This appeal concerned the interpretation and application of Rule 53.08 of Rules of Civil Procedure, specifically whether the motion judge erred in refusing to grant the appellant’s (plaintiff) leave to serve their expert report late. The central question was how to apply the rule’s requirement for a “reasonable explanation” for delay, particularly following the 2022 amendments that made it more difficult to file late expert reports.
By way of background, Lorraine Harris commenced an action against Grand River Hospital for negligence after she was sexually assaulted by a visitor while a patient in her hospital bed. Her claim alleged the hospital failed to provide adequate supervision and care. The case was set down for trial in October 2023.
Over nine months later, in July 2024, the defendant hospital served an expert report from a nursing standards expert opining that the nursing staff met the standard of care. The parties had not agreed to a schedule for exchanging expert reports and the hospital had not given advance notice of its intention to rely on such an expert. The appellants then retained their own nursing expert but served their responding report on September 27, 2024—two weeks after the 60-day deadline before the November 12, 2024, pre-trial conference.
The motion judge, Braid J., dismissed the appellant’s motion to abridge the time for serving their expert report. She concluded that because the onus was on the plaintiffs to prove their case, the 90-day deadline for initial expert reports under Rule 53.03(1) applied, not the 60-day deadline for responding reports. Using this timeline, she found the appellants were 45 days late. She was not satisfied that the appellants had a reasonable explanation for the delay, noting that professional negligence was raised in the statement of claim and required expert evidence. While acknowledging no prejudice to the defendants, she stated that granting the order would “render the relevant Rule entirely toothless.”
The Divisional Court allowed the appeal and identified several errors in the motion judge’s decision.
First Error – Misapplication of Timelines
The court found the motion judge erred in applying the 90-day deadline to the appellants. Rule 53.03 requires that any party intending to call an expert serve their report 90 days before the pre-trial, while responding experts must serve their reports within 60 days. On the plain wording of the rule, the hospital was required to file first (90 days) and the appellants then had 60 days to respond. The motion judge’s error regarding the timeline directly influenced her conclusion that the delay was unreasonable.
Second Error – Disregarding the Schedule Requirement
The court held that the motion judge erred in disregarding Rule 53.03(2.2), which requires parties to agree to a schedule for serving expert reports within 60 days of setting the action down for trial. The parties’ failure to comply with this requirement was relevant to assessing the reasonableness of the appellant’s conduct. The appellants were caught by surprise when the hospital served its nursing report nine months after the action was set down, since the hospital failed to advise the appellants that it would be obtaining such an expert. This gave the appellants only six weeks to retain and obtain a responding report.
Third Error – Nature of the Case
The court found it was unreasonable for the motion judge to conclude the delay was unjustified because the claim raised professional negligence requiring expert evidence. Unlike typical medical malpractice cases involving treatment decisions, this case involved institutional liability for sexual assault based on allegations within the realm of common sense—failure to enforce visiting hours, ensure the call bell was within reach and leaving the patient unattended for eight hours. The Divisional Court found that it was a reasonable strategic choice to pursue the case without a nursing expert until the hospital introduced such evidence.
Interests of Justice
Finally, the Divisional Court emphasized that the motion judge failed to consider the overall interests of justice. The 2022 Rule amendments were designed to address inattentiveness, delay and trial adjournments—not circumstances like these where the appellants moved expeditiously after receiving an unanticipated report and missed the deadline by a mere two weeks. There was no prejudice to the hospital, no suggestion of trial adjournment and the pre-trial was ultimately continued to January 2025, providing ample time. The court stressed that procedural rules must serve justice, not become its master and permit parties to resolve disputes on their merits.
The appeal was allowed and the appellants were granted leave to file their expert report, with costs.
