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McLeish Orlando LLP: William Keele and Courtney Stewart, Student-at-Law

Prabaharan v. RBC General Insurance: cost consequences for failing to prepare for a pre-trial conference

Written By: William Keele and Courtney Stewart, Student-at-Law

In Prabaharan v RBC General Insurance Company, 2018 ONSC 1186, Justice Stinson ordered the Defendant to pay $2,600 in costs for failing to prepare for a pre-trial conference (“PTC”) and specifically, for failing to serve its expert reports prior to the PTC. Justice Stinson called it “a flagrant breach” of Rule 53.03(1) and (2) of the Rules of Civil Procedure.[1]

The Rules of Civil Procedure govern civil litigation in Ontario and set out various requirements, steps and timelines to be followed during civil litigation. Rule 53.03 governs expert reports and states that a party who intends to call an expert witness at trial must serve on the other party an expert report, in compliance with that rule, no later than 90 days before the PTC. Responding expert witness reports must be served no later than 60 days before the PTC.

A PTC is a mandatory step in all proceedings. Parties, or their representatives, meet with a judge to discuss various matters including settlement, whether any issues can be resolved or simplified and how long the trial is expected to last. A well prepared for and meaningful PTC can significantly lessen the length of a trial or resolve a matter entirely. Serving expert witness reports and responding reports prior to the PTC allows parties to attend the PTC ready for these outcomes. Unfortunately, many parties do not adhere to rule 53.03.

In Prabaharan v RBC, Justice Stinson discussed the important of pre-trial conferences:

A PTC is an occasion and an opportunity for each side to develop a better understanding of their own and their opponent’s case. More importantly, 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 them in re-evaluating their (and their opponent’s) position on settlement.[2]

In Prabahan v RBC the plaintiff served a series of expert reports before the PTC, although not all of them were served 90 days before the PTC. Despite some late reports, Justice Stinson remarked that “it is apparent that the plaintiff was endeavoring to disclose her case – and in particular the requisite medical and expert evidence – in advance of the PTC.”[3]

On the other side, the Defendant served no expert reports prior to the PTC and only requested that the plaintiff attend defence medical assessments less than a week before the PTC. In response to this request, plaintiff’s counsel refused to produce the plaintiff for these assessments, fearful that it would delay the trial. Justice Stinson remarked that this late request and subsequent response would likely result in a motion to compel the plaintiff to attend, causing further use of judicial resources.

Justice Stinson wrote:

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 a flagrant breach of the requirements set out in rule 53.03(1) and (2). An experienced litigant such as the defendant, cannot defer indefinitely its duty to provide responding expert reports. Indeed, it smacks of unfairness for such a party to, on the one hand, require the plaintiff to provide medical evidence to meet the requirements of O. Reg. 461/96 as amended by O. Reg. 381/03, yet be unprepared to disclose its case on that fundamental issue in response.[4]

Justice Stinson would have awarded $3,906.25 in costs against the defendant for the lateness of their expert reports but as the plaintiff had also served some reports late, he reduced the sum to $2,600. But, where one party has complied with the rules, the other party can expect steeper consequences for their noncompliance with rule 53.03 in the future.

[1] Prabaharan v RBC General Insurance Company, 2018 ONSC 1186 at para 12; Rules of Civil Procedure, O Reg 575.07, s 6(1).

[2] Prabaharan v RBC General Insurance Company, at para 2.

[3] Prabaharan v RBC General Insurance Company, at para 10.

[4] Prabaharan v RBC General Insurance Company, at para 12.

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