A recent decision from the Alberta Court of Appeal in October 2017 confirmed any Judge from the Alberta Court of Queen's Bench could extend the timelines for the exchange of expert reports previously agreed to between counsel, either in a letter or order from a previous Judge.

In Brinton v. Coish, 2017 ABCA 334, the parties had a Consent Order setting deadlines for the exchange of expert reports and had a trial set to be heard three years later.  The Plaintiff/Appellant served its reports by the deadline. However, those reports had been obtained by the Plaintiff several years before the Consent Order was entered.  The Defendants/Respondents had been requesting the reports for nine months before the Consent Order was entered.  The Plaintiff's reports contained new information that required further Questioning and a rebuttal report.  Unfortunately, the Defendants' expert of choice was unavailable to conduct an independent medical examination of the Plaintiff before the deadline in the Consent Order.  The Defendants requested the Plaintiff's attendance at the independent medical examination scheduled three weeks after the deadline of their reports and to attend further Questioning.  The Plaintiff refused. 

A Chambers Judge extended the time for service of the Defendants' expert reports to January 30, 2018, and directed that the Plaintiff attend the independent medical examination scheduled by the Defendants.  The Plaintiff applied for a stay of the action pending the outcome of its appeal of the order of the Chambers Judge.  While the stay was allowed in part, the Plaintiff was still ordered to attend the independent medical examination. 

On appeal, the Plaintiff vigorously argued that since the Defendants had missed the deadline in the Consent Order, they should be precluded from serving any rebuttal expert reports or calling any rebuttal expert witnesses at the trial scheduled to be heard in three years.  The Court of Appeal disagreed.

Notwithstanding there was no prejudice to the Plaintiff if the Defendants obtained rebuttal expert evidence, the Court said litigation schedules and orders setting time limits are designed to facilitate fair and just resolution of claims. They must be flexible enough to adapt to changes in circumstances including the unavailability of expert witnesses.  This is the case for procedures agreed to by counsel, contained in a Consent Order or provided for in any other order.  While deadlines must not be ignored, they must also not be allowed to overcome the ultimate objective of deciding litigation on the merits.  The Court said that denying the Defendants the right to rely on rebuttal evidence would deprive the Trial Judge of its ability to decide the matter fairly and justly.  The Court specifically said that depriving the Trial Judge of relevant evidence was counterproductive.

The Court of Appeal relied on Rule 13.5 of the Alberta Rules of Court which specifically allows a Judge to extend a time period that is specified in an order or judgment.  The Court went on to say that a Judge’s discretionary decision to extend a time period will not be disturbed on appeal unless it is wholly unreasonable.  The Plaintiff failed to show any reviewable error and the appeal was dismissed.

Brinton stands for the proposition that any Judge of the Court of Queen's Bench can extend the timelines contained in a previously agreed to Consent Order signed by another Judge.  Rule 13.5 specifically provides the Court with this power.  The decision to extend timelines is a discretionary decision.  The standard of review for such a decision is very high and the Court of Appeal will not intervene unless the decision is clearly unjust or wholly unreasonable.  There has to be prejudice.

This case is also a warning to all counsel not to agree to Litigation Plans or Consent Orders without canvassing the availability of experts.  In addition, such Consent Orders or Litigation Plans should include a clause that either party is at liberty to apply to extend the deadlines contained in the Order.  This is especially prudent when dealing with counsel who may try to enforce such deadlines contained in Litigation Plans or Consent Orders as if they were limitation periods.

By Nabeel Peermohamed, Brownlee LLP