Abou-Antoun v. First Capital (Gloucester) Corporation, 2026 ONSC 2224
Facts and Procedural History
In Abou-Antoun v. First Capital (Gloucester) Corporation, the plaintiff slipped and fell while leaving a Loblaws store in July 2018. She advanced a claim for injuries, alleging that the fall caused, or contributed, to her chronic pain syndrome under the American Medical Association (AMA) Guidelines and seeking damages potentially exceeding $2,000,000 at trial. The defendants were contesting quantum, damages and liability. Causation was a key issue in their defence of the action.
The matter was scheduled to proceed for a four-week jury trial commencing in March 2026. As of the fall of 2025, the defendants understood the plaintiff’s case to rest largely on her own subjective reporting of symptoms and limitations and supported by a single plaintiff’s expert.
But in the days and weeks before trial, the plaintiff served the defendant with hundreds of pages of critical new medical documents that changed the landscape of the case.
The defendants brought a motion for adjournment, arguing that causation and assessment of damage were trial issues relevant to the request for an adjournment. The plaintiff argued that an adjournment of the trial to 2028 would prejudice her while causing minimal prejudice to the defendants. She was not adding any expert witnesses, the earlier treating records already supported causation and the late production of medicals did not preclude the defence from advancing its own theory.
In granting the defendant’s request for an adjournment, Justice Corthorn reminds parties of the importance of complying with discovery obligations and that those obligations are ongoing.
Applicable Rules
Pursuant to Rule 31.09(1)(b), a party who has been examined for discovery has an obligation to provide information in writing where they subsequently discover that the answers given are no longer correct and complete.
Similarly, according to Rule 30.07, a party who comes into possession or control of or obtains power over a document that relates to a matter in issue in the action shall serve a supplementary affidavit of documents and disclose any additional documents.
Rule 52.02 permits an adjournment of the court “on such terms as are just.”
Plaintiff’s Failures to Comply with Discovery Obligations
- Documentary Discovery
With a trial set to begin on March 16, 2026, in late February and March 11, 2026, the plaintiff produced roughly 400 pages of critical new material from The Ottawa Hospital. These records documented the plaintiff’s new participation in a multi-disciplinary chronic pain program in mid-2025 as well as a return for sessions with an outpatient mental health professional.
The plaintiff provided no explanation as to why she did not inform the defendants of these updates in her participation in treatment. The defence expert did not have an opportunity to review the new documents and the defendants had no time to respond. The defendant had served their expert report in April 2025.
2. Oral Discovery
At her April 2021 examination for discovery, the plaintiff testified that she had not sought treatment from anyone beyond those already identified and had not consulted a psychologist or therapist about her psychological symptoms. She never updated those answers despite subsequently participating in the chronic pain program and new psychological treatment.
Analysis
The plaintiff breached both her oral discovery obligations to correct and complete prior answers given at discovery and her documentary obligations by producing late documentary evidence, the latter explained only as being due to the inadvertence of counsel.
The court emphasized that there are consequences for a party who fails to fulfil their discovery obligations.
The plaintiff would require leave under Rules 39.03(a) and 30.08(1)(a) to rely on the late material at trial. Had she then been successful, the defendants would have likely had to request an adjournment in any events, days or weeks after trial had already started, in order to respond to the late material. Dealing with these matters through motions at trial was neither cost-effective nor efficient.
Justice Corthorn held that with the production in March 2026 of the records, the nature and extent of the evidence in support of the plaintiff’s claims, including on the issue of causation, had changed dramatically.
Additionally, the plaintiff had confirmed at a January 2026 court appearance that she was ready to proceed to trial. No explanation was given as to why no mention was made at that appearance of the up-to-date information and documents that would follow.
Further, with a witness list that may now need to be updated and the hundreds of new documents she intended to rely on, the estimated length of trial was expected to increase.
Holding
The plaintiff was “the author of her own misfortune” in delaying the trial by a couple years. Fairness dictates that defendants have the opportunity to consider the contents of the up-to-date information and recently produced documents, including their impact on the theory of their case, settlement position, any additional steps required to prepared for trial and presentation of their case at trial.
Commentary
The decision reinforces the key principle that discovery obligations are not simply procedural formalities, but substantive, ongoing duties, which are relevant to settlement discussions, the evolution of each party’s theory of the case and practicalities with trial management. Late production, even attributed to inadvertence, may give the court compelling grounds to adjourn a trial.
The case also reinforces to plaintiff’s counsel the importance in regularly receiving updates from clients and ensuring productions are ongoing and up to date well in advance of trial.