Pre-trial conferences (“PTCs”) are an important and mandatory step in the civil litigation process in Ontario. In addition to potential case management steps, one of their principal purposes is to explore the possibility of settlement. For this purpose to be achieved, each side must come to the PTC fully acquainted with the facts and legal issues in the proceeding. Further still, it is also an opportunity for each side to receive guidance and feedback from the presiding PTC judge. Based upon the contents of the PTC memos and other evidence (such as copies of expert reports) the presiding judge can discuss with a party the strengths and weaknesses of their case, and assist the parties in re-evaluating their (and their opponent’s) position on settlement.
Accordingly, timely exchange of expert reports is an essential element of the PTC and trial process. Rule 53.03 spells out the prerequisites for the admissibility of expert testimony. To be admissible, absent the parties’ agreement on a timetable for the service of expert reports, the expert’s testimony must be disclosed in a report that complies with Rule 53.03(2.1). Expert reports must be served, in the first instance, no less than 90 days before the PTC (Rule 53.03(1)). Responding expert reports must be served no less than 60 days before the PTC: Rule 53.03(2).
Where one or both parties fail to follow the rules, one of the prime purposes of the PTC cannot be achieved. The time of each is wasted, and the otherwise useful feedback cannot be provided. Further, it also has the possible result of clogging the system with a case that should have settled at (or in the wake of) the PTC, but could not because inadequate information was available at the relevant time.
Mindful of the function and value of PTCs, in Prabaharan v. RBC General Insurance Company, Ontario Superior Court Justice Stinson ordered the defendant to pay the costs of the pre-trial conference in the sum of $2,600 for failure to have expert medical reports available at the pre-trial in "flagrant disregard" of the Rules of Civil Procedure.
Prabaharan involved a 2012 action. At Trial Scheduling Court in February 2016, a pre-trial conference date was fixed for January 10, 2018, and the trial was subsequently scheduled to proceed during the June 2018 Sittings at Toronto. The Plaintiff retained and instructed most of her experts well in advance of the scheduled January 10, 2018 PTC. She served a series of medical and other expert reports, and addenda as follows: on September 5, September 18, October 20, October 31, November 21, December 3, December 18 and December 27, 2017. While not all of these reports were served 90 days before the PTC (and some were not required to meet that deadline because they were addenda) it was apparent to Justice Stinson that the Plaintiff was endeavoring to disclose her case – and in particular the requisite medical and expert evidence – in advance of the PTC, as required under the Rules.
In contrast, the Defendant served no expert reports prior to the PTC. The Defendant did not take any steps to request the Plaintiff to attend for, or to arrange, defence IMEs until less than one week before the PTC. Indeed, according to defence counsel, his client failed to provide instructions to proceed with defence IMEs until one week before the PTC.
The Defendant’s failure to serve its experts reports on a timely basis – or even to take any steps in furtherance of this obligation – was found to be a flagrant breach of the requirements of Rule 53.03(1) and (2). To require the Plaintiff to provide medical evidence to meet the requirements as set out in the Rules yet be unprepared to disclose the Defendant’s case on that fundamental issue in response was found to be grossly unbalanced. Justice Stinson was clear that a defendant cannot defer indefinitely its duty to provide responding expert reports.
The quantum was fixed on the substantial indemnity scale, but ultimately reduced by one-third as His Honour was unable to overlook the fact that the Plaintiff did not fully comply with the rules regarding the timely service of her expert reports.
This case confirms the important function of pre-trial conferences, and serves as a reminder to all counsel with respect the duty to comply with the Rules regarding the procurement and service of expert reports well before the PTC. In addition to the practical consequences, the court has affirmed that costs consequences under Rule 50.12 may appropriately follow in the event of a party’s non-compliance.
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