A Reminder Of The Importance To Prepare For Pre-Trial Conferences

Pre-trial conferences are an important and mandatory part of the civil litigation process. Rule 50.02 of Ontario’s Rules of Civil Procedure states that “Unless the court orders otherwise, within 180 days after an action is set down for trial, the parties shall schedule with the registrar a date and time acceptable to all parties to appear before a judge or case management master for a pre-trial conference.” One of the reasons pre-trial conferences are so important is because they offer parties involved in litigation the opportunity to explore the possibility of settlement. In order to take advantage of this opportunity, the parties must prepare adequately. As we saw in a recent Superior Court of Justice decision in Ontario, the failure to do so could have significant consequences.

Failure to prepare

The decision did not describe the details of what brought the parties to trial, though it did pertain to injuries suffered in a motor vehicle accident. Evidence of the plaintiff’s medical history, treatment, and prognosis were expected to for a key part of the trial The court explained that expert evidence would likely also be used at trial. The action commenced in 2012 and in February 2016 a pre-trial date was set for January 10, 2018, with a trial to follow six months later.

The plaintiff retained their experts and instructed them well in advance of the scheduled pre-trial date. While not all of the reports served by the plaintiff fell within the 90-day deadline leading up to the pre-trial motion, the court stated “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.”

The defendant, meanwhile, did not attempt the same effort of disclosure, and served no expert reports leading up the pre-trail conference. Rather, they simply requested the plaintiff to attend a medical assessment less than a week prior to the conference. The plaintiff refused.  In scolding the defendant (an insurance company), the court 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.”

Assigning blame

The court acknowledged that the plaintiff was late in filing some of her expert evidence, but was much more critical of the defendant. While the defendant did request the plaintiff to attend a medical examination, they did so at such a late stage that they could not have possibly expected the pre-trial conference nor the trial to happen on schedule. The court stated

“ The other, obvious, consequence of the failure of the defendant to serve any expert reports as required by the rules was that there was no responding material for the other side or the presiding judge to evaluate and discuss at the PTC. This had the effect of impairing significantly the PTC settlement process. As commented previously, whether this is a case that could have settled at the PTC stage is impossible to know, because the defendant failed to comply with the rules.”

Based on the plaintiff’s cost in preparing for the pre-trial conference, which came in at $3,906.25, but taking into account her own tardiness, the court awarded damages of $2,600.

Abiding by deadlines is critical to a successful personal injury claim. It’s important to work with an experienced personal injury lawyer when involved in a personal injury lawsuit in order to avoid missing deadlines and incurring costs for doing so. The skilled personal injury lawyers at Derfel Injury Law work tirelessly to achieve the best possible resolution to our clients’ accident benefits claims. Please call us at 416.847.3580 or reach us online to see how we can help you today.