SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Peter Black, Plaintiff
AND:
Dr. Krishan Rajaratnam, Dr. Harold Robles, Dr. Patricia Larouche, and Dr. Vandit Sardana, Defendants
BEFORE: The Honourable Justice L. E. Standryk
COUNSEL: J. Scarfone and J. Sazio, counsel for the Plaintiff
A. Bedard, J. Masterson and M. Jeong, counsel for the Defendant, Dr. Krishan Rajaratnam
HEARD: January 23, 2026
Corrected Decision: April 24, 2026 - Paragraph numbering corrected. No changes to content.
Decision on Motion to Re-Open Evidence
Introduction
1This is a medical malpractice proceeding. The plaintiff asserts that his sciatic nerve was severed during a surgery to repair a femur fracture, performed on January 12, 2013.
2As a consequence of the severed sciatic nerve, the plaintiff has a permanent left lower extremity injury, necessitating the use of an ankle–foot orthosis (AFO). The prescribed orthotic device is a carbon-fibre pre-preg AFO fabricated by Ottobock, outsourced by Jesse Cornell, C.P.O., a certified prosthetist-orthotist.
3The plaintiff commenced this action on January 12, 2015.
4The trial commenced on March 13, 2024, and the last day of evidence was May 14, 2025. Standard of care, causation, and damages are all at issue. Following the close of evidence, the court directed the parties to file written closing submissions. Written submissions regarding liability have been received. Written submissions concerning damages have not yet been filed because of this motion. Accordingly, reasons for judgment have not been completed.
Overview
5The Ontario Ministry of Health administers the Assistive Devices Program (ADP), which provides funding assistance for orthotic devices. At trial, evidence was presented regarding the quantification of the plaintiff’s claim for future care costs and whether ADP funding could offset a portion of those expenses.
6Jesse Cornell has been actively involved in the plaintiff’s treatment and testified at trial as an expert in the field of orthotics on behalf of the plaintiff.
7Dawn MacArthur Turner is a C.P.O. who testified as a defence expert in the field of orthotics at trial.
8At trial it was agreed by the parties that the plaintiff’s AFO did not meet the eligibility requirements for funding by the ADP as they existed at that time.
9Jessie Cornell testified that the plaintiff’s AFO did not meet the eligibility requirements for ADP funding as they then existed, primarily because the device was not manufactured in‑house and its fabrication had been outsourced to Ottobock.
10Ms. MacArthur Turner testified that changes to the ADP were anticipated, nearing completion, and, if those amendments were approved, it was her opinion that the plaintiff’s AFO would qualify for funding.
11On June 4, 2025, following the conclusion of the trial, defence counsel became aware that updates to the ADP’s funding policies and procedures for orthotic devices were imminent. The ADP’s Orthotic Devices Policy and Administration Manual, which sets out the policies and procedures for the ADP’s funding of orthotic devices, was updated and amended effective July 14, 2025.
12The defendant seeks leave to re-open the trial evidence for the purpose of introducing evidence regarding changes to the ADP’s funding for orthotic devices. The defendant submits that these amendments, which came into effect after the close of evidence, materially affect the quantification of damages as assessed by the parties’ experts at trial.
13The motion was heard on January 23, 2026. On considering the fulsome submissions from counsel, materials filed, and the authorities to which I have been referred, I dismiss the motion for the following reasons.
Principles of Law: Motion to Re-open the Evidence
14The Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at para. 20, cited the decision of Scott v. Cook, 1970 331 (ON HCJ), [1970] 2 O.R. 769 (H.C.) in approving a two-prong test required on a motion to reopen a trial to adduce fresh evidence:
a. Would the evidence, if presented at trial, probably have changed the result?
b. Could the evidence have been obtained before the trial by the exercise of reasonable diligence?
15In Scott v. Cook, Grant J. summarized the following principles applicable to a motion to re-open a trial to adduce fresh evidence:
a. The trial Judge should have unfettered discretion in this matter so as to ensure that a miscarriage of justice does not occur;
b. before entry of a judgment, the trial Judge is in a better position to exercise that discretion than is an appellate Court. The trial Judge knows the factors in the case that influenced their decision and can more readily determine the weight that should be given to the new evidence offered;
c. the authorities indicate that a trial Judge can always reconsider their decision until the judgment is drawn up and entered;
d. the trial Judge is the one in the best position to judge the bearing of the new or further evidence upon the case in light of the evidence already heard;
e. once a litigant has obtained judgment, he is entitled not to be deprived of it without very solid grounds.
(As cited in Brasseur v. York, 2019 ONSC 4043, at para. 40.)
16In the case of Sagaz, the motion to re-open the trial was submitted after the release of the trial judge’s reasons but before a formal judgment was entered. The court cautioned that the use of discretion to reopen the trial must be exercised sparingly and with the greatest of care so that fraud and abuse of the court’s processes do not result: Sagaz, at para. 61. The cautionary approach reflects a concern that a litigant who has come to know the effect of a decision may try to disturb that judgment or reconstruct a different outcome by putting forth new evidence – the potential for abuse must be discouraged: Brasseur, at para. 44.
17Where a decision remains with the trial judge and has not yet been released, the authorities have generally held that the threshold required on the first prong of the Sagaz test is less stringent: Brasseur, at para. 45, citing Carleton Condominium Corporation No. 166 v. Sennek, 2017 ONSC 5016; Varco Canada Ltd. v. Pason Systems Corp., 2011 FC 467; and Levant v. Day, 2017 ONSC 5988. Recognition for the loosened test continues to apply in cases since Brasseur: see Tianjin Dinghui Hongjun Equity Investment Partnership v. Du, 2023 ONSC 1808; Saggi v. Grillone, 2020 ONSC 6351; and Estanol v. York Condominium Corporation No. 299, 2020 ONSC 298.
18In Brasseur, at para. 45, the court held that when the reasons have yet to be released, the usual concern for finality carries less weight, and “the balance may tilt more towards fairness and truth-seeking”. In circumstances where the trial judge remains in the preliminary phase of adjudication, a stringent application of the Sagaz test requiring a finding that the proposed evidence, if led at trial, would “probably” change the result is illogical – because there is no result to speak of: Brasseur, at para. 47. The court concluded that where the evidence is relevant and cogent, and where its admission serves the interests of justice, the discretion to receive fresh evidence may properly be exercised: Brasseur, at paras. 47-48.
19In the circumstances of this case, where submissions on damages have not yet been received, and reasons for judgment have not yet been issued, a relaxed application of the Sagaz test is warranted. The court must answer the question: could the evidence, if presented at trial, change the result?
20If that evidence could change the result, the court must then consider whether it is in the interests of justice to reopen the trial to receive the evidence, having regard to countervailing factors such as delay, cost, and the introduction of additional complexity. This inquiry is tempered by the reminder that “the need for orderly and efficient litigation demands that such motions remain exceptional” (Brasseur, at para. 48).
Issue
21The plaintiff concedes that the defendant has met the second prong of the Sagaz test – that the proposed evidence could not have been obtained before trial.
22Accordingly, the only issues to decide on this motion are:
a. Could the evidence, if presented at trial, change the result?
b. Is it in the interests of justice to reopen the trial to receive the evidence, taking into consideration the countervailing factors, including prejudice to either party?
Positions of the Parties
The Defendant
23The defendant submits that the evidence is relevant and cogent to a live issue in the trial. Had it been available and presented at trial, it could have had a significant influence on the assessment of damages: the quantification of the plaintiff’s future care costs would have been substantially reduced.
24Defence expert Ms. MacArthur Turner opines that under the revised ADP policy, the plaintiff’s AFO is eligible for funding up to 75 percent under Class 1B, Class 2, and, if justified, Class 3, with the only remaining issue being the method of calculating the impact of funding on the quantification of damages, if any.
25According to defence counsel, admission of this anticipated evidence could result in a reduction of the plaintiff’s damages claim by an amount exceeding $200,000.
The Plaintiff
26The plaintiff acknowledges that the court has jurisdiction to grant the relief sought but submits that the discretion to reopen the evidentiary record is an exceptional remedy that must be exercised sparingly and with the greatest care, citing Sagaz, at para. 61.
27On the plaintiff’s evidence, the device at issue is not eligible for ADP funding under either the former or the current program. Further, the plaintiff claims that even accepting the defendant’s expert evidence at its highest, the preponderance of authority does not support a reduction of future damages on the basis of ADP or comparable government‑funded programs, including in circumstances where a party has been approved for and is receiving such benefits: Lurtz v. Duchesne, 2005 2555 (Ont. C.A.), at para. 25; MacLean v. Wallace, [1999] O.J. No. 3220 (S.C.), at paras. 180–188; Butler v. Royal Victoria Hospital, 2017 ONSC 2792, at paras. 361–363; and Ibrahimova v. Cavanagh, 2025 ONSC 4808, at paras. 361–363.
28The plaintiff argues that re-opening and demanding judicial resources for the possibility that the defence’s proposed evidence could influence the outcome of the trial is an abuse of process and should not be condoned. The plaintiff submits that, taking into consideration the countervailing factors and the fact that the evidence is arguably of little probative value, it is not in the interests of justice to reopen the trial to receive the proposed evidence.
Analysis
29In determining whether the fresh evidence, if tendered at trial, could change the result on damages, I will first consider whether the plaintiff meets the eligibility for ADP funding.
30Although a definitive determination is not required on this motion, a brief review of the eligibility framework, informed by the evidentiary record, assists in determining whether the evidence the defendant now proposes to tender could, if admitted at trial, reasonably be expected to change the result.
31I will then consider the impact of the jurisprudence on the deductibility of collateral benefits in the context of future care costs, followed by an assessment of whether reopening the evidence would be in the interests of justice.
Is the proposed evidence of ADP funding relevant?
32The ADP revisions, effective July 14, 2025, expanded the scope of eligible orthotic devices for funding and simplified the administrative pathway for claims. There is no question that the proposed evidence is relevant – it bears directly on a live issue, namely, the quantification of future care costs.
Could evidence of the revised ADP funding, if presented at trial, change the result?
Position of the Experts - Eligibility
33Ms. MacArthur Turner opines that the plaintiff’s AFO qualifies for ADP funding to the extent of 75 percent under Class 1B, Class 2, and, if justified, Class 3 for the following reasons:
a. (Class 1B) His AFO was assessed and fitted by a certified orthotist, namely, Jesse Cornell; the AFO was 3D shape captured; and the AFO was constructed or custom-made by a third party, in this case, Ottobock;
b. (Class 2) An orthotist may now be able to obtain funding for Mr. Black’s AFO from ADP under Class 2, even if it includes parts that are prefabricated or custom-manufactured by a third party;
c. (Class 3) Mr. Cornell’s witness evidence statement explained that Mr. Black’s AFO is highly complex, requiring additional clinical manufacturing and technical time, all of which increased the cost of the device. It also includes the cost involved for the fabrication and manufacturing from a third party, namely Ottobock. These are some of the factors which could be justified to ADP and kept in the patient’s file to support increased funding under Class 3.
34Mr. Cornell opines that the plaintiff’s AFO is not eligible for ADP funding for reasons which include:
a. The plaintiff currently uses a Class 1B medical device that adequately addresses his medical requirement;
b. The cost of the AFO under Class 1B exceeds the ADP funding cap confirmed by inquiry to the ADP Delivery and Eligibility Review Branch at the Ministry of Health [ADP funding administrator];
c. The plaintiff’s device does not qualify under Class 3 because it is not markedly more complex and costly than a comparable Class 2 device;
d. The device cannot qualify as Class 2 or 3 because the device is not manufactured from raw materials in-house; and
e. The classification system operates hierarchically – one moves to the next category only when a lower class cannot meet the patient’s needs.
Evaluation of Expert Evidence in Relation to Eligibility
35A determination of eligibility is informed by the court’s assessment of the expert evidence, including which expert opinion is ultimately preferred. The significance of the fresh evidence, therefore, cannot be assessed in isolation; rather, it must be evaluated in light of the court’s findings on the competing expert evidence and the extent to which those findings bear on the plaintiff’s eligibility for funding.
36In undertaking that assessment, the evidence must be considered within the scope of the expert qualifications that were established at trial. It is against this framework that the probative value of the defendant’s proposed evidence must be evaluated.
37Defence counsel advances three primary submissions concerning the weight to be accorded to the expert evidence. First, it is argued that no weight should be given to paragraph 5 of Mr. Cornell’s affidavit. Defence counsel submits that this evidence is hearsay, that the source of the information was neither produced or capable of verification or testing, and that, as a whole, the evidence contained in the affidavit is misleading.
38Second, defence counsel submits that Mr. Cornell’s evidence contained at paragraph 12 pertaining to a ruling sought from ADP respecting funding eligibility for the plaintiff is misleading.
39Third, defence counsel submits that greater weight ought to be placed on the evidence of Ms. MacArthur Turner, given her participation on a committee involved in the province’s consultation process relating to amendments and updates to the ADP program.
40With respect to the first argument at paragraph 5 of his affidavit, Mr. Cornell deposes:
Class B1 funding as indicated in the Interior Association of Orthotists and Prosthetists was primarily intended as a cost containment measure for ADP, not as an effort to increase access to technology.
41The statement is hearsay. Mr. Cornell was cross-examined on the source of the statement and indicated that the information was from a video meeting held by the Ontario Association of Prosthetics and Orthotists. The video was not produced for the defendant's verification. While the evidence is arguably hearsay, it is my view that the primary objectives of the ADP are not materially probative of the issue to be determined on this motion, nor are they determinative of the plaintiff’s eligibility under the ADP. The objectives of the ADP program are articulated in the ADP Orthotic Devices Policy and Administration Manual. The fact that the experts' opinions regarding the objectives of the ADP are divergent is of little consequence to a determination of the issues before me.
42With respect to the second defence argument that Mr. Cornell’s evidence is misleading and inaccurate, defence counsel argues that Mr. Cornell’s inquiry regarding ADP eligibility was not specific to the plaintiff and was limited to seeking confirmation that ADP funding would be precluded if his time and material costs significantly exceeded the ADP-funded amount for Class 1B. Counsel argues that given that the inquiry was confined to Class 1B, counsel contends that Mr. Cornell’s evidence has no bearing on whether the plaintiff’s AFO is eligible for funding under Class 2 or Class 3.
43Plaintiff’s counsel submits that the evidence is not misleading. The ADP does not permit overlapping classifications; the device categories are mutually exclusive. Where a Class 1B devise meets a claimant’s needs, there is no basis to proceed to a secondary level of consideration.
44The Orthotic Devices Policy and Administration Manual makes clear that device classifications are hierarchical and mutually exclusive: a Class 2 device is only available where no Class 1A or Class 1B device adequately meets the applicant’s needs, and as such an application must be supported by written justification. The same process applies to Class 3 devices, which require justification demonstrating why an equivalent Class 2 device would be medically inadequate.
45Given this explicit framework, I accept the plaintiff’s explanation. Where both experts agree that the Class 1B device adequately meets the plaintiff’s needs, there is neither a clinical nor a programmatic basis to seek eligibility determinations for higher-class devices. To do so would run contrary to the structure of the Manual and would be inconsistent with Mr. Cornell’s professional obligations as a Vendor, as defined by the ADP, which requires pursuit of only those devices that are medically necessary within the established classification scheme.
46Lastly, the defendant submits that greater weight should be placed on Ms. MacArthur Turner's evidence regarding the ADP program and the plaintiff’s eligibility for funding, given her involvement on a committee engaged in the province's consultation process on amendments and updates to the ADP program.
47I am not persuaded by the defendant's submission.
48Ms. MacArthur Turner was qualified as an expert in orthotics to give opinion evidence in the area of orthotics and the provision of orthotic care relating to the ambulatory management of the plaintiff’s injury. Although the defence expert is an experienced orthotist, with significant clinical experience and involvement in sectoral consultations, which is not in dispute, she was not specifically qualified – nor did defence seek to have her qualified as an expert – on ADP funding or policy.
49Mr. Cornell was expressly tendered and qualified –without objection from the defendant – as a litigation expert in orthoses and prostheses, with knowledge and expertise in the ADP, cost of orthoses and prostheses, frequency of replacement of orthoses and prostheses, appropriate selection of type of orthoses and prostheses, appropriate use of orthoses and prostheses, technology in relation to orthoses and prostheses and benefits and complications associated with orthoses and prostheses.
50In these circumstances, where Mr. Cornell was expressly qualified as having expertise in ADP, it is his opinion on ADP eligibility that properly attracts greater weight.
51Having said this, I will now turn to the ADP classification scheme governing eligibility.
ADP - Eligibility
Class 1B
52A Class 1B Orthotic Device is defined as:
an Orthotic Device that is 3D Shape Captured and fit to the Client by a Certified Orthotist. The device is custom-made by a third party.1
53Both experts opine that the plaintiff’s AFO qualifies under the definition of a Class 1B device and meets the plaintiff’s needs. The AFO constructed by way of pre-preg carbon fibre laminate is an appropriate construct having regard to the plaintiff’s lifestyle, his disability, and the properties that carbon fibre brings.
54For Class 1B devices, ADP funding is unavailable for devices whose cost exceeds the funding cap of $2,042.2
55On July 25, 2025, Mr. Cornell inquired as to the eligibility of a device to ADP. Mr. Cornell posed the following question:
I have a client who requires a custom-made orthotic brace, which needs to be centrally fabricated. As most clinics, including ours, do not have the capabilities to produce this, it must be made with PrePreg composites requiring a special process.
Due to this, my time and material costs significantly exceed the ADP-funded amount for Class 1B (centrally fabricated device). Could you please confirm this precludes the device from ADP funding?
56In response, Mr. Cornell was advised that because the cost of the device exceeded the Class 1B funding cap, it was not eligible for ADP funding as a Class 1B device.
57There is no dispute between the experts that the cost of the plaintiff’s AFO device exceeds the $2,042 funding limit under Class 1B.
58The evidence on the record before me establishes that ineligibility under Class 1B is effectively predetermined. In light of my conclusions regarding the mutual exclusivity of the classifications, it is unnecessary to consider Classes 2 and 3. I nevertheless address them for the purpose of responding to arguments advanced by defence counsel.
Class 2 and 3
59A Class 2 device is defined as:
an Orthotic Device that is 3D Shape Captured, fabricated from Raw Materials In-House, then fit, evaluated and adjusted to meet the Client’s needs by a Certified Orthotist. Class 2 Orthotic Devices can include parts that are prefabricated or custom manufactured by a third party.3
60The funding cap for a Class 2 device is $2,605.4 There is no dispute that the cost of the plaintiff’s AFO exceeds the funding limit under Class 2.
61A Class 3 device is defined as:
an Orthotic Device that is Highly Complex. All Class 3 Orthotic Devices must be 3D Shape Captured, fabricated from Raw Materials In-House, and then fit, evaluated and adjusted to meet the Client’s needs by a Certified Orthotist. Class 3 Orthotist Devices can include parts that are prefabricated or custom manufactured by a third party.5
62“Highly complex” describes an orthotic device that:
due to the medical needs of the Client, requires exceptional materials and/or an unusually large number of parts and/or an unusually lengthy amount of time to fabricate, fit and adjust. Such device must, overall be markedly more complex and costly than the equivalent Class 2 device.6
63There is no prescribed funding cap for a Class 3 device.7
64“Raw Materials” are defined as:
Materials or substances used in the primary production or manufacturing of orthotic devices.8
65“In-House” means:
That an orthosis was fabricated with an orthotic laboratory in the Vendor’s organization without assistance from outside of the organization.9
66The defendant argues that the device is one that is in essence, fabricated centrally. Defence counsel argues that what is received from Ottobock is a part or component of the AFO provided by Mr. Cornell and that it is highly complex in nature.
67Mr. Cornell’s evidence at trial and for the purpose of this motion, is that the plaintiff’s AFO is not fabricated from raw materials in-house by him as the vendor. Mr. Cornell fabricates a test device to assess fit and function before the carbon fibre AFO is specifically built and fabricated at the third-party Ottobock's facility. Following fabrication by Ottobock the device is then returned for fitting and adjustment. This evidence was not materially challenged at trial or for the purpose of this motion.
68The manner in which the AFO is fabricated has not changed: its fabrication is outsourced to Ottobock, after which the completed AFO device is returned for final fitting. That final fitting may involve addressing pressure points, making necessary adjustments and attaching or adjusting straps and other components required for the proper function of the fabricated AFO, which may render the device highly complex. However, the fact remains that the AFO is not manufactured in-house from raw materials by Mr. Cornell, the vendor, and its level of complexity does not alter that fundamental point to bring the plaintiff’s AFO within the purview of either Class 2 or Class 3 ADP-funded devices.
69The defendant’s request that I treat the Ottobock device as a “part or component” is difficult to reconcile with the trial record. This theory was not advanced or tested at trial, nor is that the case on the evidentiary record before me on this motion. The submission ultimately requests that I recharacterize the entire Ottobock device as a component/part for the sole purpose of obtaining funding eligibility for the AFO under Class 2 or Class 3. On the evidence available to me, I cannot do so.
70The unchanged circumstances of fabrication are material to any assessment of eligibility under the ADP.
71For the foregoing reasons, I find that the plaintiff would not be eligible for funding under the revised ADP. Accordingly, I find that the proposed fresh evidence could not, if tendered at trial, change the result on the issue of damages.
Deductibility of Collateral Benefits from Future Care Costs
72Even if the foregoing analysis is ultimately incorrect, the jurisprudence on the deductibility of collateral benefits—though expressed through a range of factual contexts—consistently affirms two core principles: deductions are warranted only where the benefit of government-funded programs is sufficiently certain, and the burden of liability for future care costs must not shift from the tortfeasor to the public purse. Notably, in Ibrahimova, this court relied on Lurtz and MacLean, to determine that a deduction for ADP was not warranted. See also: Lurtz, at para. 25; Butler, at paras. 361-363, aff’d Butler v. Royal Victoria Hospital, 2018 ONCA 409; Ibrahimova at paras. 361-363.
73Notwithstanding these guiding principles, courts have exercised their discretion to deduct collateral benefits and government funding available through the ADP from awards for future case costs. In MacGregor v. Potts, 2009 44720 (Ont. S.C.), aff’d 2012 ONCA 226, 289 O.A.C. 334, a case decided at trial by Henderson J. and relied on by the defendant, the court was satisfied that the ADP funding was already secured. The only uncertainty of concern to the court was the potential fluctuation in the level of funding available to the plaintiff. Henderson J. allowed a 50 percent reduction, rather than a 70 percent reduction, of the present value of future costs of wheelchairs to account for the uncertainty of the future ADP benefit available to the plaintiff.
74In my view, the factual foundation for the deduction in MacGregor is fundamentally different than that in the case before me: the plaintiff is not in receipt of funding and as I have already outlined, there are significant concerns with respect to eligibility.
75The defendant relies further on Greenhalgh v. Douro-Dummer (Township), 2009 71014 (Ont. S.C.), aff’d 2012 ONCA 299, as further authority for their submission that there is no legal prohibition about the deductibility of other benefits that may be available to a plaintiff. The court referenced various cases that support the principle that courts have deducted ADP contributions from the assessment of past and future case costs in respect of assistive devices: Greenhalgh, at para. 498. Again, the facts in Greenhalgh can be distinguished: the plaintiff in that case was already receiving ADP funding. In addition, as plaintiff’s counsel argued at the hearing of this motion, Greenhalgh is a motor vehicle accident (MVA) case. These cases are governed by the Insurance Act, R.S.O. 1990, c. I.8, which codifies deductibility for collateral benefits in the MVA context.
76For the foregoing reasons, even if the plaintiff were eligible for future funding, I am not persuaded that the proffered evidence could, if tendered at trial, reasonably be expected to change the outcome on damages. The evidentiary gap concerning eligibility remains, and reopening the case to admit the proposed evidence could not alter the analysis or the potential result.
Is it in the interests of justice to reopen the trial to receive the evidence?
77Even though the foregoing analysis would be dispositive of the issue before me, I will nonetheless address the remaining question of whether it is in the interests of justice to reopen the trial to tender fresh evidence in this case.
78This requires a careful assessment of the countervailing factors, including the delay, costs, procedural and evidentiary complexity, if any, and prejudice to either party.
79Defence counsel submits that reopening the evidence to address the application of ADP funding would represent the first judicial consideration of the revised ADP program and would carry significant implications for Ontarians who depend on the ADP’s assistance.
80This may be the first judicial consideration of the revised ADP program. However, the findings in this case regarding eligibility will not, in my view, alter the fundamental reality that this court has no jurisdiction to bind, direct, or otherwise impose its conclusions on the administrators responsible for implementing and adjudicating claims under the ADP. Accordingly, it is unlikely that the findings in this case will have a broader significance for Ontarians relying on ADP funding.
81The defendant submits that reopening the evidence would not prejudice the plaintiff, emphasizing that the plaintiff was aware of the anticipated changes to the ADP as early as February 3, 2024. The defendant further suggests that the proposed evidence could be admitted with no more than two additional days of hearing time including viva voce testimony from both defence and plaintiff experts. I have significant reservations about that estimate. The history of this proceeding demonstrates that earlier projections regarding trial length were unreliable; counsel initially anticipated a five-week trial, which ultimately required substantially more time. Against that backdrop and notwithstanding the plaintiff’s advanced notice of the relevant changes to ADP funding, the prejudice lies in the additional time, expense, and procedural complexity inherent in reopening the trial matters, a subject to which I will return later in this decision.
82Expert evidence of this nature is ordinarily adduced through the preparation and exchange of formal expert reports, followed by viva voce testimony subject to cross-examination. While the ADP policy manual and schedules might be admitted on consent, the preparation and exchange of expert reports nonetheless require additional time and further expense for both parties. Moreover, based on my experience during the trial, counsel frequently raised objections concerning the proper scope of expert testimony and whether it fell within the expert’s recognized qualifications. Similar objections could reasonably be anticipated in this context, with the result that the time required to reopen the evidence would likely exceed the defence’s estimate.
83Even if I were to direct a streamlined process by dispensing with viva voce evidence and relying instead on the existing affidavits and transcripts of cross‑examination, the court’s concerns would not be alleviated. Portions of the affidavit evidence contain hearsay that would not have been admissible at trial. If the parties are unable to agree on the admissibility of evidence contained in the affidavit material, additional court time would be required to permit submissions and rulings. The need to resolve the evidentiary disputes would introduce additional costs to both parties, particularly considering the need to coordinate the schedules of five lawyers with limited available court time.
84These circumstances raise concerns about the delay of a proceeding that is now more than ten years old: this cannot be ignored.
85The defendant argues that denying the motion would result in a miscarriage of justice: the plaintiff may obtain double recovery in an award of future care costs if judgment is ultimately granted in his favour without taking into consideration the deductibility of ADP funding. The argument presupposes that the plaintiff is eligible for ADP funding. As I have already concluded based on a preliminary assessment, the plaintiff is not eligible for funding. There is no certainty that the plaintiff would qualify for such funding, even if the case were reopened. The risk of double recovery remains speculative at best.
86Further, even if the plaintiff were to become eligible for ADP funding at some later point, the fundamental principle remains unchanged: the tortfeasor’s liability should not be shifted to the public purse: see Cunningham v. Wheeler, 1994 120 (SCC), [1994] 1 S.C.R. 359, and Ratych v. Bloomer, 1990 97 (SCC), [1990] 1 S.C.R. 940, where the court emphasized that collateral benefits funded from public sources should not operate to relieve a tortfeasor of responsibility for the harm they have caused. See also Lurtz, at para. 25.
87Reopening the case would impose a significant financial burden on both parties, requiring the re-engagement of experts in creating the risk of broader adverse implications for other expert evidence adduced at trial, including future care cost expert evidence. These costs would arise regardless of whether the proposed evidence were received through viva voce testimony or through the filing of affidavits and transcripts. The parties have already borne considerable financial obligations over the course of this lengthy litigation, and reopening the record would only add to that burden.
88The financial impact is just one critical factor in understanding the full extent of the prejudice to the parties. After more than a decade of litigation, the emotional and mental toll on the parties is a relevant consideration. The duration of this litigation affects the parties in ways that extend beyond the courtroom: sustained engagement with counsel and experts, repeatedly revisiting the events underlying the claim and ongoing disruption to their personal and professional lives. Both parties are entitled to a measure of finality and ability to move forward with their lives.
89The cost concerns do not solely lie with the parties. Counsel have devoted considerable time and professional resources to this case. The trial was lengthy and required extensive preparation leading up to and throughout the trial: preparation that no doubt required the sacrifice of evenings and weekends. Each party’s counsel has undoubtedly carried disbursements and drawn from firm resources at considerable expense. I recognize that this level of commitment naturally flows from a careful discharge of their professional obligations; even so, proportionality remains an important consideration. Reopening the evidence would require counsel to undertake further preparation, renewed expert engagement, and divert time and resources from other clients who have engaged their firms and who are equally entitled to timely and effective representation.
90In terms of judicial economy and resources, the trial began on March 18, 2024 – it continued for six weeks straight. Additional trial time was found at various times throughout the court’s schedule with evidence closing on May 15, 2025. This represents an extraordinary allocation of judicial resources. Reopening this case would require additional judicial resources which are scarce given that the judicial schedule has been set for the balance of 2026. Realistically, dates would not become available until 2027, and even then, the court would be required to coordinate dates considering the schedules of three counsel for the defence, two counsel for the plaintiff, and their respective experts. The logistics of scheduling and delay are too significant to ignore.
91Lastly, a fundamental premise of access to justice is timely access to court time. In my view, re-opening the evidence would undermine this principle by delaying and impacting the rights of other litigants who are waiting for their cases to be heard. From the standpoint of access to justice, diverting limited judicial resources to introduce the proposed evidence would compound the existing pressures on the judiciary, undermine the efficient administration of justice and adversely impact access to justice.
92For these reasons, I find that even if the evidence could change the result at trial, the interests of justice are not served in doing so.
Disposition
93The defendant’s motion is dismissed.
Costs
94At the conclusion of the motion hearing, counsel for the parties provided the court with their respective costs outline in the event of success on the motion. The plaintiff seeks costs on a partial indemnity basis in the amount of $32,892.03 inclusive of fees, disbursements, and HST. The defendant seeks costs on a partial indemnity basis in the amount of $60,410, inclusive of HST.
95The plaintiff was successful and is therefore presumptively entitled to his costs on a partial indemnity basis. In determining the appropriate costs award, I have exercised my discretion pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, having regard to the outcome of the motion, the principle of indemnity, the complexity and importance of the issues, and the overarching considerations of reasonableness and proportionality.
96I have reviewed the parties’ respective cost outlines, including counsel's experience, the hourly rates charged, and the time spent. On a comparative basis, I am satisfied that the rates charged by plaintiff’s counsel are reasonable. The total time dedicated to the motion by plaintiff’s counsel – 60.5 hours – is modest when contrasted with the 224.2 hours dedicated by defence counsel.
97The motion raised relatively complex issues that are of significant importance to the parties. Counsel were required to prepare submissions based on a detailed factual matrix involving expert opinion evidence and legal principles governing the test to re-open the evidence that may be modified in the exercise of judicial discretion, having regard to the status and procedural posture of the proceedings.
98I find no basis to conclude that the conduct of either party was improper, unreasonable or undertaken in bad faith; neither side unnecessarily lengthened this aspect of the proceeding.
99Finally, in light of the fees incurred by the defendant, the amount sought by the plaintiff, in my view, is reasonable, proportionate and fell within what the defendant could reasonably have contemplated as an award of costs.
100I therefore award costs to the plaintiff payable by the defendant on a partial indemnity basis in the sum of $32,892.03 inclusive of fees, disbursements and HST, to be reconciled at the time a final decision on costs has been made following judgment.
L. E. Standryk, J.
Released: April 22, 2026
Footnotes
- ADP Orthotic Devices Policy and Administration Manual, July 14, 2025, Part 1: Introduction to the Orthotic Devices Policy and Administration Manual, s. 110.06.
- Orthotic Devices Policy and Administration Manual, July 14, 2025, Part 6: Funding Amount for ADP Clients, s. 605; ADP Orthotic Devices Product Manual, Effective July 14, 2025, p. 6.
- ADP Orthotic Devices Policy and Administration Manual, July 14, 2025, Part 1: Introduction to the Orthotic Devices Policy and Administration Manual, s.110.07.
- ADP Orthotic Devices Product Manual, Effective July 14, 2025, p. 7.
- ADP Orthotic Devices Policy and Administration Manual, July 14, 2025, Part 1: Introduction to the Orthotic Devices Policy and Administration Manual, s.110.08.
- ADP Orthotic Devices Policy and Administration Manual, July 14, 2025, Part 1: Introduction to the Orthotic Devices Policy and Administration Manual, s.110.09.
- ADP Orthotic Devices Product Manual, Effective July 14, 2025, p. 7.
- ADP Orthotic Devices Policy and Administration Manual, July 14, 2025, Part 1: Introduction to the Orthotic Devices Policy and Administration Manual, s.110.21.
- ADP Orthotic Devices Policy and Administration Manual, July 14, 2025, Part 1: Introduction to the Orthotic Devices Policy and Administration Manual, s.110.10.