Ruling notes counsel missed timelines when trying to get information for experts
In a medical malpractice proceeding, the Ontario Divisional Court allowed a doctor’s appeal and permitted him to deliver expert reports on causation and damages that were served late and previously rejected by a motion judge.
Donna Pelrine, by her Estate Trustee James Pelrine et al. v. Chung et al., 2026 ONSC 4362, revolved around three expert reports for the medical malpractice action:
- Dr. Battel’s standard of care report, served on June 24, 2025, five days after the pretrial conference
- Dr. Turcotte’s causation report, served on June 27, 2025
- Professor Hyatt’s damages report, served on Aug. 19, 2025
Dr. Chung, the appellant in this case, moved for leave to file the three late-served reports under r. 53.08 of the Rules of Civil Procedure, RRO 1990, Reg 194.
In an order made last Jan. 30, with reasons provided on Mar. 17, the motion judge allowed Dr. Chung to deliver Dr. Battel’s report, but not Dr. Turcotte’s or Professor Hyatt’s reports.
On Apr. 22, the Divisional Court granted leave to appeal the motion judge’s order and expedited the appeal due to the jury trial scheduled for this September. Thus, the appellant filed an appeal.
Divisional Court grants appeal
The Divisional Court of the Ontario Superior Court of Justice allowed the appeal and granted Dr. Chung leave to deliver Dr. Turcotte’s and Professor Hyatt’s reports. The court did not order costs, as agreed between the parties.
Mistakes found on counsel’s part
The Divisional Court noted that trial counsel provided the experts’ identities and anticipated opinions before the pre-trial conference and sought to obtain the information he deemed necessary for the experts to finalize their reports, which were built sequentially upon one another.
The court acknowledged that trial counsel missed the required timelines due to potential mistakes in his approach to acquiring the expert reports.
However, the court said holding trial counsel’s possible mistakes against Dr. Chung would not serve the interests of justice, especially if doing so would likely prevent him from advancing his case.
The court pointed out that Dr. Chung promptly moved for leave and gave the same explanation for the delay for all three reports, which were served over a year prior to the scheduled trial date.
Errors found on judge’s part
The Divisional Court noted that the motion judge accepted that explanation for one report, but not for the two others.
The court held that the motion judge erred when he:
- applied the r. 53.08 test as a strict conjunctive test, when a more holistic approach was available
- failed to give sufficient weight to the applicable principles in deciding whether to grant leave under r. 53.08
- failed to apply the relevant interest of justice considerations and the balancing approach to the entire r. 53.08 analysis
- failed to consider the lack of prejudice and the importance of giving the factual trier all the evidence needed to rule on the merits when determining what could serve as a reasonable explanation for the delay
- created a disproportionate outcome by applying r. 53.08 in a manner exceeding its intended purpose
Prejudice to parties
The Divisional Court ruled that the late service did not delay the scheduled trial date, did not aim to delay the proceeding, and did not seek to secure a tactical advantage.
The court found that the plaintiffs suffered no noncompensable prejudice and had enough time to prepare any necessary supplementary reports.
The court pointed out that both sides failed to agree on a schedule for exchanging expert reports, as required by r. 53.03(2.2).
Prior disciplinary cases
Here are some other disciplinary matters involving medical professionals in Ontario.
In a class proceeding against a plastic surgeon and his corporation, the Ontario Superior Court made a May decision awarding affected patients $21.5 million in aggregate damages for the tort of intrusion upon seclusion and $1 million in punitive damages.
In a medical negligence action, the Ontario Superior Court issued a March order for a self-represented plaintiff to undergo a capacity assessment after determining that the evidence raised enough concern regarding his ability to manage the litigation.
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