Very often in litigation, a party will obtain an expert report on some aspect of the issues in dispute. One of the most common of these reports is when the defence in a personal injury matter obtains an independent medical exam of the plaintiff.
Every now and then, that defence medical report will be helpful for the plaintiff’s case. This was the situation in Aly v. Personal Care Holdings Ltd., 2022 NSSC 108.
In Aly, plaintiff counsel received the defence medical report (because the defence is required to provide it) and it was helpful to the plaintiff’s case. It is probably for that reason that defence counsel did not file it with the Court. Nor are they required to – for you only have to file that which you intend to rely on.
Some time after the time had passed for the filing of reports, plaintiff counsel realized that the defendant did not file it. Plaintiff counsel brought an application to have the report filed late and to add the doctor to the witness list. In denying the application, the Court stated:
[31] …I am not convinced on the evidence before me that it would be unjust in the present circumstances to exclude the evidence… It is the obligation of the Plaintiff to ensure all evidence upon which he intends to rely is properly before the court. He was provided with a copy of the Gross Report in July of 2020 (over 19 months ago)…. On July 20, 2021, the Plaintiff received a copy of the Notice of Filing of Expert Report for the only expert report filed by the Defendant, that of Mr. Sam Kodsi, with certified copies to follow. Conversely, the Plaintiff did not receive a court filed copy of the Gross Report….
[32] Under Rule 21.05(2), a party who receives an IME report has an obligation to deliver the report. There is no obligation on that party to file the independent medical examination report with the court. It is solely the party’s choice. It is folly for a Plaintiff to rely on a Defendant to file an IME report with the court, without assurances or an undertaking to do so.
[33] There is no property or ownership in an expert witness (with some very limited exceptions). An expert opinion is for the assistance of the court. The wording of Rule 55.04 setting out the required content of an expert report, highlights this point…
[34] If the Plaintiff wished to rely on [the] opinion, he could have inquired of Defendant’s counsel to ensure the report was being filed. When it was not, the Plaintiff could have taken steps to ensure the evidence was properly before the court. He did not do so. The Plaintiff argues the evidence…is crucial as it is not otherwise available from the Plaintiffs other medical evidence. If this evidence was so crucial to the Plaintiff’s case, particular attention should have been paid to whether the Defendant would be filing the report with the court. It was not and the Plaintiff cannot now seek to lay the blame at the feet of the Defendant.
Bottom line is this. Follow the rules and if you receive an expert report that you intend to rely on, file it yourself. Do not rely on someone else, especially the opposite party, to do that.