and efficient trial of this action. If one report could put the trial at risk, then allowing evidence from fifteen reports would result in inevitable prejudice to the Plaintiffs.

[27] Finally, the Plaintiffs maintain that the 15 Expert Reports were served egregiously late, and that the conduct of the Defendant Physicians represents a flagrant disregard of the Rules.

Position of the Defendant Physicians

[28] The Defendant Physicians rely upon communications with counsel for the Plaintiffs in which the Plaintiffs allegedly provided consent to the late service of 15 Expert Reports.

[29] The Defendant Physicians maintain that the Rules were not breached in the service of the 15 Expert Reports, nor were any court-imposed timetables.

[30] It is submitted by the Defendant Physicians that based upon the service dates of the 15 Expert Reports and the commencement date of the jury trial, the Plaintiffs have ample time to respond and reply, if necessary.

[31] Finally, the Defendant Physicians argue that this motion of the Plaintiffs amounts to a request for a draconian order seeking to exclude the entire defence of the Defendant Physicians.

Analysis

[32] There is no mistaking the fact that recent amendments to the Rules have been aimed at discouraging the conduct of the Defendant Physicians which is the focus of this motion. While previous wording found in r. 53.08 required trials to be adjourned in the face of late served reports, arguably providing no incentive for parties to follow the time parametres set out in the Rules for the service of expert reports, that is no longer the case.

[33] If an expert report is served outside the requirements of subrule 53.03(3), then r. 53.08 provides that an expert witness may not testify at trial without leave of the trial judge. Leave of the trial judge may then be granted under r. 53.08 if the party responsible for the late service satisfies the trial judge that there is a reasonable explanation for the late service, and that granting leave would not cause irreparable prejudice nor impact the trial.

[34] In terms of the prescribed time limits for serving expert reports, these are set out in r. 53.03.

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).

(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.

(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;

(b) a supplementary report served on every other party to the action not less than 45 days before the commencement of the trial; or

(c) a responding supplementary report served on every other party to the action not less than 15 days before the commencement of the trial.

(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.

[35] A party who intends to call expert evidence at trial can only do so if a report setting out his or her evidence is served 90 days before a pre-trial. The rule continues by requiring any party who wishes to call expert evidence in response to the opposing party’s expert to serve a report 60 days before pre-trial.

[36] Since the pre-trial in this matter was scheduled for November 22, 2022, none of the 15 Expert Reports met the requirements of subrules 53.03(1) or (2).

[37] Rule 53.03 then requires that within 60 days after an action is set down for trial, the parties shall agree to a schedule for the service of expert reports. While a schedule was agreed upon by the parties – three years after the action was set down - it provided for the exchange of all expert reports before a Pre-Trial Conference scheduled for November 22, 2022. Obviously, that did not happen.

Review of the Reports

[38] The Defendant Physicians maintain that four of the 15 Expert Reports are really just responding supplementary reports which have to be served not less than 15 days before trial in accordance with subrule 53.03(3)(c). These are the reports of Dr. Jerome Yager dated February 4, 2024, Dr. Michael Shevell dated September 11, 2023, Dr. Ken Kontio dated February 6, 2024 and Christine MacGregor dated February 5, 2024.

[39] In order for an expert report to be “supplementary”, it needs to be rooted in a previous report provided by that same party and should not embark on new scientific theories or opinions. Typically, a party serves upon the other a report containing their expert opinion evidence. The opposing party then tends to provide responding materials to that original report. The party who filed the original report may then serve a “supplementary” report, which responds to the opposing party’s position on the original report.

[40] Responding supplementary reports are those “second round reports” which are written by experts who already provided expert opinions responding to originating reports from an opposing party. These reports are to be served not less than 15 days before trial as per subrule 53.03(3)(c).

Dr. Jerome Yager

[41] Dr. Jerome Yager originally provided a report dated June 30, 2022, which responded to the Plaintiffs’ expert report of Dr. Simon Levin dated March 17, 2019. In Dr. Yager’s June 30, 2022 report, he provides an opinion that Jeremy showed evidence of cognitive delay, and adds that the presence of both cognitive delay and motor dysfunction suggests an abnormality above the spinal cord.

[42] In a responding report to Dr. Yager, on September 13, 2022, Dr. Levin – the Plaintiffs’ expert - disagrees with Dr. Yager’s findings of cognitive delay. In addition, on January 28, 2024, Dr. Levin provides his comments in response to the report of Dr. Fawaz Siddiqi dated June 6, 2023 and served by the Defendant Physicians. This report of Dr. Siddiqi provides an opinion that any reading and speech issues impacting Jeremy are unlikely due to cord compression and instead have a non-spinal cause. Dr. Yager then, in turn, provides a supplementary responding report to Dr. Levin’s report of January 28, 2024 and again states that, in his opinion, Jeremy suffered a motor and intellectual disability from early on in his life which goes against a below the neck injury, suggesting it is an abnormality of his brain which has caused abnormal motor, speech, and intellectual development.

[43] Based upon the contents of these reports, I find that the report of Dr. Yager dated February 4, 2024, and served February 6, 2024, meets the requirements of subrule 53.03(3)(c). The report of February 4, 2024, reflects the opinions of Dr. Yager set out in an earlier report, and disagrees with the expert opinion of Dr. Levin expressing a contrasting opinion. It is therefore a responding supplementary report and may be used in this trial.

Dr. Ken Kontio

[44] Dr. Kontio initially prepared an expert report dated September 13, 2022, which was served on September 14, 2022 and provides an opinion on the standard of care of Dr. McPherson. This report makes no mention of any issues associated with cognitive impairments or delays. Dr. Kontio also disagreed with the opinions of the Plaintiffs’ expert, Dr. Firoz Miyanji, insofar as probable alternative outcomes for Jeremy.

[45] Dr. Firoz Miyanji had provided an opinion dated December 5, 2020, to the Plaintiffs that if Jeremy’s cord compression issues had been identified and treated earlier in his life, then his outcome and degree of disability would have been significantly different, i.e., better.

[46] Again, Dr. Kontio disagreed with the opinions of Dr. Miyanji, and in response, Dr. Miyanji provided his report dated November 9, 2022, in which he noted the physical symptoms exhibited by Jeremy should have caused Dr. McPherson to dig deeper into their causes. Similar to Dr. Kontio’s report of September 13, 2022, no issues are raised regarding cognitive delays.

[47] Next, the report of Dr. Kontio dated February 6, 2024, is served on February 7, 2024. It purports to respond to Dr. Miyanji’s report of November 9, 2022, however in paragraph 3, issues of cognitive impairments are raised for the first time:

Jeremy’s testimony from his examination for discovery suggest that his cognitive abilities are impaired in a manner that one would not expect from a spinal cord injury. Indeed, patients with spinal cord injuries, especially if not affected by intracranial conditions such as hydrocephalus, do not affect the patient’s cognitive abilities. Jeremy does not appear to have any other underlying medical conditions to account for his cognitive disabilities, other than the diagnosis of cerebral palsy. His testimony supports the diagnosis of cerebral palsy in my opinion.

[48] This portion of Dr. Kontio’s report provides a new expert opinion not raised previously, and I find does not fit within subrule 53.03(3)(c). This is the subject matter of a responding report which should have been served 60 days before pre-trial: subrule 53.03(2).

[49] I also question the qualifications on the part of this orthopaedic surgeon to opine on cognitive disabilities or the etiology surrounding cerebral palsy. As the trial judge, it is my role to consider the admissibility of expert evidence based upon the criteria in R. v. Mohan, [1994] 2 S.C.R. 9, one aspect of which is a properly qualified expert. This role is particularly important when expert evidence is to be presented to a jury as described by the Court of Appeal for Ontario in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, at para. 2:

The role of the trial judge in relation to expert witnesses has also evolved. Appellate courts have repeatedly instructed trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence. They are required to carefully scrutinize, among other things, an expert witness’s training and professional experience, along with the necessity of their testimony in assisting the trier of fact, before the expert is qualified to give evidence in our courts. This gatekeeper role is especially important in cases, such as this one, where there is a jury who may inappropriately defer to the expert’s opinion rather than evaluate the expert evidence on their own.

[50] In exercising my gatekeeping function, Dr. Kontio may provide evidence at trial as is reflected in paragraphs 1, 2 and 4 in his report dated February 6, 2024, but not paragraph 3.

Dr. Michael Shevell

[51] Dr. Shevell is a paediatric neurologist who provided a responding report dated May 12, 2022, served June 17, 2022, addressing the standard of care of Dr. Derbyshire, and comments upon the Plaintiffs’ expert reports from Dr. Manohar Shroff, Dr. Simon Levin and Dr. Firoz Miyanji. Dr. Shevell does not believe that Dr. Derbyshire’s failure to investigate Jeremy’s condition beyond his diagnosis of cerebral palsy was unreasonable.

[52] Dr. Shevell also makes the following comments in his responding report dated May 12, 2022:

Furthermore, missing from the plaintiff’s experts’ reports is any mechanism to account for the video evidence of impairment of Jeremy’s motor function, specifically bifacial paresis and oromotor dysfunction, above the level of a C1-C2 subluxation. These impaired functions have their motor control in the brain, relayed through the brainstem and innervating target muscles via the cranial nerves. This “arc” of control is entirely above the C1-C2 subluxation and would not be impacted as observed by a lesion at this level alone if the C1-C2 subluxation alone accounts for Jeremy’s impairment.

[53] This report of Dr. Shevell is subject to critique in Dr. Simon Levin’s responding report dated September 13, 2022, served the same date, in which he specifically disagrees with the assertion that videos of Jeremy demonstrate significant bifacial paresis and oromotor dysfunction. He also comments upon the assessment of the Defendant Physicians’ expert, Dr. Yager, that Jeremy was cognitively delayed, stating it is his opinion that there is no evidence supporting this finding.

[54] In response to this report by Dr. Levin, Dr. Shevell provides a further responding report, dated September 13, 2022. It was served January 30, 2024. This recently served report points out the areas of disagreement between his opinion and Dr. Levin’s opinion, and after reviewing the transcript of the examination for discovery of Jeremy, reiterates his previous opinion set out in his original report dated May 12, 2022.

The transcript of the examination for discovery of Jeremy provides convincing evidence that Jeremy, having never been able to read, to speak fluidly, or to manage his own affairs and manifesting considerable difficult to understanding and responding to simply queries, has substantive cognitive limitation. The presence of cognitive limitation would not be consistent with the plaintiffs’ contention that his disabilities are entirely attributable to a C1-C2 subluxation. Although not all individuals with cerebral palsy have cognitive limitations, brain dysfunction is found in approximately 30-50% of cases and its evidence in Jeremy Veran is not explained by a spinal injury.

[55] Aside from the consideration of Jeremy’s discovery evidence, there are no new theories or conclusions in this opinion, and is the proper subject of a supplementary responding report served in accordance with subrule 53.03(3)(c) and may be used in this trial.

Christie MacGregor

[56] Christie MacGregor is a Vocational Rehabilitation Consultant. Ms. MacGregor’s first report, dated and served June 6, 2023, provides opinions on Jeremy’s vocational options considering his current circumstances, as well as what options would have been available to Jeremy without the injury to his spinal cord. Her opinion is that Jeremy is not competitively employable given his functional status and his limited communication and literacy skills. Ms. MacGregor also expresses her opinion that absent the spinal cord injury, Jeremy would still not be competitively employable given her assessment of his limited reading and communication skills.

[57] The June 6, 2023, report of Ms. MacGregor responded to the Plaintiffs’ expert report from Angela Fleming dated March 31, 2022 which provides an opinion that Jeremy’s cognitive capabilities are adequate and without any limitation which would impact his employability.

[58] Ms. MacGregor then provides a second report dated February 5, 2024, which was served on February 7, 2024. This second report again addresses Jeremy’s vocational options, but considers two additional scenarios not set out in her original report dated June 6, 2023. This second report also does not respond to any opinions from the Plaintiffs’ experts, and instead provides analysis based upon opinions found in a report dated June 6, 2023, from the Defendant Physicians’ expert, Dr. Fawaz Siddiqi.

[59] I note that both the first report from Ms. MacGregor and the report of Dr. Siddiqi are dated June 6, 2023.

[60] Her analysis in this second report addresses Jeremy’s vocational potential in two additional scenarios to those considered in her first report. The first scenario assumes he suffered from no physical nor cognitive limitations. The second assumes no cognitive limitations, but physical limitations.

[61] The basis for the second analysis is Dr. Siddiqi’s opinion that Jeremy would have significant physical limitations even if the cord compression issue had been discovered and treated earlier.

[62] In Ms. MacGregor’s second report dated February 5, 2024, it contemplates two new fact scenarios upon which to base her vocational analysis for Jeremy. I find that this is not a supplementary responding report as contemplated by Rule 53.03(3)(c), but instead is a responding report as contemplated by Rule 53.03(2). Accordingly, whether or not Ms. MacGregor can present evidence based upon her opinions expressed in her February 5, 2024 report will depend on the application of Rule 53.08.

Rule 53.08

[63] The analysis applicable to the admissibility of Ms. MacGregor’s second report, which also applies to the remaining 11 expert reports not yet addressed in these reasons, depends upon the Defendant Physicians satisfying me that:

(a) there is a reasonable explanation for the late delivery of the report outside the time parametres provided by Rule 53.03(2); and

(b) granting leave would not

i. cause prejudice which could not be compensated by costs or an adjournment, or

ii. cause unduly delay in the conduct of the trial.

Reasonable Explanation

[64] The initial timetable agreed upon by the parties on December 20, 2021, for the exchange of expert reports was the following:

DEADLINE DATE Serve Plaintiff Liability Reports January 31, 2022 Serve Plaintiff Damages Reports April 1, 2022 Serve Defence Liability Reports June 30, 2022 Serve Plaintiff Reply to Reports on Liability August 4, 2022 Serve Defence Damages Reports September 30, 2022 Pre-Trial Hearing November 2022

[65] Because of issues related to the taking of Jeremy’s evidence at an examination for discovery, the Defendant Physicians were unable to serve their damages reports on or before September 30, 2022. Accordingly, it became necessary to amend the originally agreed upon timetable.

[66] The Defendant Physicians maintain that based on an email exchange dated October 21, 2022, both parties agreed to the late delivery of expert reports without any specific deadlines being imposed. This email is attached to a Certificate of Readiness prepared by the Defendant Physicians and dated October 21, 2022, in which the Defendant Physicians confirmed:

I have the written consent of the other party to serve the outstanding [expert] reports by a date to be agreed by the parties on a reciprocal basis.

The Defendants’ damages reports have not been served because the discovery of Jeremy has been attempted virtually but was unsuccessful for reasons outside the parties’ control, and will need to be scheduled in person. The Defendants will complete their damages reports within a reasonable period after that discovery.

[67] No date was ever agreed upon by the parties on a reciprocal basis.

[68] The discovery of Jeremy finally proceeded on April 17, 2023.

[69] As already noted, the Pre-Trial Conference originally scheduled for November 22, 2022, did not proceed due to technical difficulties, and instead the parties attended a Case Management Conference on January 27, 2023, in front of Fregeau J.

[70] On the issue of the Defendant Physicians’ expert reports, the endorsement reads:

The defendants have yet to conduct in person E/D on Jeremy Veran. This has delayed the delivery of the defence expert damages reports. Plaintiffs’ counsel have undertaken to assist in facilitating this ASAP. Defendants’ counsel will make best efforts to have the defence expert damage reports completed ASAP thereafter.

[71] Clearly it was understood at that Case Management Conference that expert reports still had to be exchanged, yet no specific timetable for the delivery of the same was proposed.

[72] After Jeremy’s discovery, the transcript was obtained on May 5, 2023, and later that month the Defendant Physicians requested the opportunity for Jeremy to undergo a neuropsychological assessment. The Plaintiffs refused, and on June 7, 2023, the parties attended again with Fregeau J. at another Case Management Conference. That endorsement provides that a motion requesting an assessment of Jeremy be booked, and in that motion.

Counsel are directed to include in the relief requested on this motion that a revised litigation timetable be ordered.

[73] In addition, tentative trial dates were discussed for the spring or fall of 2024 to consist of eight weeks divided into two blocks of four weeks each.

[74] By June 27, 2023, the trial co-ordinator confirmed with the parties that an eight week jury trial had been scheduled to commence on April 8, 2024.

[75] The motion for the neuropsychological assessment was scheduled to be heard by Newton J. on July 6, 2023. Despite Fregeau J’s June 7 endorsement, the Defendant Physicians’ notice of motion did not seek a revised litigation timetable. However, in the factum of the Defendant Physicians delivered on June 27, 2023, the following timetable was proposed:

DEADLINE DATE Defence Neuropsychological Assessment By September 15, 2023 Defence Neuropsychological Report By October 16, 2023 Plaintiffs Neuropsychological Assessment By November 15, 2023 Plaintiffs Neuro Assessment Report By December 15, 2023 Defendants’ Damages Reports By January 31, 2024 Plaintiffs’ Reply Damages Report By February 29, 2024 Trial Commencement April 8, 2024

[76] During the motion hearing, neither party raised any issues relating to the timetable set out in the factum of the Defendant Physicians. The Defendant Physicians did not ask Newton J. to order a timetable for delivering outstanding expert reports. The Plaintiffs did not address the timetable for delivering the damages reports of the Defendant Physicians by January 31, 2024.

[77] It is noteworthy that this proposed timetable was provided seven or eight months following the pre-trial which had been scheduled for November 22, 2022, but which did not proceed. The evidence before me from the Defendant Physicians is that in their Pre-Trial Memorandum, they provided the following information to the Plaintiffs insofar as the status of any expert reports and opinions:

NAME OF WITNESS ESTIMATED TIME (CHIEF AND CROSS) Dr. George Derbyshire 2 days Dr. Jack McPherson 2 days Jeremy’s treating physicians 5 – 8 days Dr. Michael Shevell (pediatric neurologist) 2 days Dr. Jerome Yager (pediatric neurologist) 2 days Dr. Ken Kontio (pediatric orthopedic surgeon) 2 days Neurosurgeon expert 2 days Occupational therapist 2 days Housing expert 1 day Vocational expert 1 day Life expectancy expert 1 day Economist 1 day

[78] I therefore find that as of October 21, 2022, the Plaintiffs had acknowledged that the expert opinions relating to damages of the Defendant Physicians would be served later than anticipated. As of November 2022, described in the pre-trial brief of the Defendant Physicians, it was anticipated that a number of experts would be providing reports outlining opinion evidence anticipated to be introduced at trial, including a neurosurgeon expert, an occupational therapist, a housing expert, a vocational expert, a life expectancy expert, and an economist.

[79] At the Case Management Conferences held before Fregeau J. in January and June of 2023, there were discussions relating to the outstanding damages’ opinions from the Defendant Physicians’ experts.

[80] All parties understood by June 27, 2023, that an eight week jury trial had been scheduled to commence on April 8, 2024.

[81] Reading the factum of the Defendant Physicians which was filed in the motion heard by Newton J. on July 6, 2023, it was obvious that the Defendant Physicians had proposed to serve their expert reports relating to damages by the end of January 2024.

[82] In light of this background, I do not understand why there were no discussions between counsel relating to the nature and quantity of outstanding expert reports, nor the timing for the service of the same. Clearly the issue of expert reports was raised several times. But neither the Plaintiffs nor the Defendant Physicians addressed the topic head on in order to come to terms as to the timing of any outstanding expert reports.

[83] Instead, on December 4, 2023, the Plaintiffs wrote the Defendant Physicians and advised that,

the Plaintiffs’ have not, and will not, be waiving any rights with respect to late served reports. The Plaintiffs’ position will be that the time to serve reports has long since passed.

[84] While I empathize with the Plaintiffs’ position, it is untenable given the agreement back in October 2022 that expert reports would be served later than anticipated. While I do not find that the Plaintiffs specifically consented to the service of expert reports from the Defendant Physicians at the end of January 2024 and the beginning of February 2024, the failure of the Plaintiffs to clearly delineate their position before December 4, 2023 in the face of the Defendant Physicians’ position – as set out in their November 2022 Pre-Trial Brief and their July 2023 factum – leaves me to believe that they did not take issue with the delivery of damages expert report from the Defendant Physicians in early 2024.

[85] On December 8, 2023, a further Case Management Conference was held, this time in front of now RSJ Newton who had dismissed the motion of the Defendant Physicians seeking a neuropsychological assessment of Jeremy. A motion for leave to appeal had been filed, and at this Case Management Conference the Defendant Physicians advised that until the leave motion was determined, the remaining expert reports would not be served.

[86] Leave was ultimately not granted, and it was not until after the Divisional Court’s decision of January 26, 2024, that the 15 Expert Reports were served.

[87] With this background, generally I find that a reasonable explanation has been provided by the Defendant Physicians for the timing of the delivery of the 15 Expert Reports. While there is no doubt that some of these 15 Expert Reports could have been served earlier, subject to my reasons which follow and which individually address each of the remaining reports, it was clear that additional expert reports would be served by the Defendant Physicians, including most of the remaining 12 reports I have not yet considered.

Prejudice and Trial Delay Issues

[88] I have considered three expert reports. There are 12 remaining.

[89] The evidence set out within the remaining 12 expert reports can only be introduced at trial if there is no prejudice to the Plaintiffs which cannot be compensated through an award of costs or an adjournment, or if there is no undue delay to the conduct of the trial.

[90] The Defendant Physicians are well aware of the time parametres provided by the Rules, including the revisions to rr. 53.03 and 53.08 which now mandate adherence to the timelines which are provided. While failure to serve reports on time provided a mandatory direction to adjourn trial dates to accommodate the parties in the past, this is no longer the case. Where the late service of the Defendant Physicians’ expert reports do not allow the Plaintiffs enough time to consider and to provide a response before a scheduled trial date, then no matter how reasonable the explanation, the underlying evidence set out within the reports shall not be introduced at trial.

[91] In this regard, the jury trial is now scheduled to commence in approximately four weeks as of the date of this decision. Whether or not to permit the experts of the Defendant Physicians to provide evidence based upon the remaining reports will depend upon their prejudicial effect upon the Plaintiffs.

[92] In terms of the prejudice, the affidavit evidence from the Plaintiffs in support of their motion identifies the following:

Prejudice to the Plaintiffs

39. It will be highly prejudicial to the Plaintiffs if they are required to review, consider and respond to the hundreds of pages of opinion evidence disclosed in the 15 Late Served Reports. It will be all but impossible for the Plaintiffs to marshal the necessary resources to adequately respond to the 15 Late Served Reports should they be allowed to form the basis of any expert testimony at trial as scheduled.

[93] This is the only evidence which specifically attempts to address the issue of prejudice from the perspective of the Plaintiffs. I readily accept that there will be situations where prejudice arises from the late service of any expert report. But I do not accept that this is always the case, especially when experts have already been retained to address relevant issues raised by the parties, and have already reviewed as part of their retainer the evidence which has been exchanged through the litigation process.

[94] The Plaintiffs maintain that if they are required to review, consider and respond to the opinion evidence set out within the 15 Expert Reports, it will be “highly prejudicial”. The Plaintiffs also state that “it will be all but impossible . . . to marshal the necessary resources” required to respond to the 15 Expert Report.

[95] However, no evidence has been provided to explain what the basis of the prejudice is, or why the Plaintiffs think it is next to impossible to have their experts respond to the opinions in the 15 Expert Reports. Again, to the extent that the opinions in the 15 Expert Reports respond to opinions proffered by the Plaintiffs’ experts, there is no explanation as to why the Plaintiffs’ experts would be unable to respond to the opinions of the Defendant Physicians’ experts. Individuals with the expertise and backgrounds of the Plaintiffs’ experts are no doubt busy. But I have no evidence suggesting that over the course of the two months between the service of the 15 Expert Reports and April 15, 2024, no time was or still is available in their calendars to review the new reports and consider providing a reply.

[96] Similar considerations arose in the case of Teal Cedar Products Ltd. v. British Columbia, 2022 BCSC 539. While the Rules in British Columbia are different than Ontario, in addressing the issue of prejudice, the court had the following to say:

[25] Though served with the Miller Report on December 20, 2021, the defendants have not taken steps to have their own experts analyze the report and determine what may be required to respond to it. They take the position that it is presumptively inadmissible and, unless and until this court orders that it may be tendered at trial, they should not have to take any steps to respond to it.

[34] The defendants have had the Miller Report for almost two months, yet have not taken steps towards having a response to it prepared. I am sympathetic with their position that they should not have to invest significant time and money in responding to a report that is presumptively inadmissible based on the case plan order. However, one would expect they might at least have consulted with one of their experts to gain some understanding of what is needed to fairly respond to the Miller Report. This preliminary step would not have gone the full distance of responding to the report, but at least it would have given the court a better understanding of what, if any, prejudice the defendants actually face.

[97] The court here is in a similar position, not knowing exactly what efforts the Plaintiffs’ experts will have to undertake in order to respond to the 15 Expert Reports, nor what issues conspire to create a situation which is “highly prejudicial”.

[98] Again, I recognize that it will take time and effort to respond to the 15 Expert Reports. But I cannot find it is impossible to do so absent a clear and cogent explanation.

[99] However, I have decided that no adjournment of the trial will be permitted given the duration of this litigation and the time which the parties have had to prepare their case for trial. This reflects subrule 53.08(1)(b)(ii). If the proposed evidence of the Defendant Physicians is based upon new opinions requiring responding expert evidence, and there is not enough time available to the Plaintiffs to obtain responding reports before the commencement of trial, then I will not allow the expert reports to be used at trial. While there may be a reasonable explanation for the service of the expert reports of the Defendant Physicians, if admitting them creates an impossible situation where the Plaintiffs cannot be reasonably expected to obtain any necessary reply opinion evidence before April 15, 2024, then prejudice results which requires the exclusion of the reports.

[100] Without specific evidence from the Plaintiffs on the challenges inherent in replying to the 15 Expert Report does not leave me without some sense of what will be required. This is especially so if any of the opinions in the 15 Expert Reports advance new scientific theories or opinions.

[101] Now let me consider the 12 remaining reports in question which I have not already addressed.

Christie MacGregor

[102] The second report of Ms. MacGregor considers two new scenarios. The first report looks at vocational outcomes assuming Jeremy would not have any cognitive nor physical limitations. Her opinion in this regard then provides the baseline for an average male living and working in Atikokan with a college or university degree. This arguably is the scenario against which the Plaintiffs are assessing Jeremy’s damages, i.e., his outcome had the cord compression issue been identified earlier such that there was no resulting spinal cord injury as distinguished from his current outcome.

[103] The second scenario assumes that Jeremy does not have any cognitive deficits – which is what the Plaintiffs maintain – but that even with an early discovery of the cord compression issue, spinal cord damage would have occurred and Jeremy would have been left with physical limitations.

[104] If Ms. MacGregor is permitted to lead evidence based upon her second report dated February 5, 2024, served February 7, 2024, would this create prejudice on the part of the Plaintiffs?

[105] I believe it would. I also determine that no reasonable explanation exists for the late delivery of this report, contrary to my general findings set out earlier in these reasons.

[106] The second scenario provided within the report of Ms. MacGregor is based upon the Defendant Physicians’ expert opinion of Dr. Siddiqi whose report was served upon the Plaintiffs on June 6, 2023. While generally the Defendant Physicians have provided a reasonable explanation for the delivery of the 15 Expert Reports, this is one report which I do not find falls into the “reasonable explanation” category, especially since she undertook a ”hands on”, in person assessment of Jeremy on October 6, 2022.

[107] Dr. Siddiqi’s report was served in June 2023. Why was Ms. MacGregor’s report not served earlier than February 7, 2024? The Defendant Physicians advised the Plaintiffs that additional expert reports on damages would be coming, but following the list of damages’ experts provided in the pre-trial brief of the Defendant Physicians in November 2022, Ms. MacGregor’s vocational expert report dated June 6, 2023 was served. There could be no expectation on the part of the Plaintiffs that a second and different vocational expert report would be served. The Defendant Physicians did not tell the Plaintiffs that a new scenario would be considered by Ms. MacGregor. Had the Defendant Physicians done so, the Plaintiffs could have considered retaining their own vocational expert to prepare a response.

[108] I therefore find that absent a reasonable explanation for the delivery of Ms. MacGregor’s report of February 5, 2024, leave is not granted for its use at trial. In addition, given the late service of this report, I find that the Plaintiffs are prejudiced in that obtaining a reply report from a vocational expert before the trial commencement date is unreasonable.

Dr. David Strauss

[109] Dr. Strauss provided two reports addressing life expectancy, one dated January 18, 2024, which was served January 29, 2024, and the second dated February 1, 2024 which was served February 1, 2024.

[110] Both these reports respond to the Plaintiffs’ expert report from Dr. Bruce Empringham dated and served October 7, 2021. This type of report was referenced in the November 2022 pre-trial brief of the Defendant Physicians. The Plaintiffs therefore knew that such a life expectancy report would be coming.

[111] The first report is a straight life expectancy report, with the second being a “counterfactual scenario” and assumes that one of Jeremy’s possible outcomes would not have left him dependent on a ventilator.

[112] The Plaintiffs were aware the life expectancy issues would be relevant to the assessment of damages, and that a life expectancy report would be served. The fact that there are now two scenarios being considered by the Defendant Physicians will not preclude a reply within a reasonably short period of time if the Plaintiffs intend to introduce evidence in contrast to Dr. Strauss’ opinions.

Angie Blazkowski

[113] Angie Blazkowski is an occupational therapist. She provided three future care reports, two dated January 31, 2024, and the third one dated February 6, 2024. However, the third report updates, corrects and/or replaces the second report dated January 31, 2024. As such, there is a Future Care – Normal Baseline Report dated January 31, 2024, and a Future Care – SCI Baseline Report dated February 6, 2024, which I am to consider.

[114] The first report was served February 1, 2024, and the second was served on February 6, 2024.

[115] The first report of Ms. Blazkowski identifies the future care needs of Jeremy in his present condition when compared to a situation where he did not suffer a spinal cord injury.

[116] The second report looks at future care needs of Jeremy in light of his present condition when compared to what his needs would have been with a spinal cord injury which was discovered and treated earlier than it was.

[117] As of November 2022, the Plaintiffs were aware that an expert report from an occupational therapist would be served. In fact, Ms. Blazkowski met with Jeremy and the Plaintiffs on September 23, 2022, for the express purpose of assessing his future care needs. These two reports also respond to the future care assessments undertaken by Angela Fleming who was retained by the Plaintiffs for her expert opinions.

[118] The second scenario outlined in the second report is also based upon the Defendant Physicians’ report from Dr. Siddiqi dated June 6, 2023, which states that even if the nature of the spinal cord compression had been identified when Jeremy was 12 to 13 months old, he still would have had issues with his upper and lower extremities.

[119] There was no argument advanced during the course of this motion that Dr. Siddiqi could not provide opinion evidence at trial. The opinion of Dr. Siddiqi was well known to the Plaintiffs as of June 2023. I therefore find that there is no prejudice to the Plaintiffs with the service of these reports, and if reply evidence warranted, the Plaintiffs have already retained an expert with a reasonable amount of time to secure a responding report.

Randy Sora

[120] The Plaintiffs provided residential accessibility reports initially in 2010 and 2011, and then updated reports regarding Jeremy’s primary housing needs on March 24, 2022, and Jeremy’s cottage accessibility needs on March 25, 2022. It is unknown why it took the Defendant Physicians almost two years to respond to these reports – after having undertaken an assessment of Jeremy’s needs on June 16, 2022 - but it is clear that the Defendant Physicians identified these reports as coming.

[121] The Plaintiffs knew that these reports would be served. One of Mr. Sora’s reports deals with the Family Home, and the second deals with the Cottage. These are areas which have already been addressed by the Plaintiffs’ expert. Reply reports, if warranted, can be obtained before the commencement of the jury trial.

Douglas Hyatt

[122] There are three economic loss reports prepared by Professor Hyatt which have been served, two dated February 7, 2024, which were served on the same date, and the third one dated and served on February 9, 2024.

[123] The first of the economic loss reports provide a valuation of the future care costs set out by Ms. Blazkowski and Mr. Sora – Defendant Physicians’ experts - with regard to the life expectancy issues identified by Dr. Strauss.

[124] The second report addresses the value of Jeremy’s lost earnings.

[125] And the third report looks at costing out the future care costs determined to be appropriate by the Plaintiffs’ expert, Angela Fleming.

[126] The Plaintiffs provided their economic loss reports from Eli Katz back in March 2022. The Defendant Physicians indicated in November 2022 that they would be obtaining and serving an economist opinion on the costing and present values of future care costs and losses. In a personal injury file such as this one involving a vent dependent quadriplegic, economic loss reports are integral to the valuation of damages.

[127] The Plaintiffs have an economist who is familiar with the file and can provide reply reports to the extent that the Plaintiffs desire to call evidence which contrasts that of Professor Hyatt. While only a short time exists to secure a responding report from Mr. Katz, I have no basis to find that it would be impossible for his reply opinion to be prepared before the commencement of trial.

Dr. Mary Ann Mountain

[128] I am not prepared to grant leave to permit evidence from Dr. Mountain to be led during the jury trial.

[129] First, the motion of the Defendant Physicians which was heard in July 2023 sought to have Jeremy assessed by a neuropsychologist. This motion was unsuccessful, as was the motion for leave to appeal.

[130] In delivering his reasons on the motion, Newton J. had the following to say:

[48] In this case, no issue of neuropsychological impairment is raised in the statement of claim or the statement of defence. The evidence relied upon by the defendants does not raise any issue of neuropsychological impairment. The Future Care Cost report delivered 12 years ago notes that the medical records described Jeremy as having normal cognitive function. His problems with speech were attributed to physical limitations. When Jeremy was in grade 10, it was noted that he was taking “applied studies” and was “very adept” with computers. The updated Future Care Cost report noted that Jeremy finished high school and graduated from Durham College.

[49] The uncontradicted evidence from Jeremy’s mother is that she never had any concerns with Jeremy’s cognitive abilities, nor had she been told by anyone that Jeremy has any cognition issues. She deposed that his educational placement plans addressed physical disabilities only. The education plan noted that Jeremy “excels in his academics”. His grade 8 and grade 12 report card were exhibits and his grade 12 marks were in the 80s and 90s and it was noted that he earned the highest mark in environmental and resource management, a 93%. When he graduated from Durham College it was with Honours with an overall grade point average of 4.00.

[131] This same uncontradicted evidence from the plaintiff, Renee Veran, was filed as part of the evidentiary record in this motion.

[50] The request for a neuropsychological assessment came after the attempt to examine Jeremy for discovery that was not attempted until 2022, via videoconference, and 2023, in person. No explanation is given for the failure to examine Jeremy in 2015 and 2016, seven years earlier, when the other plaintiffs and defendants were examined. It could not come as a surprise to the sophisticated defendants and their experienced legal team that a ventilator dependent quadriplegic had communication challenges.

[51] Subsection 105(3) requires that “there is good reason to believe that there is substance to the allegation” of neuropsychological impairment to justify the examination. There is no evidence to support that allegation. The evidence is to the contrary

[52] In Klinck, it was specifically pleaded that the plaintiff’s condition was caused by, or a result of, genetic conditions and the defendants had served affidavits and reports from experts which satisfied the motion judge that the possibility of a genetic cause was not frivolous. In this case, there is no pleading and no evidence to suggest that the possibility of a neuropsychological impairment is not frivolous.

[53] In assessing fairness, I acknowledge that this is a serious claim and if proven, the damages are substantial. As such, all avenues for discovery including, where appropriate, medical examinations, should be available to the defendants. The statement of defence was delivered eight years ago, in 2015. Discoveries, except of Jeremy’s, took place in 2015 and 2016 and there was no attempt to examine Jeremy for another six or seven years, until June 2022. There is nothing in the material relied upon by the defendants to suggest that Jeremy’s neuropsychological condition was raised as an issue until May 2023.

[54] While appropriate avenues for discovery should be available to the defendants, fairness dictates that those avenues for discovery should be pursued promptly. No explanation is given for the failure to discover Jeremy in 2015 or 2016. The suggestion that that the defendants were not aware of Jeremy’s communication issues until his in-person examination for discovery is contradicted by the information relied upon by the defendants. It is unfair now for the defendants to pursue an unpleaded and unsupported theory. It is, at this late stage, a “fishing expedition”.

[55] Further, the plaintiffs have not relied upon any neuropsychological reports. There is no need to “level the playing field”.

[56] Necessity requires the court to consider whether the moving party has demonstrated that the requested examination is warranted, that is, likely to produce information relevant to the action. In Klinck, the defendants had provided medical evidence that a genetic cause for the plaintiff’s injuries was a reasonable possibility. Such evidence is absent in this case.

[60] In this case, the parties agreed to a timetable for the delivery of expert reports. The plaintiffs complied with the deadlines for the delivery of their reports. Defence damages reports were to be served by September 30, 2022. No request was made to examine Jeremy until June, 2022, four months before the deadline for delivery of the defendants’ damages reports and at least six years after the examinations of the other parties. Although it did not proceed because counsel for the defendants could not connect to the videoconference, the pretrial was to be held on November 22, 2022. Fitzpatrick J. directed the parties to participate in case management recognizing that a special date would be required for this lengthy trial. During case management on January 20, 2023, Fregeau J. noted that the defendants had yet to examine Jeremy for discovery and that this had delayed delivery of the defendant’s damages reports. By then, the defendants had twice tried to examine Jeremy by videoconference. Both attempts had failed because of his communication issues. The in-person examination was also aborted due to communication issues. The communication issues had been described in records made as early as 2011, if not earlier.

[61] The trial has been confirmed to start at a special sitting commencing April 8, 2024, for eight weeks. Allowing a defence medical examination at this stage will likely delay the trial as, invariably, the report will require a rebuttal.

[62] Having determined that there is not good reason to believe that there is substance to the allegation that Jeremy has some neuropsychological impairment, permitting such an examination will cause prejudice to the plaintiffs by delaying the trial.

[63] The elements of fairness, necessity and prejudice, therefore, weigh in favour of denying the request for an examination.

[64] The fairness, necessity, and prejudice factors also apply to consideration of whether to grant leave. Assessing these factors, in these circumstances, lead me to conclude that leave to bring this motion should also be denied.

[65] The defendants’ motion for an order directing Jeremy Veran to undergo a neuropsychological assessment is dismissed.

[132] To permit the introduction of a neuropsychologist expert opinion at this late juncture, in the face of the well-developed reasons of Newton J. would introduce a new element into this litigation. While the Defendant Physicians might argue that some evidence has already been introduced regarding Jeremy’s cognitive development issue, making the opinions of Dr. Mountain relevant and in line with existing opinions, there is no doubt that granting leave would require an adjournment of the jury trial so that the Plaintiffs could obtain appropriate responding opinion evidence.

[133] An adjournment would be necessary in order to level the playing field.

[134] The proposed evidence from this qualified neuropsychologist could not be addressed by the experts which the Plaintiffs have already retained. I anticipate that if Dr. Mountain provided evidence at trial, submissions would focus on her credentials and the fact that no one else was qualified to provide responding opinion evidence. It would be unfair to permit Dr. Mountain the opportunity to provide evidence to a jury without the Plaintiffs having the same opportunity to introduce evidence through their own neuropsychologist.

[135] Granting leave would result in the Plaintiffs requesting an adjournment of the jury trial so that they could find, retain, instruct and obtain a reply report from a neuropsychologist. It would be manifestly unfair to expect the Plaintiffs to do so in the midst of their efforts which are no doubt underway to prepare for the upcoming jury trial. Unlike other instances considered above, the Plaintiffs cannot simply turn to one of their experts who are already familiar with the evidence compiled through the litigation process. Finding an expert who could respond to Dr. Mountain’s report would not be an easy task, and the preparation of a responding report could easily take months to complete.

[136] As noted already, r. 53.08 is quite clear that leave shall not be granted if doing so would jeopardize the trial date. I find that permitting Dr. Mountain’s report to stand would place the dates of the jury trial - which is scheduled to commence on April 15, 2024 - in jeopardy. Accordingly, leave is not granted to the Defendant Physicians to introduce any evidence from Dr. Mary Ann Mountain.

Conclusions

[137] I find that from the 15 Expert Reports,

(a) the reports of Dr. Yager, Dr. Shevell are supplementary responding reports and leave is not required to introduce the evidence at trial which is set out within these reports;

(b) paragraphs 1, 2 and 4 of the report of Dr. Kontio dated February 6, 2024 is in the nature of a supplementary responding report and leave is not required to rely upon this evidence at trial. However the opinions expressed in paragraph 3 are not to be introduced at trial;

(c) leave is not granted to call evidence based upon the report of Christie MacGregor dated February 5, 2024;

(d) evidence can be led with respect to the opinions expressed in the reports prepared by Dr. David Strauss, Randy Sora, Angie Blazkowski and Douglas Hyatt; and

(e) leave is not granted with respect the report of Dr. Mary Ann Mountain.

[138] In terms of ensuring the Plaintiffs have time to respond to the recent reports of the Defendant Physicians which either do not require leave to rely upon or which I have granted leave, to the extent that they advise me at a Trial Management Conference hearing to be scheduled during the week of March 25, 2024, I am prepared to delay the commencement of the trial to Monday, April 22, 2024, instead of Monday, April 15, 2024. However, I will only agree to do so if counsel confirm the trial can be completed on or before Friday, June 14, 2024.

[139] To be clear, if a delay is requested, jury selection will proceed on Monday, April 15, 2024, and then the trial will adjourn to the commence following week.

[140] In terms of service of the Plaintiffs’ supplementary reports, if any, they shall be served upon the Defendants on or before 4:00 p.m. on the Wednesday before the first full day of trial. In other words, if the Plaintiffs request the trial to commence immediately following jury selection on Monday, April 15, 2024, then supplementary reports shall be served on or before 4:00 p.m. on Wednesday, April 10, 2024. Alternatively, if the trial commences Monday, April 22, 2024, then the Plaintiffs’ supplementary reports shall be served on or before Wednesday, April 17, 2024.

[141] If the parties are unable to agree to costs, then any party seeking costs may deliver written costs’ submissions limited to 6 pages plus a costs’ outline within 10 days of the release of this decision. The responding party shall deliver its costs submissions within 5 days thereafter, subject to the same restrictions.

“originally signed by”

The Hon. Mr. Justice S.J. Wojciechowski

Released: March 15, 2024