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Fridays with Rogers Partners

At our weekly meeting, Megan Chan discussed the recent decision of the Ontario Superior Court in Mohamud v. Juskey, 2023 ONSC 4414.

This decision arose from a motion by the defendants to compel the plaintiff to attend a defence medical examination, and disclose the contents of her social media accounts. The court declined to order the plaintiff to attend defence medical examinations, due to a lack of reasonable explanation from defence counsel for the delay in scheduling the medical examinations. The court also declined to order the plaintiff to produce the entire contents of her social media accounts, and instead only required the plaintiff to produce an updated Affidavit of Documents with relevant photographs.

This case highlights the importance of ensuring that deadlines in the litigation process are met. Counsel should ensure timely action is taken to schedule expert reports.

Brief Facts:

On August 15, 2019, the parties were involved in a motor vehicle accident in Richmond Hill, Ontario. The plaintiff (Mohamud) alleges the defendant (Juskey) lost control of his vehicle on a wet road and collided with her vehicle. The plaintiff’s injuries include a concussion, whiplash, other soft tissue injuries, chronic pain, and psychological injuries. The plaintiff claims against the defendants (owner Victor Juskey and driver Christopher Juskey) for $1.3M in damages for pain and suffering, loss of enjoyment of life, lost income (past and future), and future care costs.

A timeline of the progression of the litigation:

Jan 19, 2021The plaintiff issues the claim.
Sept/Oct 2021The plaintiff serves her experts’ reports.
Nov 22, 2021Mediation (unsuccessful).
Nov 29, 2021The plaintiff serves a trial record setting the action down for trial.
April 2022Plaintiff’s counsel begins canvassing for pre-trial conference dates.
Dec 16, 2022Parties agree on a pre-trial date of March 27, 2023.
Feb 3, 2023Defence counsel advise of intention to arrange for defence medicals for March/April 2023 and plaintiff’s counsel opposes on the basis of insufficient time for response to these reports delivered so close to anticipated trial date of May 2023. Defence counsel proceeds to book the medical appointments for February 28 and April 17, 2023 respectively.
Feb 21, 2023Defence counsel requests a same day update on whether plaintiff would attend scheduled February 28, 2023 appointment, else they would incur a $1,500 cancellation fee.
Feb 24, 2023Plaintiff counsel responds that plaintiff would not attend.
Mar 27, 2023Pre-trial conference takes place, during which RSJ Edwards directs the defendants’ motion for defence medicals to be expedited on a regular Newmarket motions list.
Apr 3, 2023Plaintiff’s counsel advises that the only dates they were available to argue the motion were July 19 or 26, 2023.
Nov 20, 2023Trial (scheduled to start).

The motion was heard on July 26, 2023. The defendants sought:

  1. an order requiring the plaintiff to attend the defence medical examinations; and
  2. an order requiring the plaintiff to disclose the entire contents of her social media accounts.

The plaintiff opposed attending any defence medical examinations, arguing 1) that it was too late in the day for the defence to be seeking to obtain expert reports, 2) that the deadline for service under the Rules had passed, and 3) that granting the relief sought by the defendants would prejudice her because she will either a) have insufficient time to obtain replies to the defendants’ expert reports or b) have to seek an adjournment of the trial.

The plaintiff opposed the production of the contents of her social media accounts on the basis that there was minimal probative value of the contents, and that disclosure would result in substantial prejudice in the form of a significant intrusion on her personal privacy.


Should the motion for these orders be granted?


Defence Medicals

Per s.105(2) of the Courts of Justice Act, the court, on motion, may order a party who’s physical or mental condition is in question, to undergo a physical or mental examination by one or more health practitioners. In Ontario, where the physical or mental condition of a party is in question, a defendant is prima facie entitled to a first medical examination.[1]

Despite this presumptive entitlement, the court has discretion per s.105 of the CJA. In exercising its discretion, the court should consider the interests of justice, which include any prejudice to the plaintiff and whether the defendants have complied with the applicable rules relating to obtaining and delivering experts’ reports.

Per rule 53.03(1), a party who intends to call an expert witness at trial shall serve on all parties to the action a signed report not less than 90 days before the pre-trial conference. The defendants would have had to serve their expert reports by December 27, 2022. The defendants clearly failed to do so.

The defendants asked Justice Boswell to extend the time for service of their expert reports. The defendants claimed that the defence counsel’s clerk agreed to pre-trial date without first consulting defence counsel and that had such consultation occurred, counsel would have insisted on a pre-trial date farther down the road, so service of expert reports could be obtained and served in compliance with the timelines set out in the Rules. Defence counsel argued that it was their practice to wait until closer to the pre-trial to schedule such appointments.

Per rules 3.02 and 53.04(b), a judge on a motion can extend the time provided for the service of an expert report. However, the same rules do not list any factors that the court should consider when determine whether to extend the time for service.

Both counsel submitted that the test from rule 53.08, which is used to determine whether a late-served report should be admitted into evidence at trial, should be applied. Rule 53.08(1) provides that where the requirements of rule 53.03(3) have not be complied with, the trial judge may grant leave to admit evidence if the non-complying party satisfies the court that: a) there is a reasonable explanation for the failure to comply; and b) granting leave would not, i) cause prejudice to the opposing party that could not be compensated by costs or an adjournment; or, ii) cause undue delay in the conduct of the trial.

Justice Boswell agreed to apply the rule 53.08 test, despite not being the trial judge, because the relief sought by the defendants (the extension of the time to comply with service of the expert reports) is functionally equivalent to granting leave to the defendants to adduce late-delivered experts’ reports into evidence at trial.

Was there a reasonable explanation for the failure to comply with the Rules? No. Justice Boswell stated that the defendant’s explanation was weak. Defence counsel ought to have been looking to line up their expert reports as soon as the action was set down for trial on November 29, 2021.

The defence offered no explanation for why they did not seek defence medicals at any point between November 29, 2021 and December 27, 2022, which was the date the expert reports should have been served to comply with Rule 53.03(1). The amendments to rule 53.08, namely, shifting the burden to the non-compliant party to demonstrate a reasonable explanation, were intended to address the chronic problems that late-filed expert reports have historically created for the court’s ability to schedule and hear civil trials.

Thus, the defendants failed at the first stage of the Rule 53.08 test. The Court declined to order the plaintiff to attend the defence medical appointments.

Social Media Accounts

Per rule 30.02(1), parties are required to disclose all relevant and material documents in their possession, control, or power. However, there is no recognized legal framework for assessing privacy claims in the context of disclosure in a civil proceeding.

Justice Boswell ultimately applied rule 29.2.03(c) and stated that the court must engage in a balancing of the probative value of the records sought against the prejudice that will inure to the party resisting disclosure or to the litigation process. Parties must appreciate that there will inevitably be intrusions upon their person privacy when they are involved in civil proceedings, as complete discovery is essential to the proper functioning of the adversarial system and its truth-finding goal.

Ultimately, the pleadings had put the plaintiff’s functionality, enjoyment of life, and ability to work in issue. There was at least one public photo on the plaintiff’s social media tending to demonstrate the plaintiff’s ability to travel and enjoy life. The inference that the private areas of the plaintiff’s social media accounts would contain similar content was reasonable. The plaintiff’s social media accounts likely included photographs of the plaintiff engaging in activities that were relevant to one or more of the live issues in the proceedings, namely her ability to engage in a variety of activities and her overall enjoyment of life.

However, the Court was not convinced that the entire contents of the plaintiff’s social media accounts are relevant, and instead ordered the plaintiff to produce a further and better Affidavit of Documents that listed all the photographs in her possession, control, or power, that were relevant to the live issues in the proceeding.

[1] Moore v. Bertuzzi, 2012 ONSC 5399.