Fridays with Rogers Partners
At our weekly Friday meeting, Taya Rosenberg discussed a recent decision on a mid-trial motion for an adjournment of trial to permit the plaintiffs to obtain new expert evidence, in Carter v. Newman, 2022 ONSC 7179.
The plaintiffs brought a motion for an order to adjourn the trial and for leave to obtain a new expert report after the trial judge declined to qualify the plaintiffs’ expert.
There were several issues with the expert’s report, and his appropriateness as an expert witness. Firstly, the report included “conclusions regarding the negligence of the defendant, which usurped the function of the Court.”[i] The judge determined that even if the expert had been qualified, the inappropriate portion of the report would have been inadmissible, and the expert would be unable to testify to conclusions that were “rightfully within the purview of the Court.”[ii]
Secondly, on cross-examination, it became evident that the expert’s CV was highly embellished. The expert admitted to selecting generic phrases from the website that he felt described his accomplishments, and putting them on his CV. The Court found that besides these generic phrases, the CV was “utterly devoid of substance such as educational programs attended or taught, publications, significant career milestones, or other achievements and experience.”[iii]
While the Court did not attach any “improper motive or intent”, it declined to qualify the proposed expert as an expert witness.[iv]
Positions of the Parties
The plaintiffs submitted that expert evidence was an “important and essential component of the case,” and “essential in order for the court to reach a just verdict.”[v] In taking responsibility for choosing a poor expert witness, plaintiffs’ counsel submitted that the consequences of these shortcomings or errors should not held against the plaintiffs because it would “deprive them of a fair and full hearing on the merits of the case.”[vi] Plaintiffs’ counsel also agreed that the firm would take on the responsibility for any costs incurred by the defendants because of their actions.
The defendants argued that adjourning the trial and permitting the plaintiffs to obtain new expert evidence mid-trial this would cause non-compensable prejudice to them, as their trial strategy was informed by the original expert’s report. Additionally, the defendants’ trial strategy had now been exposed, leaving them at a strategic disadvantage.
The relevant Rules of Civil Procedure are Rule 53.03, which governs expert’s reports, and Rule 53.08, which considers whether leave should be granted to admit evidence where there has been a failure to comply with the Rules.[vii]
Rule 53.08 states that
(1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,
a. there is a reasonable explanation for the failure; and
b. granting the leave would not,
i. cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
ii. cause undue delay in the conduct of the trial.
Subrule (2) lists the applicable provisions, number five of which relates to the failure to comply with requirements regarding experts’ reports.
The Court first considered whether there was a reasonable explanation for the failure to follow the Rules regarding expert reports.
As plaintiffs’ counsel admitted that they “could have done a better job of vetting both Mr. Polzin and his report,” Justice Smith found that their failure to do so could not be considered a reasonable explanation.[viii]
However, Justice Smith decided that this question should be considered from the perspective of the plaintiffs themselves. Justice Smith came to this conclusion by recognizing the need to determine this matter on its full merits, the need for fairness, and the principles of natural justice. The Court held that these three factors “require, if not mandate, the issue be considered from perspective of the plaintiffs themselves.”[ix]
This view was supported by Halton Community Credit Union Ltd. v. ICL Computers Canada Ltd.,  O.J. No.101, which held that although counsel is the agent of the client, the client should not be placed in jeopardy because of the neglect or inattention of their lawyer.[x] Justice Smith also quoted Graham v. Vandersloot, 2011 ONSC 377, that “the sins of the lawyer should not be visited upon the client.”[xi]
From this perspective, the plaintiffs themselves had a reasonable explanation for the failures regarding the expert report, in that they relied upon counsel to look after the matter for them.
The Court then considered whether granting leave to the plaintiffs to obtain a further expert’s report would cause non-compensable prejudice to the defendants.
Justice Smith acknowledged that the defendants were also entitled to trial fairness and the principles of natural justice, and that these benefits should not be interfered with because of the errors of plaintiffs’ counsel.
The defendants submitted that their trial strategy was based on the original expert report, and had now been exposed through their cross-examination. However, Justice Smith was not convinced that the defendants would have done anything differently in their cross-examinations had they been provided with a properly prepared report. The Court also believed that the disadvantage, if any, could be compensated for by allowing the defendants an equal opportunity to obtain a new responding expert report.
Lastly, the Court considered whether granting leave to the plaintiffs to obtain a further expert report would cause any undue delay in the conduct of the trial.
Justice Smith took into consideration that the action was 8 years old, the incident itself occurred 10 years ago, and that it had taken a long time for the action to come to trial. With plaintiffs’ counsel having suggested short timelines for contacting a new expert and obtaining the report and in offering to clear their schedule to speed up this process, Justice Smith felt that no undue delay would be caused.
The Court held that the plaintiffs had a reasonable explanation for the failure to serve an expert report, and to grant leave would not cause non-compensable prejudice or cause undue delay in the conduct of the trial. Accordingly, the trial was adjourned, and plaintiffs’ counsel were granted leave to obtain new expert evidence for use at trial.
The Court was surprisingly permissive in allowing the plaintiffs to seek another expert witness mid-trial. Justice Smith was strongly concerned about the principles of natural justice and trial fairness, and that the plaintiffs should have their proper day in court. The defendants were prejudiced, but Justice Smith seems to have felt that the risk of prejudice to the plaintiffs in not having the action tried on its full merits was greater.
[i] Carter v. Newman, 2022 ONSC 7179 at para 5.
[ii] Carter atpara 5.
[iii] Carter at para 6.
[iv] Carter at para. 7.
[v] Carter at para. 9.
[vi] Carter at para 10.
[vii] Rules of Civil Procedure, R.R.O. 1990, Reg. 194 under Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 19.03 [Rules of Civil Procedure].
[viii] Carter at para. 21.
[ix] Carter at para 22.
[x] Carter at para. 23.
[xi] Carter at para. 23.