A recent court decision shows the importance of complying with timelines to serve expert reports. Justice Daley said that counsel are “sorely mistaken” if they think a breach of the Rules of Civil Procedure has no consequences.
The case of Khan v. Baburie, 2021 ONSC 1683, arises out of a motor vehicle accident in 2014. There are two separate actions that are ordered to be tried together.
The first pre-trial conference was held in August 2019, and there was a further pre-trial conference in September 2020. A fixed eight to 10 week trial was scheduled to commence on March 22, 2021. There was a pending motion by the plaintiffs to strike the jury notice.
The defendants sought to adjourn the trial due to the plaintiffs’ lack of compliance with the Rules of Civil Procedure regarding expert reports and productions.
Test to Adjourn Trial
The factors the court considers in whether to grant an adjournment of a trial include:
- The overall objective of determining the matter on its substantial merits
- The principles of natural justice
- The circumstances of the case and the request for the adjournment, as well as the competing interests of the parties in advancing or delaying the litigation
- Whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment was refused
- The prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment
The overriding goal is to ensure, as far as possible, that cases are resolved on their merits. Depriving a party from obtaining a responding expert report can detract from that goal.
Late Service of Expert Reports
Rule 53.03 of the Rules of Civil Procedure requires expert reports to be served at least 90 days prior to the pre-trial conference and responding expert reports to be served at least 60 days prior to the pre-trial conference.
Several of the plaintiffs’ expert reports were served late. However, Justice Daley was particularly critical of the late service of an expert psycho-vocational report that was obtained by one of the plaintiffs in January 2021 (two months prior to trial).
This expert report concludes that the 30 year old plaintiff is completely unemployable. Justice Daley noted that this is a critical aspect of the case that will be advanced at trial by this plaintiff.
Justice Daley stated that the opinions contained in the psycho-vocational expert report are significant and may not be fairly and adequately addressed by the defendants without having an opportunity to, at the very least, obtain a critique report or possibly an independent psycho-vocational assessment.
Due to the late service of this report, Justice Daley held that “…to allow the Moving Defendants to fairly meet and respond to the case against them, the granting of an adjournment in these circumstances is warranted and the principles of justice and the appearance of justice also warrant such an adjournment”.
Justice Daley indicated that the late service of expert reports has become a “chronic and frequent issue” in the timely management of civil actions. His Honour stated that counsel are “sorely mistaken” in the belief that the requirements of compliance with the Rules of Civil Procedure are mere recommendations, with no real consequences for a breach.
Justice Daley considered the prejudice that may accrue to both the plaintiffs and the defendants by granting an adjournment.
The plaintiffs did not put forward any evidence of non-compensable prejudice.
The plaintiffs argued that the delay in the case proceeding to trial would be prejudicial because it would result in a continuing loss of income being reduced from 100% to 70% of gross income due to the provisions of the Insurance Act. Justice Daley rejected this argument, stating that this reduction is simply a statutory requirement and cannot be described as a form of prejudice that should be considered on the motion.
Further, even though the trial would be delayed for one to two years, Justice Daley held that a balancing of the parties’ interests required the trial to be adjourned.
The defendants’ motion to adjourn the trial was granted.
If parties do not comply with the timelines in the Rules of Civil Procedure for the service of expert reports, they may face consequences, including delay in their matters proceeding to trial.
Moreover, particularly in recent months in the context of motions to strike jury notices, plaintiffs in automobile accident cases have argued that delaying a trial is prejudicial because plaintiffs are only entitled to pre-trial income loss based on 70% of gross income instead of 100%. However, as stated by Justice Daley, this is not a relevant form of prejudice.