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Be Careful About Certifying a Trial Scheduling Form in Ontario

The Issue: does agreeing to a Trial prevent the defendant from seeking motion relief for further defence medicals or other issues?

The Problem: To keep files moving forward, it is not uncommon for the plaintiff solicitor to pass the Trial Record immediately after Discoveries are completed. The trial certification form is then made available by the Registry a few months later, which is completed by both parties and filed with the Court.

Given the lengthy wait times for Trial dates, it is not uncommon in Toronto for counsel to set the matter down for relatively straightforward matters and to estimate how many experts each side will call at Trial – even if all those experts have not yet been retained.

In the recent case of Kalicharan v. Johnson, 2013 ONSC 7378 (CanLII), the plaintiff solicitor objected to a third defence medical being commissioned approximately four months before Trial.  The plaintiff had only one expert report, served about five months before Trial, which was the impetus for the defendant to seek this third defence medical examination.

At issue was a pre-existing head injury and also that one of the defence medical experts indicated that he required an assessment from a neuropsychologist in order to properly respond to the plaintiff’s lone medical expert.  Master Muir also found that the defendant’s solicitor was under the mistaken impression that there was consent for this third defence medical when this trial scheduling court form was completed.

In this case, the third defence medical examination was allowed and the plaintiff was ordered to pay $2,000 plus HST in costs to the defendant for losing this motion.

As long as the defence experts will not delay the Trial (including requiring more Trial time, which would mean requiring a new Trial date), then a plaintiff’s solicitor should be cautious about objecting to the defendant’s ability to bring the motion (ie seek leave), unless there was clearly enough investigation performed by both sides prior to the Trial date being set.

Still, this is a cautionary case for defence counsel to mind when balancing the desire to push the file forward quickly versus delaying the choosing of a Trial date until all defence medicals and investigation are done.

Gregory Chang
Personal Injury and Insurance Lawyer