Plaintiff may file income loss report and trial may proceed

January 02, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Tracey v. Moore et al, 2017 ONSC 6985 (CanLII)

Decision Date: November 12, 2017
Heard Before: Sutherland J.

LEAVE TO FILE INCOME LOSS REPORT: will filing report cause prejudice to insurer; is delay unjust; is delay contemplated by Rule 53; no prejudice; delay not a delay; trial proceeds

Mrs. Tracey was injured in a car accident on February 28, 2008.  York Fire was added as a named defendant in the action and the Statement of Claim was amended on June 29, 2011.

Mrs. Tracey seeks damages for past and future loss of income. Based on the vocational rehabilitation expert report prepared December 24, 2012, the income loss report was commissioned, prepared and ultimately served on November 13, 2017. The vocational report was served by Mrs. Tracey within the time period set out in the Rules.

Mrs. Tracey and York Fire entered into an agreed timetable that indicated that Mrs. Tracey would serve her reports by March 15, 2017. 

Analysis

York Fire opposes the request because the action was commenced on February 13, 2009, more than 8 years before the date of trial, and the date of York Fire’s involvement in this action is more than 6 years.  York Fire argues that Mrs. Tracey had ample opportunity to retain an expert and prepare a report for past and future income loss and that Mrs. Tracey failed to do so. 

Rule 53.08 states that “….leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial”.

York Fire is not requesting an adjournment, rather they have provided numerous cases to support its submission that the delay in the case prevents the court from exercising its discretion to grant leave to Mrs. Tracey to file the income loss report.  Having read the cases provided and Rule 53.08, Justice Sutherland did not agree with York Fire’s submission.  The Rule contemplates “undue delay in the conduct of the trial”.  This delay is not the delay in prosecuting the action but the delay in the granting of the adjournment and the commencement or conduct of the trial. 

In other words, it is the undue delay from the day of granting an adjournment to permit the party to obtain its own expert report or conduct examinations.  It is the additional time required to bring the matter back for trial or resume the conduct of the trial and not the time that it took to bring the matter to trial.

On the basis of the evidence and the law Justice Sutherland determined that there is no delay in this matter before the court, be it undue or otherwise. On this basis it would be unfair to Mrs. Tracey and contrary to the principle that every civil proceeding should be determined on its merits if leave is not granted to allow Mrs. Tracey to file the income loss report. Justice Sutherland also found that there is no prejudice suffered by York Fire.  York Fire is not requesting an adjournment.  The trial is not delayed.  The trial will be proceeding immediately.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.