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.
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