Ontario Superior Court of Justice

Court File No.: CV-16-672
Date: 2025-04-24
Barrie

Between

Michael Butler, Bernard Butler and Jo Ann Butler
Plaintiffs

– and –

Braydon McConvey and Donald McConvey
Defendants

Ronald P. Bohm, for the Plaintiffs
Noura Bagh, for the Defendants

Heard: April 9, 2025

Reasons for Decision

R.E. Charney J.:

Introduction

1The Plaintiffs bring this motion pursuant to Rules 53.03(4) and 53.08 for leave to permit the Plaintiffs to deliver two further expert reports—an orthopaedic assessment and a future care cost report—despite the pre-trial conference having been completed.

Relevant Rules

2The relevant Rules provide as follows:

Experts’ Reports

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).

Sanction for Failure to Address Issue in Report or Supplementary Report

(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.

Extension or Abridgment of Time

(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.

Evidence Admissible only with Leave

53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,

(a) there is a reasonable explanation for the failure; and
(b) granting the leave would not,

(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
(ii) cause undue delay in the conduct of the trial.

(2) Subrule (1) applies with respect to the following provisions:

5. Subrule 53.03 (3) (failure to comply with requirements re experts’ reports).

Facts

3This action arises from multiple and severe injuries the Plaintiff, Michael Butler (Michael), sustained on September 15, 2012, when he was 15 years old. Michael was riding a long board on a paved pathway when the Defendant, Brandon McConvey, who was operating an offroad motorcycle, hit Michael head on. Michael was taken by ambulance to a local hospital and then, due to the severity of his injuries, air lifted to Sick Kids in Toronto.

4As a result of the collision, Michael sustained multiple injuries to his head and body, including a fracture to his right wrist, an open fracture of his left forearm, an open fracture of his left leg, and an open fracture of his left kneecap. He sustained injuries to his head, including his face, teeth, and to his neck, shoulders, elbow, forearms and groin. He required surgeries and the insertion of hardware into his leg in the form of a nail and into his wrist in the form of a plate and screws. He has reduced function and is affected cognitively and emotionally.

5Michael is now 27 years of age.

6The parties attended a pre-trial conference before McCarthy J. on November 1, 2024. Prior to the pre-trial conference, the Plaintiffs served expert reports from a Technical Collision Investigator Reconstructionist, a Psychologist, a Psychiatrist, a Physiatrist (a specialist in physical and rehabilitation medicine) and an Economist. These reports were all served in compliance with Rule 53.03(1).

7The trial of this matter has been set for January 2026.

8The Plaintiffs have filed the affidavit of Alan Rachlin, one of the Plaintiffs’ lawyers, in support of this motion. He deposes that Michael has advised that “he has started to become aware of developing pain in his joints”. Mr. Rachlin believes that these complaints “require investigation and expert opinion to properly identify and explain”. He states:

In particular, we require a prognosis regarding Michael’s potential to develop arthritis in the injured joints in the future, and an orthopaedic opinion as to how any probable future changes will impact his employability and his ability to undertake housekeeping and avocational activities in the future. I verily believe that we consequently also require a future care cost report to provide evidence for the Court as to the probable future costs associated with treating Michael’s developing clinical conditions.

9Mr. Rachlin further states that “it cannot come as a surprise to the Defendants that Michael’s condition…may be deteriorating over time and that this would need to be investigated and reported upon.” He notes that the Physiatrist’s expert report from June 2020 stated that “Some deterioration of his condition due to his injuries is to be expected”.

10The Plaintiffs’ counsel brought this issue of additional expert reports to the attention of the Court and opposing counsel at the pre-trial conference. The Plaintiffs were granted leave to bring this motion by the Pre-Trial Judge on November 1, 2024. The Plaintiffs have been trying to schedule this motion since December 2024.

11The Plaintiffs have undertaken to have their orthopaedic report delivered by the end of April 2025 and their future care costs report delivered within 90 days. They argue that the trial is not scheduled until January 2026—still 8 months away—so that the Defendants can have 4 months to reply to the orthopaedic report and 3 to 4 months to reply to the future care report, and the trial can still proceed as scheduled. As such, granting the motion should not delay the trial.

Analysis

12Since the test set out in Rule 53.08(1) is conjunctive, both subrules (a) and (b) must be met.

13There is no dispute that the two part test articulated in Rule 53.08(1) applies to a motion to extend the time for service of expert reports: Van Belois v. Bartholomew, 2023 ONSC 5799, at para. 14.

14The issue in this case is whether the Plaintiffs have provided “a reasonable explanation” for the failure to file these two reports 90 days prior to the pre-trial hearing, as required by Rule 53.08(1)(a).

15In Agha v. Munroe, 2022 ONSC 2508, RSJ Edwards reviewed some of the background and case law that gave rise to the amendment of Rule 53.08 in 2022. He noted, at para. 7, that the “late delivery of expert reports prior to March 30, 2022 was the subject of considerable negative judicial commentary”. He concluded, at paras. 18 and 25:

Fundamentally, the aforesaid amendment, in my view, will result in a change in how trial judges will be required to consider motions that essentially ask for an indulgence resulting from the late service of an expert report and the admissibility of that evidence at trial. Where the old rule provided that leave of the trial judge “shall be granted”, the new rule now is permissive using the language “may be granted”.

The new rule provides that leave “may be granted”. The old rule provided that leave “shall be granted”. The court, when confronted with a request for the late service of an expert’s report to enable a party to call that expert at trial must be satisfied that there is a reasonable explanation for the failure to serve the experts reports within the timelines specified by the Rule.

16Finally, RSJ Edwards stated, at paras. 30 and 32:

The purpose of the new rule is, in my view, clear and obvious. The first purpose is to send a very loud and clear message to all sides of the Bar, that expert reports are to be served in a timely manner and in accordance with the provisions of Rule 53.03(1) and (2).

Lawyers and litigants need to adapt to the new rule immediately. The late delivery of expert reports simply will not be rubber-stamped by the court. By shifting the onus to the party seeking the indulgence and changing the word “shall” to “may”, the exercise of the court’s discretion will, in my view, result in far fewer adjournments and more productive pre-trials. There will always be circumstances that are beyond the control of counsel and the parties which will fall within the definition of a “reasonable explanation” for failing to comply with the timelines for the service of expert reports. In this case, no such reasonable explanation was provided to the court.

17Post pre-trial delay is “more troubling” than delay that occurs before the pre-trial: Rosato et al v. Singh et al, 2025 ONSC 1798, at para. 29.

18In this case, the pre-trial conference occurred 12 years after the accident and more than 8 years after the Statement of Claim was issued. There was lots of time to obtain expert reports prior to the pre-trial conference, and, to their credit, the Plaintiffs did obtain numerous expert reports in a timely manner and in accordance with the provisions of Rule 53.03(1) and (2).

19The Plaintiffs’ explanation for the two proposed late expert reports is two-fold:

20First, that although the accident occurred nearly 13 years ago, the Plaintiff “has started to become aware of developing pain in his joints”.

21Second, that his lawyers believe that these complaints “require investigation and expert opinion to properly identify and explain”.

Future Care Cost Report

22The Statement of Claim was issued on May 11, 2016, and alleges that Michael was permanently and seriously injured. Michael claims damages in the amount of $500,000 for special damages and $1,000,000 for general damages.

23The Plaintiffs’ explanation for not obtaining a future care cost report prior to the pre-trial conference is not reasonable. Mr. Rachlin’s affidavit fails to explain why, given the severity of Michael’s injuries, it is only Michael’s report of developing joint pain that gives rise to the need for a future care cost report. When asked whether the future care cost report would be limited to future care resulting from the proposed orthopaedic report, counsel for the Plaintiffs advised that he did not know what the report would say, but it would not be limited to future care arising from the orthopaedic report.

24It is apparent that the cost of future care was part of the Claim since it was issued, not something that has only recently arisen, and I conclude that the Defendants have failed to provide a reasonable explanation for their failure to comply with r. 53.03.

Orthopaedic Report

25The proposed orthopaedic report presents a more difficult issue.

26If I were to accept the Plaintiffs’ explanation for not obtaining an orthopaedic report prior to the pre-trial conference, I would have to conclude that the failure to obtain a medical report prior to a pre-trial conference may be excused when a plaintiff self-reports additional or worsening symptoms. This is a common occurrence, and if this explanation is accepted as reasonable, it could easily swallow the rule.

27The Plaintiffs have known since obtaining the Physiatrist’s report in June 2020 that “Some deterioration of his condition due to his injuries is to be expected”. That is a common prognosis for serious injuries, it cannot become a carte blanche to file late expert reports.

28The proposed orthopaedic report is not a supplementary report, which is subject to different timelines under Rule 53.03(3)(b) and (c).

29Accordingly, I conclude that the Plaintiffs have failed to provide a reasonable explanation for their failure to comply with r. 53.03(2), and the Plaintiffs’ motion is dismissed.

Costs

30Costs payable on a partial indemnity basis are fixed at $1,600, all inclusive, payable by the Plaintiffs to the Defendants.

Justice R.E. Charney