"It is time for all counsel to ensure they deliver reports in accordance with the Rules. The public's interest in better access to justice which is part of the speedier resolution of lawsuits must be protected as well as the interests of the litigants themselves..." – The Endorsement of Judge Stevenson in Whitney v TTC et al.
The Ontario Superior Court of Justice ("ONSC") has once again cracked down on the late service of expert reports, holding that under Rule 53.03(3) and (4) of the Rules of Civil Procedure, O. Reg. 575/07, s. 6 (1), a reasonable explanation must be provided, and that mere inadvertence on behalf of counsel is not sufficient for granting leave to extend the time for service.
In Whitney v TTC et al, the claim arose from an accident on a bus in July of 2015. The Defendant, TTC, sought an order granting them leave to extend the time for service of its responding expert reports. At issue for the Defendant was two reports, that of Dr. Paitich and Dr. Hines, both which had been originally set to be served based on dates predetermined by a timetable set out in an Order by Justice Wilson in January of 2023. In the Order, the Defendant's lawyer consented that no new defence expert reports would be delivered after April 30, 2024. Despite this, the reports were delivered on August 7, 2024 – approximately 60 days prior to the trial instead of 60 days before the pretrial conference. The Defendant cited their lawyer's inadvertence as the reason for their non-compliance.
Justice Stevenson heard the motion and began by discussing his discretion pursuant to Rule 53.03(4) which enables a pre-trial conference judge or a motion judge to grant an order to extend the time for service prior to trial. Leave can also be granted by a trial judge under the Rule 53.8, which sets out that the trial judge may grant leave on the basis that there is a reasonable explanation for the failure, and that granting leave would not prejudice the opposing party in a manner that could not be compensated for by way of costs or an adjournment or cause undue delay in the conduct of the trial.
Justice Stevenson reviewed various developments in the case law and the legislation regarding the admissibility of late served expert reports including the 2022 ONSC decision of Agha v Munroe, 2022 ONSC 2508 (CanLII). In Agha, Regional Senior Justice Edwards addressed the March 2022 amendments to Rule 53.08. Prior to the amendments, Rule 53.08 stated that leave "shall" be granted on such terms as are just and with an adjournment, if necessary, unless there would be prejudice to the opposite party or undue delay in the conduct of the trial. The amendments in 2022 changed this language, setting out that leave "may" be granted. The effect of this amendment is that Rule 53.08 is now discretionary and the moving party must provide a reasonable explanation in addition to establishing there is no prejudice that cannot be compensated for by costs or an adjournment. These amendments were instituted for the sake of efficiency and to address the problems, backlog, and complications that arise with the late delivery of defence expert reports. Justice Stevenson furthered referenced the decision set out in Van Belois v Batholomew, 2023 ONSC 5799 (CanLII), quoting that "any disadvantage experienced by the defendant is outweighed by the pressing need of the administration of justice to ensure the timely delivery of expert reports and to give teeth to the Rules amendments that strive to do so."
Justice Stevenson also discussed whether there is a difference in the threshold for granting leave for pre-trial conference and motion judges under Rule 53.03(4), compared to trial judges under Rule 53.08. Justice Stevenson resolved that even if one treats the test under rule 53.3(3) and (4) to be less demanding than under rule 53.08, mere inadvertence is insufficient to justify the late delivery of the expert's reports.
In the case at bar, as a result of the late delivery of the reports, the Court found that the first pre-trial conference was unproductive as a result of the uncertainty surrounding the evidence. The uncertainty continued as, in the interim of waiting for the motion for leave, it was uncertain whether reply expert evidence from the Plaintiff's side would be required. The Court addressed the resulting prejudice and held that even if the Plaintiff, who did not submit anything late, had been able to get reply reports from his experts without requiring an adjournment of the trial, it is not fair for the defendant's to rely on this because of their lawyer's inadvertence. The Court ultimately drew the line regarding lawyer's inadvertence and reasoned that there must be a reasonable explanation for the failure to comply with the Rules. It is worth noting that the Court did distinguish the situation in the case at bar from one where there is some kind of illness or personal circumstances which impact the lawyer or the expert's office.
Ultimately, the Court reviewed the recent developments and changes to the Rules and rejected the defendant's motion for leave. In doing so, Justice Stevenson, not only placed an emphasis on counsel's vigilance in abiding by the Rules but reiterated the need for the speedier resolution of lawsuits to deal with the delay crisis plaguing the civil court system.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
