Category: Expert evidence

On a motion under r.53.03(4) to extend time to serve two late expert reports in an MVA action, Justice Petersen refused leave and held the plaintiff could not rely on the reports. The reports were served March 25, 2025, about four months after the November 28, 2024 pre trial and with trial set for the January 12, 2026 sittings. The court applied the r. 53.08 framework as the guiding test and found no reasonable explanation because the delay was not true inadvertence but a deliberate decision to hold off on retaining experts in hopes of settling at pre trial, and the motion itself was not pursued with diligence. Allowing the reports would materially prejudice the defendant by forcing a scramble for responding experts or require an adjournment, and any resulting postponement would be undue given the age of the case and that earlier compliance could have supported an earlier trial date.

In this decision, Justice Muszynski dismissed a motion brought by the plaintiffs at the outset of trial to adduce expert evidence from three experts whose reports were served outside the timeline contemplated by the Rules of Civil Procedure. The plaintiffs served the expert reports on June 22, 2023. The pre-trial conference took place on July 12, 2023. At the pre-trial conference defence counsel raised that the reports were served late, although it was not mentioned in the presiding judge’s pre-trial report. At a case conference with the trial judge, Justice Muszynski, on October 4, 2023, the defendant objected to the plaintiffs calling the experts at trial. Plaintiffs’ counsel took the position that the defendant was not prejudiced and could have obtained responding reports. Trial started on October 10, 2023. In dismissing the plaintiffs’ motion, Justice Muszynski reasoned that the plaintiffs did not take timely steps to address their non-compliance with the Rules and instead did nothing until the outset of trial. This approach ran counter to the objectives of the March 2022 amendments to the Rules which sought to address problems associated with late adjournments of trial due to non-compliance.

The defendant in this MVA personal injury action wished for the plaintiff to be assessed by certain damages experts. Plaintiff’s counsel did not agree to have the plaintiff examined by the proposed expert neurologist, psychiatrist, physiatrist, and vocational specialist. The defendant brought a motion to compel the plaintiff to attend with these experts. In the course of the motion, counsel for the defendant also asked the court to order that plaintiff’s counsel cease writing to defence experts. Plaintiff’s counsel had previously written a defence expert setting out certain terms and conditions that should govern the assessment. Justice Wilson ordered that the plaintiff attend the defence assessments at issue. Justice Wilson further directed that it is inappropriate for plaintiff’s counsel to write directly to the individual retained by the defence to conduct an independent assessment of the plaintiff, and improper for any counsel to attempt to intimidate or threaten an assessor retained by the opposing party. If counsel is concerned about what will transpire during an assessment then they must raise such issues with opposing counsel and attempt to work them out. If that is not possible then a case conference should be secured with a judge in Toronto before bringing a motion.

The Ontario Court of Appeal ordered a new trial in this MVA case where the defence expert had crossed the line from objective witness to advocate. The Court of Appeal upheld the trial judge’s decision to deny cross-examination on the defence expert’s previous court and arbitration attendances on the basis that it would divert the jury’s attention from the matter before them.