Justice Papageorgiou flexes pretrial discretion amid rule violations
In a recent decision, the Ontario Superior Court of Justice has allowed the plaintiff in a motor vehicle accident case to submit expert reports late, despite failing to comply with the Rules of Civil Procedure.
Justice Papageorgiou delivered this decision during a pretrial, noting that discretionary power granted to a pretrial judge under Rule 53.03(4) from the more stringent criteria that govern a trial judge’s decisions under Rule 53.08(1).
The case stems from a motor vehicle accident where the plaintiff claims to have suffered significant injuries. However, the pretrial proceedings were disrupted due to the late delivery of expert reports by the plaintiff's legal team. This led the defendants to argue that the plaintiff should be barred from presenting expert testimony at trial, as per Rule 53.03(3) of the Rules of Civil Procedure.
Rule 53.03(3) mandates that expert reports be served within specific timelines for an expert to testify at trial, unless leave is granted by the trial judge. Recent amendments to the Rules in 2022 were introduced to address the chronic issue of late delivery of expert reports—a problem that has substantially impacted the efficiency of the civil justice system. These amendments stress the importance of timely delivery to minimize delays in civil proceedings.
The defendants relied on Rule 53.08(1), which states that a trial judge may only allow late evidence if there is a reasonable explanation for the delay and if no undue prejudice will be caused to the opposing party. Citing recent decisions such as Mohamud v. Juskey and Agha v. Munroe, the defendants argued that the court should strictly enforce the Rules to prevent delays in the justice system.
The plaintiff failed to meet the timetable set by Justice Wilson, which required expert reports to be delivered by January 1, 2024. The plaintiff's reports were delivered as follows:
- Expert psychiatrist report on April 23, 2024
- Additional psychiatrist and TMJ reports on May 15, 2024
- Income loss report on July 12, 2024
These delays ranged from six days to 75 days, causing the defendants to scramble to obtain their own responding reports. They argued that the plaintiff’s failure to provide necessary documentation for the income loss report further hampered their ability to respond in a timely manner.
In Seo v. Francis, 2024 ONSC 4341, the Ontario Superior Court – via Justice Eugenia Papageorgiou – issued a decision that acknowledged that the plaintiff's failure to comply with the timeline set out in Rule 53.03(3) would typically result in the exclusion of expert testimony at trial. However, she used her discretion under Rule 53.03(4) to extend the deadline as the circumstances in this case justified a more flexible approach.
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Justice Papageorgiou emphasized that, unlike in previous cases where late reports led to significant delays and prejudice, the late delivery of the plaintiff's reports in this instance did not necessitate an adjournment of the trial. The defendants had already obtained their own expert reports in response to the psychiatric and TMJ reports and indicated that they could produce an income loss report within a month.
"The party who will actually be prejudiced by my failure to abridge the time period is the plaintiff,” Justice Papageorgiou said, noting that the defendants would not face undue hardship and would simply need to respond to the case on its merits.
In addition, she considered the plaintiff's explanation for the delay, which involved turnover within her legal team and personal issues. Although she described this excuse as "on the low end of being reasonable," she stressed that the plaintiff should not be penalized for her lawyer’s mistakes.
Justice Papageorgiou’s discretion under Rule 53.03(4) allowed the case to proceed without significant disruption to the trial schedule. She also granted the defendants additional time to deliver their responding reports.
However, due to the need to adjourn the pretrial and allow for further discussions after the defendants obtained an income report, the court awarded the defendants $1,500 in costs, payable within 45 days. The plaintiff was also ordered to provide the necessary income loss documentation by August 7, 2024.
The pretrial is scheduled to resume on September 3, 2024, before Justice Papageorgiou.
