This decision is one of the first to address the new Rule 53.03 of the Rules of Civil Procedure, which came into effect on March 31, 2022, and deals with the timeliness of expert reports. Rule 53.03 requires a party who intends to call an expert witness at trial to serve the expert's report not less than 90 days before the pre-trial conference, with any responding report to be served no less than 60 days before the pre-trial conference. For those in non-compliance with Rule 53.03, the old Rule 53.08 provided an "escape clause", which read as follows:
- If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.
The new Rule 53.08 now reads:
(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,
(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
(ii) cause undue delay in the conduct of the trial.
The old Rule provided that leave "shall be granted" (the "escape clause"), which made granting leave for the late filing of expert reports essentially mandatory unless it caused prejudice to the opposing party or caused undue delay in conducting the trial. the new rule implemented discretionary language with that of "may be granted". The new Rule, which replaces "shall be granted" with "may be granted", sets forth a new test that will guide the trial judge's exercise of his or her discretion. The onus is on the party seeking the indulgence to allow for the late service of the expert report and the admissibility of the expert's evidence at trial. The party who is in default of their obligations with respect to the timely service of an expert's report will have to show that there is a reasonable explanation for the failure to serve an expert report and that the granting of leave will not cause prejudice to the opposing party that cannot be compensated for by costs or an adjournment or causes any undue delay in the conduct of the trial.
At the heart of the decision in Agha, the Plaintiff failed to serve expert reports that would speak to crucial parts of the Plaintiff's claim, including income loss and care needs, within the time required by Rule 53.03.
Regional Senior Justice Edwards openly stated that the pre-trial is not just an administrative part of a proceeding, but rather a fundamental one with two purposes: the possibility of settlement and dealing with trial management issues. Justice Edwards highlighted previous negative judicial commentary with respect to the late filing of expert reports, specifically the nonchalant fashion in which it occurs. In Prabaharan v. RBC General Insurance Co., 2018 ONSC 1186, Stinson J. described the lack of punctuality as a "flagrant breach" of the rules. The lack of expert reports made it impossible to know whether the case could settle at the pre-trial stage thereby defeating the purpose of it entirely. In Balasingham v. Desjardin Financial Security, 2018 ONSC 1792, Firestone J. awarded the Defendant's costs be thrown away due to the late adjournment of the trial – which was requested by the Plaintiff's legal counsel due to late expert reports.
In Agha, the failure to serve expert reports ultimately cost the Plaintiff her entire claim; after the statutory deductible, the award to the Plaintiff was zero dollars.
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