Clarke v. Hassan, 2011 ONSC 467 (S.C.J.) (Rule 29.1 – discovery plan, Rule 53.03 – expert witnesses)
Judgment Released: January 20, 2011 Link to Judgment
The third party brought a motion for several heads of relief, including concerning a discovery plan and an expert’s report.
The discovery plan, agreed to by the plaintiff, specified that the plaintiff would be produced for discovery by the third party on a given date and would provide a sworn Affidavit of Documents on that date, but that “documents will be provided no later than five days prior to examinations for discovery”. At the discovery, the plaintiff’s Affidavit of Documents listed over 300 documents which had not been produced before the discovery. The Court called this an “unacceptable lapse in good judgment”, potentially requiring further attendances for discovery and increasing the costs of the discovery process for the third party.
The plaintiff “insist[ed] on only producing or advising of experts 90 days before the pre-trial Conference in accordance with Rule 53.03(2)”. The Court stated that a party should not “sit on an expert’s report”, and that the practice in civil litigation is for a party to provide a copy of an expert opinion very soon after it is obtained. Strict reliance on the minimum time limits in the Rules of Civil Procedure will not permit the smooth administration of justice, as “[t]he failure to produce expert reports on a timely basis produces requests for adjournments that, in the interests of justice, must often be granted”.