Executive Summary: Key Legal and Evidentiary Issues

• Timely service of expert reports under Rules 53.03 and 53.08 and whether a late defence orthopaedic report should be admitted.
• Characterization of defence counsel’s conduct as “inadvertence” versus “inattentiveness” and whether that amounts to a “reasonable explanation” for missing the expert deadline.
• Impact of a misunderstanding over the term “JPT” and regional scheduling practices on the propriety of fixing a pre-trial date before defence experts were obtained.
• Assessment of potential prejudice to the plaintiff from late service of the defence report, including the need for and timing of any reply expert report.
• Distinction between this case and prior decisions where long-term delay and neglect of the file led to refusal of leave for late expert reports.
• Treatment of the plaintiff’s own late-served engineering report, which was not the subject of a leave motion and thus left without a ruling.

Factual background

The case arises from an accident at the defendant’s residence involving the plaintiff, Osmany Garcia, who was moving into the defendant’s basement apartment in August 2019. According to the statement of claim, Mr. Garcia fell backwards down a flight of stairs and alleges that he suffered serious injuries as a result of this fall. He claims damages of $2,500,000 for his alleged physical injuries and related income loss. The action is therefore a personal injury and occupiers’ liability claim framed within ordinary civil litigation in the Ontario Superior Court of Justice.

The defendant, Rakib Zaman, was initially noted in default in March 2022, but that default was later set aside on consent. On April 9, 2024, the defendant served a statement of defence and a jury notice, positioning the matter towards a jury trial. The plaintiff then built his expert case: on October 22, 2024, he served an orthopaedic expert report, followed by an expert income loss report on December 4, 2024. Discoveries of the plaintiff were completed on February 5, 2025, leaving 16 undertakings, including several relating to the plaintiff’s medical records. Partial answers to undertakings, mainly about a litigation loan and Ontario Works file, were served in March 2025.

Procedural history and pre-trial scheduling

Attention then turned to trial scheduling and the pre-trial conference. On April 24, 2025, plaintiff’s counsel, Mr. Kevin Mitchell-Gill, wrote to TD Insurance’s trial counsel proposing “JPT” dates in late 2025 and early 2026. A few days later he advised that Calendly was offering October 24 for a “JPT” date. Defence trial counsel indicated he was unavailable in October due to trial sittings.

On July 18, 2025, plaintiff’s counsel proposed further “JPT” dates. Trial counsel’s assistant responded confirming availability on August 22, 2025, and that date was booked. Plaintiff’s counsel referred to sending “pre-trial materials,” indicating he understood this to be an actual pre-trial conference date. On July 22 and again on July 28, 2025, trial counsel wrote seeking to vacate the August 22 date, explaining that a “new client” (in fact a new adjuster) needed to be appointed and availability was uncertain. On July 31, 2025, he further advised that the defendant had not obtained any expert reports, that the client was not available for August 22, and that undertakings remained outstanding. Plaintiff’s counsel refused to vacate the August 22 date.

On August 12, 2025, the plaintiff served a pre-trial brief, including an engineering expert report that had not been previously served. On August 18, 2025, trial counsel requested the plaintiff’s consent to extend the deadline for expert reports to December 22, 2025. Consent was refused. Two days later, on August 20, 2025, trial counsel explained by email that he had misunderstood the nature of the August 22 date, believing “JPT” to refer to a “To be Spoken To” or “Assignment Court” appearance at which a pre-trial date would be set, not a full pre-trial conference. He described himself as a junior lawyer who failed to realize the error earlier and asked, as a professional courtesy, that the pre-trial be adjourned.

On the same date, plaintiff’s counsel responded that he would not adjourn the pre-trial and disclosed that he had inadvertently failed to serve and file the trial record earlier, attaching it then. Trial counsel separately asked the trial coordinator to adjourn the pre-trial, explaining his misunderstanding. The trial coordinator advised that such a request would have to be made to the pre-trial judge.

The pre-trial conference proceeded as scheduled on August 22, 2025, before Justice Fraser. The adjournment request was denied owing to the age of the action (six years), the scarcity of pre-trial dates, and the risk that an adjournment would stop the case from being placed on the January 2026 trial sitting list. The trial was ultimately scheduled to commence during the January 2026 sittings.

Defence medical and late expert report

Following the pre-trial, the defence moved to obtain its own expert evidence. On September 3, 2025, the plaintiff underwent an orthopaedic assessment by the defence expert, Dr. Karabatsos. The defendant served Dr. Karabatsos’s expert report on October 8, 2025. This service was outside the time limits set by Rule 53.03 of the Rules of Civil Procedure, which generally requires an expert report for a party’s own case to be served at least 90 days before the pre-trial conference, and any responding expert report at least 60 days before the pre-trial conference. Because this deadline had clearly been missed, the defendant moved under Rule 53.03(4), invoking Rule 53.08, for an order extending the time to serve the report and effectively permitting its use at trial.

Meanwhile, on November 11, 2025, plaintiff’s counsel served further answers to undertakings from the plaintiff’s discovery. The motion was heard November 13, 2025, at which time Justice Mathai issued an endorsement granting the motion and indicating that written reasons would follow. Those reasons are the subject of this decision.

Governing legal framework on late expert reports

The central legal framework is found in Rules 53.03 and 53.08 of the Rules of Civil Procedure. Rule 53.03 establishes strict timelines for serving expert reports: a party’s own expert report must be served at least 90 days before the pre-trial conference, and a responding expert report must be served at least 60 days before the pre-trial conference. A witness may not testify on an issue at trial unless their opinions have been properly disclosed in a report served within the required time or in a supplementary report served within specified pre-trial or pre-trial-adjacent timelines.

Rule 53.03(4) allows courts or pre-trial judges to extend or abridge those timelines, including on motion. Rule 53.08(1) then governs the grant of “leave” where evidence is admissible only with leave due to non-compliance with the reporting requirements. Under that rule, leave to admit late expert evidence “may be granted” if the party responsible for the default demonstrates both a reasonable explanation for the failure and that granting leave will not cause non-compensable prejudice or undue delay in the conduct of the trial.

The decision notes that the amendment to Rule 53.08 from “shall be granted” to “may be granted” has tightened the standard. The jurisprudence, particularly Agha v. Munroe and more recent cases such as Pinchin v. Ikemoto and Vaillancourt v. R.K. Mooney Insurance Brokers, confirms that the “bar” for admitting late expert reports has been raised and that prior cases under the old wording must be approached with caution. The culture change reflected in the new rule is intended to ensure that expert reports are served on time, reduce adjournments, and make pre-trials more productive.

Within this framework, courts draw a critical distinction between “inattentiveness” and “inadvertence.” Inattentiveness—essentially neglect of a file over a substantial period—is repeatedly held not to be a reasonable explanation for missing expert deadlines. In contrast, inadvertence can be a reasonable explanation, although it is sometimes described as being at the low end of acceptable reasons. Recent authorities such as Mohamud v. Juskey, Longo v. Westin Hotel Management, Quinn v. Rogers, Seo v. Francis, and Rosato v. Singh are discussed in the decision to illustrate when delay and neglect cross the line into unreasonable conduct.

There is no separate insurance policy wording or contractual clause at issue in this ruling. While TD Insurance is involved on the defence side, the decision is purely about procedural rules on civil expert evidence and trial management rather than any interpretation of insurance policy terms.

Arguments of the parties

On the motion, defendant’s counsel, Ms. Noura Bagh (who had not previously been involved in the case), argued that the deadline was missed due to inadvertence on the part of trial counsel. She submitted that, at the time the August 22, 2025 date was booked, trial counsel did not understand that he was agreeing to a pre-trial conference. Rather, he mistakenly believed that “JPT” referred to some form of “To be Spoken To” or “Assignment Court” appearance at which a pre-trial date would later be set. She maintained that granting the extension would neither prejudice the plaintiff in a way that could not be addressed by costs nor delay the scheduled January 2026 trial.

The plaintiff, through Mr. Mitchell-Gill, challenged the credibility of trial counsel’s explanation and argued that the defence should have retained and served an expert orthopaedic report well before any pre-trial date was fixed, especially after the plaintiff served his own expert reports in October and December 2024. The plaintiff’s position was that the true explanation for the missed deadline was not a narrow misunderstanding but broader “inattentiveness” to the file. Due to time constraints, trial counsel was not cross-examined, but the plaintiff pressed the point that his version of events and the timing of his disclosures undermined his claim of mere inadvertence.

Court’s analysis and reasoning

Justice Mathai began by addressing the factual dispute: whether trial counsel inadvertently scheduled a pre-trial conference on July 18, 2025. The plaintiff’s challenge had two prongs: first, that “JPT” is commonly understood in the civil bar as “judicial pre-trial”; and second, that even if there was confusion, trial counsel only admitted his error much later, after offering other reasons for vacating the date.

The court rejected the plaintiff’s first argument. While acknowledging that “JPT” is often taken to mean “judicial pre-trial,” Justice Mathai noted that the Rules themselves do not use that expression; they refer only to “case conferences” and “pre-trial conferences.” “Judicial pre-trial” is a term more commonly associated with criminal matters. In some regions (for example, Toronto), parties may request a case conference via Calendly to set a pre-trial date, reinforcing the idea that local practice can blur the procedural labels. Against this background, the judge accepted that trial counsel could plausibly have understood “JPT” as an appearance to set a pre-trial date, not the pre-trial conference itself.

On the second point, the judge agreed that trial counsel should have advised plaintiff’s counsel promptly once he realized the error and that his delay in giving a candid explanation was problematic. Nonetheless, after examining the full context, Justice Mathai accepted the explanation as genuine. The reasoning included several key points. First, from the defendant’s perspective, it made little sense to knowingly schedule an actual pre-trial conference for a date that would automatically place the defence in breach of Rule 53.03, especially where significant damages were at stake and the plaintiff alleged severe, ongoing injuries and major income loss. It was implausible that defence counsel would deliberately forgo a responding expert in such a high-stakes case.

Second, when “JPT” dates were first being discussed, the plaintiff had not delivered a trial record. In that situation, it was understandable that a junior defence lawyer unfamiliar with regional civil scheduling might think the August 22 appointment was a preliminary case conference to select a later pre-trial date rather than the pre-trial itself. Third, the court credited trial counsel’s lack of experience and unfamiliarity with the Central East Region’s scheduling practices as part of the reasonable explanation for the misunderstanding.

Having accepted that a bona fide misunderstanding occurred, Justice Mathai then asked whether, regardless of that misunderstanding, the defendant ought to have retained a responding orthopaedic expert earlier—after receiving the plaintiff’s October 2024 report. The plaintiff argued that waiting nearly a year to retain an expert demonstrated the kind of long-term neglect condemned in cases like Longo and Mohamud. The court disagreed.

First, the judge held that it was reasonable for defence counsel to wait until discoveries were completed and relevant medical undertakings were answered before instructing a responding expert. Expert witnesses commonly need discovery transcripts and medical records; obtaining a report before that material is available often leads to inefficiencies and the need for supplemental updates.

Second, the five months between the completion of discoveries (February 2025) and the scheduling of the pre-trial conference (July 2025) did not amount to the lengthy, systemic inattention seen in the cases relied upon by the plaintiff. In Longo, there had been roughly two years between discoveries and the pre-trial, and another extended period before plaintiff’s experts were served, during which the defendant knew the case was trial-ready yet failed to act. Similarly, in Mohamud the defendants had been aware since the case was set down for trial that expert evidence might be required, and still did nothing for more than a year before a pre-trial was finally booked.

By contrast, in this case the trial record had not been passed, mediation had not yet occurred, and there were still outstanding undertakings when the first “JPT” dates were discussed. The court found that defence counsel reasonably only came to understand that the plaintiff was ready to push the case to trial when Mr. Mitchell-Gill raised the “JPT” in late April 2025. At that point, because of his misunderstanding of “JPT,” trial counsel believed there would first be an appearance at which a pre-trial date would later be set, leaving him more time to instruct an expert. That mistaken belief, not persistent neglect, was the proximate cause of the missed 53.03 deadline.

Justice Mathai therefore characterized trial counsel’s conduct as inadvertence rather than inattentiveness and concluded that, in the specific circumstances, it constituted a “reasonable explanation” under Rule 53.08. The judge emphasized that this finding did not dilute the broader culture-change message: late delivery of expert reports will not be automatically excused and the onus remains firmly on the defaulting party. But here, on the facts, the explanation cleared the higher bar imposed by the amended rule.

The court next considered prejudice and delay. The defendant proposed that the plaintiff be allowed to obtain a reply expert report on an expedited basis and that the defence pay the reasonable costs of that step. Justice Mathai accepted that solution as adequate to address any potential prejudice. The January 2026 trial date could still be maintained, especially because a reply orthopaedic report would not require a fresh medical examination of the plaintiff, only a review of the new defence report. During submissions, plaintiff’s counsel admitted that he had taken no steps since receiving the defence report to ascertain whether the plaintiff’s expert could prepare a reply in time, leaving no evidentiary basis for saying that a reply could not be completed before trial. With this in mind, the court held that the defendant had satisfied the Rule 53.08 requirements: there was a reasonable explanation, no non-compensable prejudice, and no undue delay in trial conduct.

Finally, the judge noted that the plaintiff had not sought leave regarding the late-served engineering report. Because no such motion or request was before the court, Justice Mathai made no findings or rulings about whether that engineering report complied with the Rules or could be used at trial.

Outcome and implications

Justice Mathai granted the defendant’s motion to extend the time for service of Dr. Karabatsos’s orthopaedic expert report, thereby allowing the late defence expert evidence to be used at the upcoming trial, subject to ordinary trial rulings on weight and admissibility. As a condition designed to eliminate prejudice, the court ordered the defendant to pay the reasonable costs incurred by the plaintiff in obtaining an expedited reply orthopaedic report, ensuring the plaintiff would have a fair opportunity to respond to the newly served defence opinion before the January 2026 trial.

On the question of motion costs, however, the court exercised its discretion differently. Although the defendant was successful on the motion, Justice Mathai concluded that plaintiff’s counsel’s position had been reasonable in light of the raised bar under Rule 53.08 and the need to enforce the culture of timely expert disclosure. Accordingly, the judge ordered that there be no costs of the motion.

This ruling does not determine liability or quantum of damages in the underlying personal injury action; it deals solely with the procedural question of late expert evidence. The successful party on the motion is the defendant, Rakib Zaman, who obtained leave to rely on the late orthopaedic report. The only monetary order in this decision is that the defendant must pay the reasonable costs of securing an expedited reply report for the plaintiff, but the specific amount of those costs is not fixed or quantified in the ruling, and there is no determination of any damages award in favour of either party.