Executive Summary: Key Legal and Evidentiary Issues

• Whether the court should exercise its discretion under r. 53.03(4) to extend the time for serving late expert reports in a motor vehicle personal injury action.
• The extent to which the criteria in r. 53.08 (reasonable explanation, prejudice, and trial delay) should guide a motion judge deciding a pre-trial extension of time.
• Distinguishing between true inadvertence/oversight and deliberate strategic non-compliance by counsel in delaying retention of experts and service of reports.
• Assessing prejudice to the defendant where responding expert reports were reasonably deferred pending the outcome of the plaintiff’s contested motion.
• Considering whether granting the motion would necessitate adjourning a long-scheduled trial and thereby contribute to the broader “culture of delay” in civil litigation.
• Weighing the severe impact on the plaintiff’s ability to prove damages against the availability of a potential solicitor’s negligence claim if expert evidence is excluded.

Facts of the case

The underlying action arises from a motor vehicle accident that occurred on April 3, 2018. The plaintiff, Anthony Okafor, alleges personal injuries and seeks damages that include amounts supported by two key forms of expert evidence: a future care costs assessment and an orthopaedic surgeon’s report. These reports go to the heart of his damages claim, particularly with respect to future care needs and ongoing physical impairment. The litigation itself has been pending for several years. The statement of claim was issued on June 20, 2019, and the statement of defence was served on October 24, 2019. The plaintiff delivered his trial record on April 17, 2023. At a judicial pre-trial held on November 28, 2024, the matter was set down for trial during the civil trial sittings commencing January 12, 2026. By then, over seven years would have passed since the accident. Although expert evidence is central to the plaintiff’s case on damages, his experts had not been retained and no reports were available as of the November 2024 pre-trial. Nonetheless, the plaintiff served a notice of motion seeking an extension of time to serve late expert reports just before that pre-trial conference. Because the reports did not yet exist, the associate judge adjourned the pre-trial to September 9, 2025, to allow time for the plaintiff to obtain the expert reports, attempt to secure the defendant’s consent to their late filing, or bring a fully prepared motion for an extension of time. The associate judge also set the matter down for the January 2026 trial sittings. The defendant did not consent to late filing. The plaintiff ultimately served the two disputed expert reports on March 25, 2025, four months after the original pre-trial and long past the 90-day pre-pre-trial deadline prescribed by the Rules of Civil Procedure. The motion for an extension of time therefore became critical: without it, the plaintiff would be unable to call these experts at trial.

Motion for extension of time and procedural history

The plaintiff brought a motion seeking an order under r. 53.03(4) extending the time for service of his expert reports. The procedural history of the motion was lengthy and troubled. Initially scheduled for February 20, 2025, the hearing was adjourned at the plaintiff’s request to February 28, 2025. It was then adjourned again, on consent, to April 10, 2025. The plaintiff failed to secure that April 10 date with the court, so the motion did not proceed. A further date of May 30, 2025 was obtained, but the motion was struck because the plaintiff did not file the required confirmation form on time. Another hearing date was set for July 18, 2025, then rescheduled to August 12, 2025. The motion still did not proceed on that August date. The plaintiff had served a supplemental motion record late in the day on August 11, 2025, and the defendant’s motion materials were only uploaded to the electronic system on the morning of August 12, 2025 due to an oversight in the defendant’s counsel’s office. The motions judge sitting that day determined that more than an hour would be required to hear the motion and referred the matter to Long Motion Triage Court. At Triage Court on August 19, 2025, the motion was finally scheduled for a full hearing on December 10, 2025—just over one month before the scheduled trial. At each step, defence counsel remained available and prepared to argue the motion. The trial judge later found no evidence that the defendant was responsible for the repeated delays. Instead, the court characterized it as the plaintiff’s responsibility to pursue the motion diligently and ensure it was heard well in advance of both the continued pre-trial and the January 2026 trial date. The motion came before Justice Petersen on December 10, 2025, with the defendant opposing the requested extension.

Legal framework on late expert reports

The dispute turned on the interplay of two key provisions of the Ontario Rules of Civil Procedure: r. 53.03, governing the service and filing of expert reports, and r. 53.08, governing the admission at trial of late-served reports. Rule 53.03(1) requires that a party intending to call an expert witness must serve that expert’s signed report at least 90 days before the pre-trial conference. Rule 53.03(4) permits the time for serving expert reports to be extended by consent, by the pre-trial judge, or by the court on motion. Rule 53.08, as amended in 2022, addresses when a trial judge may grant leave to call an expert where the report has not been served within the required time. Leave may be granted only if there is a reasonable explanation for the failure and if granting leave would neither cause prejudice that cannot be compensated by costs or an adjournment nor cause undue delay of the trial. The 2022 amendments were introduced to curb a widespread problem: counsel appearing at pre-trials without completed expert reports, resulting in unproductive conferences and contributing to a broader culture of delay in civil litigation. The amendments signalled that lateness in serving expert reports would no longer be treated lightly. Importantly, the legislature did not import r. 53.08’s leave criteria into r. 53.03(4). As other decisions such as Seo v. Francis, Rosato v. Singh and Quinn v. Rogers have explained, the r. 53.08 factors do not strictly bind a motion judge deciding whether to extend time pre-trial; they may instead inform the exercise of discretion under r. 53.03(4). In this case, both parties accepted that the r. 53.08 framework was relevant. Defence counsel argued the criteria should be applied stringently because of the plaintiff’s lack of diligence and the late stage of the proceedings. The court agreed that the r. 53.08 factors—reasonable explanation, prejudice, and trial delay—would guide the exercise of discretion on the extension motion.

Assessment of the plaintiff’s explanation for delay

The first issue was whether the plaintiff had provided a reasonable explanation for failing to serve the expert reports 90 days before the November 28, 2024 pre-trial. In submissions, plaintiff’s counsel relied on the asserted volume of medical records the experts had to review, delays in obtaining documentation, and the experts’ limited availability. She argued that these were matters outside the plaintiff’s control and justified the delay. However, the motion record did not support these arguments. Two affidavits sworn by counsel’s senior legal assistant contained almost no particulars of any such difficulties. The only specific explanation offered was that there had been a “simple oversight” by counsel’s office, coupled with general references to the experts’ professional commitments and limited availability. There was no detailed evidence of efforts to retain the experts earlier or to secure earlier appointments. Crucially, plaintiff’s counsel candidly acknowledged during the hearing that the experts were not retained earlier because she hoped the case would settle at the pre-trial, thus avoiding the costs of expert reports. Justice Petersen found that this was not inadvertent error but a deliberate strategic choice to delay compliance with the Rules in order to save expense. The court contrasted this deliberate non-compliance with previous cases in which counsel’s true oversight or office turnover had been treated as a reasonable explanation and did not require adjournment of the trial. In Rosato v. Singh, counsel had genuinely overlooked the need for a standard of care report; in Seo v. Francis, late service was linked to staffing changes in the plaintiff’s firm and the delays were modest, with no trial adjournment required. In those circumstances, the courts were willing to forgive late compliance. Here, by contrast, the judge held that the plaintiff had not offered a reasonable explanation. The late service stemmed from a conscious decision to assume the risk of non-compliance in the hope of settlement, rather than from inadvertence or factors beyond the plaintiff’s control.

Prejudice to the defendant and the impact on trial scheduling

The second and third issues addressed whether granting the extension would cause prejudice to the defendant that could not be fully addressed by costs or an adjournment, and whether it would unduly delay the trial. The plaintiff argued that because the reports were served in March 2025—ten months before the January 2026 trial—the defendant had ample time to obtain responding expert evidence. Any prejudice, the plaintiff contended, was the result of the defendant’s own failure to act. Justice Petersen rejected that position. The defendant had consistently opposed the late filing of the reports and had no assurance that the motion to extend time would succeed. In that context, it was reasonable for the defendant not to incur the significant expense of retaining responsive experts until the status of the plaintiff’s expert evidence was resolved. The plaintiff, on the other hand, bore the obligation to prosecute his motion diligently. His failure to secure firm hearing dates, file confirmations, and serve materials in a timely fashion led to repeated adjournments. The defendant’s counsel, though responsible for a single oversight in uploading materials, had otherwise remained ready on each scheduled date. The judge found that it was the plaintiff’s conduct that delayed the adjudication of the motion and, consequently, undermined the utility of the September 9, 2025 continued pre-trial, which could not meaningfully address the merits without clarity on the admissibility of the expert evidence. By the time the motion was finally heard in December 2025, only about a month remained before the January 12, 2026 trial. If the plaintiff were allowed to rely on the reports, the defendant would face the unfair choice of scrambling to obtain responding experts in a compressed timeframe or proceeding to trial without crucial responsive evidence. The court held that this prejudice could only be cured by an adjournment of the trial to the next set of civil sittings, likely at least five months later and possibly longer. The judge emphasized that the plaintiff’s earlier non-compliance with the Rules had already contributed to a one-year delay in getting the case to trial: had the reports been served on time, trial could likely have been scheduled for the January 2025 sittings. In these circumstances, a further multi-month adjournment was characterized as undue delay.

No policy wording or insurance clause issues

Although the case arises in the familiar setting of motor vehicle personal injury litigation, the decision does not involve interpretation of any insurance policy wording or discussion of specific policy clauses. The focus is entirely procedural and evidentiary: the timing and admissibility of expert reports, the operation of the Rules of Civil Procedure, and the systemic concern with avoiding unnecessary delay and wasted judicial resources. Any insurance involvement is implicit in the nature of the litigation rather than expressed through policy terms in the decision.

Outcome and implications

Justice Petersen ultimately dismissed the plaintiff’s motion to extend the time for service of the expert reports. The court concluded that the plaintiff had not provided a reasonable explanation for the delay, that allowing the reports at this stage would either severely prejudice the defendant or require an undue adjournment of the long-scheduled trial, and that the broader objectives of timely, efficient civil justice weighed against granting relief. The judge acknowledged that the ruling had “grave consequences” for the plaintiff, who may now be unable to prove key elements of his damages without the excluded expert evidence. However, the court distinguished this case from earlier authorities in which clients were not penalized for their lawyers’ inadvertent mistakes, stressing that here the non-compliance was deliberate and the motion was not pursued with diligence. While recognizing that the plaintiff may face an uphill battle at trial, the judge noted that he would not be left in “irrevocable jeopardy” even if his claim fails for lack of expert evidence, because he may have a potential claim against his solicitor arising out of the mishandling of the expert evidence and motion. On the question of costs, the decision does not fix any specific monetary amount in favour of either party. Instead, the court encouraged the parties to attempt to agree on costs, with a timetable for short written submissions if agreement cannot be reached. As a result, although the defendant, Michael Wilson, is the successful party on this motion, the total amount of any costs or other monetary award ordered in his favour cannot be determined from this decision.