The Court of King’s Bench of Manitoba has refused to allow a last-minute expert medical report into evidence in a wrongful dismissal case, citing concerns of “trial by ambush.”
The trial in this case is set for Feb. 12-21, 2024 and counsel for the plaintiffs (a medical doctor and a medical corporation controlled by him) filed the report on Dec. 7, 2023 — nearly one year past the court’s set deadline of Jan. 2, 2023, for expert reports.
They intended to rely on the 18-page medical report — the Waldman affidavit — as “expert evidence in relation to the issue of damages allegedly suffered by the plaintiffs arising out of the termination of his contract.”
The case, involving multiple causes of action related to the plaintiffs’ termination, had been in a procedural limbo due to various pre-trial complications. A key moment came on Dec. 13, 2023, during a pre-trial hearing, when the court set a series of deadlines for both parties to prepare for the upcoming trial.
These deadlines included submission dates for witness lists, “can say” statements, an agreed book of documents, an agreed statement of facts, and books of authorities.
A notable development in this hearing was the court’s decision to seal the Waldman affidavit following a motion by the plaintiffs for a sealing order and publication ban. Additionally, the court approved the attendance of one of the defendant’s witnesses via video conference.
However, the pivotal decision came with the striking of the Waldman affidavit. The court ruled to exclude the affidavit from the trial, citing its late submission as a primary reason. The affidavit, filed on December 7, 2023, six days before the pre-trial, was submitted well past the court’s set deadline of Jan. 2, 2023, for expert reports.
The judge noted that the plaintiffs had not advised the court or the defendant of their intention to submit this new report, deviating from the initial expert reports discussed at an earlier pre-trial hearing.
The court’s decision was influenced by the risk of jeopardizing the scheduled trial dates and the potential unfair advantage to the plaintiffs. The late submission would have given the defendant insufficient time to respond appropriately, it said.
“The court takes issue with the plaintiffs’ position that in these circumstances, the rules do not require him to provide notice at the eleventh hour of their intention to rely on a previously undisclosed expert report dealing with a different field of expertise,” it said.
“The lack of timely notice by the plaintiffs here will either jeopardize the trial dates if the Waldman affidavit is admitted or the admission of the Waldman affidavit and proceeding with the trial on the scheduled date will place the other party at a patently discernible disadvantage.”
The decision to strike the Waldman affidavit highlights the importance of adhering to procedural deadlines and the implications of late submissions in legal proceedings. This ruling sets a precedent in maintaining fairness and avoiding undue delays in the judicial process, particularly in complex cases such as this wrongful dismissal and breach of contract lawsuit. The case continues towards its February 2024 trial date, with both parties now having to adjust their strategies following this significant court decision.
For more information, see Hahlweg et al. v. Women’s Health Clinic Inc., 2024 MBKB 2 (CanLII).
