SUPREME COURT OF Nova Scotia
Citation: Seldon v. Berthier, 2022 NSSC 239
Date: 20220818
Docket: Hfx No. 489476
Registry: Halifax
Between:
Wanda Lee Seldon
Plaintiff
v.
Sloan Stanley Berthier
Defendant
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Judge: |
The Honourable Justice Darlene Jamieson
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| Heard: |
July 21, 2022, in Halifax, Nova Scotia |
| Oral Decision:
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July 21, 2022 |
| Counsel:
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Taylan Caliskan, for the Plaintiff Courtney Palmer, for the Defendant
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The original text of this decision has been changed according to the erratum dated August 17, 2022
By the Court:
Background
[1] The Defendant seeks an adjournment of the trial dates or in the alternative an extension to October 14, 2022 to file three experts reports. The motor vehicle accident (“MVA”) involving the parties occurred on December 11, 2018. A seven-day trial of this action is scheduled to begin on April 11, 2023. Liability and damages are both at issue.
[2] The Defendant was unable to file his expert reports by the July 4, 2022 deadline and sought an extension from the Plaintiff by voice mail and e-mail on June 2, 2022. Ultimately, the Plaintiff did not consent.
[3] At the Defendant’s request a Reconsideration Conference was held on June 17, where Justice Gabriel advised that a motion would need to be brought by the Defendant. This motion was then scheduled at the earliest available date being today.
[4] In his Notice of Motion filed on July 6, 2022, the Defendant seeks:
1. to adjourn the trial scheduled to start on April 11, 2023, pursuant to Civil Procedure Rule 4.20, and either appoint new trial dates with new deadlines for filing expert reports or set a date for a date assignment conference, pursuant to Civil Procedure Rules 4.21(a) & (b);
2. in the alternative, to extend the deadline to file expert reports to October 14, 2022, pursuant to Civil Procedure Rule 55.03;
3. in the event the trial is adjourned or the deadline to file expert reports is extended, that the Plaintiff produce, forthwith, the black box from the vehicle she was driving at the time of the accident on December 11, 2018, pursuant to Civil Procedure Rule 14.12
Materials filed on the Motion
[5] The Defendant filed an affidavit of Jostin Frenette, Claims Representative with Wawanesa, sworn to on June 30, 2022; a solicitor’s affidavit of Courtney Palmer sworn to on July 6, 2022; and an Affidavit of Vickie Little, Senior Claims Examiner, sworn to on July 6, 2022. The Plaintiff filed an Affidavit of paralegal Dahlia Chahine sworn to on July 13, 2022 .
[6] Although it is the Defendant’s alternative argument, I will address the request for an extension to file his expert reports first. The key issue is whether the deadline to file expert reports should be extended beyond July 4, 2022.
Position of the Parties (request for an extension for filing expert reports)
The Defendant, Mr. Berthier
[7] The Defendant says at the Plaintiff’s discovery examination his former legal counsel requested undertakings in an effort to substantiate the Plaintiff’s claim. In advance of, and at the Date Assignment Conference (“DAC” ), his counsel noted the importance of timely disclosure and the right of the Defendant to obtain experts. His counsel requested on various occasions that the Plaintiff fulfill her undertakings such that the Defendant could consider experts. Once current counsel assumed carriage of the file, she continued to request that the Plaintiff fulfill her undertakings, which the Plaintiff did not do until April 2022. The Defendant says they are still waiting on some records to be produced. The Defendant further says whether the delay in disclosing the undertakings was due to the Covid pandemic or other reasons, the Defendant should not be prejudiced as a result.
[8] Prior to the deadline for filing his expert reports, the Defendant sought an extension from the Plaintiff. The Defendant says he will have his expert reports filed by October 14, if the Plaintiff is available on the dates of the proposed independent medical examinations, and is permitted to retrieve the black box from the Plaintiff’s vehicle. He says the proposed extension is still months before the Finish Date which would still allow the Plaintiff reasonable time to obtain rebuttal reports if she wishes to do so.
[9] The Defendant says given the lack of timely disclosure and the unforeseen change in Defence counsel, the request for a short extension is reasonable.
The Plaintiff, Ms. Seldon
[10] The Plaintiff says the Defendant did not make any attempt to book an expert in time to meet the expert report deadline. It was only on June 8, 2022, about a month prior to the deadline, that the Defendant raised, for the first time in this matter, a specific date, August 17, 2022, for an expert appointment with Dr. King.
[11] The Plaintiff says later, on June 29, 2022, the Defendant raised another date, August 8, 2022, for an assessment by Dr. Heitzner, with the report promised to be filed by October 7, 2022.
[12] The Plaintiff says the Defendant had approximately 17 months, from the time of the Date Assignment Conference in April 2021 until the deadline on July 4, 2022, to obtain and file expert reports. However, the Defendant, only recently, provided dates past the expert report deadline.
[13] The Plaintiff says the Defendant’s delay in obtaining expert reports is not caused by her. The Plaintiff says she shared Dr. Hanada’s expert report with the Defendant in March 2021, even prior to the DAC call taking place in April 2021; since the Plaintiff’s discovery in September of 2020, the Second Supplementary Affidavit of Documents was provided to the Defendant on May 7, 2021; and she forwarded a settlement demand to the Defendant in July 2021, which would have further allowed the Defendant to quantify the claim as well as to decide whether expert reports were needed. She further says additional disclosure was made on March 11, April 8, and April 20, 2022, well prior to the July 4, 2022 deadline.
[14] The Plaintiff says despite the above timeline, the Defendant did not raise the extension of the deadline until June 2, 2022, a month prior to the deadline. She submits that there was nothing that prevented the Defendant from obtaining dates with experts to make sure that the deadline would not be missed.
[15] The Plaintiff says an extension will result in prejudice to her because she would incur additional costs for rebuttal reports and would have to step into the unknown at this late date, when the Rule 55 deadlines should have been observed.
Law and analysis
[16] The Civil Procedure Rules set out the requirements that a party must meet in order to offer expert opinion at trial. Rule 55.02 says a party may not offer an expert opinion at trial unless an expert’s report is filed in accordance with the Rules. Rule 55.03 requires such report to be filed no less than six months before the finish date or by a deadline set by a judge. These Rules use wording that is imperative. They must be strictly followed:
55.02 Report required
A party may not offer an expert opinion at the trial of an action or hearing of an application in court unless an expert’s report, or rebuttal expert’s report, is filed in accordance with this Rule.
55.03 Deadline for filing report
(1) A party to an action who wishes to offer an expert opinion, other than in rebuttal of an expert opinion offered by another party, must file the expert’s report no less than six months before the finish date, or by a deadline set by a judge.
(2) A party to an action who receives an expert’s report stating an opinion the party contests, and who wishes to offer a rebuttal expert opinion, must file a rebuttal expert’s report no more than three months after the day the expert’s report is delivered to the party, or by a deadline set by a judge.
[Emphasis added]
[17] As I said in Aly v. Personal Care Holdings Ltd. 2022 NSSC 108, Rule 55 must be strictly adhered to:
[18] … The onus is on the party seeking to use opinion evidence at trial to identify the opinion and comply with the Rules. Filing an expert report with the court in accordance with Rule 55 is one of the mandatory pre-conditions to the admission of opinion evidence at trial. The specific requirements for expert evidence in the Rules are there for a reason: they are to ensure predictability, to provide consistency as to form of the opinion offered, to avoid surprise or ambush, to ensure scarce trial time is not lost due to the need for adjournments caused by late-filed expert reports and so on.
[Emphasis added]
[18] The Court has discretion to extend the time for filing expert reports and to allow the admission of late-filed expert reports in the interest of justice (see Nichols v. McGillis, 2019 NSSC 85 (N.S. S.C.)). In addition, Rule 2.02 gives the Court the power to excuse compliance in the event of a failure to comply with a rule.
[19] The following is an overview of the circumstances in which the Defendants request for an extension is being made.
[20] The Plaintiff was discovered on September 1, 2020, and ten undertakings/ disclosure requests were documented. When the Plaintiff filed a Request for Date Assignment Conference (“RDAC”) in December 2020, all ten undertakings remained outstanding. The Plaintiff forecasted all parties being ready for trial by March 2022.
[21] When the Defendant filed a Memorandum for the Date Assignment Conference Judge in December 2020, he agreed with the estimates contained in the RDAC, except:
• the Defendant anticipates the parties may be engaged in motions relating to fulfillment of discovery undertakings, further disclosure of relevant documents, the identification and admissibility of treating physician narratives, and the admissibility of one or more of the Plaintiff’s expert reports; and
• the Defendant reserves the right to produce expert reports and/or rebuttal expert reports that involve independent medical examination of the Plaintiff.
[22] Plaintiff’s counsel disclosed an expert report from Dr. Edwin Hanada on February 2, 2021. A few days later, Defendant’s counsel acknowledged receipt of the report; noted all undertakings remained outstanding; and asked for a timeline on when the undertakings would be disclosed. About a month later, Defendant’s counsel acknowledged receipt of Dr. Hanada’s report filed with the Court, and again asked Plaintiff’s counsel to advise on the status of the outstanding undertakings.
[23] In late March 2021, Defendant’s counsel emailed Plaintiff’s counsel, noting that he had not yet received the consequential disclosure from Dr. Hanada and that the Plaintiff had yet to produce any of her discovery undertakings. He noted that the production of the consequential disclosure and undertakings were required so that his client could be advised on retaining a rebuttal expert; furthermore that his client would be asking the court at the DAC to set a deadline of at least three months from the date on which Dr. Hanada’s consequential disclosure was produced, and all undertakings fulfilled.
[24] The DAC was held on April 23, 2021, before Justice Bodurtha who set dates including the trial dates and finish date. The DAC Memorandum indicates the Plaintiff would be fulfilling her discovery undertakings “shortly”. It goes on to state “ Depending on what is provided, there may be a motion relating to the admissibility of treating physician narratives and the plaintiff’s expert reports.” The Memorandum further states :
All experts’ reports shall be filed and served in accordance with the Rules, however this is dependent on when the defendant receives the consequential disclosure. The parties agree that, if the date of the consequential disclosure conflicts with the parties ability to follow the rule on expert reports, the defendant will file its report 3 months after the date of receipt of the consequential disclosure.
[25] It was clear at the DAC that the Defendant was concerned about timing of the Plaintiffs production in relation to expert reports. Provision was made for this in the scheduling which is within the discretion of the DAC judge.
[26] At the time of the DAC in April of 2021, the Plaintiff indicated the undertaking productions would occur shortly. However, the evidence indicates it was not until almost a year later that the bulk of the production occurred. The productions occurred as follows:
(a) on March 11, 2022:
(i) Dr. Hanada file material (15 pages)
(ii) Dr. Fiander file material (38 pages)
(iii) Dr. Johnston referrals (2 pages)
(iv) Long Term Disability file (230 pages)
(v) CPP disability file (240 pages)
(vi) QEII Health Sciences medical records from December 5, 2019, to March 3, 2022 (57 pages)
(vii) Coastal Sports and Wellness file (145 pages)
(viii) The Family Focus Medical Clinic file (24 pages)
(ix) Section B file (198 pages)
(b) on April 8, 2022:
(i) Atlantic Coast Osteopathy file (8 pages)
(ii) Dr. Peloquin assessment, therapy progress notes and “Opinion Report” prepared for Plaintiff counsel (19 pages)
(iii) Records regarding out-of-pocket expenses (8 pages)
(iv) Harvest Medicine Inc. file (91 pages)
(v) Diagnostic imaging reports dated September 21, 2020 and October 22, 2020 (4 pages)
(c) on April 20, 2022:
(i) Updated CBI Health Centre file (37 pages)
(ii) Email from Louise Veinot, Manager of Human Resources and Administrative Services, Queens Manor (1 page)
(iii) Karen Strange Counselling file from March 3, 2017 forward (3 pages)
[27] I do not wish to imply the Plaintiff was doing nothing. On March 3, 2021 the Plaintiff filed Dr. Hanada’s report with the Court and provided a copy to the Defendant on March 5, 2021. On May 7, 2021 she filed a Second Supplementary Affidavit Disclosing Documents. On July 16, 2021 a Demand letter was forwarded by the Plaintiff. However, there remained substantial disclosure requests outstanding for almost a year after the DAC. There were over 1,100 pages of material disclosed between March 11 and April 20, 2022. I am satisfied the materials the Defendant was awaiting were of importance in moving forward with his experts.
[28] For example, on April 8, 2022, the Plaintiff disclosed an “Opinion Report”, prepared by her psychologist. The Defendant says it was initially unclear how/if the Plaintiff intended to have this report admitted as evidence at trial. However, the Plaintiff’s counsel recently advised that the Plaintiff did not file any report by Dr. Peloquin.
[29] On April 20, 2022, the Plaintiff disclosed records produced by Karen Strange Counselling. The Defendant says this was the first time the Plaintiff disclosed records of treatment for psychological issues she had prior to the December 2018 MVA. This was significant new information received a little over 2 months before the deadline for expert reports.
[30] The Defendant says there still remains some necessary disclosure. The Defendant has requested the complete chart notes of Dr. Peloquin, the Plaintiff’s treating psychologist from January 27, 2021, to present, and is waiting receipt of these records. Mr. Frenette, Claims Representative with Wawanesa, said in his affidavit that he struggled to give instructions to Ms. Palmer on whether to pursue a psychological expert, as Dr. Peloquin’s complete chart notes had not yet been produced and he was awaiting the outcome of the Plaintiff’s upcoming discovery examination.
[31] Given the significant disclosure and the time that passed since the initial discovery examination of the Plaintiff (on September 1, 2020), the Defendant determined a further discovery examination of the Plaintiff was necessary which took place on July 7, 2022. At the hearing of this matter the Defendant’s counsel advised that after the discovery examination they had determined a psychological IME was not required.
[32] I accept the Defendant’s argument that the sheer volume of documents required time to review and digest in order to determine next steps, particularly in light of new counsel assuming carriage of the file a few weeks before the new production began to be produced.
[33] I see it as an intervening factor that counsel for the Defendant changed in February of 2022. I cannot find that any delay was caused by new counsel for the Defendant but obviously being new to the matter, it took time to get up to speed with the file. I note that Counsel immediately became engaged. For example, although the Notice of New Counsel was filed on February 24, 2022, Ms. Palmer advised Plaintiff’s counsel on February 22 she would be taking over the matter and inquired of the status of the “outstanding undertakings / disclosure.” In March, after further prompting, she was advised by the MacGillivray office that they had received most requests but were awaiting a few more. Ms. Palmer did not wait but the same day asked if they could send what had been received to date by the MacGillivray office. The evidence indicates the Defendant was pushing for the production, including before and immediately after the DAC as prior counsel wrote to Plaintiff’s counsel about the outstanding requests on February 4, 2021, March 17, 2021, March 24, 2021, May 31, 2021, July 6, 2021, and August 30, 2021. It is unclear why the Defendant’s counsel did not set the matter of disclosure for an Appearance Day Motion.
[34] On June 2, 2022, Ms. Palmer emailed Mr. Caliskan, further to a voicemail earlier that day, advising that she wanted to discuss several items, including seeking an extension of the expert report filing deadline. Mr. Caliskan responded by email on the same date noting he was not opposed to extending the deadline by consent and queried whether “we shoot for end of the year or any other date?”; furthermore, he suggested also seeking an extension to the deadline for submitting the Joint Exhibit Book.
[35] On June 7, 2022, after obtaining instructions, Mr. Caliskan advised that his client, the Plaintiff, did not consent to new trial dates, as they believed “that evidence was shared in a timely manner” and that they did not consent to the extension of the expert report filing deadline, but that the Plaintiff would make reasonable efforts to attend the Defendant’s expert assessment. At the hearing, Plaintiff’s counsel confirmed the Plaintiff was available for the IME appointments and would attend if the court granted an extension to the Defendant or the trial dates were adjourned.
[36] On June 9, 2022, the Plaintiff disclosed a third supplemental ADD, which largely consists of the records disclosed in March and April 2022.
[37] With respect to planned experts, the Defendant says he has:
a) secured an Independent Medical Examination (IME) with Dr. Heitzner, physiatrist, on August 9, 2022. The physiatrist’s office has advised that the earliest they expect the report to be completed is the last week of September 2022 and that it should be completed no later than October 7, 2022;
b) secured an IME with Dr. King, neurologist, on August 17, 2022. Dr. King’s office advised the report will be completed no later than August 26, 2022 provided the transcript from the Plaintiff’s further discovery on July 7, 2022 is provided by the time of the assessment;
c) engaged an accident reconstruction expert; the expert has advised that he can have a report completed one month after he receives the relevant records, including the black box from the Plaintiff’s vehicle; and
[38] The Defendant says he can, therefore, have his expert reports filed by mid October which is 6 months before trial.
[39] In Stroh v. Blakeney, 2020 NSSC 327 the Plaintiffs moved to strike the Defendant’s late filed expert report. Justice Chipman allowed the report to be admitted as evidence. He noted the reasonableness of the Defendant in insisting that relevant evidence be disclosed such that it could be provided to the defendant’s expert:
[30] In my view it was entirely reasonable for the defendant to insist that the plaintiffs produce the late Mr. Stroh’s hospital records before finalizing their expert evidence. Given the evidence, I must conclude that responsibility for the delay that resulted rests with the plaintiffs. In this regard, from the affidavit evidence it is apparent that plaintiffs’ counsel was not responsive to repeated requests for the records. One is left to wonder whether he asked for them in a timely manner.
[40] I recognize that the facts in Stroh, supra, are considerably different than those here, as the Plaintiff here provided the requested disclosure before the expert deadline passed. However, the importance of timely disclosure from the Plaintiff in personal injury matters must be highlighted. Without timely production from the Plaintiff, the Defendant’s ability to marshal its case in response is impaired. Here, a large volume of documents with significant content were produced almost a year after the DAC, despite the Defendant making it clear these documents were needed for their expert reports and despite numerous follow up requests.
[41] Recognizing the strict requirements for the filing of expert reports within the deadlines, I am of the view the specific circumstances here justify an extension for filing of the expert reports of the Defendant. Here there is an unusual confluence of a number of factors that together justify an extension. The Plaintiff indicated at the DAC that production was imminent. The Defendant was clearly concerned as an exception to the usual filing timelines was carved out at the DAC relating to consequential production. Some consequential production occurred in 2021 but there was still consequential production outstanding until March 11, 2022. The bulk of the discovery undertaking production did not occur in 2021 despite various follow up emails. It was not until March and April of 2022 that production was completed with more than 1100 pages being produced. Counsel for the Defendant changed in February of 2022 just months before the expert report deadline. Prior counsel was no longer associated with the law firm. The information produced in March and April had significant impact for the Defendant. For example, on April 20, 2022, the Plaintiff disclosed records produced by Karen Strange Counselling. The Defendant says this was the first time the Plaintiff disclosed records of treatment for psychological issues she had prior to the December 2018 MVA. On April 8, 2022, the Plaintiff disclosed an “Opinion Report”, prepared by her psychologist Dr. Peloquin, although not filed as an expert report. The Plaintiff has not yet produced Dr. Peloquin’s complete file, namely the entirety of the chart notes. In light of the recent productions, the Defendant wished further discovery of the Plaintiff to determine, among other things, if a psychological report was necessary. This was reasonable. The issue of requiring an extension was identified by the Defendant approximately 10 months prior to trial. It is only a 3 month extension that is requested. In all of the above circumstances, I am of the view it is in the interests of justice that the extension be granted.
[42] I agree the Defendant should have been lining up the IME appointments with the experts prior to June (and may well have for some as this is not clear from the evidence). In any event, given the delay in disclosure by the Plaintiff, the proposed timelines for filing of expert reports is reasonable, being October 2022.
[43] The Defendant says the Plaintiff is claiming she sustained physical, cognitive and psychological injuries as a result of the MVA. I am satisfied, although obviously I have not seen them, based on the nature of the proposed reports as outlined by the Defendant, that they could be on point and probative of the issues. I cannot fault the Defendant for not having the expert reports in hand for me to properly assess probative value as this motion needed to be brought expeditiously to avoid any prejudice to the Plaintiff. In the present circumstances, to wait until the reports were in hand in October and then make this motion would potentially jeopardize the trial dates and the Plaintiff’s opportunity for rebuttal reports (depending on the motion dates available). Again, I highlight the unusual circumstances here.
[44] The Defendant says that if the current deadline for filing expert reports is maintained, the prejudice to the Defendant would outweigh any prejudice to the Plaintiff. I agree. Other than unfairness the only prejudicial impact the Plaintiff raised was the additional costs she would incur for the rebuttal reports and possibly needing an extension for filing. However, if the Defendant’s expert reports had been filed by July 4, 2022, the same situation of rebuttal reports being required within 3 months would have faced the Plaintiff. I do not see any real prejudicial effect here, particularly since the expert filing will be well in advance of what counsel had initially discussed before he had firm instructions from his client. The Defendant’s expert reports will be filed well in advance of the finish date of January 4, 2023. The Plaintiff is aware of the reports being contemplated and will have an opportunity to file any rebuttal reports she wishes. Also, as noted, the Plaintiff would only have had three months under the Rules to produce any rebuttal reports. The Plaintiff will still have this timeframe to respond. In addition, the Defendant stated on the record that they will not seek an adjournment and will deal with any rebuttal reports filed by the Plaintiff. I am of the view that any potential issues that may arise can be dealt with by costs, if necessary.
[45] I have to be satisfied that the interests of justice merit the extension and that the issue of potential prejudice to the Plaintiff has been addressed. I am of the view, in light of the circumstances set out above, that it is in the interests of justice to allow the extension. I am of the view the circumstances here are exceptional. The Defendant has met his burden.
[46] In the specific circumstances of this matter I am prepared to allow an extension to October 14, 2022 for the Defendant to file his expert reports. This matter turns on its very specific circumstances. It should not be seen as an invitation for defence counsel to await every piece of paper/ every morsel of disclosure from the Plaintiff before getting their experts organized and then expect an extension. I reiterate, Rule 55 must be strictly adhered to and it is only in exceptional circumstances that extensions or late filing will be allowed.
[47] In conclusion, based on the motion evidence I find that there are exceptional circumstances such that it is in the interests of justice to allow the requested extension for filing the Defendant’s expert reports. Given that I am prepared to grant the request to extend the time for filing the expert reports, which also allows time for filing rebuttal reports in advance of trial, there is no need to consider an adjournment of the trial dates.
Black Box
[48] There is no need to address the issue of production of the black box from the Plaintiff’s vehicle as she has consented to its production. The Defendant has agreed to pay any reasonable associated costs. Counsel are encouraged to work together on the terms of this production with reference to Rule 14.12 (3) as it is unclear whether this will be a data transfer of the information relating to the date and time of the MVA, whether the black box will be removed entirely, how a copy will be provided to the Plaintiff, etc. I will leave this to counsel to work out.
[49] Costs are awarded to the Defendant in the amount of $750 in the cause.
Jamieson, J.
SUPREME COURT OF Nova Scotia
Citation: Seldon v. Berthier, 2022 NSSC 239
Date: 20220818
Docket: Hfx No. 489476
Registry: Halifax
Between:
Wanda Lee Seldon
Plaintiff
v.
Sloan Stanley Berthier
Defendant
ERRATUM
|
Judge: |
The Honourable Justice Darlene Jamieson
|
| Heard: |
July 21, 2022, in Halifax, Nova Scotia |
| Oral Decision:
|
July 21, 2022 |
| Erratum Date:
Counsel:
Para. 30 |
August 17, 2022
Taylan Caliskan, for the Plaintiff Courtney Palmer, for the Defendant
Ms. Frenette to Mr. Frenette and relevant pronouns
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