Harris v. Grand River Hospital, 2025 ONSC 282
Court File No.: CV-21-949
Date: 2025-01-17
Court: Superior Court of Justice – Ontario
Before: Catrina D. Braid
Heard: 2024-10-31
Counsel:
Robert Konduras, Counsel for the Plaintiff
Brandyn Di Domenico, Counsel for the Defendant
Isaac Wright, Counsel for the Defendant
I. Overview
[1] The plaintiffs move for an order abridging the time for the service of an expert report dated September 25, 2024, regarding the standard of care by a hospital. The defendant opposes the motion.
[2] At the time this motion was argued, this matter was scheduled for a pretrial on November 12, 2024. This matter is set for trial in Kitchener during the sittings commencing January 27, 2025.
II. Background
[3] Ms. Harris commenced these legal proceedings for damages against Mr. St. Clair Prescott, some of his family members who allegedly assisted him in hiding his assets, and Grand River Hospital. Mr. Harris is also a plaintiff and advances a Family Law Act claim for loss of care, guidance and companionship.
[4] The Amended Statement of Claim states that:
- On October 29, 1996, Lorraine Harris was a patient in the care of the Grand River Hospital (“GRH”).
- Casford St. Clair Prescott stayed past the end of visiting hours. Ms. Harris was on muscle relaxants and painkillers and was unable to move. He restrained her and then raped her. He was found guilty at his criminal trial in 2021 and sentenced for the offence.
- No nursing staff checked on her from suppertime until around shift change the next morning.
- Paragraph 35 states that GRH was “negligent in failing to provide adequate supervision and care when she was in her most vulnerable state, unable to move and waiting to have surgery if it was deemed necessary. The plaintiff alleges that the hospital had a duty to provide proper care in a safe environment and failed in that duty.” [Emphasis Added]
- Paragraph 36 states that GRH “was in the position of a fiduciary to the plaintiff and as such owed her the requisite duty of care. The hospital knew that the plaintiff was in a vulnerable state and was entrusted with her health and safety while she was in the hospital’s care. The hospital breached the standard of care of a fiduciary and had a professional obligation to look after her health and safety while she was in the hospital’s care.” [Emphasis Added]
[5] In its statement of defence, GRH states that “at all material times it provided reasonable hospital and nursing care to the plaintiff in accordance with accepted hospital and nursing standards.” GRH denied any breach of duty, want of care or negligence. It states that it “supervised the plaintiff in a reasonable and appropriate manner and in accordance with accepted standards.” [Emphasis Added]
[6] Grand River Hospital, the defendant responding to this motion, served an expert report of Lisa Shiozaki on July 31, 2024, alleging that the nursing staff had met their standard of care.
[7] Upon being served with the defence expert report, plaintiff counsel retained an expert of their own, Marcy Saxe-Braithwaite, to address standard of care. Ms. Saxe-Braithwaite prepared a report dated September 25, 2024, in which she concluded that the nursing staff did not meet their duty to provide safe, responsive and quality nursing care. This report was served on September 27, 2024.
III. Analysis
[8] Rule 53.03(1) of the Rules of Civil Procedure requires expert reports to be served not less than 90 days before the pretrial conference. Rule 53.03(2) requires responding reports to be served not less than 60 days before the pretrial conference. Since the onus in a civil lawsuit is on the plaintiff to prove their case, the 90-day deadline applies to the plaintiff: Ward v. Wright, 2024 ONSC 2701, para. 20.
[9] In the case before the court, the plaintiff’s expert report was served 45 days before the pretrial date.
[10] The plaintiff moves under Rule 53.03(4), which permits the time provided for service of a report to be extended or abridged by the court.
[11] Plaintiff counsel submits that GRH served its report without complying with Rule 53.03(2.2), which states that, within 60 days after the action is set down for trial, the parties shall agree to a schedule setting out dates for the service of expert reports. However, there is no motion before the court seeking to disallow GRH from relying on their expert report because they failed to comply with this rule. I therefore decline to decide this issue.
[12] The defendant argues that the recent changes to the rules were intended to prevent exactly what has happened in this case: the late delivery of an expert report to which the opposing party has no opportunity to respond failing an adjournment of the trial and the costs associated with same. It is submitted that to grant the relief sought by the plaintiff on this motion would be to render the rule meaningless given that there is no good explanation for the late delivery of the report.
[13] The Statement of Claim alleges that GRH had a duty to provide proper care in a safe environment and failed in that duty; that GRH owed her a duty of care and that it breached the standard of care. The appropriateness of nursing care requires an analysis of professional standards of practice, which is outside the purview of triers of fact. Expert evidence is necessary in this type of case.
[14] Prior to receiving the defence expert report, the plaintiff was prepared to go to trial without a standard of care expert report. The plaintiff states that their expert report did not become necessary until the defence report was served.
[15] An abridgment of time may be granted under Rule 53.03(4)(b) if there is a reasonable explanation for the failure to comply with the rules: Rule 53.08(1)(a). In this case, the claim for medical/professional negligence and the issue of the professional standard of care of GRH was raised in the Statement of Claim. This was not a new issue raised by the defendant’s expert report. There is no reasonable explanation why the plaintiff’s report was served so late.
[16] Even in circumstances where the admission of a late served expert report may not prejudice the opposing party, leave should not be granted absent a reasonable explanation for the non-compliance with Rule 53.03: Mohamud v. Juskey, 2023 ONSC 4414, para. 56.
[17] The purpose of the amended Rule 53 is to send a message that expert reports are to be served in a timely manner and in accordance with the provisions of Rule 53.03: Agha v. Munroe, et al, 2022 ONSC 2508, para. 30. To grant the order abridging the time for service of the expert report in all these circumstances would be to render the relevant Rule entirely toothless.
[18] Accordingly, the motion is dismissed.
[19] I understand that the plaintiff does not wish to proceed to trial if she is not able to call her expert witness. I am directing that this matter be removed from the January 2025 trial sittings. The matter shall be placed on the list for Trial Scheduling Court on January 31, 2025 at 11am. Counsel shall have discussions in advance and notify the trial co- ordinator if they are able to reach a consent regarding the date of the sittings to which this matter shall be adjourned.
IV. Costs
[20] The parties are directed to provide written costs submissions, which shall be no longer than two typed pages, double-spaced, in addition to any relevant Bill of Costs. The Defendant GRH shall provide costs submissions by January 27, 2025; and the Plaintiff shall provide costs submissions by February 10, 2025. If submissions are not received by February 10, 2025, costs shall be deemed settled.
Catrina D. Braid
Date: January 17, 2025