The plaintiff successfully resisted a motion to compel her to attend a further defence medical examination after the deadline to serve expert reports had passed.
Facts
The plaintiff was injured in a motor vehicle collision on November 3, 2016. The plaintiff filed the trial record on December 14, 2021. The parties then agreed to a timetable for the exchange of expert reports. The agreement was that the plaintiff would deliver her expert reports at least 5 months in advance of the pre-trial and the defendant would provide all of her reports at least 3 months in advance of the pre-trial.
The pre-trial was scheduled for October 26, 2023. The plaintiff delivered all of her reports in time.
On August 15, 2023, the defendant requested defence medical examinations for the first time. This request was made 72 days before the scheduled pre-trial. It was also made three weeks after the agreed deadline for the defendant to serve her reports.
Despite the short notice, the plaintiff agreed to attend the defence medical examinations, but would be opposing any motion for leave to admit the late expert reports. The plaintiff was unable to complete the first defence neuropsychology examination on August 31, 2023 due to the severity of her symptoms. There were no accommodations made by the defence expert for her symptoms. She refused to attend for a further examination at a later date because any report generated would not be prepared in advance of pre-trial.
Issue
Should the plaintiff be compelled to attend a defence medical examination when the defendant did not provide a reasonable explanation for the delay in seeking a defence medical examination?
Held
The defendant’s motion was dismissed. The defendant provided no explanation for the delay in seeking a defence medical examination. This failure to provide a reasonable explanation for the delay was fatal to the motion.
Discussion
On March 31, 2022, the Rules of Civil Procedure were amended to stiffen the consequences for a party’s failure to comply with the Rules with respect to the delivery of expert reports. Currently, Rule 53.08 states:
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,
(a) there is a reasonable explanation for the failure; and
(b) granting the leave would not,
- cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
- cause undue delay in the conduct of the trial.
Rule 53.01 sets out the minimum timetable for the exchange of expert reports in advance of pre-trial. All expert reports are to be served not less than 90 days before pre-trial, unless it is a responding expert report. A responding expert report must be served not less than 60 days before pre-trial. An expert may not testify at trial unless the corresponding expert report is served in accordance with the above timeline.
In this case, Justice Heeney concluded that the defendant failed to provide a reasonable explanation for her failure to deliver her responding expert reports at least 60 days before the pre-trial. The test set out in Rule 53.08(1), both subrule (a) and (b), must be met. Thus, a failure to provide a reasonable explanation is determinative of the motion.
Justice Heeney further added, that had it been necessary to examine subrule (b), he still would have dismissed the motion. If the motion was granted, the report would be served after the pre-trial and the plaintiff would not have had time for her experts to review and reply to the reports. The timeline jeopardized the trial date.
Justice Heeney was satisfied that there was more than enough information in the medical records for the defendant to advance her defence. He wrote: “Any disadvantage experienced by the defendant is outweighed by the pressing need of the administration of justice to ensure the timely delivery of expert reports, and to give teeth to the Rules amendments that strive to do so.”
