Court File and Parties
CITATION: Wallis. v. Wawanesa Mutual Insurance Company, 2026 ONSC 2557
COURT FILE NO.: CV 18-00002594-0000
DATE: 20260428
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Linda Wallis, Plaintiff
AND
John/Jane Doe, Jack/Jill Doe and The Wawanesa Mutual Insurance Company, Defendants
BEFORE: Justice Spencer Nicholson
COUNSEL: Karl Arvai for the Plaintiff Laura Emmett and Emily Rasic for the Defendants
HEARD: April 27, 2026
RULING RE LAY WITNESS TESTIFYING
NICHOLSON J.:
[1] The issue in this mid-trial ruling is whether the plaintiff should be permitted to call the evidence of a lay witness who was a co-worker of the plaintiff at Canada Post.
Impugned Evidence:
[2] I have the Willsay statement of the witness. She worked at the Canada Post plant where the plaintiff worked up to January 2015. I note that the motor vehicle accident was in December of 2016, almost two years later. The plaintiff, who is currently age 66, testified at trial that it was her intention to continue to work there until age 70. The evidence in this case includes chiropractic records that post-date January 2015 and indicate that the plaintiff was having treatment for her bilateral shoulders, upper back and neck. This has been described as “maintenance”.
[3] The plaintiff was also seen in the Hand and Upper Limb Clinic in 2015 where she was diagnosed with bilateral shoulder tears.
[4] In the summer of 2015, the plaintiff had some difficulties with bullying at work, necessitating time off.
[5] The plaintiff’s chiropractor signed a form pm December 5, 2016, approximately 17 days prior to the motor vehicle accident. The chiropractor wrote that the plaintiff was unable to turn her head from left to right without pain, that repetitive movements aggravated her condition and that a tear in in her shoulder caused “compensation”.
[6] The plaintiff has not returned to work since the motor vehicle accident, alleging that her accident related symptoms prevent her from doing so.
[7] The lay witness would apparently testify that she was familiar with Ms. Wallis and her jobs at the plant. She observed Ms. Wallis in the performance of her duties. The witness’ description of the job duties is similar to that to which Ms. Wallis testified at trial. The lay witness confirmed both the physical and cognitive demands. The witness was aware that Ms. Wallis worked with modifications of her physical movements.
[8] According to the Willsay of the witness, Ms. Wallis performed her job well and was a hard worker. She had a good attitude and was willing to work overtime. She did not complain about work.
[9] The witness was aware that Ms. Wallis had health related matters and will state that those issues did not interfere with the performance of her job. Ms. Wallis was not a complainer. She was a conscientious and a reliable worker. Other workers also had health-related job modifications.
[10] The witness’ evidence will be that there is no mandatory retirement age at Canada Post. Ms. Wallis would have been allowed to work to age 70 or beyond if able to do her job. The witness is aware of others who have worked past normal retirement age.
[11] The witness had some contact with the plaintiff following the motor vehicle accident. She saw Ms. Wallis quite a bit and tried to help her out when she could. The witness noted cognitive and balance difficulties, as well as word finding difficulties as well as Ms. Wallis having difficulty understanding at times. She would become frustrated and cry at times. She complained about concentration difficulties and the witness would assist her with operating her computer. At times, the witness noticed that Ms. Wallis would need to stop and think before answering a question. She noticed a deterioration in Ms. Wallis’ condition over time.
[12] I note that a neuropsychologist retained by Ms. Wallis to provide an opinion reported that Ms. Wallis told her in 2018 that she was hoping to retire between 60-65.
[13] Ms. Wallis’ testimony at trial was that she could not afford to retire and would have had to keep working to age 70. Her economic loss expert assumed that she would have continued to work until age 70 but for the accident. The defense economic loss expert is apparently going to testify that the average retirement age for a female public service employees is 62.1 and the median retirement age is 61.3. These figures were put to the plaintiff’s economic loss expert, who testified that these were merely averages, meaning that some people retire earlier or later and that a lot depended upon the person’s financial situation. He was hesitant to concede, but ultimately did, that pre-accident physical impairments were a factor in when a person might have to retire.
[14] The plaintiff retired on September 5, 2020, with an “unreduced pension”. She testified that she was forced to retire. “Unreduced” does not mean that this is the maximum pension that she could have retired with. It simply means that she was not penalized for retiring early. She is advancing a pension loss from being required to retire early as a result of the motor vehicle accident.
Procedural Issues:
[15] The defendant argues that the plaintiff has only served the Willsay statement of the proposed witness on April 20, 2026, by email dated 5:17 pm (i.e. after the end of business hours). This trial commenced on March 30, 2026, and April 20, 2026, was Day 14 of the trial, although it was really the 11^th^ day because of issues with the jury. The plaintiff, who is the only other witness who will be in position to testify with respect to her work performance, finished her evidence on April 15, 2026. She was examined in chief for approximately one hour on the first day of trial after jury selection and opening statements. She was examined in chief for a further three and a half days. She was cross-examined for two and a half days.
[16] I note that the trial was estimated to be 22 days in length by both counsel. We have lost three days because of juror illness, which cannot be blamed on either counsel. However, the estimated time for the entire testimony of the plaintiff was 3 to 4 days. In fairness to both counsel, she was a very deliberate witness. We have had to interrupt the evidence of some witnesses to hear the evidence of experts that had limited availability. We have, today, not completed the cross-examination of the plaintiff’s last expert witness and she will have to return. The lay witness would be the plaintiff’s last witness. The schedule for the defense witnesses leaves little wiggle room to complete this case before the end of week 6, which is already beyond the time estimate. The court does not, however, have a seventh week readily available.
[17] For a jury case, obviously I am cognizant of trying to make this case as efficient as possible to ensure that their lives are minimally disrupted. However, I must ensure that justice is done in this case, for both parties.
[18] All that is to say that this case will clearly be extended late into a sixth week, again owing in part to juror illness.
[19] Plaintiff’s counsel gave the following undertaking on the plaintiff’s examination for discovery, as follows:
Q. And more broadly, if you conduct any witness interviews on any matters at issue in this lawsuit, you’ll provide their names, contact information, and a summary of their evidence?
A. Yes. Yes.
[20] The plaintiff’s position is that no such witness interviews were conducted until the trial began and therefore, she has technically complied with her undertaking.
[21] I do not have a copy of the judge’s pre-trial report available to me, although usually they are provided to the trial judge. There is a space on the usual pre-trial report that sets out a time frame for delivering Willsay statements. I am advised that no such order was made at the pre-trial. The witness list provided at the pre-trial does identify “lay witnesses” but does not specifically name them. I was given the same witness list at the outset of trial. According to the witness list, the lay witnesses would take one day.
[22] The defendant argues that this is trial by ambush and that s. 53.08 requires leave of the trial judge to admit this evidence. The onus is on the plaintiff to satisfy the judge that there is a reasonable explanation for the failure and granting leave would not cause prejudice to the opposing party that could not be compensated for by costs or an adjournment.
[23] Rule 53.08 applies to situations in which a party fails to disclose a document, fails to abandon a claim of privilege, fails to answer on discovery, fails to correct an answer on discovery and fails to comply with the requirements of an expert report. Has there been non-compliance with any of these obligations?
[24] The defendant has been unable to locate any cases directly on point. Reliance is placed on the following cases:
Pelrine v. Chung, 2026 ONSC 1601—the defendant sought leave to call three expert reports in a medical malpractice case. The case deals with Rule 53.08 and “reasonable explanation”. I note that leave has been given by the Divisional Court to appeal this decision.
Papineau v. Romero-Sierra, 2019 ONSC 4315—this is a case in which counsel for the plaintiff kept moving the goal posts in terms of expert reports and witnesses that were going to be called. Notably, there was an order made that required the provision of Willsay statements. I note that Superior Courts have inherent jurisdiction to control its own processes. It is also noted that the court must rely upon counsel to provide accurate time estimates and to know how a case will unfold. Trial scheduling depends on cases being completed in the time allotted.
Ault v. Canada (Attorney General), 2007 55358—The court stated at para. 24, as follows (in the context of rule 53.08):
[24] This rule sets out the protocol to be followed in civil trials before this court when a party wishes to rely on expert opinion evidence to advance an issue in the case. The rule complements rules 30 to 33 dealing with productions, discovery of documents, examinations for discovery of parties, discovery of non-parties and medical examinations. All of these rules have as their underlying purpose the early identification of evidence relevant to all issues in the litigation. It is through this early identification of evidence that issues can be resolved at the earliest possible time. This in turn helps to minimize the costs associated with litigation and reduces the demand on limited judicial resources through shortening required trial times. Of equal importance, the early and full disclosure of evidence enables all parties to properly prepare for trial so that the trial unfolds in an orderly, efficient and fair fashion. There is no room for “trial by ambush” in our civil justice system.
- St. Marthe v. O’Connor, 2021 ONCA 790—The Court of Appeal applied, in the context of expert evidence, the test of whether the probative value exceeded the prejudicial effect to the opposing party. Very important evidence was elicited from a non-party expert during cross-examination, that had not been set out in any report which the opposing party could not have anticipated. It was ruled that trial fairness prevented the admission of this evidence.
[25] Rule 31.06 sets out the scope of examination for discovery. I agree with the comment in Ault, supra, that this rule is one of many that is intended to avoid “trial by ambush”. Rule 31.06(2) allows a party to obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action.
[26] Defence counsel, pursuant to the undertaking requested, was unquestionably seeking to have pre-trial disclosure of any witnesses that the plaintiff intended to call, even if her question allowed some wiggle room for the plaintiff to argue that she is in technical compliance with her undertaking. The request for a summary of a witness’ evidence is a common request and undertaking in personal injury actions. Both counsel are experienced and the intention of defence counsel must have been clear. In my view, the notion that a party can delay, even without premeditation, interviewing a witness until trial to avoid complying with disclosure obligations is contrary to the notion of trial fairness.
[27] Rule 31.06 has been broadly interpreted to widen the scope of discovery. This serves the dual purpose of facilitating settlement and avoiding surprises at trial. It is a matter of trial fairness that the opposing party knows the case to meet well in advance of trial.
[28] For example, in Dionisopoulos v. Provias (H.C.J.), 1990 6642 (ON SC) the court stated as follows:
In my opinion, a person being examined is not required to provide the names of persons to be called at trial; but must provide the names and address of "persons who might reasonably be expected to have knowledge" of the matters in issue. In addition, a person being examined must, if requested, provide a summary of the substance of the evidence of such persons.
In Blackmore v. Slot-All Ltd., released September 17, 1985, Ont.H.C.J. [summarized 1986 6256 (ON SC), 35 A.C.W.S. (2d) 144], Steele J. stated that rule 31.06 should be given a broad interpretation to permit full and expeditious disclosure. He held that "the name and address of a witness must be disclosed as well as a summary of the evidence that that witness expected to give". This decision was followed by Master Peppiatt in Leerentveld v. McCulloch (1985), 4 C.P.C. (2d) 26. It should be noted that while Steele J. made reference to "a witness", I understand him to be referring to any person having knowledge of the matters in issue. If, a witness, was confined to a witness to be called at trial, then a party being examined could refrain from disclosing the identity of a person with knowledge of the matters on the grounds such person would not be called as a witness at trial. I do not think that such an interpretation would promote the full and expeditious disclosure required by rule 31.06.
[29] More recently, Koehnen J. in Priest Trucking v. Keele Acquisition, 2026 ONSC 483, addressed the level of specificity that a Willsay statement must contain. He noted that the purpose of discovery and Willsay statements in particular is to avoid trial by ambush and allow the opposing side to know the case it has to meet.
[30] While these cases emphasize the importance of fulsome disclosure, they do not address the problem where a party fails to make timely disclosure. However, I have no hesitation in saying that the timing of disclosure, where it occurs on the 11^th^ day of a jury trial, after the completion of the plaintiff’s testimony, does not accord with the principles of trial fairness.
[31] I also consider that the failure to disclose a Willsay statement in a timely fashion is analogous to the failure of a defendant to disclose surveillance in a timely fashion. In Iannarella v. Corbett, 2015 ONCA 110, the Court of Appeal held that the trial judge erred in permitting the defendant to play surveillance video for any reason during the plaintiff’s cross-examination where the video had not been disclosed. The Court of Appeal described, at para. 33, that “[t]he Rules are designed to require full disclosure of information in order to "to prevent surprise and trial by ambush" (John W. Morden and Paul M. Perell, The Law of Civil Procedure in Ontario, 2nd ed. (Markham, Ont.: LexisNexis, 2014), at para. 7.9).”
[32] At para. 42, the court quoted with approval that "the discovery rules are to be read in a manner to discourage tactics and encourage full and timely disclosure in order to encourage early settlement and reduce court costs”.
[33] Finally, at para. 46, the Court stated, “given the interests of fairness and the objectives of efficiency and settlement, the court expects the parties to comply fully and rigorously with the disclosure and production obligations under the Rules.”
[34] I agree with defense counsel that had proper and timely disclosure of the Willsay statement been made by the plaintiff, the defendant had viable options that could still be pursued with respect to investigating that witness or perhaps calling another witness from Canada Post. However, we are now in the throes of trial and trial counsels’ resources, already spread thin to prepare for cross-examination of expert witnesses, argue mid-trial motions, prepare for the defendant’s own witnesses, are insufficient to expend in deciding how to best deal with late received information of which they have had no advance warning.
[35] I agree that the plaintiff’s retirement age absent the accident is one of the key issues in this case. However, I reject plaintiff’s counsel’s argument that this means that defense counsel ought to have anticipated that this witness would emerge, or is somehow already equipped to address it. Given that it is a key issue, to the knowledge of plaintiff’s counsel, I would find that there was an even greater onus upon him to ensure that proper disclosure had been made with respect to the lay witness.
[36] The proposed lay witness, according to the Willsay statement, keeps in touch with the plaintiff. The plaintiff’s anticipated retirement age has been an issue front and centre in this case long before the commencement of trial. The plaintiff’s economic loss report, obtained in April of 2025, identified that the plaintiff’s position is that but for the accident she would have retired at age 70.
[37] I have previously commented that I am hesitant to deprive a party, or the jury as the trier of fact, with relevant evidence without good reason. However, it is my view that the probative value of the proposed lay evidence is modest and the prejudice to the defendant is significant. I am also of the view that the prejudice to the plaintiff by excluding this evidence is minimal. She has already testified as to most of the facts contained in the Willsay statement. In some measure, the lay witness would be oath helping.
[38] In terms of probative value, the proposed lay witness only worked with the plaintiff to January of 2015. This is nearly two years pre-accident. Since that time, as noted, the evidence discloses that the plaintiff’s health has not been static. The lay witness simply cannot provide evidence of the plaintiff’s function just prior to the motor vehicle accident.
[39] Furthermore, the lay witness’ evidence as to the retirement age of some of the co-workers has minimal, if any probative value. Each employee is in unique circumstances from one another, and from the plaintiff. Just because there are employees still working there at age 70 does not indicate that the plaintiff is any more or less likely to do so. It would be no more useful than if the defendant proposed to call a co-employee to say that he knows of many postal workers that retire at age 55. Furthermore, the lay witness’ assertion about these employees necessarily lacks any specifics about their health or financial needs.
[40] I do not believe, frankly, that the defendant’s position is that there are no employees still working at Canada Post to that age, or that there is any mandatory retirement age. The plaintiff was clear in her testimony that she financially needed to work to age 70. The real issue is whether the plaintiff’s pre-accident issues would have had any impact on her ability to do so. As noted, her own expert reported that the plaintiff told her that she planned to retire between ages 60-65.
[41] The prejudice to the defendant is significant, in my view, given the timing of this disclosure. The plaintiff has already testified and cannot be questioned about any potential information that might be adduced by the lay witness. As noted, there is inadequate time to make inquiries of other Canada Post employees.
[42] Counsel for the plaintiff, to the extent that a “reasonable explanation” is required, offers that he had several cases scheduled for trial this month, he believed this trial had a reasonable prospect of settling and he is a sole practitioner. Respectfully, I am not prepared to accept that sole practitioners who have a lot of trials on the trial list should garner any special treatment. Plaintiff’s counsel is a very experienced litigator who has conducted many trials. His legal practice is within his control, and, in my view, he is responsible for managing it to ensure that both opposing counsel, and the court, is not prejudiced by late service.
[43] I have considered whether an adjournment would be appropriate, or an award of costs. I have already described the time crunch that this case is under, and despite the jurors’ illnesses, the case is moving slowly primarily due to the examination of witnesses, as well as some legal issues that have required arguments and rulings. We are now calling witnesses out of order. There is a jury that has committed to placing their lives on hold to assist the administration of justice. One of a trial judge’s primary function in a jury case is to monitor the jury and ensure that it is not unduly inconvenienced. Both the court and the jury is entitled to have this trial concluded within a reasonable time. In my view, adding a lay witness whose Willsay statement has been disclosed at such a late stage of the proceedings, potentially out of order, who has limited probative evidence, is improper.
[44] Accordingly, for those Reasons, I have determined that the plaintiff’s proposed lay witness(es) shall not be permitted to testify in this trial owing to the failure to disclose in a timely fashion a summary of their proposed evidence as required by Rule 31.06 and the plaintiff’s undertaking.
• Note, an amendment was made to paragraphs 43 and 44 after I released my decision to counsel, as it was pointed out that plaintiff’s counsel had identified the proposed lay witness, just not a summary of their evidence. This version of my Decision shall be the official version.
“Justice Spencer Nicholson”
Justice Spencer Nicholson
Date: April 28, 2026
CITATION: Wallis. v. Wawanesa Mutual Insurance Company,2026 ONSC 2557
FILE NO.: CV 18-00002594-0000
DATE: 20260428
ONTARIO
SUPERIOR COURT OF JUSTICE-ONTARIO
BETWEEN:
Linda Wallis
Plaintiff
- and -
John/Jane Doe, Jack/Jill Doe and The Wawanesa Mutual Insurance Company
Defendants
RULING RE LAY WITNESS TESTIFYING
NICHOLSON J.
Released: April 28, 2026