Court File and Parties

COURT FILE NO.: CV-15-66037-A1 DATE: 2024-12-11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lamarnic & J. Ltd., Plaintiff AND Robert Winter, Defendant AND Kanny Ng, Third Party

BEFORE: The Honourable Justice C.T. Hackland

COUNSEL: Kanny Ng, for the Plaintiff and as self represented Third Party Michael E. Girard, for the Defendant Robert Winter

HEARD: December 2, 2024 (Ottawa)

Endorsement

[1] At the opening of trial in this matter, the plaintiff and self represented Third Party, Mr. Ng, sought leave under Rule 48.04 to bring this motion to permit late admission of evidence of an expert pursuant to Rule 53.03(4) “with such other relief such as an adjournment of the case as may be fair and reasonable in the circumstances”.

[2] For the reasons which follow, I will grant leave to the plaintiff to file his expert’s report and I will adjourn the trial and strike it from the trial list on terms outlined below.

[3] The plaintiff is pursuing a professional negligence claim against the defendant, his former accountant, alleging his tax returns were prepared improperly resulting in CRA audits and re-assessments and resulting in him incurring fees and other costs to remedy the situation. The plaintiff’s case has not been pursued diligently, dragging on for some 9 years before the court and involving matters that transpired 15-25 years ago. Mr. Ng has been represented by multiple lawyers, the last of whom was permitted to withdraw from the file shortly before this trial. The plaintiff candidly acknowledges he needs to retain a lawyer to properly present what is a reasonably complex case. The defendant would prefer to proceed with the case at this time without expert evidence but would file responding expert evidence if the case is adjourned.

[4] The court is left with the difficult choice of forcing on this complex professional negligence case (scheduled for a 2-3 week trial) with a self represented plaintiff who advises the court he wants and needs to retain a lawyer and who has proffered a Rule 53 experts report which is of a preliminary overview nature and may not fully comply with the requirements of Rule 53., weighed against the unacceptable delay visited on the defendant who is a very senior retired gentleman who seeks closure in the matter. I would add the observation that without expert evidence it would be very challenging for the court to assess the true merits of this case. Also fairness to the defendant requires that he have an opportunity to obtain a responding expert’s report, if so advised.

[5] For the reasons noted above, the court orders as follows:

• This matter is struck from the trial list and may not be set down again until the plaintiff and Mr. Ng have obtained and served any rule 53 expert’s reports sought to be placed in evidence. If this is not done within 12 months of this order, the defendant may move on notice to have this action dismissed for want of prosecution.
• There will be a further Pre-trial conference at which a new trial date can be assigned. Alternatively, a judicial pre-trial may be arranged before me if available, to be arranged through trial co-ordination.
• The defendant is granted leave to provide de bene esse evidence in lieu of in person trial evidence.
• The defendant is entitled to be awarded his costs thrown away in respect of preparation for this trial and for the motions argued at the opening of trial. The defendant is to submit a concise costs submission within 30 days of this order and the plaintiff or Mr. Ng may respond within 14 days after receiving the defendant’s submission.

Justice Charles T. Hackland Date: December 11, 2024