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Civil Litigation - Evidence at Trial [R53] (2). Harris v. Grand River Hospital
In Harris v. Grand River Hospital (Div Ct, 2026) the Divisional Court allowed an interlocutory appeal, here where the "motion judge dismissed the appellants’ request for an order abridging the time to serve their expert report" under R53.08 ['Evidence Admissible only with Leave']:[1] This is an appeal, with leave, from the order of the motion judge, Braid J., dated January 17, 2025. The motion judge dismissed the appellants’ request for an order abridging the time to serve their expert report. The appeal raises the issue of how to interpret r. 53.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which was amended in 2022 and authorizes judges to grant parties leave to file expert reports outside the prescribed timelines.
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[4] The appellants then retained their own nursing standards expert but were late in serving their report. Under r. 53.03(1), a party who intends to call an expert witness is required to serve its report at least 90 days before the pre-trial. Under r. 53.03(2), a party who intends to call a responding expert must serve its report at least 60 days before the pre-trial. The pre-trial was scheduled for November 12, 2024. The appellants served the report on September 27, 2024, which was two weeks after the 60-day deadline.
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Standard of Review
[8] The decision whether to grant leave to admit a late expert report is discretionary and is owed deference. A discretionary decision will be reversible where the court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, at para. 27. However, the reviewing court is not to reweigh the relevant considerations; it may only intervene where it is satisfied that the trial judge’s exercise of discretion was unreasonable: Fresco v. Canadian Imperial Bank of Commerce, 2024 ONCA 628, at paras. 31-33.
Change to Rule 53.08
[9] I start by providing the context of the relevant rule and the changes made in 2022. Rule 53.08(1) permits a judge to grant leave for the filing of a report outside the 90 and 60-day timelines provided in r. 53.03. The judge may allow the admission of the report if they are satisfied there is a reasonable explanation for the delay and they are satisfied that granting leave would not cause prejudice that could not be compensated by costs or an adjournment and would not cause undue delay. It provides:53.08(1) If evidence is admissible only with leave of the trial judge under 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 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. [10] This version of the rule came into force in 2022. Under the previous version, it was more difficult for judges to deny the admission of late expert reports. This is because the previous version of r. 53.08(1) provided that leave “shall be granted on such terms as are just and with an adjournment, if necessary,” unless to do so would cause prejudice to the opposite party or undue delay in the conduct of the trial. (emphasis added) So while under the old rule judges were mandated to grant leave unless there was prejudice or undue delay, under the current rule, the judge “may” grant leave and must be satisfied that there is a reasonable explanation for the delay.
[11] The purpose of the change was to confront a culture of delay, late reports, ineffective pre-trials and trial adjournments. As RSJ Edwards explained in Agha v. Munroe, 2022 ONSC 2508, at para. 32, “Lawyers and litigants need to adapt to the new rule immediately. The late delivery of expert reports simply will not be rubber-stamped by the court. By shifting the onus to the party seeking the indulgence and changing the word ‘shall’ to ‘may’, the exercise of the court’s discretion will, in my view, result in far fewer adjournments and more productive pre-trials.” In that case, a jury had been selected. Granting the plaintiff leave to obtain the expert reports would have required an adjournment for a considerable period of time to allow the defence to obtain responding expert reports.
[12] Mohamud v. Juskey, 2023 ONSC 4414 provides a good example of the application of the new rule. Boswell J. denied a request to compel a plaintiff in a motor vehicle accident case to attend two defence medical appointments. He applied the test under r. 53.08 because compelling the plaintiff’s attendance would have resulted in late expert reports. In that case, the pre-trial had already occurred when the request for the medical examinations was made. Boswell J. noted that the practice at the defendant’s firm was generally to wait until close to the pre-trial to obtain defence expert reports, rather than as soon as the matter was set down for trial. He found the problem in that case was “largely the result of an inattentiveness to the requirements of the file.”
[13] Keeping in mind the context of the new rule, which is to prevent inattentiveness, delay, unproductive pre-trials and trial adjournments, I turn to what I find to be the errors in the underlying decision in this case. In my view and as further discussed below, there were three errors that led to the conclusion there was no reasonable explanation for the delay. I also find that the underlying decision erred by applying the rule without taking into account the overall interests of justice. In this case, there was no prejudice to the hospital and denying leave was not necessary to address the purposes of the rule change. Considering the overall interests of justice, it was unreasonable not to grant leave for the appellants to file their expert report.
Did the underlying decision err in finding no reasonable explanation for the delay?
[14] There were three errors that led to the conclusion the appellants had not offered a reasonable explanation for the delay in filing their report in this case. The first relates to the motion judge’s application of the timelines in r. 53.03.
Error in Application of Timelines under r. 53.03
[15] The underlying decision states that since the onus in a civil lawsuit is on the plaintiff to prove their case, the 90-day deadline applies to the plaintiff. This is not what the rule says. Rule 53.03(1) provides that “A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference … serve on every other party to the action a report, signed by the expert…” (emphasis added) The case relied on by the motion judge, Ward v. Wright, 2024 ONSC 2701 also, respectfully, does not stand for the proposition that the plaintiff must always file their report according to the 90-day timeline. The motion judge in Ward refers to the plaintiff having 90 days before the pre-trial to serve expert reports and the defendant 60 days. That is true as a general proposition but does not address the situation where a defendant files an unanticipated expert report when the plaintiff did not intend to file one. On the plain wording of the rule, the hospital was required to file its expert report at least 90 days before the pre-trial and the appellants then had until 60 days before the pre-trial to file a responding report.
[16] The hospital argues that what the underlying decision meant was that the plaintiffs were required to file an expert report first since expert evidence is necessary to prove medical malpractice. But the decision did not say the 90 days applied because of the nature of the case and nor does the wording of the rule make that distinction. The decision stated the 90-day deadline applied because “the onus in a civil lawsuit is on the plaintiff to prove their case.” The motion judge did rely on the nature of the case to support her conclusion that the appellants’ explanation for the delay was not reasonable. I disagree with her reasoning on that point, which is an issue I address below.
[17] The error in interpreting the timelines was not without consequence to the underlying decision. The motion judge’s application of the 90-day deadline to the appellants, and her finding that they served their report 45 days before the pre-trial, factored into her conclusion that the appellants had not provided a reasonable explanation for their delay. As she stated at para. 15 of her endorsement: “There is no reasonable explanation why the plaintiff’s report was served so late.” (emphasis added) In other words, the motion judge’s error regarding the 90-day deadline factored directly into her assessment of the reasonableness of the appellants’ conduct.
Failure to comply with the requirement to agree to a schedule
[18] The second error related to the finding the appellants had no reasonable explanation for their delay was to disregard the requirement for the parties to agree to a schedule for the service of reports. Rule 53.03(2.2) provides:53.03(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1), (2) and (3), unless the court orders otherwise. [19] The motion judge concluded that since there was no motion to disallow the hospital’s report because of failure to comply with this rule, she did not need to address the rule. I disagree with this approach.
[20] Regardless of the rule’s impact on the admissibility of the hospital’s report, the rule is relevant to understanding the appellants’ conduct. Because the parties failed to comply with the requirement to agree to a schedule, the appellants were caught by surprise when the hospital filed its nursing standards report. The hospital served its report two weeks before the 90-day deadline and over nine months after the matter was set down for trial. This stands in contrast to the appellants’ psychological assessment report, which they served over seven months earlier, in December 2023. The appellants had no advance notice that they would be receiving a nursing standards report and had to immediately locate and retain an expert to provide a responding report that was due six weeks later.
[21] In my view, the parties’ failure to comply with r. 53.03(2.2) was a relevant factor that needed to be considered in weighing whether the appellants’ delay was reasonable.
Finding that the nature of the case rendered the appellants’ delay unreasonable
[22] I also find there was an error in the underlying decision’s conclusion that the appellants’ delay was unreasonable because of the nature of the case. The motion judge stated that “the claim for medical/professional negligence and the issue of the [hospital’s] professional standard of care” was raised in the statement of claim and required expert evidence. There was therefore in her view no reasonable explanation for why the appellants’ report was “so late.”
[23] In my view, it was unreasonable for the motion judge to exercise her discretion based on this factor. The hospital relies on Liu v. Wong, 2016 ONCA 366, at para. 14, for the proposition that “medical malpractice cases are complex” and triers of fact lack the necessary expertise to assess difficult questions, such as causation, standard of care and breach of standard of care, without the assistance of expert reports. But that case involved alleged injury arising from knee surgery. In this case, the allegations in the statement of claim did not arise from medical treatment. The plaintiff alleged that the hospital “was negligent in failing to provide adequate supervision and care” and “had a duty to provide proper care in a safe environment.”
[24] Prior to receipt of the hospital’s nursing expert report, counsel for the appellants rested his claim on (1) the hospital’s failure to ask visitors to leave at the end of visiting hours; (2) its failure to ensure Ms. Harris’ call bell was within reach; and (3) the hospital leaving Ms. Harris unattended for over 8 hours. This case could be described as one addressing institutional liability for sexual assault rather than as a medical malpractice case. I agree with counsel for the appellants that the allegations in the statement of claim can be viewed as in the realm of common sense and within the purview of a trier of fact.
[25] I also agree with the appellants that once they received the hospital’s report, it became necessary for them to retain a nursing standards expert to prepare a responding report. But until that time, in my view, it was a reasonable strategic choice for the appellants to pursue the case without a nursing standards expert. Because this case could be proven in more than one way, it was unreasonable in my view for the motion judge to interfere in the appellants’ strategic choice and count it against them in the exercise of her discretion in concluding they did not have a reasonable explanation for their delay.
Did the underlying decision err in applying the rule without regard to the interests of justice?
[26] Finally, I conclude the underlying decision erred by not considering the overall interests of justice when applying r. 53.08.
[27] The decision states that to grant an order abridging the time for service of the expert report in the circumstances would “render the…Rule entirely toothless.”
[28] The rule was not changed to address circumstances like those in this case. The appellants received the report of Ms. Shiozaki without notice nine months after the matter was set down for trial. They moved expeditiously to retain an expert and served their responding report. It was served late, but still 45 days before the pre-trial on November 12, 2024. As it turned out, the pre-trial was continued on January 7, 2025, which provided the hospital ample time to obtain a reply report and ensure a productive pre-trial. There was also no suggestion the trial would need to be adjourned because of the late report. Before the motion judge and in this court, the hospital did not assert any prejudice caused by the late report and there was none.
[29] While the new rule permits a judge to refuse leave even if there is no prejudice to the opposing party, this does not mean the absence of prejudice is irrelevant. In deciding whether to grant leave for an abridgement time, it is always important to consider the overall interest of justice. Pursuant to r. 1.04, the rules are to be liberally construed “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” As Sharpe J.A. reminds us in 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, at para. 19, “procedural rules are the servants of justice not its master.” He goes on to say:We should strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits. As Laskin J.A. stated in Finlay v. Van Paassen (2010), 101 O.R. (3d) 390, [2010] O.J. No. 1097, 2010 ONCA 204, at para. 14, "the Rules and procedural orders are construed in a way that advances the interests of justice, and ordinarily permits the parties to get to the real merits of their dispute".
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