Introduction and overview

The Alberta Court of King’s Bench’s decision in Baldock Estate v Abou Reslan, 2023 ABKB 149 [Baldock Estate], reaffirms the test for granting an adjournment after the commencement of trial and provides insight into the Court’s assessment of how adjournment applications will prejudice the parties’ legal positions.

In this decision released March 14, 2023, Justice Sidnell decided an adjournment application heard in the middle of trial proceedings. The Plaintiffs brought an application to adjourn so that they could commission a new expert report, as their original expert report was deemed inadmissible earlier in the trial. The Plaintiffs’ application to adjourn the trial was denied. The Court found that to grant such an application would effectively allow the Plaintiffs to reverse an evidentiary ruling that was not decided in their favour.

Background facts

The Plaintiffs claimed that the Defendant physicians were negligent in their medical care of the infant Branden Baldock, resulting in catastrophic, permanent, and irreversible neurological injury that affected every aspect of his life and ultimately resulted in his death.

The parties were able to agree to damages and the trial proceeded on the issue of liability. After the Plaintiffs’ opening statement, a voir dire on the qualifications of the Plaintiffs’ medical expert, Dr. Paul Thornton, was heard on the first day of trial. Counsel made submissions regarding the admissibility of Dr. Thornton’s expert evidence.

There was no doubt that Dr. Thornton was an internationally renowned expert in pediatric endocrinology, but he had no training or experience in Canada. As such, on the second day of trial, the Court ruled that Dr. Thornton’s opinion evidence was inadmissible with respect to a majority of the liability issues because he did not have the required specialized knowledge about the applicable practices and standards, at the relevant time, in Canada.

After ruling on Dr. Thornton’s inadmissibility as an expert witness, counsel for the Plaintiffs made an application for an adjournment of the trial, in order for the Plaintiffs to retain a new expert. Counsel for the Defendants opposed the adjournment application.

Procedural history

This litigation spanned 20 years from the date of filing the Statement of Claim until the date of trial. Several amendments to pleadings, as well as the generally complicated nature of the litigation, resulted in the lengthy procedural history.

The Plaintiffs retained Dr. Denis Daneman, a Canadian pediatric endocrinologist who opined on the standard of care and causation issues from a pediatric endocrinologist’s perspective. Dr. Daneman’s initial report was dated April 18, 2013.

The Plaintiffs also retained Dr. Stephan Glass, an American pediatric neurologist to opine on the standard of care and causation from a pediatric neurologist’s perspective. Dr. Glass’s initial report was served on the Defendants in 2017.

On October 31, 2019, a Civil Trial Coordinator set the trial date for this matter to commence on February 27, 2023 for a 25-day trial. In September 2022, Dr. Daneman advised Plaintiffs’ counsel that he had retired from the medical profession and, for personal reasons, was no longer providing expert opinions. He requested that the Plaintiffs retain another expert.

The Plaintiffs retained Dr. Thornton to replace Dr. Daneman. Counsel for the Plaintiffs submitted that all efforts were made to maintain the trial date and that a report from Dr. Thornton, dated November 25, 2022, was served on the Defendants on November 29, 2022.

On January 12, 2023, approximately 45 days before the commencement of the trial, the Defendants served a Notice of Objection in relation to Dr. Thornton’s expert report. On February 13, 2023, the Defendants also served a Notice of Objection to Dr. Glass’s expert report.

On February 24, 2023, a supplementary pretrial conference was held. Counsel proposed conducting the Dr. Thornton voir dire at the commencement of the trial.

Decision & Analysis

Under the Alberta Rules of Court, Alta Reg 124/2010, an application for an adjournment, once trial has commenced, may only be granted with leave of the judge as set out in Rule 8.6(2).[1]

A court may exercise its discretion to grant an adjournment in appropriate circumstances. Justice Pigeon for the Supreme Court of Canada in Barrette v R, [1977] 2 SCR 121, 68 DLR (3d) 260 articulated how this discretion should be exercised:

It is true that a decision on an application for adjournment is in the judge’s discretion… This right of review is especially wide when the consequence of the exercise of discretion is that someone is deprived of his rights, whether in criminal or in civil proceedings…[2]

Both parties referred to eleven factors that may be considered by a court on an adjournment application. These factors were set out in Royal Bank of Canada v Place, 2010 ABQB 733 and have been affirmed in subsequent decisions.[3] The Court afforded the greatest consideration to three of these eleven factors.

Factor 1: Courts should make a just determination of the real matters in dispute and they should decide cases on their merits

The Plaintiffs asserted that the paramount consideration on an adjournment application is ensuring that a fair trial on the merits is maintained. To this end, the Plaintiffs submitted that the expert opinions of Dr. Thornton and Dr. Glass were crucial to their case.

In support of their application, the Plaintiffs cited several Alberta decisions where adjournments were granted in situations where the applicants’ position during trial would be significantly prejudiced without the adjournment. The distinguishing factor in consideration of those cases was that the adjournment applications were made before the trial commenced.

In this case, the adjournment application arose from a ruling made during the trial that Dr. Thornton’s expert opinion was not admissible for the majority of issues for which that expert opinion was tendered. The Court ruled that “to grant an adjournment so that the Plaintiffs can retain a replacement expert would effectively allow the Plaintiffs to reverse a ruling that was not decided in their favour. Throughout the trial process, there are rulings made on admissibility of evidence. If a losing party could adjourn the trial each time an evidentiary ruling was made in order to obtain new evidence, not only would the trial process be unfair it would also be untenable, unmanageable, and inefficient.”[4]

Factor 2: The prejudice caused by granting or denying the adjournment

The Plaintiffs submitted that forcing them to proceed with the trial without the full benefit of Dr. Thornton’s report would result in substantial prejudice to the Plaintiffs and that no prejudice to the Defendants arose that could not be compensated for in costs.

Once a trial commences, the parties have an obligation to have their case ready and to present the best evidence to the court. An adjournment should not be granted when the evidence of a party is not as anticipated, so that such party can correct or substitute the evidence. The Court found that an adjournment in this case would prejudice the Defendants because it would provide the Plaintiffs with the opportunity to avoid the consequences of the Court’s ruling on the admissibility of the evidence of Dr. Thornton.[5] This would give the Plaintiffs an unfair trial advantage, as they would be given multiple opportunities to present expert evidence. This degree of prejudice to the Defendants could not be compensated for in costs.

Factor 3: The adjournment applicant’s explanation for not being ready to proceed

The Plaintiffs’ explanation for wanting an adjournment was that the Defendants’ objection and the ruling on inadmissibility to Dr. Thornton’s expert evidence was unexpected.

The Defendants did not serve a Notice of Objection to Dr. Glass’s initial expert report, which was based on his lack of Canadian credentials, until six years after receiving Dr. Glass’s report. As such, the Plaintiffs argued that they had no reasonable expectation that Dr. Thornton’s opinion evidence would be objected to on the same basis, i.e. Dr. Thornton’s lack of Canadian credentials.

There was some debate as to whether qualifications must be raised in a Notice of Objection under Rule 5.36 of the Alberta Rules of Court.

5.36 Objection to expert’s report

5.36(1) A party who receives an expert’s report must notify the party serving the report of

      • (a) any objection to the admissibility of the expert’s report that the party receiving the report intends to raise at trial, and
      • (b) the reasons for the objection.

5.36(2) No objection to the admissibility of an expert’s report is permitted at trial unless

      • (a) reasonable notice of the objection was given to the other party, or
      • (b) the Court permits the objection to be made.[6]

The Court did not find it necessary to make a determination on whether an expert’s qualifications must be raised in a Notice of Objection. Rule 5.36(1)(b) is clear that a party is not able to object to the admissibility of an expert’s report without providing reasons for the objection; however, the Court noted that “the law is equally clear that the trial judge is the gatekeeper of expert evidence.”[7]

Regardless of there being no objection by the Defendants to Dr. Glass’s expert evidence for six years after service of his report, the Plaintiffs must have reasonably expected that they would have to meet the onus of demonstrating to the Court that Dr. Thornton should be qualified as an expert in the areas for which he was tendered. The law requires the party tendering the expert to show that the expert is qualified, and this obligation exists regardless of whether an objection is made.[8]

For the foregoing reasons, the Court denied the application for an adjournment. The Plaintiffs have not filed appeal materials to date.

Practical takeaways

Baldock Estate serves to remind litigants that trial judges retain a latitude of discretion when presented with adjournment applications after a trial date has been scheduled. For those seeking to adjourn at critical junctures within the litigation process, the hurdle to cross becomes increasingly more difficult. This case reaffirms the jurisprudence that applicants seeking an adjournment must demonstrate how the eleven factors weigh in their favour. A failure to satisfy any one particular factor over another may not doom the application, however the totality of the circumstances and consequential prejudices will all be considered in an adjournment application.

Baldock Estate also provides a cautionary tale to litigants in Alberta about the importance of carefully retaining experts and exercising caution when retaining an expert who does not have Canadian credentials or Canadian experience – especially in matters where Canadian standards of practice within a particular industry are relevant to the case. The trial judge is ultimately the gatekeeper of expert evidence. Litigants must be prepared to show why their expert has capacity to tender evidence in their field, regardless of whether the opposing party files a Notice of Objection.

Miller Thomson’s Commercial Litigation Group is equipped to assist litigants with all aspects of their legal action, including the retainer of appropriate experts in highly specialized areas.

[1] Alberta Rules of Court, Alta Reg 124/2010 [Rules], at Rule 8.6(2).

[2] Barrette v R, [1977] 2 SCR 121, 68 DLR (3d) 260 at para 6.

[3] Royal Bank of Canada v Place, 2010 ABQB 733 at para 60.

[4] Baldock Estate v Abou Reslan, 2023 ABKB 149 [Baldock Estate] at para 40.

[5] Ibid at para 52.

[6] Rules, supra note 1 at Rule 5.36.

[7] Baldock Estate, supra note 4 at para 57.

[8] Ibid at para 60.