The motion was brought by the Defendant, Personal Care Holdings Ltd. to exclude the independent medical examination report of Dr. Michael Gross dated July 28, 2020 from evidence at the upcoming trial pursuant to Rule 55 of Nova Scotia’s Civil Procedure Rules.
The Plaintiff, Ayman Ahmad Aly, was making a claim for damages for personal injuries following a motor vehicle accident which had occurred in June 2018. The Plaintiff attended an Independent Medical Examination with Dr. Michael Gross in July of 2020 at the request of the Defendant. The Defendant disclosed the report of Dr. Gross, but did not file the report with the court, as they made the strategic decision to not rely on the report at trial.
The Plaintiff also did not file the Expert Report of Dr. Gross within the time requirements of the court. The Plaintiff later indicated his desire to rely on Dr. Gross’ Independent Medical Exam and call Dr. Gross as a witness at trial.
The Plaintiff had failed to file the by the deadline of July 20, 2021. The Honourable Justice Darlene A. Jamieson noted that the Plaintiff had failed to comply with the strict requirements set out in Rule 55, and therefore had to assess whether or not the Dr. Gross Report should be admitted at trial despite noncompliance with the filing deadlines.
The burden is on the party seeking to rely on the expert evidence to convince the court disallowing the evidence would be unjust. Justice Jamieson was of the view that the circumstances before her did not fall within the exception of being unjust to exclude the report from evidence. Despite the Plaintiff’s argument, the significance of the opinion evidence offered by Dr. Gross was insufficient to represent an exceptional circumstance justifying admittance of the late expert opinion. The court stressed the importance of ensuring filing deadlines are met when it comes to filing expert reports.
To find out more read the Court’s Decision here : https://www.canlii.org/en/ns/nssc/doc/2022/2022nssc108/2022nssc108.html