[10] In the present case, the plaintiff retained and instructed most of her experts well in advance of the scheduled January 10, 2018, PTC. She served a series of medical and other expert reports, and addenda as follows: on September 5, September 18, October 20, October 31, November 21, December 3, December 18 and December 27, 2017. While not all of these reports were served 90 days before the PTC (and some were not required to meet that deadline because they were addenda) it is apparent that the plaintiff was endeavouring to disclose her case – and in particular the requisite medical and expert evidence – in advance of the PTC.
[11] By contrast, the defendant served no expert reports prior to the PTC. The defendant did not take any steps to request the plaintiff to attend for or to arrange defence IMEs until less than one week before the PTC. Indeed, according to defence counsel, the client only provided instructions to proceed with defence IMEs one week before the PTC. Fearful that the defendant’s delay in doing so might jeopardize the timely trial of the case (due to the possible inability to obtain reply reports) plaintiff’s counsel declined to produce his client for examination. The result will likely be a Master’s motion to compel such attendance, another consumption of judicial resources. Had the defendant requested an IME on a timely basis, this problem would not have arisen.
[12] 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.
[13] 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.