The Ontario Superior Court of Justice has adjourned a trial in a slip and fall action after finding that the plaintiff’s late disclosure and incomplete discovery performance would unfairly prejudice the defendants. The Court emphasized that compliance with discovery obligations is essential to case management, trial preparation, and settlement discussions.
In Abou-Antoun v. First Capital (Gloucester) Corporation, 2026 ONSC 2224, the plaintiff brought a claim arising from a July 2018 incident at a grocery store, where she slipped and fell while walking toward the exit during a shopping trip. She alleged that the fall caused injuries that contributed to a chronic pain syndrome as defined by the American Medical Association Guidelines. In her statement of claim, she sought damages of $900,000, while planning to ask the jury to assess damages that could exceed $2 million. The defendants denied liability under Ontario’s Occupiers’ Liability Act, 1990.
The plaintiff was examined for discovery in April 2021. The trial, originally set for June 2025, had already been adjourned to March 16, 2026, because of limited court resources. At a trial management conference in March 2026, the defendants sought another adjournment after learning shortly before trial that the plaintiff had not fully met her discovery obligations.
Court’s Decision
Justice Sylvia Corthorn granted the defendants’ motion and adjourned the trial to 2028. The Court described the request as a practical and efficient response to the circumstances and stressed the importance of timely disclosure.
The Court noted that proper discovery compliance affects each party’s settlement position over time, the development of case theory, trial scheduling, trial preparation, and overall management of the proceeding. It also agreed that it would not be cost-effective or efficient to proceed to trial and require the plaintiff to seek leave later under rules 39.03(a) and 30.08(1)(a) of the Rules of Civil Procedure.
Discovery Failures Considered
The Court identified four aspects of the plaintiff’s conduct that weighed in favour of an adjournment:
- She did not comply with her oral discovery obligations under rule 31.09(1)(b).
- She failed to explain why she did not tell the defendants that she had entered a chronic pain program and returned to the Montfort Hospital Psychiatric Outpatient Clinic.
- She was required to update the defendants in writing so that her April 2021 discovery answers remained accurate and complete.
- She also failed to meet her documentary disclosure obligations under rule 30.07, and the late production of documents was attributed to her counsel’s inadvertence.
- She did not explain why, at a January 2026 appearance in which she confirmed she was ready to proceed to trial, she did not disclose that further updated information and documents would still be provided.
- Her witness list did not include the healthcare professionals involved in her chronic pain treatment.
- The addition of those witnesses and hundreds of pages of documents would affect how much trial time was required.
Justice Corthorn remarked that the plaintiff was “the author of her own misfortune” in causing the trial to be delayed by several years.
Why the Delay Mattered
The Court found that fairness required the defendants to have time to review the newly disclosed material and adjust their approach accordingly. That information could affect their theory of the case, their settlement position, further trial preparation, and how they would present the defence at trial.
This decision is a useful reminder that courts expect litigants to meet disclosure obligations fully and promptly. Where late production threatens fairness or trial management, adjournment may be the appropriate remedy, even in cases that have already been scheduled for hearing.
At Flaherty McCarthy LLP, we routinely represent plaintiffs and defendants in personal injury and occupiers’ liability matters, including cases where discovery compliance, trial fairness, and procedural strategy are central issues. Our team helps clients protect their position at every stage of litigation, from disclosure through to trial.
