slatter, o'ferrall and veldhuis jja

1.2: Purpose and intention of these rules
1.5: Rule contravention, non-compliance and irregularities
9.15: Setting aside, varying and discharging judgments and orders
13.5: Variation of time periods

Case Summary

The parties in a personal injury Action obtained a Consent Order which set procedural deadlines. The Appellant, Brinton, served his expert report late and following demands from the Respondents, but refused to attend an independent medical assessment (“IME”) as requested by the Respondents. The Court of Queen’s Bench granted the Respondents’ Application to extend the procedural deadlines in order to serve their response expert report, and ordered the Appellant to attend the IME. The Appellant attended the IME, but concurrently appealed the Order to extend time for service of the Respondents’ expert report.

The Court of Appeal noted that litigation schedules are designed to fulfil the objectives of Rule 1.2, but that plans and schedules must be not be allowed to overcome the objective of deciding the litigation on the merits. Rule 1.5(4) helps provide the required flexibility in schedules because it allows non-compliance to be cured in the absence of irreparable harm and where curing the non-compliance is not contrary to the interests of justice. Because the Trial was scheduled so far in the future, (in 2020) there was no harm in having the IME conducted and the response expert report delivered later than the date stipulated in the Consent Order.

Further, Rule 9.15 was not applicable because Rule 13.5(2)(b) permits the Court to extend a time period specified in an Order or Judgment. The Court’s discretionary decision to extend the time period could not be disturbed unless it was “wholly unreasonable”. The Appeal was therefore dismissed.

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