Fridays with Rogers Partners

At our weekly meeting, Heera Sen discussed a recent pre-trial endorsement by Justice Stevenson in Whitney v. TTC et al, dated October 1, 2024, in which a defendant’s motion for leave to serve late expert reports was denied. This case highlights the importance of timely compliance with the Rules of Civil Procedure following the 2022 amendments to Rule 53.08(1) regarding expert reports.

Facts

In this case, the Toronto Transit Commission (TTC), as the defendant, sought permission to submit two expert reports (a physiatry report and a paper review) after the established deadlines under Ontario’s Rules of Civil Procedure.

A pre-trial conference was held on June 20, 2024, at which the defendant first indicated their intention to request leave for the late submission. According to Rule 53.03, expert reports are due no later than 60 days before the pre-trial conference, and an earlier court order (from January 25, 2023) explicitly stated that no new defense expert reports could be filed after April 30, 2024.

Nonetheless, the TTC served its expert reports on August 7, 2024, only two months before the scheduled October trial. The defendant’s reason for the delay was its lawyer’s inadvertence. This explanation was immediately deemed inadequate by the presiding judge.

Issues

The primary issue was whether the defendant should be granted leave to serve late expert reports, considering the requirements under the amended Rule 53.08(1). Before the 2022 amendments, the test for this motion, under rule 53.03(4) was that leave “shall” be granted except in certain circumstances.

After the amendment, the rule became discretionary. Leave to serve late expert reports “may” be granted if the moving party can provide a reasonable explanation for the failure to comply with the timelines and establish that there is no prejudice to the opposing part that can’t be compensated for by costs or an adjournment or it will not cause undue delay in the conduct of the trial.

Analysis

Justice Stevenson denied the motion, referencing several recent decisions that emphasize the court’s strict approach to late expert report submissions. In Agha v. Munroe, 2022 ONSC 2508, Justice Edwards held that inadvertence is insufficient and only uncontrollable circumstances can justify late submissions, setting a standard for strict adherence to timelines.

Similarly, in Mohamed v. Juskey, 2023 ONSC 4414, Justice Boswell rejected a routine firm practice as an excuse for delay, stressing that the 2022 amendments target chronic delays in report submissions. In Van Belois v. Bartholomew, 2023 ONSC 5799, Justice Heeney dismissed the defendant’s claim that they delayed reports to prevent them from becoming “stale,” asserting that the need for timely delivery overrides any disadvantage to the defense. Forsung v. Neadow, 2023 ONSC 5873, further reinforced that inadvertence does not justify non-compliance.

The defence referenced Seo v. Francis, 2024 ONSC 4341 (“Seo”), in support of their motion, where Justice Papageorgiou at a pre-hearing conference granted leave for late expert reports, acknowledging that the discretion exercised by pre-trial judges can differ from that of trial judges. In Seo, the reports were filed late due to the plaintiff’s counsel’s personal issues and staff turnover, which Justice Papageorgiou considered low-end but reasonable excuses that should not penalize the client. He also clarified that the 53.08(1) test only applies to trial judges and does not apply to Rule 53.03(4) which gives pre-trial conference judges the power to grant such an order prior to trial.

Justice Stevenson distinguished Seo from the present case, emphasizing that the unique personal circumstances in Seo were an unusual and rare basis for allowing late submissions and do not set a broad precedent for accepting inadvertence as a valid excuse. Justice Stevenson further noted that, even if the test under Rule 53.03(4) might be less stringent for pre-trial judges, the circumstances here—where the reports were delivered long after the pre-trial conference and without any exceptional justification—were insufficient to justify late service.

Justice Stevenson underscored that the amendments to Rule 53.08(1) intended to curb delays in the civil court system. She noted that the late expert reports not only made the June 20 pre-trial conference unproductive but also created further uncertainty for the plaintiff about whether they would need to respond with additional expert evidence. This uncertainty was found to be unfair to the plaintiff, given the defense’s inadequate explanation of inadvertence.

Conclusion

Justice Stevenson clarified that it is “time for all counsel to ensure they deliver reports in accordance with the Rules.” The public interest in access to justice and efficient court proceedings is paramount, and the court will not grant time extensions or abridgments without valid, exceptional reasons. The motion was denied, with costs awarded to the plaintiff.

This decision serves as a clear reminder that the courts are serious about enforcing these timelines, underscoring the importance of adhering to procedural rules to avoid unnecessary delays in civil litigation.