Court File and Parties

Court File No.: CV-19-81593 Date: 20241009 Superior Court of Justice - Ontario

Re: Lisa Aileen Davis, Plaintiff And: Wayne Ng, Defendant

Before: A. Kaufman J.

Counsel: Laurie Tucker, Counsel for the Plaintiff Dean Melamed, Counsel, for the Defendant

Heard: October 8, 2024

Endorsement

[1] On October 7, 2024, the date scheduled for jury selection, the defendant requested an adjournment of the trial on the grounds of late document disclosure.

[2] This is a personal injury action in which the plaintiff claims damages for loss of income. The plaintiff earns a significant part of her income from tips.

[3] The defendant received a report from the plaintiff's current employer detailing the tips earned by its servers from September 2022 to September 2024 ("the tip income report"). The defendant was served with this report via e-mail on October 3, 2024, at 9:15 p.m., but the defendant's counsel could not review it until two days later. Both parties were unclear about the report's significance, as it required clarification. I delayed the decision on the defendant’s adjournment until the following day, to permit the defendant to examine the plaintiff’s employer about its contents. Jury selection was completed on October 7, 2024, and the jury is scheduled to return today, October 9, 2024.

[4] Ms. Santaguida, the plaintiff's employer, was available yesterday morning and agreed to be examined as a third party. Counsel for the defendant reported that the examination was productive. During this examination, the monthly tip amounts the plaintiff earned were clarified, and the defendant was informed about how tips from the lunch service were distributed among servers. Counsel for the defendant advised that the tip income report helps the defendant as it demonstrates that the plaintiff currently earns more in tips than she did before the accident.

[5] Nonetheless, the defendant insists on needing an adjournment to obtain a report on the plaintiff's income losses based on the tip income report. The defendant claims that his expert, who is engaged in four other trials, cannot produce a report for four weeks. The defendant argues that proceeding to trial without this report would be prejudicial, while an adjournment would not prejudice the plaintiff.

[6] The plaintiff contends that adjourning the trial would be highly prejudicial to her. The accident occurred 7 years ago. Her witnesses are ready and available. Some of the witnesses are medical professionals who had to cancel their appointments in order to testify at trial, and she would be required to compensate them twice in case of an adjournment. She also notes that the monetary thresholds and statutory deductibles increase every year, which further prejudices her.

[7] The court recessed to determine when the trial could be rescheduled if adjourned. It was determined that the court’s trial schedule is fully booked until September 2026. The trial could potentially be slotted in the next “trial blitz” in October 2025, but there would not be any guarantee that the trial would be heard then.

Analysis

[8] The granting of an adjournment is discretionary, and every case must be decided on its own facts. In Ariston Realty Corp. v. Elcarim Inc., this Court outlined several factors to consider in exercising the discretion to grant or refuse an adjournment:

[34] Depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge or master may need to weigh many relevant factors including:

• the overall objective of a determination of the matter on its substantive merits;
• the principles of natural justice;
• that justice not only be done but appear to be done;
• the particular circumstances of the request for an adjournment and the reasons and justification for the request;
• the practical effect or consequences of an adjournment on both substantive and procedural justice;
• the competing interests of the parties in advancing or delaying the progress of the litigation;
• the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
• whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
• the need of the administration of justice to orderly process civil proceedings; and
• the need of the administration of justice to effectively enforce court orders.

[9] In this case, I have decided not to grant the requested adjournment. I believe that suitable orders can be implemented to minimize any prejudice against the defendant. Additionally, I find that denying the adjournment will not significantly hinder the defendant's ability to defend in this proceeding. Furthermore, the potential prejudice to the plaintiff and the impact on the administration of justice outweigh any prejudice to the defendant if an adjournment were granted.

Prejudice to the defendant

[10] Regarding the prejudice to the defendant, I acknowledge that the defendant is not at fault for the situation. While I accept Ms. Tucker’s explanation that the tip income report only came to light during trial preparation, appropriate inquiries could have been conducted earlier. The plaintiff’s case has been ongoing for five years, and her lack of record-keeping on her tips necessitated reliance on her employer’s records.

[11] The defendant is entitled to a fair opportunity to present his case, which includes obtaining expert assessments for the jury. However, it is important to remember that the burden of proving damages lies with the plaintiff, not the defendant. The tip income report is a 24-page document, but the only relevant information is the monthly tip amounts received by the plaintiff and the portion of pooled tips for the lunch service that the plaintiff would have received. The defendant has now had the opportunity to examine the report's author before the trial.

[12] This trial is set for five weeks, which I believe should be enough time for the defendant to provide the tip income report to an expert and obtain a report. The defendant’s actuarial expert can testify last, and the court will consider reasonable requests about the timing of the testimony. To attenuate any prejudice, the Court orders that the defendant may serve his income loss report at least two days before his expert’s testimony. Additionally, the Court orders that the plaintiff cannot use the tip income report at trial, while the defendant may use it to cross-examine the plaintiff or her witnesses.

[13] These orders, in my opinion, enable the defendant to use the information in the tip income report to challenge the plaintiff’s claim of income loss. While I accept that the defendant’s experts are busy, I am not persuaded that a report quantifying the plaintiff’s losses based on the tip income report cannot be produced within the trial’s timeframe and presented to the jury.

Prejudice to the plaintiff and effect on the administration of justice

[14] The Court must balance the defendant’s prejudice of obtaining an expert report in a somewhat expedited fashion within the time allotted for this trial, against the prejudice faced by the plaintiff and the broader impact of an adjournment on the administration of justice. See Griffen v. O’Brien, at para 52.

[15] In Louis v. Poitras, 2020 ONSC 5301 (ON SC), at para 46, Justice Beaudoin held, in striking a jury notice, that delay in obtaining a date for a civil jury trial constituted “real and substantial prejudice”. That case also involved a motor vehicle accident that occurred 7 years prior. As Justice D.M. Brown remarked in granting leave to appeal the divisional court’s decision overturning that decision, the whole raison d’être of the civil justice system, as captured in Rule 1.04 of the Rules of Civil Procedure, is to provide “the most expeditious determination of every civil proceeding on its merits”. See Louis v. Poitras, 2020 ONCA 815 (ON CA), at para 33.

[16] Here, granting an adjournment would delay the trial by at least a year, if not two. Given the accident happened seven years ago, Ms. Davis has a legitimate interest in achieving certainty and finality regarding the case outcome and any damages to which she might be entitled, allowing her to move forward with her life. The court concludes that the plaintiff would face greater prejudice from such a prolonged delay than the defendant would from having to obtain a report quickly. The court is not persuaded that denying the adjournment risks the case not being resolved on its merits.

[17] The Court has already allocated its limited resources to this five-week civil jury trial. If an adjournment were granted, these weeks cannot be reassigned, necessitating an additional five weeks of judicial resources for this trial in the future. Adjournments result in inefficient use of court time, as they deprive other parties who could have gone to trial of the time slot now being adjourned. Requests for adjournments significantly contribute to the backlog of civil trials, hindering meaningful access to justice and eroding respect for the judicial system. On these facts, the interests of the administration of justice militate against granting an adjournment.

[18] In conclusion, the court has carefully considered the request for an adjournment against the backdrop of all relevant factors, including the potential prejudice to both parties and the broader implications for the administration of justice. While acknowledging the challenges faced by the defendant in promptly procuring an expert report, the court has determined that suitable measures can be implemented to mitigate any such prejudice without delaying the trial. The plaintiff's long wait for resolution and the detrimental impact of adjournments on judicial efficiency and resource allocation further underscore the decision to proceed without delay.

[19] For the following reasons, the defendant’s request for an adjournment of the trial is denied.

[20] Costs of the motion are reserved.

Justice A. Kaufman Released: October 9, 2024