Reasons for Decision

Court File No.: CV-20-106 (Kingston)
Date: 2025-06-06
Ontario Superior Court of Justice

Between:
Edwin Pinchin and Lydia Luckevich, Plaintiffs
and
Cody William Robinson Ikemoto, Defendant

Appearances:
Mark Vernon, for the Plaintiffs
Craig O’Brien and Caitlin Cardill, for the Defendant

Heard: 26 May 2025, at Kingston (by videoconference)

Reasons for Decision (Motion for Leave to Admit Expert Evidence at Trial)
Mew J.

Introduction

[1] The issue to be determined on this motion is whether the Court should give the plaintiffs leave to deliver, and to rely on at trial, an expert opinion from a land surveyor.

[2] The trial of this action is scheduled to commence on 16 June 2025.

[3] The parties’ dispute concerns the existence of an easement over the defendant’s property for the purposes of ingress and egress to the plaintiffs’ property, including access and rights to a boat launch, dock and associated parking.

[4] On 1 May 2025, a day before a scheduled Civil Trial Management Court (“CTMC”) hearing, the plaintiffs’ lawyers sent an email to the defendant’s lawyers, stating, inter alia:

We expect to be calling 3 or 4 witnesses including our clients plus a surveyor to deliver an expert opinion with respect to the issue your client has raised with respect to the location of the property at issue at the time of the 1952 grant of the Pinchin land from Arney to Morris. We expect that report will be ready to be served by June 13th.

[5] This was the first time that the plaintiffs had notified the defendant that they intended to deliver an expert report.

[6] At the CTMC hearing, which I conducted on 2 May 2025, counsel for the plaintiffs repeated their clients’ intention to deliver an expert report prior to trial, and to seek leave to do so in the event that the defendant objected. Counsel for the defendant advised that the late delivery of an expert report would be opposed. In view of the pending trial date, which was set at the CTMC, a combined trial management and motion hearing was scheduled for 26 May 2025 before me. I am, at present, the assigned trial judge.

[7] Following the hearing of the motion, I advised the parties on 29 May 2025 that the motion was dismissed with reasons to follow. These are my reasons.

The Parties’ Dispute

[8] The plaintiffs own a 35-acre property on Big Island (the “Pinchin Property”), which is an island located in Hungry Lake in the Township of Central Frontenac. The defendant owns a property at the end of Hungry Lake Road (the “Ikemoto Property”), which, together with his parents, he operates as a fishing camp called “Hungry Lake Lodge”.

[9] The plaintiffs’ family has owned the Pinchin Property since 1964. The defendant has resided at the Ikemoto Property since 2005.

[10] The parties’ dispute centres on whether the Pinchin Property enjoys an easement over the Ikemoto Property, providing for ingress and egress to the Pinchin Property. The basis for the plaintiffs’ assertion that an easement exists goes back to the early 1950s, when the Pinchin Property and part of what is now the Ikemoto Property were owned by the same person, namely Alfred Arney.

[11] The plaintiffs’ pleading sets out what they assert to be the chain of title since the 1950s, and the existence of an express grant, by way of a deed registered on 20 August 1952, providing for “ingress and egress” to the island property over land which is now part of the defendant’s property.

[12] The defendant has pleaded that he has no knowledge of the chain of title asserted by the plaintiffs, and denies that the plaintiffs are entitled to an easement or access and right to a boat launch, dock and associated parking.

Procedural History

[13] This proceeding was commenced on 9 April 2020 by notice of application.

[14] On 8 April 2021, Muszynski J. made a consent order to continue the proceeding as an action, with the notice of application standing as the statement of claim. The order also provided that:

a. subject to any further direction of the trial judge, affidavits already contained in the supplementary application record and will-say statements or affidavits to be delivered by the defendant in response shall stand in part as examinations-in-chief of the deponents at trial;
b. examinations for discovery would be completed by 15 June 2021;
c. the action would be set down for trial by 30 September 2021.

[15] Examinations for discovery commenced on 14 June 2021. They were then adjourned subject to questions arising from undertakings. There was a continuation of Edwin Pinchin’s examination for discovery on 14 October 2021. The plaintiffs then attempted to set the action down for trial but were unable to do so because although a statement of defence had been served on the plaintiffs, it had not been filed with the court.

[16] There was a noting in default and subsequent setting aside, the circumstances of which, while concerning, are peripheral to the current motion. The trial record was then filed on 21 December 2022.

[17] A pre-trial conference was conducted by Roger J. on 7 February 2023. His report directed that any expert report of the plaintiffs was to be delivered by 1 December 2023, and any responding report to be delivered by 28 February 2024. The case was listed for trial on the May 2024 running list.

[18] On 9 January 2024, the then solicitors for the plaintiffs (the “First Lawyers”) wrote to the defendant’s solicitors advising that they were no longer acting for the plaintiffs and that they expected a notice of change of lawyers to be delivered in due course.

[19] On 8 April 2024, the plaintiff Edwin Pinchin wrote to the court, copying the defendant’s solicitors, saying that hopefully former counsel had “requested and postponed our tentative trial date”, explaining that the plaintiffs would not have a new lawyer in place who could be prepared for trial in May.

[20] The case was removed, on consent, from the list of cases scheduled to be heard in May 2024. In June 2024, a notice of change of lawyers was received from new lawyers acting for the plaintiffs (the “Second Lawyers”).

[21] On 9 September 2024, the court advised the parties that trial was scheduled for the October 2024 running list and offered the parties the option of attending a further pre-trial.

[22] A further pre-trial was scheduled for 26 September 2024. Prior to that, the following exchange of emails between counsel occurred:

[Defendant’s counsel] Where’s your client’s expert report? The Pre-Trial brief indicates that you’ll be examining them for 3 hours.
[Plaintiffs’ counsel] I did not have time to retain an expert since we last spoke. If we are to retain one, it would be for three (3) hours. If that. I see that you also set out three hours for an expert “TBD”. … From my initial review of this – I don’t think an expert will be needed.

[23] The plaintiffs object to the defendant’s inclusion of that communication in the motion record on the basis that it violates rule 50.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which precludes the communication to a trial judge of any statement made at a pre-trial conference, except as disclosed in an order under rule 50.07 or in a pre-trial conference report under rule 50.08. The plaintiffs say that their previous counsel’s response arose from information contained in their pre-trial memorandum and, hence, should be regarded as a statement made at a pre-trial conference.

[24] The plaintiffs’ objection is misplaced.

[25] Rule 50.09 was enacted so as to maintain the confidentiality of a pre-trial so that counsel and the judge can talk openly and freely about settlement possibilities: Wei (Estate of) v. Dales.

[26] However, in addition to settlement discussions, pre-trials also have a trial management component. Among the matters to be considered at a pre-trial conference, as per rule 50.06, are “the number of expert witnesses and other witnesses that may be called by each party, and dates for the service of any outstanding or supplementary experts’ reports”. The pre-trial conference report made by the judge pursuant to rule 50.08 will typically contain information relevant to trial logistics, including witness lists and the allocation of time for their evidence at trial. Dialogue contained in correspondence arising from, or relating to, a pre-trial memorandum or report concerning whether an expert witness is being called and, if so, an estimate of the length of time that they will be questioned does not compromise the purpose of rule 50.09. Rather, such dialogue serves the concurrent purpose of the pre-trial, namely trial planning and, ultimately, trial management.

[27] The case was not heard in October 2024. However, a further pre-trial conference was conducted by Muszynski J. on 7 January 2025. Prior to that pre-trial, on 19 December 2024 the plaintiffs’ lawyer wrote a letter to the defendant’s lawyer. All but a small portion of that letter, which it is acknowledged was sent in anticipation of the further pre-trial, has been redacted for the purposes of this motion. Counsel for the defendant says that the redactions were made to avoid offending rule 50.09. The unredacted portion contains the following in table form:

Date	Registered Document	Description
July 13, 1948	OLF 4088	Alfred and Marvin Arney purchase from Detlor and Alexander all of Lots 27 and 28 west of Crooked Creek. Our client’s surveyor believes that the 1/2 acre plot east of the creek was accidentally left off this document, which belief is confirmed by later events when in OLF 4211 Marvin sells to Alfred and by document 164914 Alfred sells to Lapensee the same 1/2 acre parcel EAST of the creek. It is trite to say that the sellers in those two documents could not sell something they did not already own.

[28] The plaintiffs also object to the use of this extract as evidence on this motion.

[29] At this stage it is pertinent to record that on 23 April 2025, the plaintiffs once again retained new lawyers (the “Third Lawyers”), who delivered a notice of change of lawyer on 29 April 2025, thereby replacing the Second Lawyers. It was only after retaining the Third Lawyers that Mr. Pinchin says he learned that an expert report was needed.

[30] If the defendant’s purpose in referring to the correspondence of 19 December 2024 had been to bind the plaintiffs to a particular position or legal argument, there might be a valid concern about its use. But the defendant refers to this correspondence solely to refute the assertion made by Mr. Pinchin in his affidavit in support of the motion that it was only in April 2025 that he first “learned that the expert report of a surveyor would provide crucial assistance to the court in deciding this case on its merits”, when it is clear from the extract from the letter from the plaintiffs’ lawyers that the plaintiffs had consulted a surveyor at least as long ago as December 2024.

[31] I find that the extract from the plaintiffs’ 19 December 2024 letter is admissible on this motion for the limited purpose that it is tendered, namely its reference to the plaintiffs having consulted a surveyor.

[32] It bears noting that in her pre-trial conference endorsement of 7 January 2024, Muszynski J. wrote that the matter had been on the trial list previously, and should be restored to the trial list as soon as possible.

Admissions

[33] During the course of the examination for discovery of Gayle Ikemoto on behalf of the defendant, the following exchange occurred:

A. When I said that I didn't know the Pinchins. I know of the Pinchins, but not in the respect where they had deeded access on our land.
Q. So, you, you understood that they existed; the Pinchins existed as a family?
A. Yes.
Q. But you didn't understand that they had access to your lands?
A. That's correct.
Q. And do you now understand that they have deeded access to your lands?
A. Well, I think that's what we're here for.
Q. Well, I, I -- do you understand now that there is a deed which grants them a right of access ...(Indiscernible) ... across your land?
A. ... us and ....
Q. Pardon me?
A. There's a deed for them to cross our land.
Q. Okay. And so for purposes of this proceeding, you accept that there is a deed that allows them ingress and egress to your lands, to the lands that are ...
A. Yeah.
Q. ... subject to the proceeding.
MR. O'BRIEN: Insofar as they are part of Lot 27

[34] The plaintiffs characterise this exchange as an admission by the defendant that the plaintiffs benefit from an easement over the defendant’s property.

[35] Following the CTMC hearing, the plaintiffs served a request to admit, requesting the defendant to admit that:

1. Alfred Amey came to own a portion of what is now the Ikemoto Property (as defined in paragraph 1(a) of the Notice of Application) pursuant to the July 22, 1950 deed registered as OLF 4211.
2. The description of the land set out as Parcel 2 in the deed bearing instrument number OLF 4211 dated July 22, 1950 describes a portion of what is now the Ikemoto Property (as defined in paragraph 1(a) of the Notice of Application).
3. Alfred Amey owned the property described as Parcel 2 in the deed bearing instrument number OLF 4211 dated July 22, 1950 when he sold the Pinchin Property (as defined in paragraph 1(a) of the Notice of Application) to Alexander J. Morris and W. Leslie Marshall on August 20th, 1950 via the deed registered as instrument no. OLF 4337.

[36] The defendants responded to each of these requests to admit that they were not appropriate requests as they invited acceptance of legal positions advanced by the plaintiffs, rather than admission of facts.

The Rules

[37] A party who intends to call an expert witness at trial is required to serve the expert’s report not less than 90 days before the pre-trial conference: rule 53.03(1).

[38] Rule 53.03(4)(b) empowers the court to extend or abridge the time for delivery of an expert report.

[39] Where a party has failed to comply with the requirements of rule 53.03, such expert evidence is only admissible with leave of the trial judge, which, pursuant to rule 53.08(1), may be granted if the party responsible for failing to deliver the report in accordance with the Rules 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.

[40] Rule 53.08(1) was amended in March 2022. Until then, the rule provided that the court shall grant leave to a non-compliant party unless doing so would cause non-compensable prejudice or undue delay. The rule now provides that the court may grant leave. And the non-compliant party must now demonstrate that there is a reasonable explanation for the failure to comply with the Rules.

[41] In Agha v. Munroe, 2022 ONSC 2508, para 30, Edwards R.S.J. said that the purpose of the amendments to rule 53.08(1) was 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 r. 53.01(1) and (2)” and continued, at para. 32, “[b]y 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”.

The Position of the Parties

[42] The plaintiffs argue that they did not previously serve an expert report because the defendant’s admission at discovery, combined with the defendant’s failure to deny the chain of title pleaded by the plaintiffs, rendered the expert report of a surveyor unnecessary at trial, and therefore inadmissible.

[43] When Alfred Armey sold what is now the Pinchin Property in 1952, he included in the deed a covenant in favour of the now Pinchin Property “for ingress and egress over Lot 27, Concession 1”, also conferring on the grantee (the purchasers of the now Pinchin Property) the right to convey the covenant to any future successor or assign.

[44] The plaintiffs say that an expert report of a surveyor opining on the issue of the locations of the boundaries of two parcels of land, Parcel 2 (as described in instrument no. OLF 4211 dated July 22, 1950), and Parcel 3 (as described in instrument no. FR 164914 dated July 11, 1966) would only be necessary if the defendant “resiles from his admission that the Plaintiffs benefit from an Easement over the Ikemoto Property”.

[45] The plaintiffs argue that the defendant has admitted that there was an easement and that he has, or will, resile from it, because:

a. the defendant does not accept that the evidence his discovery witness gave amounts to an admission that there was an easement granting the Pinchins ingress and egress to the Ikemoto Property; and
b. by his answer to the plaintiffs’ request to admit, “the Defendant is now refusing to admit that the original grantor of the Easement, Alfred Arney, owned the Ikemoto Property when he made the 1952 Grant, thus resiling from his admission at discovery and introducing a new issue at trial”.

[46] Alternatively, the plaintiffs argue that their former lawyers are responsible for the failure to retain a surveyor sooner. Edwin Pinchin states that only after he retained the Third Lawyers did he learn that the expert report of a surveyor would provide “crucial assistance to the court in deciding this case on its merits”, and that such evidence would especially become necessary in the event that the defendant resiled from his representative's admission regarding the existence of the easement on the Ikemoto Property. The plaintiffs argue that the sins of their former lawyers should not be visited on them: Graham v. Vandersloot, 2012 ONCA 60, para 10.

[47] The defendant argues that none of the reasons proffered by the plaintiffs for their non-compliance with rule 53.02 are reasonable.

[48] The defendant challenges the plaintiffs’ characterisation of the “admission” given on Gayle Ikemoto’s discovery as pertaining specifically to the Ikemoto property. The defendant’s position is that the validity of the easement and, if it exists, its legal effect, have been the core issues in dispute throughout this litigation.

[49] The defendant justifies his refusal to admit the requests contained in the plaintiffs’ request to admit on the basis that the requests invite admission of legal conclusions rather than facts.

[50] Regardless, the previous endorsement of Justice Roger that any expert report of the plaintiffs was to be delivered by 1 December 2023, the email from the plaintiffs’ former counsel that “I don’t think an expert will be needed”, and the indication that the plaintiffs had received advice from a surveyor clearly demonstrate that the plaintiffs were alive to the question of whether expert evidence should be obtained.

[51] On the issue of prejudice, other than that inherent in delay, one of the defence witnesses is 83 years old. Although the health of that witness is not currently an issue, the defendant is nevertheless concerned that further delay would be prejudicial. Yet, if the motion is granted, the defendant would feel compelled to ask for an adjournment so that he could obtain a responding expert report (the next mutually available trial dates for counsel and the court are in February 2026).

[52] Finally, the defendant submits there are sufficient records to satisfy the court where the property lines ran in 1952 without the need for expert interpretation by a surveyor.

Discussion

[53] Contrary to what has been asserted by the plaintiffs, the defendant has not resiled from what was said at discovery. He has not disavowed that evidence. No corrections to the answers have been provided pursuant to rule 31.09(1). The defendant simply says that he interprets what was said differently to the plaintiffs. If the plaintiffs are correct in their interpretation of the effect of what was said, then by their own submission, they do not need a surveyor’s report.

[54] From a review of the record presently before the court and the history of this litigation, I understand the core issues in this litigation to be the validity of the easement and, if it exists, its legal effect.

[55] Over the five-year course of this lawsuit, there have been ample opportunities to reflect on the issues and the evidence. Significantly, there have been no less than three pre-trials. While I am not privy to what was discussed at those pre-trials, it is inconceivable that the issue of expert evidence was not raised, directly or indirectly. It was certainly raised before Roger J., because his endorsement provided a deadline for the delivery by the plaintiffs of “any expert report”. Shortly before the second pre-trial, the plaintiffs’ lawyer said that he did not think an expert would be needed, and shortly before the third trial, the plaintiffs disclosed that their surveyor believed that a half acre plot had been accidentally left off one of the title documents.

[56] What has changed are the lawyers representing the plaintiffs. The Third Lawyers, no doubt casting fresh pairs of eyes over the case, have evidently recommended that expert evidence should be obtained to assist with the proof of the plaintiffs’ claim in the event that the discovery evidence of Gayle Ikemoto is not found by the court to be the admission that the plaintiffs think it is. Unfortunately, the resulting request to obtain and rely on expert evidence comes on the eve of a trial that has already been adjourned twice and which has been pre-tried three times.

[57] In Graham, it was held that a plaintiff should have been granted an adjournment of the trial of a personal injury action to obtain up to date medical reports to prove damages, where liability was already admitted. Because of that admission, any prejudice that might otherwise have arisen from the adjournment request was mitigated, the court noting that the determination of the quantum of damages would depend primarily on expert evidence. The Court of Appeal quoted with approval Justice Perell’s observation in Ariston Realty Corp. v. Elcarim Inc., para 38:

In my opinion, a concern for the principles of natural justice and the appearance of justice being done explains why, perhaps to the chagrin of those opposing adjournments and indulgences, courts should tend to be generous rather than overly strict in granting indulgences, particularly where the request would promote a decision on the merits. This liberality follows because it is in the public interest that whatever the outcome, a litigant should perceive that he or she had their day in court and a fair chance to make out their case.

[58] In the case of late expert reports, the bar for allowing them to be used has been raised by the recent amendments to rule 53.08. While it has been held that inadvertence of a lawyer in meeting a deadline can constitute a “reasonable excuse” for the purposes of rule 53.08 (Quinn v. Rogers, 2024 ONSC 1967, para 25), inadvertence is not offered as an excuse in the present case.

[59] Significantly, there is no evidence in the present case that not adducing expert evidence amounts to a “sin” on the part of the plaintiffs’ former lawyers, let alone a “sin” of the magnitude that the Court of Appeal was dealing with in Graham.

[60] Litigation involves making choices. Different lawyers will have different strategies for the same case. Decisions have to be made about a variety of things, including what evidence needs to be adduced by a party to prove its case or to defend its position. In the present case, it is not even certain that any sin has been committed. The best that can be said is that the former lawyers, having turned their mind to the question, did not think expert evidence was necessary, whereas the new lawyers do.

[61] Having considered the history of this matter and the record before the court on this motion, I am not satisfied that the plaintiffs have provided a reasonable explanation for the failure to deliver an expert report in accordance with the Rules.

[62] If I am wrong about that, the motion would still fail because of the further delay resulting from the almost inevitable adjournment of the trial, which at a minimum will be for eight months, as well as the potential for prejudice that could not be compensated for by costs in the event of witness loss.

[63] Finally, I would observe that it is far from clear from the plaintiffs’ submissions on this motion that expert evidence will, in fact, be needed in order for them to prove their claim.

Decision

[64] For the foregoing reasons, the plaintiffs’ motion is dismissed.

Costs

[65] The defendant was entirely successful on the motion. He is entitled to costs. Such costs should be on a partial indemnity scale and payable in any event of the cause. As neither party provided costs summaries at the time of the motion, the costs of the motion will be fixed at the same time as the trial costs or as otherwise directed by the trial judge.

Graeme Mew
Date: 6 June 2025