Ontario Courts Are Now Serious About Enforcing Litigation Deadlines
A recent decision of the Ontario Superior Court of Justice continues the post-2022 trend of no longer rubber-stamping the late delivery of expert reports. Failing to serve expert reports on time may result in a party having to proceed to trial with an expert witness.
The History: Amendments to the Rules of Civil Procedure
The practice of parties late-serving expert reports on the eve of trial was so prevalent that an Ontario judge observed in 2019 that the practice was “responsible for the vast majority of adjournments of fixed trial dates.”
In response to this widespread practice, the Rules of Civil Procedure were amended in March 2022 to address the problem. Before March 2022, Rule 53.08 provided that leave of the trial judge to admit admissible evidence “shall be granted” if there was a reasonable explanation for the late service and it would not cause prejudice that could not be compensated for by costs or an adjournment or cause undue delay in the conduct of the trial.
The amendment puts the onus on the party seeking leave to show there is a reasonable explanation for the failure to serve an expert report. The party must also show that granting leave will not (a) cause prejudice to the opposing party that cannot be compensated for by costs or (b) an adjournment or cause any undue delay in the conduct of the trial.
Agha: The First Post-Amendment Decision
In Agha v. Munroe, 2022 ONSC 2508, heard several weeks after the amendments, Justice Edwards took note of the new rule and stated that “lawyers and litigants need to adapt to the new rule immediately.” He denied a plaintiff’s request for leave to serve expert reports after jury selection. The plaintiff’s lawyer argued in oral submissions that the plaintiff had not served expert reports earlier because he could not afford the reports. There was no evidence supporting this assertion. Justice Edwards found that the plaintiff had not provided a reasonable explanation for his failure to serve expert reports on time. Even if the plaintiff had provided a reasonable explanation, Justice Edwards would have denied leave because permitting the plaintiff to serve expert reports after jury selection would have caused undue delay of the conduct of the trial.
Charron-Rix: The Court Continues the Trend of Enforcing Deadlines
More recently, Justice James dismissed a motion by a defendant to compel the plaintiff to attend a defence orthopaedic assessment and to extend the time for the service of the resulting defence orthopaedic report.
In Charron-Rix v Rix and Freeman, 2023 ONSC 6630, the defendant brought a motion two months before the scheduled trial date, after the plaintiff had served updated medical records following the pre-trial conference. The defendant argued that he needed an orthopaedic assessment to respond to the plaintiff’s chronic pain report by Dr. Smith, an anesthesiologist. The plaintiff had served Dr. Smith’s report in November 2019.
The plaintiff opposed the motion, arguing that she had been ready for trial since 2020 and that the updated records did not disclose any new diagnosis or disability. The plaintiff also argued that she would be prejudiced by the late request, as she might need to obtain a rebuttal report and the trial date might be delayed.
Justice James agreed with the plaintiff and denied the defendant’s motion. He noted that the amendments to rule 53.08 was made in response to a “systemic problem that needed to be addressed.” Since ordering a defence medical examination is inextricably linked with the subsequent delivery of the expert report, he held that the admissibility of a late report should be a factor when considering the propriety of ordering a defence medical examination.
Justice James found that the defendants did not present a persuasive case to compel the plaintiff to attend a defence medical examination. The defendant took no action to request a defence medical examination for three years after receiving Dr. Smith’s report. Updated medical records did not disclose a new medical diagnosis that warranted a responding medical examination two months before trial. Justice James emphatically rejected the defence’s argument that a responding medical assessment was a necessity:
…there is no evidence that the defendant thought that a defence medical report was necessary when Dr. Smith’s report was served. There is no evidence that the moving party thought that a defence medical report was necessary when the plaintiff set the action down for trial. There is no evidence that the defendant thought that a defence medical report was necessary for the pretrial conference. This late-breaking assertion of necessity does not outweigh the potential prejudice to the plaintiff and the risk of delaying the trial.
He concluded that the defendant could not sit on his rights and then claim unfairness.
Courts holding parties to the deadlines—unless they have a truly reasonable explanation for why they did not comply—is a welcome development. It fosters a level playing field. All parties can now feel confident that they have seen all initial expert opinions well before trial. One party’s decision to approach deadlines cavalierly will also no longer put others in the position of requiring an adjournment of a long-awaited trial date.
Rikin Morzaria is a Toronto civil litigation lawyer at Kinara Law. If you’d like assistance with a legal matter, feel free to reach out to him for a free initial consultation.