Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether the plaintiff could obtain leave, after setting the action down for trial, to bring late interlocutory motions attacking the defence expert and defence counsel.
• Alleged conflict of interest arising from the defence ENT expert, Dr. Korman, having briefly treated the plaintiff earlier in the same clinic as the plaintiff’s treating ENT, and whether that prior contact justified disqualification.
• Concerns about potential breach of medical confidentiality and improper use of clinical information when Dr. Korman later acted as an independent medical examiner for the defence.
• Responsibility for identifying and raising conflicts and confidentiality concerns in a timely way, particularly where the plaintiff and his counsel already had the relevant clinical records.
• High threshold for removing defence counsel from the record, and whether a reasonable, informed member of the public would see removal as necessary to protect the administration of justice.
• Application of the “substantial or unexpected change in circumstances” and “interests of justice” test under the post-set-down leave framework, leading to denial of both proposed motions.

Background and facts of the motor vehicle claim
The underlying action arises out of a motor vehicle accident in which the plaintiff, Mohit Sharma, alleges he was rear-ended by a vehicle driven by the defendant, Sukhdeep Kaur, on November 29, 2021. The plaintiff commenced a civil action in the Ontario Superior Court of Justice seeking damages arising from this collision. The plaintiff also has an ongoing Statutory Accident Benefits (SABs) claim, but the judgment notes this only in passing and does not analyze any specific benefit entitlement or policy wording. The focus of the reasons is procedural and evidentiary rather than on liability or quantum for the accident itself.
As litigation progressed, plaintiff’s counsel requested complete medical records from the plaintiff’s treating ear, nose and throat (ENT) specialist, Dr. Belchetz, in November 2022. Those records clearly indicated that another ENT, Dr. Mark Korman, practised out of the same office as Dr. Belchetz. Later, the plaintiff swore that he had in fact been briefly seen by Dr. Korman in September 2023. During a debridement procedure on the plaintiff’s left ear, performed by Dr. Belchetz, the plaintiff became dizzy and was asked to lie down in another room. Dr. Korman then entered, inquired about his dizziness, briefly examined his ear, and discharged him. The court accepted for purposes of the motion that this short interaction occurred.

Procedural history leading to the leave motion
The plaintiff’s claim was served around June 13, 2022. The plaintiff then set the action down for trial on March 10, 2023, by passing the trial record. In Assignment Court on October 23, 2023, the parties sought pre-trial dates and ultimately obtained dates in January 2025.
The plaintiff served his expert reports in January 2024. The defendant responded by arranging two independent medical examinations (IMEs): one with Dr. Duhamel and one with Dr. Korman, the ENT who shared an office with the plaintiff’s treating specialist. Plaintiff’s counsel consented to both assessments. The plaintiff attended the IME with Dr. Korman on April 22, 2024; Dr. Korman prepared his report in May 2024. No objection was raised about conflict or independence at the time of the IME or immediately thereafter. The report itself was not served until January 28, 2025, with no explanation for the delay.
A pre-trial scheduled for February 24, 2025 was converted by the Regional Senior Judge into a case conference. At that case conference, Justice Lemay imposed a timetable for dealing with various issues. That timetable was derailed when plaintiff’s counsel introduced two new issues in motion materials: whether it was proper for Dr. Korman to act as an expert, and whether defence counsel, Mr. R. Kim McCartney, should be removed from the record for allegedly receiving improperly obtained confidential information.
At a further appearance in September 2025, Justice Lemay decided that the threshold issue of leave—whether the plaintiff could bring these motions at all, given that the action had already been set down for trial—could be determined on written submissions. He directed the parties to serve, file and upload leave materials to CaseLines and provide a copy directly to him. Counsel failed to send the materials to the judge, leading him to assume the matter had resolved. Eventually, on January 21, 2026, plaintiff’s counsel wrote to his judicial assistant, attaching the materials and admitting an oversight. That timing created urgency, as counsel indicated a long motion was scheduled shortly and needed a ruling on leave. The judge noted this was the second time in the case that counsel had not followed court directions.

The legal test for leave after setting an action down for trial
Once an action has been set down for trial by serving and filing a trial record, Rule 48.04 of the Rules of Civil Procedure restricts a party from initiating further interlocutory motions or additional discovery steps without leave of the court. Justice Lemay adopted and applied the framework from Ginkel v. East Asia, 2010 ONSC 905, which distills the relevant principles. Core among them is that the setting down for trial is not a mere technicality: leave to bring further interlocutory steps will only be granted where there has been a substantial or unexpected change in circumstances such that refusal would be manifestly unjust, or where the interlocutory step is necessary in the interests of justice.
In this context, a central fact was that the plaintiff consented to the IME with Dr. Korman after the alleged conflict and prior brief treatment had already occurred. The court pointedly noted that there was no reasonable explanation in the plaintiff’s materials for why any potential conflict had not been raised before agreeing to the examination.

Alleged conflict of interest and confidentiality issues regarding Dr. Korman
The plaintiff advanced two main arguments for disqualifying Dr. Korman as an expert: first, that as a colleague of the treating ENT working in the same office, Dr. Korman might have accessed the plaintiff’s clinical records; and second, that he had in fact treated the plaintiff, thereby creating a conflict and breaching patient confidentiality when later acting for the defence. The plaintiff argued he could not have known, prior to setting the action down for trial, that the defence would retain Dr. Korman, and that any conflict was not disclosed to him as a catastrophically impaired plaintiff.
Justice Lemay rejected this as a basis for leave. He emphasized that while Dr. Korman was not retained as a defence expert until after the trial record was passed, two key points were omitted from the plaintiff’s position: the plaintiff expressly consented to the assessment, and on his own evidence he knew he had previously been seen, however briefly, by Dr. Korman. That meant any supposed conflict was not a “substantial and unexpected” late-arising circumstance; rather, it was something the plaintiff and his counsel could and should have addressed before attending the defence IME.
The judge also found that the defendant was not obliged to anticipate or discover unbilled medical interactions between a potential expert and the plaintiff. In the absence of evidence of cognitive impairment, any catastrophic injuries did not shift to the defendant the responsibility for identifying such conflicts. Plaintiff’s counsel also had the clinical notes and records from the treating ENT, so they were in a position to know about the prior interaction.
On confidentiality, the plaintiff relied heavily on Burgess (Litigation Guardian of) v. Wu, 2003 CanLII 6385 (ON SC), where an expert who had earlier consulted on the plaintiff’s care received detailed records and was later disqualified for confidentiality reasons. Justice Lemay distinguished Burgess on two main grounds. First, in Burgess the consulting psychiatrist had been given substantial confidential medical information; here, the interaction with Dr. Korman was limited to checking whether the plaintiff could go home after dizziness. The judge found it unclear that any meaningful confidential information arose from that brief encounter, especially where all of Dr. Belchetz’s clinical records had already been produced at the plaintiff’s own request. In those circumstances, he could not see how any remaining confidentiality interest was seriously engaged.
Second, in Burgess the prior treating/consulting role was not the product of a knowing consent by the plaintiff to later be examined by the same doctor for the defence. In this case, the plaintiff knew or ought to have known he had seen Dr. Korman once before and still proceeded with the IME. If he wished to object, he could have had his lawyer write to defence counsel before the examination to raise the conflict. He did not do so, and the court held he should not be allowed to raise it only after an unfavourable expert report existed.
The plaintiff further suggested that excluding Dr. Korman’s evidence would shorten trial preparation and the trial itself, and that this supported leave “in the interests of justice.” Justice Lemay rejected that reasoning, observing that while striking one side’s expert may shorten a trial, it would be manifestly unfair to that party and hard to reconcile with the interests of justice.

Application of the leave test to the motion against Dr. Korman
Given this factual matrix, Justice Lemay concluded that the plaintiff had not demonstrated any substantial or unexpected change in circumstances arising after the action was set down that would justify granting leave. Nor was the proposed motion to disqualify Dr. Korman necessary in the interests of justice. The plaintiff bore the responsibility to raise any conflict or confidentiality concern in a timely fashion; having knowingly attended the IME and delayed the challenge, he could not satisfy the stringent post-set-down test.
Accordingly, leave to bring a motion to exclude Dr. Korman’s expert evidence was denied. The judge did, however, note that the ultimate gatekeeping role over expert evidence remains with the trial judge, and that his decision on leave was not intended to diminish that function.

The motion to remove defence counsel from the record
The plaintiff also sought leave to bring a motion to remove defence counsel, Mr. McCartney, from the record, asserting that even a “whisper” of improper disclosure of medical information to the defence should justify such a remedy. Justice Lemay applied the high threshold for removal of counsel, as summarized in Smith v. Muir, 2019 ONSC 2431. The governing test asks whether a fair-minded, reasonably informed member of the public would conclude that removal is necessary for the proper administration of justice. Canadian courts exercise strong restraint before interfering with a party’s choice of counsel, and removal will be ordered only in the rarest of cases and only where there are compelling reasons.
Against that standard, the judge found the plaintiff’s position wanting. The core allegation was that, although defence counsel had no way to know that Dr. Korman had briefly seen the plaintiff, counsel should nonetheless be removed because there had been an improper disclosure of medical information flowing from the IME and prior contact. Justice Lemay identified two fundamental flaws. First, he reiterated that responsibility for identifying the conflict lay with the plaintiff, not with the defendant or its counsel. Second, and critically, there was no evidence of deliberate or wrongful conduct by defence counsel.
The court contrasted this case with the facts in Muir, where counsel had subpoenaed a doctor, sent a letter suggesting production of the doctor’s full file before trial, and arranged for a law clerk to have a substantial pre-trial discussion with the doctor about his recollection of the patient. Those deliberate steps led to the removal of counsel in Muir. In Sharma v. Kaur, by contrast, all that occurred was a request for a defence IME from a doctor who defence counsel did not know—and had no realistic way of knowing—had once briefly interacted with the plaintiff in a clinical setting.
In those circumstances, the judge held that a fair-minded and reasonably informed member of the public would not expect the court to remove Mr. McCartney from the record. The stringent removal test was not met, and the leave threshold was likewise unsatisfied. Leave to bring a motion to remove counsel was therefore denied.

Costs process and overall outcome of the decision
Having refused leave for both proposed motions, Justice Lemay addressed case management and costs. He noted the parties’ earlier failures to comply with court directions and left it to the judge hearing the forthcoming “long motion” on other issues to request a further case conference before him, if needed, to keep the matter on track for its trial date.
On costs, the court did not fix any specific amount. Instead, it strongly encouraged the parties to agree on costs. Failing agreement, it set a short timetable for written costs submissions, limited to two single-spaced pages per party, excluding bills of costs, offers to settle and case law. Any party seeking costs must serve and file its submissions within seven days of the release of the reasons, with a further seven days for responding submissions. The judge emphasized that he would consider the procedural history, including the plaintiff’s late raising of the issues about Dr. Korman and the defendant’s late service of Dr. Korman’s report, when assessing costs.
In summary, in this interlocutory decision the successful party is the defendant, Sukhdeep Kaur. Both of the plaintiff’s requests for leave—to move to disqualify the defence ENT expert and to remove defence counsel from the record—were denied. The underlying motor vehicle action continues toward trial, and the court did not determine liability, damages, or any specific costs figure in this ruling. The total monetary amount, if any, that will ultimately be awarded by way of damages or costs in favour of the successful party cannot yet be determined from this decision alone.