Superior Court adjourns trial in chronic pain personal injury case
In the defendants’ favour, the Ontario Superior Court of Justice adjourned a trial on liability for the injuries and losses of a woman who slipped and fell while walking to the exit of a Loblaws store during a shopping errand.
In her action arising from the July 2018 incident, the plaintiff in Abou-Antoun v. First Capital (Gloucester) Corporation, 2026 ONSC 2224, alleged that she sustained injuries that caused or contributed to her chronic pain syndrome, as defined by the American Medical Association Guidelines.
In her statement of claim, the plaintiff sought damages in the global amount of $900,000. She planned to ask the jury to assess damages possibly exceeding $2 million. The defendants denied liability under Ontario’s Occupiers' Liability Act, 1990.
The plaintiff underwent a discovery examination in April 2021. Due to a lack of judicial resources, the court adjourned the trial, initially scheduled for June 2025, to Mar. 16, 2026.
At a trial management conference in the week of Mar. 9, 2026, the defendants moved to further adjourn the trial. The next trial dates were available in 2028.
To support their request, the defendants pointed to the plaintiff’s litigation conduct in 2025 and 2026. Specifically, they alleged that she failed to fulfill her discovery obligations, about which they learned only two to four weeks before the scheduled trial.
The Ontario Superior Court of Justice granted the defendants’ motion. In the decision, Justice Sylvia Corthorn emphasized the importance of abiding by discovery obligations.
“Compliance with those obligations is important to the parties’ respective settlement positions over time; the development of and evolution in each party’s theory of the case; trial scheduling; preparation for trial; and trial management,” Corthorn wrote for the court.
The court considered the adjournment motion a timely, cost-effective, and efficient course of action.
The court agreed with the defendants that proceeding to trial and requiring the plaintiff to move for leave under rr. 39.03(a) and 30.08(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, would not be cost-effective or efficient.
The court discussed four aspects of the plaintiff’s litigation conduct that were relevant to its decision on the motion.
First, the court determined that the plaintiff failed to meet her oral discovery obligations under r. 31.09(1)(b) of the Rules.
The court found that the plaintiff failed to explain why she did not inform the defendants of her participation in a chronic pain program and her return to the Montfort Hospital Psychiatric Outpatient Clinic.
The court noted that the plaintiff had to update the defendants in writing to ensure that her answers at her April 2021 discovery examination were correct and complete.
Second, the court held that the plaintiff failed to fulfill her documentary discovery obligations under r. 30.07 of the Rules. The court noted that the plaintiff attributed the late production of the records and other documents to her counsel’s inadvertence.
Third, the court ruled that the plaintiff failed to explain why she did not mention at a January 2026 appearance, during which she confirmed her readiness to proceed to trial, that she would provide updated information and documents.
Fourth, the court pointed out that the plaintiff’s list of witnesses did not include the healthcare professionals who had treated her through the chronic pain program.
The court noted that adding witnesses and documents with hundreds of pages, which the plaintiff planned to introduce as evidence, would be relevant to the necessary trial time.
“The plaintiff is the author of her own misfortune – in seeing the trial delayed by a couple of years,” Corthorn wrote.
For the sake of fairness, the court said the defendants should have the opportunity to consider updated information and recently produced documents, which might affect:
