On the second day of a five-week medical malpractice Trial, the Plaintiffs’ family physician Expert Witness was not fully qualified as anticipated. The Trial Judge granted an adjournment sine die to allow the Plaintiffs/Respondents time to “shore up” their expert evidence. The Defendants/Applications applied here for permission to appeal the mid-Trial decision.

Prior to Trial, the Plaintiffs served an Expert Report and two rebuttal Expert Reports from their proposed Expert Witness. Days before the Trial, the Defendants/Applicants served and filed Notices of Objection in response pursuant to Rule 5.36. Notwithstanding the Notices of Objection, the Defendants/Applicants argued that notice under Rule 5.36 was not required for challenges to an Expert’s qualifications. The Trial Judge agreed, and the Plaintiffs/Respondents’ Expert Witness was not fully qualified in all proposed areas of expertise. The Plaintiffs/Respondents therefore sought an adjournment, which was granted.

The Court of Appeal considered the test for granting permission to appeal, which, pursuant to Rule 14.5(1)(c), is required in respect of any ruling made during a Trial where the Trial has not concluded. Justice Schutz stated that such an Appeal may only be entertained in unusual and exceptional circumstances—litigation by installment is discouraged and permission to appeal should be declined where there is an adequate alternative remedy awaiting the final decision and exercising the statutory right of Appeal.

However, Schutz JA acknowledged that permission to appeal may be granted where there may have been a manifest injustice, which may arise in relation to exercises of discretion where the Trail Judge clearly misdirected themselves on the facts or the law or proceeded arbitrarily.

Justice Schutz held that exceptional and unusual circumstances existed in this case. Firstly, a mid-Trail adjournment to secure an alternate or additional expert, the need for which was based on a foreseeable issue, is unusual. Secondly, the delay caused by this proposed Appeal would have no effect, since the alternative is delay due to adjournment sine die. The Court further held that the lack of parameters imposed around the adjournment may result in prejudice to the Applicants/Defendants which could, in turn, result in a successful Appeal of the final decision and a retrial. Lastly, Schutz JA observed that the Trial Judge did not have the benefit of fulsome argument or a comprehensive review of the case law on this issue of Trial fairness, which may have amounted to manifest injustice not compensable in costs.

Justice Schutz therefore granted permission to appeal.