Canada: Now Or Never - Limitations On Late Expert Reports

Case Study: Lamothe v Sudbury Trail Plan Association, 2023 ONSC 3176

This action concerned a snowmobile accident that took place in 2014. The plaintiff served several expert opinion reports regarding the nature and extent of his injuries. The defendant did not serve any responding expert opinion reports. The matter was set down for trial twice; in 2019 and in September 2023.

In February 2023, the defendant requested the plaintiff's consent to extend the deadline for delivery of a defence medical examination.

The Motion Report

The Rules regarding the service of expert opinion reports require that parties deliver reports, at least ninety days prior to the pre-trial conference, and deliver reply reports at least sixty days prior to the pre-trial conference.¹ Without proper service of these reports, an expert witness is not allowed to testify at trial.² The time limit for delivery of such reports may be extended if all parties consent to the extension or if the court grants permission.³

In this case, the plaintiff did not consent to the extension. Therefore, the defendant brought a motion seeking leave to extend the time limit for service of the defence medical examination report.⁴ In determining the matter, the court considered what was known to the defendant at the time the matter was set down for trial, whether there had been a significant change in circumstances since the action was set down for trial, the basis of the defendant's request, and whether the relief sought was a realistic possibility.⁵

The Court Decision

The court recognized that a defendant has a substantive right to counter a plaintiff's evidence in order to ensure that the parties are on an even footing and to ensure a fair trial. However, the court found that such a right had to be balanced with the prejudice that might result to the plaintiff in light of the circumstances and the decisions of the defendant in the action.

In balancing those interests, the court decided that, as the case had been active for nine years, any further delay would risk the integrity of the trial. It considered the defendant's arguments that there was a change in circumstances from information contained in updated medical records and surveillance but decided that neither argument was particularly compelling.

Finally, it considered the fact that the defendant had two opportunities, once before the first trial date was set down, and again before the second trial was scheduled, to obtain a defence medical examination report, and in both cases did not do so in a timely manner. Ultimately, the court did not believe that there was a legitimate reason for the defendant's delay in obtaining and serving an expert report and there was no reason to cause further delay by allowing the defendant to correct a situation that they created themselves.

Bottomline

This decision reinforces the courts recent emphasis on strict compliance with the Rules in the delivery of expert opinion reports. A party's failure to do so could result in proceeding to trial without the benefit of expert witnesses.

Footnotes

1. Rules of Civil Procedure, R.R.O 1990, Reg 194 s 53.03 [Rules].

2. Ibid 53.03(3)

3. Ibid 53.03(4)

4. The defendant was required to seek leave to bring the motion because the matter had been set down for trial; R.48

5. Nelson v. Chadwick, 2019 ONSC 2063 at para 35.

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