The pandemic explained part of the delay but could not fully excuse it
The Ontario Superior Court of Justice has refused to allow the defendants in a snowmobile accident case to deliver late expert reports.
In Lamothe v. Sudbury Trail Plan Association, 2023 ONSC 3176, Gaetan Lamothe was involved in a snowmobile accident in 2014. He sustained trauma to his abdomen, leading him to be fitted with an ileostomy bag and fed through a catheter inserted into his chest. Lamothe sued the Sudbury Trail Plan Association (STPA) for damages.
Lamothe delivered several expert reports, including one from a gastroenterologist, during the pre-trial in 2019. The court noted that none of the defendants had produced expert reports.
After the court suspended the trial due to the pandemic, the defendants moved for an order requiring Lamothe to attend four independent medical assessments and leave to deliver late expert reports if the assessments are ordered. STPA argued a substantial or unexpected change necessitated their late request for a gastroenterologist report. They claimed they discovered the change when the plaintiff served over a thousand pages of medical updates in late February.
STPA further contended that the right to provide a responding report is substantive, and the jury would benefit from updated medical information. They argued that their defence medical would not delay the start of the trial. The defendants also claimed that they had surveillance evidence of the plaintiff, which resulted in a change of circumstances.
Lamothe asserted that the defendants were out of time, so the court should dismiss the motions. He pointed out that there was no justification for the defendant's failure to obtain medical reports. The court noted that this failure must be considered together with the fact that fixed trial dates were set twice.
The Ontario Superior Court noted the parties must deliver expert reports at least 90 days before their judicial pre-trial and reply reports 60 days before the judicial pre-trial. The court stressed the rule that experts cannot testify at trial without leave if the parties fail to file their report.
The court ultimately ruled not to grant leave to the defendants to bring their motions. The court noted that the case had been before it for almost nine years. It has been set for an eight-week jury trial on two occasions. None of the defendants requested medical assessments before setting the matter for trial the first time, and the court acknowledged that STPA pushed for trial dates to be set.
The appeal court rejected STPA's argument that the changes to Lamothe's conditions, as revealed by medical records disclosed in February, prompted their request. STPA sought consent from the plaintiffs before delivering the updated medical records. The defendants' request for medical assessments came almost four years after delivering the plaintiffs' expert reports. The court pointed out that the record contains no explanation for this delay.
The court said that the defendants' substantive right to counter the plaintiff's evidence must be considered in light of the defendants' unexplained decision to wait almost four years from receipt of the plaintiffs' reports. The court stressed that while the pandemic may explain part of the delay, the judicial pre-trial occurred before it, and the defendants set the trial dates without their own reports. They also waited until the trial was six months away to seek consent.
The court concluded that there was "simply not enough time for the plaintiffs to adequately consider defence expert reports and provide their reply reports." The court ultimately ruled that the request to deliver late expert reports must also fail.