Prabaharan v. RBC General Insurance Company, 2018 ONSC 1186 (CanLII)

Heard: By written submissions. | Full Decision [PDF]

In Prabaharan v. RBC General Insurance Company, 2018 ONSC 1186, Justice Stinson ordered the defendant to pay $2,600 in costs as the result of the defendant’s “flagrant disregard” for the Rules of Civil Procedure in failing to adequately prepare for a pre-trial conference (“PTC”).  Defence counsel had failed to request defence medical assessments until one week before the PTC.  The decision and cost awards addresses the “practical and the cost consequences” of non-compliance with the Rules.

Prabaharan is a 2012 action. The PTC date was fixed for January 10, 2018 at Trial Scheduling Court in February 2016.  Trial is scheduled to proceed during the June 2018 sittings in Toronto.

The plaintiff retained and instructed most of her experts well in advance of the scheduled PTC and served a series of medical and other expert reports, and addenda on September 5, September 18, October 20, October 31, November 21, December 3, December 18 and December 27, 2017, respectively.

Justice Stinson took note that the defendant did not serve any expert reports prior to the PTC nor take any steps to request the plaintiff’s attendance at a defence assessment until less than one week before the PTC.  According to defence counsel, his client failed to provide instructions to proceed with defence assessments until that time.  Plaintiff’s counsel resisted the defence request for attendance at an assessment, to avoid jeopardizing the timing of the trial or the inability to obtain reply reports.  Justice Stinson notes this will likely require a motion to resolve the issue, which will consume judicial resources with a problem that would not have arisen if defence counsel had acted on a timely basis.

The defendant’s failure to arrange and serve its expert reports on a timely basis was a “flagrant breach” of the requirements set out in Rule 53.03(1) and (2). Justice Stinson also comments that it “smacks of unfairness” to require a plaintiff to provide medical evidence, while the defence is unprepared to disclose its case in response.

Justice Stinson would have awarded substantial indemnity costs (in the amount of $3,906.25) as the result of the defendant’s tardiness, but reduced the sum by approximately one-third, as the plaintiff had served some expert reports late, and fixed the sum at $2,600.00.