Abou-Antoun v. First Capital (Gloucester) Corporation, 2026 ONSC 2224

Court File and Parties

Citation: Abou-Antoun v. First Capital (Gloucester) Corporation, 2026 ONSC 2224 Court File No.: CV-20-83420 Date: 2026/04/14 Superior Court of Justice - Ontario

Re: Glades Abou-Antoun, Plaintiffs -and- First Capital (Gloucester) Corporation and Loblaw Properties Limited and Loblaws Inc., Defendants

Before: Justice Sylvia Corthorn

Counsel: James Hammond, Counsel for the Plaintiff Martin Forget and Jeremy Hanigan, Counsel for the Defendants

Heard: March 17, 2026

Endorsement

CORTHORN J.

Introduction

1On July 10, 2018, the plaintiff slipped and fell as she was walking toward the exit of a Loblaws store at which she had completed a shopping errand (“the Fall” and “the Store”, respectively). The trial of the action was scheduled to proceed in June 2025, but was adjourned due to a lack of judicial resources. A new trial date was set; the trial was scheduled to commence on March 16, 2026, and proceed for four weeks, before a judge and jury.

2At the second in a series of trial management conferences conducted during the week of March 9, 2026, the defendants informed the court that they were requesting an adjournment of the trial. The trial was adjourned to March 23, 2026, pending the outcome of the defendants’ motion. That motion was heard on March 17, 2026.

3Following almost a full day of submissions, the court reserved its decision on the motion. On March 18, 2026, the parties were informed that the defendants’ motion for an adjournment of the trial is granted, with reasons to follow at a later date. This endorsement provides the parties with the court’s reasons.

4The outcome on the defendants’ motion serves to emphasize the importance of compliance with discovery obligations. Compliance with those obligations is important to the parties’ respective settlement positions over time; the development of and evolution in each party’s theory of the case; trial scheduling; preparation for trial; and trial management.

Background

5The fact that the plaintiff slipped and fell as she walked towards the exit of the Store is not in dispute. The events that transpired in the four-to-five-minute period before the Fall (i.e., in the area where the plaintiff fell) and the Fall itself are captured on one of the Store’s security cameras.

6The defendants deny that they are liable under the Occupiers' Liability Act, R.S.O. 1990, c. O.2. Liability for the plaintiff’s injuries and losses will be contested at trial.

7The issues at trial that are relevant to the defendants’ request for an adjournment of the trial are (a) causation, and (b) assessment of the damages to which the plaintiff may be entitled. For the purpose of the motion, the defendants emphasize the importance of the issue of causation to their defence of the action.

8The plaintiff is advancing what is colloquially characterized as a “chronic pain” case. The theory of the plaintiff’s case includes that the injuries she sustained in the Fall caused or contributed to her developing Chronic Pain Syndrome, within the meaning of the American Medical Association (“AMA”) Guidelines.

9In the statement of claim, the damages claimed are in the global amount of $900,000. A breakdown of the amount, by heads of damages, is not included in the statement of claim. At trial, the plaintiff will be asking the jury to assess the damages to which she is entitled in an amount potentially exceeding $2,000,000.

10In support of their request for an adjournment of the trial, the defendants point to the plaintiff’s litigation conduct in 2025 and 2026 – specifically the plaintiff’s failure to comply with her oral and documentary discovery obligations. The defendants assert that it was not until two to four weeks prior to trial that they learned of the plaintiff’s failure in that regard.

a) The Plaintiff’s Conduct Regarding Documentary Discovery

11The plaintiff does not dispute that it was not until between February 23, 2026, and March 11, 2026, that she produced approximately 900 pages of Schedule “A” documents. It is also undisputed that approximately 400 of the 900 pages had not been previously produced.

12Most critical to the defendants’ position on the motion are 380 pages of records from The Ottawa Hospital. A cursory review of the 380 pages reveals that some of those records pre-date May 2025 and are dated as far back as 2020.

13The plaintiff does not dispute that the 380 pages of records from The Ottawa Hospital,

• are listed in a notice intention pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23, dated March 4, 2026;

• are not the subject of a notice of intention pursuant to s. 35 of the Evidence Act;

• were not produced, grouped as the 380 pages, until March 11, 2026; and

• include approximately 200 pages of records created between early May 2025 and August 29, 2025 for the plaintiff’s participation in a multi-disciplinary chronic pain program at The Rehabilitation Centre campus of The Ottawa Hospital (“the Records” and “TRC”, respectively).

14The Records include digital (i.e., unsigned) reports of one or more assessments by an occupational therapist, physician, physiotherapist, and psychologist.

15In the plaintiff’s March 4, 2026, notice of intention, the Records are described as “Undated Clinical Notes and Records – The Ottawa Hospital”. That description does not alert the reader to the fact that the records relate to services provided by healthcare professionals at TRC, in 2025, or as part of a multi-week chronic pain program.

16Even though the Records were not produced, in their entirety, until March 11, 2026, the defendants received approximately 60 pages of the Records on March 6, 2026. On that date, the defendants received copies of unsigned assessment reports prepared by the TRC occupational therapist, physiotherapist, and psychologist.

17In summary, it was not until March 6 to 11, 2026 that the plaintiff produced the Records to the defendants.

b) The Plaintiff’s Conduct Regarding Oral Discovery

18The plaintiff was examined for discovery in April 2021. At that time, the plaintiff’s evidence was that she had been seen by four physicians and one other health professional. The plaintiff was specifically asked if she has “seen anybody else for treatment because of the [F]all?” The plaintiff responded “No”. The plaintiff was also asked if she had talked to a “psychologist or therapist” about the psychological symptoms she described on examination. Once again, the plaintiff answered “No.”

19The plaintiff does not dispute that she did not, at any time prior to March 11, 2026, update the answers to the questions referred to in the preceding paragraph. For example, the plaintiff did not inform the defendants, in 2025, of her participation in the chronic pain program at the TRC; nor did she identify that, as part of the program, she spoke with a psychologist.

The Position of the Parties

• The Defendants

20The defendants submit that their request for an adjournment of the trial was made in a timely manner, leads to efficiency in the litigation, and is a cost-effective approach to the plaintiff’s failure to fulfil her documentary and oral discovery obligations. The defendants submit that the plaintiff’s failure in that regard must not trump trial fairness; an adjournment of the trial is required to level the playing field.

21By the fall of 2025, the defendants were in receipt of experts’ reports from the plaintiff in support a claim for damages totaling in excess of $2,000,000. As of the fall of 2025, the defendants understood the plaintiff’s chronic pain case to be (a) premised on the plaintiff’s subjective reporting of symptoms and limitations; and (b) supported by the opinion evidence of one expert. That expert, Dr. Mark D’Souza, carried out an assessment of the plaintiff in 2023. The plaintiff served a report from Dr. D’Souza dated September 2023.

22Also, as of the fall of 2025, the defendants were prepared to rely on the opinion evidence of Dr. Ryan Williams, the physician who carried out a defence medical examination of the plaintiff in the spring of 2025. The defendant served a report from Dr. Williams dated April 2025.

23The plaintiff served a responding report from Dr. D’Souza in October 2025. Based on the contents of that report, it appears that Dr. D’Souza was aware that the plaintiff had participated in the TRC chronic pain program, but he did not have copies of the relevant records.

24Even with service of the second report from Dr. D’Souza in late 2025, the defendants were prepared to proceed to trial in March 2026 and confirmed same to the court in January 2026.

25With the production in March 2026 of the Records, the nature and extent of the evidence in support of the plaintiff’s claims – including on the issue of causation – have changed dramatically. The Records include unsigned reports from healthcare professionals who assessed the plaintiff in the summer of 2025 – a matter of months after she was seen by Dr. Williams. Those professionals include a physician, psychologist, physiotherapist, and occupational therapist.

26The defendants highlight that the assessments by the health professionals at TRC serve to underpin the recommendations of Life Care Planner, Mark Rose, on whose report the plaintiff relies. Prior to the production of the Records, the defendants’ position on Mr. Rose’s evidence was that it was not supported by anything other than the plaintiff’s subjective reporting of limitations. With the production of the Records, the nature and extent of the evidence in support of Mr. Rose’s recommendations have changed dramatically.

27At a minimum, the defendants require time to permit their expert, Dr. Williams, to review the Records and other documents recently produced, and assist defence counsel in strategizing as to a response to those documents. The options available include a document review or a request for the plaintiff to attend for a follow-up examination with Dr. Williams.

28Last, the defendants point to the plaintiff’s pursuit of treatment to address the mental health symptoms she alleges form part of her Chronic Pain Syndrome. The Records include an assessment by a psychologist. In addition, in late 2025 or early 2026, the plaintiff returned for sessions, with a mental health professional, at the Montfort Hospital Psychiatric Outpatient Clinic. The defendants require time to decide how to respond to that aspect of the evidence upon which the plaintiff intends to rely – again by way of a document review or through a defence medical examination.

• The Plaintiff

29The plaintiff’s position is that it would be unfair to the plaintiff for the trial to be delayed until 2028 (i.e., the year during which the next trial dates are available). The plaintiff submits that she will be prejudiced by that delay.

30The plaintiff’s position is that, for the following reasons, the defendants will not be prejudiced at trial because of the late production of the Records and other documents. First, the plaintiff submits that she is not increasing the number of witnesses who will be called to give expert opinion evidence. Second, the records of the treating healthcare professionals by whom the plaintiff was seen prior to attending the chronic pain program in 2025 support the plaintiff’s theory on causation. Third, the late production of documents does not preclude the defendants from advancing their theory on causation.

31The plaintiff asks the court to conclude that the prejudice to the defendants is (a) minimal; and (b) outweighed by the prejudice to the plaintiff if the trial is delayed.

Analysis

32The defendants rely on r. 52.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Pursuant to that rule, “A judge may postpone or adjourn a trial to such time and place, and on such terms as are just.”

33There are at least four components to the plaintiff’s litigation conduct that are relevant to the outcome of the motion.

34First, I find that the plaintiff failed to comply with her oral discovery obligations pursuant to r. 31.09(1)(b). Pursuant to that rule, the plaintiff was required to forthwith inform the defendants in writing with up-to-date information to “correct and complete” answers given at her April 2021 examination for discovery. There is no explanation from the plaintiff as to why, in 2025, she did not inform the defendants of her participation in the chronic pain program. There is also no explanation from the plaintiff as to why, in 2025 and 2026, she did not inform the defendants of her return to the Montfort Hospital Psychiatric Outpatient Clinic.

35Second, I find that the plaintiff failed to comply with her documentary discovery obligations pursuant to r. 30.07. The plaintiff’s explanation for the late production of the Records and other documents is inadvertence on the part of her counsel.

36There are consequences for a party who fails to fulfil their oral and documentary discovery obligations. Those consequences are set out in rr. 39.03(a) and 30.08(1)(a). The plaintiff requires leave of the trial judge permitting her to rely on the up-to-date information and on the documents recently produced.

37The defendants could have chosen not to request an adjournment of the trial and, instead, to require the plaintiff to bring motions at trial for leave pursuant to rr. 39.03(a) and 30.08(1)(a). If the plaintiff were successful on those motions, the defendants would likely have requested an adjournment of the trial – days or weeks after it had started. I agree with the defendants that the option of proceeding to trial and addressing these matters through motions for leave is neither cost-effective nor efficient.

38The motion for an adjournment is a timely, cost-effective, and efficient course of action.

39Third, at an appearance on January 28, 2026, the plaintiff confirmed to the court and to the defendants that she is ready to proceed to trial. There is no explanation from the plaintiff as to why no mention was made at that appearance of the up-to-date information and documents that would follow.

40Fourth, the plaintiff’s list of witnesses does not include any of the healthcare professionals by whom the plaintiff was seen during her participation in the chronic pain program. If any of those individuals are called to testify, then their names must be added to the witness list. The addition of witnesses is relevant to the amount of time required for the trial. Also relevant to the amount of time required for the trial are the hundreds of pages of additional documents upon which the plaintiff now intends to rely. Regardless of how the plaintiff plans to introduce those documents into evidence, the introduction of the documents as evidence will add to the length of the trial.

41The plaintiff is the author of her own misfortune – in seeing the trial delayed by a couple of years. Fairness dictates that the defendants have an opportunity to consider the contents of the up-to-date information and recently produced documents, including their impact on (a) the theory of the defendants’ case; (b) the defendants’ settlement position; (c) additional steps required to prepared for trial; and (d) presentation of the defendants’ case at trial.

Disposition

42The defendants request for an order adjourning the trial is granted.

43Counsel appeared before me on March 20, 2026, by videoconference, for a case conference to address the practical consequences of the adjournment of the trial. The outcome of that appearance is set out in the court’s endorsement dated March 23, 2026. That endorsement addresses matters including (a) two additional defence medical examinations the defendants request and to which the plaintiff consents; (b) attendance at Trial Management Court to secure a new date for trial; (c) a further settlement conference; and (d) steps to be taken in the event the parties are unable to resolve costs of the defendants’ motion to adjourn the trial.

Date: April 14, 2026

Madam Justice Sylvia Corthorn

CITATION: Abou-Antoun v. First Capital (Gloucester) Corporation, 2026 ONSC 2224 COURT FILE NO.: CV-20-83420 DATE: 2026/04/14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

RE: Glades Abou-Antoun, Plaintiffs -and- First Capital (Gloucester) Corporation and Loblaw Properties Limited and Loblaws Inc., Defendants

COUNSEL: James Hammond, Counsel for the Plaintiff Martin Forget and Jeremy Hanigan, Counsel for the Defendants

RULING ON MOTION