Motion to adjourn trial to continue discovery denied

Ontario’s Superior Court has dismissed a defendant’s motion to file an amended Statement of Claim, serve a jury notice and adjourn a three-week trial fixed to commence Sept. 22, 2008.
The action arises out of a motor vehicle accident that occurred in March 2003.
The Statement of Claim was issued in March 2005. It alleges that Guy Voisin, the plaintiff, sustained traumatic brain injury and significantly impaired cognitive function as a result of the accident. In a letter dated Oct. 19, 2006, the defendants, Richard Moyes, Surgenor National Leasing Ltd., and Hertz Canada Ltd., admitted liability. And in December 2007 a settlement conference was held at which a fixed trial date was set.
In April 2008 the defendants changed counsel, and their new lawyer complained of a report provided by Voisin’s attending physician. The report was given to the defendants 45 days before the fixed trial date, well outside the 90-day rule, Justice McKinnon continues. He notes that counsel for the plaintiffs intended to rely on the doctor’s report.
“Because the plaintiffs intend to rely upon the report of Dr. Smyth the defendants wish to adjourn the trial in order to retain an expert to respond to the report of Dr. Smyth,” he writes. “The defendants have not named an expert, nor given any evidence as to the availability of such an expert in preparation for this motion.”
The plaintiffs argue that the report contains nothing new, that it asserts Voisin suffered a traumatic brain injury as a result of the accident and that the opinion is shared by three other health care professionals who have assessed Voisin since the accident.
In order for a party to continue any form of discovery after the settlement conference, it must demonstrate a “substantial or unexpected change in circumstance before the court will grant the party leave.”
Justice McKinnon was not convinced that this was the case.
“It is now 5 years and 3 months since the accident. The defendants have admitted liability. In my view it would be gravely prejudicial to the plaintiffs to adjourn the trial.”