In my post on the new rules that came into force on March 31, 2022, pertaining to the service of expert reports, this recent decision is the first to be released touching on its interpretation in connection with a motion seeking leave to have the trial adjourned.
The case involved a plaintiff starting a personal injury trial without any expert reports on some key areas of damage quantification: loss of income and medical rehabilitative expenses. The plaintiff’s lawyer explained that this was by choice, because the Plaintiff didn’t have the money to acquire those reports. Likely after realizing the folly in proceeding without the expert reports, the plaintiff’s lawyer was able to quickly connect with some experts, and lobbied for a short adjournment of the trial to give these experts time to prepare reports.
The trial judge carefully considered the old and new version of Rule 53.08, and concluded that the new version of the rule changed the landscape for adjournment requests.
In this regard, the judge pointed out that the old rule effectively required judges to grant adjournments because the old rule said adjournments “shall be granted” unless costs were inadequate to compensate the prejudice caused to the other side, or the adjournment required was too excessively long.
Where the old rule provided that leave of the trial judge “shall be granted”, the new rule was now permissive: using the language “may be granted.” In addition, the new version of Rule 53.08 also added a requirement for the defaulting party to show that there was a “reasonable explanation” for their failure to serve a timely expert report.
After considering the reason the Plaintiff was in default, the judge concluded that he was not provided with a reasonable explanation for the adjournment request, and the adjournment request was denied.
It is not abundantly clear from the decision whether the judge was taking the position that impecuniosity could never be a satisfactory “explanation” for failing to obtain and serve timely expert reports, but the way I read this decision, I don’t think the judge was making such a broad of a statement.
Rather, the judge appeared to be more critical over the lack of “evidence” tendered on the alleged impecuniosity. For example, there was no explanation for why the plaintiff’s lawyer wasn’t funding the disbursement as part of a contingency fee arrangement. The judge wasn’t, in my view, saying that the lawyers must fund the expert reports, but rather the judge was taking judicial notice that this was the normal way expert reports were funded in personal injury claims, and the judge would have appreciated receiving some substantive evidence on why the plaintiff in this personal injury case was deviating from the norm. The judge was also critical that no evidence was tendered to establish that the plaintiff was impecunious: it was simply statements being made by the plaintiff’s lawyer, which is not evidence.
The take-away is that if impecuniosity is the reason for the late delivery of an expert report, it would be prudent to file an affidavit squarely addressing these issues. In addition, I would also contend that the affidavit should provide an explanation for why the impecuniosity impediment that prevented the party from obtaining a timely expert report for so long, was now no longer an impediment: what changed?
Agha v. Munroe, 2022 ONSC 2508
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2508/2022onsc2508.html