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Late Service of Expert Reports Now Being More Closely Scrutinized

In Agaj v. Munroe, 2022 ONSC 2508, the plaintiff proceeded to trial in a motor vehicle accident case without having expert reports addressing the plaintiff’s claim for income loss and medical and housekeeping needs.

After the jury was selected, the plaintiff’s lawyer advised the court that he had spoken to unnamed experts who indicated that they could provide reports some time the following week.  The plaintiff’s lawyer said that his client did not previously have expert reports addressing the above-noted issues because his client could not afford to engage these experts.

The plaintiff’s request to serve expert reports following the selection of the jury was in breach of the timelines provided in the Rules of Civil Procedure and also in breach of an order at the pre-trial conference. 

Regional Senior Justice Edwards noted that the Rules of Civil Procedure were amended at the end of March 2022.  Previously, if evidence was admissible only with leave of the trial judge, 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 amended rule indicates that leave “may” be granted.  There must be a reasonable explanation for the failure to comply with the Rules of Civil Procedure.

Regional Senior Justice Edwards indicated that the purpose of the new rule is clear and obvious.  The first purpose is to send a very loud and clear message to all sides of the Bar that expert reports must be served in a timely manner and in accordance with the timelines in the Rules of Civil Procedure.  Another purpose of the new rule is to make pre-trial conferences productive.

Regional Senior Justice Edwards indicated that lawyers and litigants need to adapt to the new rule immediately.  The late delivery of expert reports will not be simply rubber-stamped by the court.

In the case at bar, the plaintiff did not provide evidence that his failure to obtain the expert reports was simply a matter of not being able to afford the experts.  Even if there had been a reasonable explanation, permitting the plaintiff to obtain the new expert reports would have caused undue delay in the conduct of the trial.

As a result, the plaintiff’s request to deliver late expert reports was denied.

Another issue was the questions that should be put to the jury.  Regional Senior Justice Edwards determined that the jury was only permitted to answer a question on the quantum of general damages.  Previous cases have indicated that, before a question can be put to the jury, there has to be “reasonable evidence” or “some evidence” in relation to the question.

The plaintiff failed to lead any or sufficient evidence on income loss, loss of competitive advantage, medical and rehabilitation expenses, and housekeeping expenses.  The jury would have been left to speculate on these issues, which is not permitted.

The end result of the trial was that the jury awarded the plaintiff $25,000 in general damages.  This was reduced to nil in light of the statutory deductible.

Regional Senior Justice Edwards stated that the outcome of this case might cause all members of the personal injury Bar to perhaps consider having this type of case tried under the Simplified Procedure where the trial must be completed in five days or less, where there is a hard cap on fees and disbursements, where evidence-in-chief is conducted by affidavit, and where a jury is not permitted.