Baldock Estate v Abou Reslan, 2023 ABKB 149

Court of King’s Bench of Alberta Citation: Baldock Estate v Abou Reslan, 2023 ABKB 149 Date: 20230314 Docket: 0301 12868 Registry: Calgary Between: Deborah Elaine Baldock, personal representative of the Estate of Branden Baldock, deceased, Deborah Elaine Baldock and His Majesty the King in Right of Alberta Plaintiffs - and - Dr. Walid Abou Reslan, Dr. Catherine Chrusch, Dr. Carla Wallace, Dr. Penney Gaul, Dr. Coleen Adams, Dr.

Elaine Wirrell and John Doe Defendants _______________________________________________________ Reasons for Decision on Adjournment Application of the Honourable Justice EJ Sidnell _______________________________________________________ Introduction [ 1 ] This decision was delivered orally on March 2, 2023. Only minor editorial edits for readability have been made, together with the inclusion of citations and quotations. There have been no changes made to the substance of my oral decision. [ 2 ] The plaintiffs claim that the defendants, Dr. Coleen Adams and Dr.

Walid Abou Reslan, were negligent in their medical care of the plaintiff, Branden Baldock (Branden), resulting in catastrophic, permanent, and irreversible neurological injury that affected every aspect of his life and ultimately resulted in his death. [ 3 ] The parties were able to agree to damages and the trial proceeded on the issue of liability. At the beginning of the four-week trial, the parties entered, among other things, a document entitled Agreed Trial Issues.

[ 4 ] After the plaintiffs’ opening statement and read-ins, a voir dire on the qualifications of Dr. Paul Thornton was heard on the first day of trial. Counsel made submissions regarding the admissibility of Dr. Thornton’s expert evidence. There is no doubt that Dr. Thornton is an internationally renowned expert in pediatric endocrinology, but he has no training or experience in Canada. On the second day of trial, I ruled that Dr.

Thornton’s opinion evidence was not relevant to Issues 1, 2 and 5.a.i and was only admissible in relation to Issue 5.a.ii because he did not have the required specialized knowledge in applicable practices and standards, at the relevant time, in Canada. [ 5 ] After my ruling on Dr. Thornton’s admissibility as an expert witness, counsel for the plaintiffs made an application for an adjournment of the trial. Counsel for the defendants opposed the adjournment application. [ 6 ] On the third day of trial, I heard fulsome argument on the adjournment application.

Today, on this fourth day of trial, I am providing my reasons for denying the adjournment application. History of the litigation [ 7 ] This litigation relates to the alleged negligent medical care received by Branden in the days and months after his birth on June 19, 2000. The parties agree that, on June 21, 2000, Branden experienced breathing issues, hypoglycemia, seizures and required resuscitation. He was transferred to the Neonatal Intensive Care Unit Centre at the Foothills Medical Centre in Calgary. On June 26, 2000, while at the Foothills Medical Centre, the defendant, Dr.

Colleen Adams, a pediatric neurologist, saw Branden. Branden was a patient of Dr. Adams until she left Calgary in September 2001, and he was referred to another neurologist. [ 8 ] Branden received a CT scan at the Alberta Children’s Hospital on May 23, 2001, which was interpreted by the defendant, Dr. Abou Reslan, a radiologist. The plaintiffs allege that Dr. Abou Reslan failed to recognize the absence of a pituitary stalk. Although Dr. Adams was not then named as a defendant, it was alleged that, as a result of Dr. Abou Reslan’s failure to interpret the absence of a pituitary stalk, Dr.

Adams did not pursue further investigations that would in all probability have led to a pediatric endocrinology consultation and additional diagnostic imaging. Had those investigations occurred, it is alleged that Branden would have been appropriately medicated and his propensity towards ongoing seizure activity and neurological damage would have significantly decreased. [ 9 ] The plaintiffs also allege that because of the undetected absent pituitary stalk, Branden was admitted to the Alberta Children’s Hospital on December 29, 2021 suffering from status epilepticus.

Further tests and scans were undertaken by other doctors. On February 5, 2002, Branden received an MRI scan, also interpreted by Dr. Abou Reslan and another doctor. On this occasion the problem with Branden’s pituitary stalk was noted and, it is alleged that this

interpretation contributed to an understanding of the etiology of Branden’s medical condition and subsequent treatment. [ 10 ] However, it is alleged by the plaintiffs that, by the time Branden received treatment for panhypopituitarism, he had already suffered profound, irreversible, and catastrophic neurological injury. [ 11 ] The plaintiffs filed a Statement of Claim on August 15, 2003, which named Dr. Abou Reslan as a defendant, together with three other defendants. On October 30, 2003, Dr.

Abou Reslan filed a Statement of Defence in which he acknowledged he interpreted a CT scan of Branden’s head taken on May 23, 2001 and noted that he had recommended an MRI of the head to better characterize the changes he had observed. He also acknowledged that he supervised an MRI on February 5, 2002 and reported that Branden had an ectopic pituitary. Dr. Abou Reslan said he had no further involvement in Branden’s care after February 5, 2002. [ 12 ] On March 3, 2005, the plaintiffs filed an Amended Statement of Claim.

At that time, two additional defendants were added. [ 13 ] Due to the retirement of previous counsel, the plaintiffs changed their legal representation. By order granted January 30, 2009, the filed Certificate of Readiness was set aside, and the plaintiffs were granted permission to file an Amended Amended Statement of Claim, which was filed that same day. Dr. Adams, together with another doctor, were added as defendants. It was alleged that, among other things, Dr. Adams failed to: (

a) take a proper history and gather all relevant information; (

b) perform proper examinations; (

c) order all appropriate referrals and consultations; (

d) take proper steps in reaching a differential diagnosis; (

e) properly investigate the diagnosis which should have formed part of the differential diagnosis; (

f) order all appropriate diagnostic tests, including the appropriate radiological procedure; and (

g) properly advise the interpreting radiologist as to the differential diagnosis and alert the radiologist as to why the test was being ordered. [ 14 ] On November 6, 2009, Dr. Adams filed a Statement of Defence setting out her position on the treatment received by Branden under her care and denying that such care was negligent. [ 15 ] The plaintiffs retained Dr. Denis Daneman, a Canadian pediatric endocrinologist to opine on the standard of care and causation issues from a pediatric endocrinologist’s perspective. Dr. Daneman’s initial report is dated April 18, 2013. [ 16 ] Tragically, on August 15, 2014, Branden died at age 14.

[17] On July 14, 2016, the plaintiffs filed an Amended Amended Amended Statement of Claim. [18] The plaintiffs retained Dr. Stephan Glass, an American pediatric neurologist to opine on the standard of care and causationfrom a pediatric neurologist’s perspective. Dr. Glass’s initial report was served on the defendants in 2017. [19] On July 12, 2018, a Consent Order was granted providing, among other things, that: (

a) all parties shall serve their: (

i) Rule 5.35(2)(

a) primary onus of proof expert reports no later than 240 days prior to trial; (ii) Rule 5.35(2)(

b) rebuttal reports no later than 180 days prior to trial; (iii) Rule 5.35(2)(

c) surrebuttal reports by 90 days prior to trial; and (

b) the parties are, or likely will be, ready for trial after December 1, 2019 and that the Civil Trial Coordinator is directed to setthis matter for 25-day trial on or after December 1, 2019. [20] A Civil Trial Scheduling Confirmation, dated October 31, 2019, set this trial to be heard commencing February 27, 2023. [21] In September 2022, Dr. Daneman advised plaintiffs’ counsel that he had retired from the medical profession and, for personalreasons, was no longer providing expert opinions. He requested the plaintiffs retain another expert. [22] The plaintiffs retained Dr. Thornton to replace Dr. Daneman.

Counsel for the plaintiffs submitted that all efforts were made tomaintain the trial date and that a report from Dr. Thornton, dated November 25, 2022, was served on the defendants on November 29,2022. [23] On January 12, 2023, approximately 45 days before the commencement of the trial, the defendants served a Notice ofObjection in relation to Dr. Thornton’s expert report. [24] On February 9, 2023, a pretrial conference was held, and counsel noted that a Notice of Objection had been served. [25] On February 13, 2023, the defendants served a Notice of Objection to Dr.

Glass’s expert reports dated February 2, 2017,August 29, 2020, and November 18, 2022. [26] I have not mentioned in this litigation history all of the rebuttal and surrebuttal reports which were filed by various experts.There were a number of such reports, but I do not find them relevant to my analysis. [27] On February 24, 2023, a further pretrial conference was held. Counsel proposed conducting the Dr. Thornton voir dire at thecommencement of the trial. [28] When the trial commenced on February 27, 2023, the only remaining defendants in the action were Dr. Abou Reslan and Dr.Adams.

Alberta Rules of Court, AR 124/210 [29] An application for an adjournment once trial has commenced may only be granted with leave of the judge as set out in Rule8.6(2):

(2) A trial for which a trial date has been scheduled may not be adjourned or abandoned unless . . . (

c) the judge permits. The test for an adjournment after trial commences [30] A court may exercise its discretion to grant an adjournment in appropriate circumstances. In Barrette v The Queen, (SCC), at page 125, Pigeon J, on behalf of the majority of the Supreme Court of Canada, articulated how this discretionshould be exercised: It is true that a decision on an application for adjournment is in the judge’s discretion. It is, however, a judicial discretion so that hisdecision may be reviewed on appeal if it is based on reasons which are not well founded in law.

This right of review is especially widewhen the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings.... [31] Both parties referred to 11 factors that may be considered by a court on an adjournment application. These factors were setout in Royal Bank of Canada v Place, 2010 ABQB 733, at paragraph 60, and followed in Lameman v Alberta, 2011 ABQB 40, atparagraph 33. I will only address those factors raised by the parties in argument before me and two others that I believe are relevant.

Factor 1: Courts should make a just determination of the real matters in dispute and

they should decide cases on their merits [ 32 ] The plaintiffs submit that the expert opinions of Dr. Thornton and Dr. Glass, upon the latter of which I have made no decision on admissibility, are crucial to the plaintiffs’ case.

Further, the plaintiffs submit that forcing them to proceed with the trial without the full benefit of those reports would result in substantial prejudice to the plaintiffs and inhibit the court’s ability to decide the trial on its merits. [ 33 ] Relying on Navarro v Doig River First Nation , 2015 BCSC 2173 , the plaintiffs assert that the paramount consideration on an adjournment application is ensuring that a fair trial on the merits is maintained. At paragraph 19, Dillon J said: There are numerous factors to be considered on an adjournment application.

However, the paramount consideration is the interest of justice in ensuring that there will remain a fair trial on the merits of the action ... Because the overall interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits ...

The natural frustration of judicial officials and opposing parties over delays in processing civil cases must give way to the interests of justice, which favours a claimant having his day in court and a fair chance to make out his case ... [ 34 ] The Navarro decision arose from an adjournment application made 18 days before the commencement of a three-week trial.

This is different than the matter before me where the trial has already commenced. [ 35 ] The plaintiffs also rely on the decision of Veit J in Burkosky v Grey Goose Corporation Limited , 1999 ABQB 183 , including her comments that the court must ensure that its process is fair and that the party seeking an adjournment may suffer significant prejudice if it is not granted. This case related to an adjournment application of a three-week trial made 17 days before the trial was set to commence. [ 36 ] The plaintiffs also rely on the decision of Tilleman J in Kent v Martin , 2014 ABQB 687 .

However, that decision arose in relation to an application brought approximately two months before the commencement of the trial. [ 37 ] The plaintiffs also rely on the decision of Clarke J in Northland Forest Products Ltd v Wood Buffalo (Municipality of) , 2002 ABQB 437 . That was a decision arising from an application to adjourn the trial brought approximately five months before the 12-week trial was set to begin. [ 38 ] The distinguishing factor between those cases and the one before me is that those other cases related to adjournment applications made before the trial began.

In this case, the adjournment application arises from my ruling made at the commencement of this trial that Dr. Thornton’s expert opinion is not relevant to the majority of issues for which that expert opinion was tendered. [ 39 ] My ruling on Dr. Thornton’s expert opinion was part of the determination of this trial on its merits. To illustrate this, I note that one of the possible outcomes of the admissibility application was that Dr. Thornton’s expert evidence be admitted and any concerns regarding his knowledge of Canadian practices and standards be considered in the weight given to his opinion.

In this scenario, it is possible that Dr. Thornton’s opinion would be given zero weight. Had that occurred, there would be no opportunity for an adjournment, as the trial would be over, and this determination would be incorporated into the final judgment. [ 40 ] Here, I have already made a determination that a significant part of Dr. Thornton’s expert opinion is not relevant to the issues in this case. To grant an adjournment so that the plaintiffs can retain a replacement expert would effectively allow the plaintiffs to reverse a ruling that was not decided in their favour.

Throughout the trial process, there are rulings made on admissibility of evidence. If a losing party could adjourn the trial each time an evidentiary ruling was made in order to obtain new evidence, not only would the trial process be unfair it would also be untenable, unmanageable, and inefficient. [ 41 ] The plaintiffs also rely on Koopmans v Joseph , 2014 ABQB 395 , where Mr. Koopmans, appealed a dismissal of a civil claim in the Alberta Provincial Court against his former lawyer, Mr. Joseph, and his law firm.

One of the grounds of appeal was that the trial judge denied an adjournment application after the trial judge had ruled that Mr. Koopmans’ proffered expert witness was not qualified to testify. The trial judge denied the adjournment application because Mr. Koopmans had one and a half months notice of the defendants’ objection to his expert. Mr.

Koopmans wanted the adjournment so that he could obtain a different expert witness. [ 42 ] In finding a breach of natural justice, Greckol J said in Koopmans , at paragraphs 40 and 41 : Refusal to grant an adjournment when it is reasonable to do so is a breach of natural justice that goes to the heart of a fair trial, since the ability of the party seeking the adjournment to fully present his case is compromised.

Whether an adjournment is granted is generally considered discretionary and its appropriateness will depend on the situation: “Whether a refusal to grant an adjournment breaches procedural fairness and denies natural justice depends upon the circumstances of the case.

The decision to adjourn is a discretionary one attracting a high standard of appellate review” ... [ 43 ] Greckol J also referred to the Alberta Court of Appeal’s decision in Patricia Hills Landowners Society v Parkland County (Subdivision and Development Appeal Board) , 2010 ABCA 413 , to establish when a denial of a request to adjourn constitutes a breach of natural justice. In Patricia Hills , Bielby JA granted the applicant (the Society) leave to appeal a decision of the Parkland County Subdivision and Appeal Board (SDAB). The Society had 30 days to appeal a decision of a development officer, which it did.

When the SDAB hearing was set, the Society sent letters requesting further information and requesting an adjournment. The SDAB did not respond to the letters. The Society attended at the hearing of the SDAB, without counsel, and again requested an adjournment. The SDAB denied the request for adjournment and continued with the hearing. On the application for leave to appeal to the Alberta Court of Appeal, one of the issues raised was whether the Society was denied a reasonable opportunity to present its evidence, make its arguments and answer the opposing case.

In granting leave to appeal, Bielby JA said, at paragraphs 12 to 17: The June 14, 2010 minutes of the hearing by the SDAB show that, prior to the commencement of the appeal, Mr. Kennedy, on behalf of

the ... Society, requested an adjournment until such time as it had been provided with certain documents it had requested by letter dated June 4, 2010. ... He said that members of the [Society] had not been given sufficient time to review an information package the County had provided to it on June 9, 2010 and thus requested an adjournment of 120 days to allow sufficient time to gather and review information. He did not ask for time in which to retain an expert into environmental matters although the [Society’s] counsel today says that it would do so if it were granted another hearing. She suggests that Mr.

Kennedy did not make this desire known on June 14 because he did not have the benefit of counsel ... In denying the application for an adjournment, the SDAB observed that the parties had been involved in discussion and information exchange for the prior five months during which time the [Society] should have requested any specific information which it now claimed to need but had not received.

It admitted to having received some information from Alberta Environment. [Counsel for the County opposing the application for leave to appeal] notes that the scheme of the Act sets out a short time frame within which to deal with issues arising from the granting of development permits. Parties have only 14 days from receipt of notice of a decision to grant a permit within which to appeal and the SDAB must hear that appeal within 30 days. An adjournment for 120 days, while possible, would have taken the hearing date far beyond that statutory deadline.

The test for whether the denial of request for an adjournment is a breach of natural justice is whether the adjournment was needed in order to ensure that the parties had a reasonable opportunity in all the circumstances to present their evidence, make their arguments and answer the opposing case. Fairness to the [Society] must be weighed against the cost of the delay to the opposing parties and perhaps even to the public interest in expeditious decision making ... My job today is not to determine whether the [Society] was treated fairly by the SDAB when it refused the adjournment request.

My job is only to decide whether the fact that the [Society] needed an adjournment so as to be able to present its evidence, make its arguments and answer the opposing case is a reasonably arguable point of law. It is. Further, that point of law is of sufficient importance to merit a further appeal. ... [ 44 ] For context, I have quoted significantly more of the Patricia Hills decision than appears in the Koopmans decision, at paragraph 43 . In both cases, the party seeking an adjournment was a self-represented litigant.

In Patricia Hills , the Society had twice requested an adjournment before the hearing commenced but the SDAB did not respond to those requests. Although the Society appeared at the hearing to request an adjournment, it did not participate in the hearing when that adjournment request was denied. The facts in the Patricia Hills case make it distinguishable from the case before me. [ 45 ] In Koopmans , Greckol J found that although Mr. Koopmans had notice of the objection to his expert witness, he did not have a ruling to that effect and did not know that his expert witness would be disqualified: see paragraph 46.

She also noted that the breach of natural justice was demonstrated by the fact that the trial judge denied the request for an adjournment to obtain expert evidence and then proceeded to find for the defendants, primarily because of a lack of expert evidence: see paragraph 47. Greckol J found that the trial judge erred because the denial of the adjournment breached the rules of natural justice as the adjournment was needed to ensure that Mr.

Koopmans had a reasonable opportunity to present his evidence with the aid of an expert witness, to make his arguments and answer the opposing case: see paragraph 48. [ 46 ] In Navarro , at paragraph 27 , Dillon J addressed how a party being a self-represented litigant may be a factor to consider when determining whether an adjournment application should be granted: The fact that a litigant is self-represented is relevant, but does not entitle him to a “pass” ...

The object is to facilitate as far as reasonable the ability of a self-represented litigant to fairly present his case on the relevant issues. ... [ 47 ] The Koopmans case, while it has some similarities to the case before me, is distinguishable on the basis that Mr. Koopmans was self represented. Before me, I have seasoned litigation counsel who understand the onus on the party proffering expert evidence to establish that it meets the legal test and the role of the court as gatekeeper.

Factor 2: The prejudice caused by granting or denying the adjournment [ 48 ] Dillon J discussed prejudice in Navarro , at paragraphs 24 and 25 : The explanation for the need of an adjournment is an important consideration. It has been said that simple neglect to get properly ready for a hearing, while irksome for the other party, will still usually lead to an adjournment on the theory that the prejudice to the person denied the adjournment will be greater than prejudice to the person who is forced to accept an adjournment ...

It would be unjust to decide, without more, that a party who has been less than diligent will be forced to go to trial unprepared ... Prejudice to the parties if an adjournment is granted or is not granted must be considered. Any prejudice to be suffered by either side must be weighed and balanced. However, it is non-compensable prejudice that is pivotal ...

If the problems raised by an explanation of prejudice can be met by conditions of an adjournment, then, upon consideration of all of the circumstances, an adjournment may be granted ... [ 49 ] The plaintiffs submit that they will be significantly prejudiced in the event that the adjournment is denied and that no prejudice to the defendants arises which cannot be compensated for in costs. [ 50 ] While delay is one of the specific factors to be considered in an adjournment application, and I will address it below, the prejudice that the defendants would suffer if an adjournment were granted is not limited to delay or matters that could be compensated by a costs award.

[ 51 ] Once a trial commences, the parties have an obligation to have their case ready and to present the best evidence to the court. However, there are often challenges. Witnesses may have other distractions and not answer in a manner that is anticipated. Witnesses may not wish to attend court. Evidence may be excluded due to a ruling made either before or during trial. Counsel may forget to ask an important question. There is a myriad of factors why trial evidence might not be as contemplated.

Nonetheless, the parties have to accept that the evidence presented at the trial will form the basis for the decision. [ 52 ] An adjournment should not be granted when the evidence of a party is not as anticipated so that such party can correct or substitute the evidence. An adjournment in this case would prejudice the defendants because it would provide the plaintiffs with the opportunity to avoid the consequences of my ruling on the admissibility of the evidence of Dr. Thornton. This would give the plaintiffs an unfair trial advantage as they would be given multiple opportunities to present expert evidence.

This would prejudice the defendants because they would not have the benefit of my ruling. Further, the defendants would not be able to assert that the plaintiffs had not made out their case at trial. Factor 3: The adjournment applicant’s explanation for not being ready to proceed [ 53 ] The plaintiffs’ explanation for wanting an adjournment is that the objection to Dr. Thornton’s expert evidence was unexpected, as was my ruling on inadmissibility.

Further, the plaintiffs have done everything that they could to maintain a trial date. [ 54 ] Having obtained the trial date on October 31, 2019, 40 months before the trial was to commence, I can certainly understand how the plaintiffs would want to make every effort to maintain the trial date, particularly since this litigation was commenced almost 20 years ago. [ 55 ] The plaintiffs note the defendants did not serve a Notice of Objection to Dr. Glass’s initial expert report, dated February 2, 2017, until six years later on February 13, 2023, 14 days before this trial commenced.

The plaintiffs contend that by not raising an objection for six years to Dr. Glass’s initial report, on the basis that he is an American physician, among other things, the plaintiffs had no reasonable expectation that Dr. Thornton’s opinion evidence would be objected to on this basis as well. [ 56 ] There was some debate as to whether qualifications must be raised in a Notice of Objection under Rule 5.36: 5.36(1) A party who receives an expert’s report must notify the party serving the report of (

a) any objection to the admissibility of the expert’s report that the party receiving the report intends to raise at trial, and (

b) the reasons for the objection.

(2) No objection to the admissibility of an expert’s report is permitted at trial unless (

a) reasonable notice of the objection was given to the other party, or (

b) the Court permits the objection to be made. [ 57 ] It is not necessary for me to make a determination on whether qualifications must be raised in a Notice of Objection. Rule 5.36(2) is clear that a party is not able to object to the admissibility of an expert’s report at trial without providing reasonable notice of the objection to the other party, unless the Court permits the objection to be made.

The law is equally clear that the trial judge is the gatekeeper of expert evidence: see White Burgess Langille Inman v Abbott and Haliburton Co , 2015 SCC 23 , at paragraph 16 . [ 58 ] The plaintiffs referred to 1469753 Alberta Ltd (Royal Services) v Luxen , 2015 ABQB 282 , where Pentelechuk J (as she then was) said, at paragraphs 53 to 54 and 59 to 60: Counsel for Royal Services objects to Mr. Olsen being qualified on the basis he is “over-qualified”. Specifically, she objects on the basis Mr.

Olsen has no journeyman certification in plumbing or heating and has not directly supervised plumbers for a long time, if at all. Counsel for Royal Services also opposes Mr. Olsen giving opinion evidence as outlined in his report, arguing relevant expert evidence is on the reasonable standard of care for a plumber, which Mr. Olsen is not qualified to provide. . . . In any event, counsel’s objections are answered by her failure to have served a notice of her objection in accordance with Rule 5.36.

That Rule indicates that no objection regarding the admissibility of an Expert’s Report is permitted at trial unless reasonable notice of the objection is given to the other party or the Court permits the objection to be made. This Rule , along with Rule 5.35 obliging service of the Expert’s Report in advance of trial, is to prevent surprise and unnecessary adjournments. The necessity of serving a notice of objection includes an objection based on inadequate qualifications of the expert, as an expert’s qualification is a prerequisite to admissibility ...

The Court retains an overriding discretion to admit opinion evidence even if the Rule is not followed. In my view however, it would be inappropriate to allow the objection in this instance. ... In remaining silent and waiting until trial to raise issues regarding Mr. Olsen’s proposed qualifications and the admissibility of his opinion, Royal Services deprived the Luxens of an opportunity to address the perceived short-comings in Mr. Olsen’s evidence and no doubt caught them by surprise with the objection.

This is procedurally unfair and contrary to the spirit and intent of the Alberta Rules of Court . [ 59 ] The facts in Luxen are clearly different from those in this case. The plaintiffs submit that they were taken by surprise at the objection to Dr. Thornton raised six weeks before trial on the basis of him being trained in and practising in the United States because no objection was raised for six years in relation to Dr. Glass, who also was trained in and practices in the United States.

[ 60 ] Regardless of whether the opposing party objects, the court must make a determination as to whether or not expert evidence is admissible. The plaintiffs were put in a very difficult position when they were made aware, approximately five months before the trial, of the unavailability of Dr. Daneman to continue as an expert. Not only did the plaintiffs lose a critical expert, but the parties also had a 40- month period during which they were waiting for their trial date. However, regardless of there being no objection to Dr.

Glass based on his American training and practice, up to January 12, 2023, the plaintiffs must have reasonably expected that they would have to meet the onus of demonstrating to the Court that Dr. Thornton should be qualified as an expert in the areas for which he was tendered. [ 61 ] While Rule 5.36(2) may preclude an opposing party from objecting to an expert witness, the law requires the party tendering the expert to show that the expert is qualified, and this obligation exists regardless of whether an objection is made. [ 62 ] The fact that the defendants did not serve a Notice of Objection relating to Dr.

Glass for six years cannot be relied upon as a basis for seeking an adjournment as a result of my determination that not all of Dr. Thornton’s expert opinion is admissible. Factor 4: The length of the adjournment being sought and the consequent disruption of the court’s

schedule [ 63 ] An adjournment, if granted, would necessarily be for a period of months so that the plaintiffs could retain one or two new experts and have expert reports served, and to give the defendants the opportunity to serve rebuttal reports and the plaintiffs the opportunity to serve surrebuttal reports. [ 64 ] Counsel for the plaintiffs submits that all efforts would be made to ensure that the one or two new experts are retained promptly, prepare the new reports in a reasonable timeframe, and proposes a

schedule so that the trial could continue in the latter part of 2023. Counsel for the plaintiffs also proposes the implementation of either case management or pretrial conferences to ensure timelines are met and schedules do not slip. I find the submissions on this point to be appropriate and, if an adjournment were to be granted, the proposed steps would be implemented. Factor 6: The proper marshalling of evidence and prosecution of complex and multifaceted actions [ 65 ] I addressed the issue of the proper marshaling of evidence in relation to factors 2 and 3. I note that this case is complex and multifaceted.

Further, this matter was initially set down for a five-week trial and, when the parties were able to agree to damages, it was reduced to four weeks. The length of trial likely contributed to the length of time the parties had to wait for a trial date when it was scheduled in October 2019. [ 66 ] However, regardless of the difficulty in marshaling evidence and prosecuting complex and multifaceted actions, allowing an adjournment so that one party can better marshal the evidence to be presented at trial after an adverse ruling would result in an unfair and inefficient trial system.

Factor 7: Whether there is a realistic expectation that the adjournment will accomplish its stated purpose [ 67 ] Dillon J noted this factor in Navarro , at paragraph 23 : Timeliness of the request is a factor. An application made at the opening of trial on the grounds that a party cannot be present will be carefully scrutinized as to the effect upon other parties, whether the party’s evidence is crucial, and what other recourse was available ...

If the trial is already underway and an adjournment may be indefinite, the court will want to consider whether it is certain that granting an adjournment would resolve the issue that was the cause of the adjournment request ... [ 68 ] The plaintiffs submit that the adjournment would not be indefinite and that they would be able to obtain an expert and be ready for trial in approximately eight or nine months. [ 69 ] The plaintiffs further submit that an adjournment would accomplish its stated purpose.

An adjournment would allow the plaintiffs to obtain better evidence which would meet the onus of qualified expert evidence. From my perspective, an adjournment would allow the plaintiffs to avoid the consequences of my ruling on Dr. Thornton’s expert opinion evidence. [ 70 ] The better approach, in my view, is to deny the adjournment application and for the trial to continue. The plaintiffs would then have the ability to appeal any ruling made during the course of the trial and my decision at the conclusion of trial.

Factor 8: The history of the proceedings, including other adjournments and delays, and at whose instance those adjournments and delays occurred [ 71 ] It is a difficult decision to deny the plaintiffs’ application for an adjournment. Branden was born almost 23 years ago and, as I noted, sadly passed away on August 15, 2014, almost seven years ago. This action was commenced almost 20 years ago.

The plaintiffs have not had their day in court and want to have their case heard on the best evidence available. [ 72 ] However, as unfair as it may seem to the plaintiffs that they are unable to have the opportunity to retain a different expert, I am of the view that adjourning the trial would not be fair to the defendants or appropriate given that the actions on which the claim is founded took place between June 2000 and September 2001.

Factor 11: The adjournment applicant should not bear the consequences of its counsel’s failures [ 73 ] Dillon J discussed this factor in Navarro , at paragraph 24 : ...

Failure of a party’s lawyer to take appropriate and/or timely steps should not irrevocably jeopardize the client under the “often applied principle that the sins of the lawyer should not be visited upon the client” provided that relief can be given on terms that protect the innocent adversary as to costs thrown away and as to the security of the legal position he has gained ... [ 74 ] Counsel for the plaintiffs asserts that if there was an error made in the litigation strategy it should not be borne by the plaintiffs themselves.

Preparing for trial requires an enormous amount of work and millions of decisions, some large some small, all of which are made to present the best case to the court that is possible at the time when trial is held. Dr. Daneman’s inability to be an expert witness, which came to light in September 2022, is not the fault of any party or person. When trial preparation does not work out as anticipated, or hoped for, counsel typically do the best with the situation as they find it. [ 75 ] I do not find any counsel failure for which the plaintiffs will bear the consequences.

Expert opinion evidence is the exception to the rule because of the dangers of relying upon it: see White Burgess , at paragraphs 16 to 20. Expert witnesses are regularly scrutinized to ensure that their evidence meets the threshold requirements for admissibility. In this case, Dr. Thornton’s expert evidence did not meet the threshold requirement of relevance, except for in relation to one sub-issue. The inadmissibility of Dr.

Thornton’s expert evidence on the other issues is an evidentiary ruling of a kind regularly made in trials and, in this case, so far as I am aware, does not indicate any failure on the part of counsel. Purpose and intention of the Rules of Court [ 76 ] The defendants raised Rule 1.2 in their submissions opposing the adjournment application.

Rule 1.2 sets out the purpose and intention of the Rules of Court and are applicable to this application. [ 77 ] Rule 1.2(1) refers to claims being fairly and justly resolved: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way. [ 78 ] As I have noted above, allowing an adjournment so that a party can present better evidence at trial would not be fair or result in a just resolution.

Furthermore, allowing a party to adjourn a trial already underway so that it can correct an evidentiary issue would not allow the court process to operate in a timely and cost-effective manner. [ 79 ] Rule 1.2(2) focuses on how the Rules of Court are to be used:

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. [ 80 ] The plaintiffs submit that an adjournment is required to ensure that the trial is heard on its merits and to identify the real issues in dispute. Rulings on the admissibility of evidence in a trial are, in my view, rulings on the merits and dealing with the real issues in dispute. Denying the adjournment does not bring the trial to an end; it only means that it carries on unless it is discontinued.

The plaintiffs have the ability to appeal a ruling or the judgment once the trial has concluded and the judgment is rendered. [ 81 ] Rule 1.2(3) speaks to the obligations of the parties:

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively. [ 82 ] I have already addressed why the timing issues relating to the Notice of Objection with regard to Dr. Glass do not affect my ruling denying the adjournment application. With regard to the Notice of Objection relating to Dr. Thornton, counsel for the plaintiffs acknowledged that it was made in a reasonable period of time given the service of Dr. Thornton’s expert report in November 2022 due to

Dr. Daneman’s inability to continue to be an expert. [ 83 ] Rule 1.2(4) sets out the obligation of the Court when exercising its discretion:

(4) Intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. Conclusion [ 84 ] While the plaintiffs have been put in a difficult position as a result of my ruling on the admissibility of Dr. Thornton’s expert opinion, the application for an adjournment is denied. Trials must proceed regardless of the mid-trial rulings.

Allowing a mid-trial adjournment to remedy expert evidence where it is found to be inadmissible would have a catastrophic effect on all trials where expert evidence is relied upon. No longer could there be any confidence that a trial would continue to its conclusion in the face of an adverse ruling on admissibility. Heard on the 1 st day of March, 2023. Delivered orally on the 2 nd day of March, 2023. Dated at the City of Calgary, Alberta this 14 th day of March, 2023. E.J. Sidnell J.C.K.B.A.

Appearances: Michael W McVey and Michael AA Shepherd for the Plaintiffs Megan L McMahon and Jessie M Larter for the Defendants