Helou v. McCann, 2024 ONSC 1849

Court File and Parties

COURT FILE NO.: CV-12-470734 DATE: 20240328 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Beshir Helou, Plaintiff AND: Laura McCann and Jill Farrugia and The Dominion of Canada General Insurance Company, Defendants

BEFORE: D.A. Wilson J.

COUNSEL: Mark Stoiko, for the Plaintiff Alan L. Rachlin and Jeffrey A. Small, for the Defendants, Laura McCann and Jill Farrugia

HEARD via Teleconference: March 27, 2024

Endorsement

1This endorsement is to be read in conjunction with my endorsement dated March 5, 2024 attached as appendix A to these reasons. This is a personal injury action arising from an accident that occurred in 2011. It is fixed for trial to commence April 2, 2024 for a period of 24 days with a jury. This is the third trial date. An adjournment was sought at an earlier case conference because the solicitor with carriage, Ms. Masgras, had another trial in Kitchener that would start March 18 so she would not be available to do this trial. I was advised today that, in fact, the Kitchener trial settled. However, Mr. Stoiko informed me that as of last week, he has assumed the role of trial counsel.

2An issue arose concerning the admissibility of the Plaintiff expert reports because they were retained by a company owned by Ms. Masgras’ husband. This was commented on by Justice Mark Edwards in a decision released in December 2023 in which he declared a mistrial due to the conflict of interest. In the instant case, the Plaintiff’s expert reports were retained by the same company Meditecs as the experts in the case before Justice Edwards. Following the release of the Ashrafian v. Kavarana 2023 ONSC 6944, counsel for the Defendants wrote to the solicitor for the Plaintiff inquiring about the conflict issue. The response was that the conflict had been waived and the Plaintiff was prepared to proceed to trial.

3At the prior case conference, I was informed by the representative from Ms. Masgras’ firm that there was no concern about the potential conflict and the experts because the client had waived the conflict and any problems with the experts testifying could be dealt with at trial. I was not advised that further assessments by other experts had been arranged, nor was the counsel for the Defendants.

4The Plaintiff served a new report from an orthopedic surgeon on March 20, 2024 and from a life care planner on March 21, 2024. As I have noted, this is the third trial date in this action. The timetable that was ordered at the time the April 2, 2024 date was fixed for trial required the Plaintiff to serve all expert reports by April 1, 2023 and the defence by September 30, 2023.

5The solicitor for the Defendants objects to the admission of the new expert reports because they are out of time, do not comply with the timetable and do not permit the Defendants to secure responding reports prior to trial. The Plaintiff submits that it would be unfair if the new expert evidence was not admitted at trial and until the decision of Justice Edwards was released, the solicitor for the Plaintiff had no reason to believe the expert evidence would not be admitted at trial because the experts are properly qualified.

6I do not accept the submissions of the solicitor for the Plaintiff. The decision of Justice Edwards makes it clear the issue of potential conflict was known to the Masgras law firm as early as 2016. Furthermore, if the firm acted with dispatch after the release of the Ashrafian decision, new reports could have been secured in early 2024, so that responding reports could have been obtained by the defence and all parties would have been ready for trial for April 2. Instead, the position taken by the solicitors acting for the Plaintiff is that there is no conflict of interest, and that notwithstanding the Ashrafian decision, the Plaintiff was ready to proceed to trial with the existing reports retained through the Meditecs firm. It is only in the last couple of weeks that the brand-new expert reports were served on the defence with no prior notice. This type of “ambush” in the 2 weeks prior to trial is unacceptable and does not comply with the spirit of the Rules nor with the time requirements set out for the delivery of expert reports. The solicitor for the Plaintiff has not provided a reasonable explanation for the failure to comply with the court ordered timetable for service of expert reports. They are presumptively inadmissible.

7Indeed, instead of advising defence counsel of the intention to secure new expert evidence, the solicitors for the Plaintiff repeatedly assured both counsel and the court that there was no issue of conflict of interest concerning the expert evidence and that the Plaintiff was ready to proceed to trial.

8There seemed to be an expectation that I would rule on the issue of the Plaintiff’s late served reports at today’s case conference. In my view, given the trial is set to commence in a matter of days, that determination is best left to the trial judge. I am advised that motion materials from both parties have been uploaded to CaseLines.

D. Wilson J.