In the recent decision Okafor v Wilson (2025 ONSC 6972), Justice C. Petersen of the Ontario Superior Court of Justice denied the plaintiff’s motion for an extension of time to serve two expert reports pursuant to Rule 53.03 of the Rules of Civil Procedure (“the Rules”). In doing so, Justice Petersen highlighted the purpose behind recent amendments to the expert report service rules and brought clarity to when relief from these service timelines will be refused.
The Facts
In April 2018, the plaintiff and defendant were involved in a motor vehicle accident, following which the plaintiff initiated a lawsuit against the defendant. The parties scheduled a pre-trial conference on November 28, 2024. Shortly before the conference, the plaintiff brought a motion to extend the time to serve its expert reports. The plaintiff’s experts had not yet been retained, so the associate judge did not grant the motion. Instead, the associate judge adjourned the pre-trial conference to September 9, 2025. This way, the plaintiff would have time to obtain the expert reports as well as the necessary extension of time to serve them. The matter was also set down for trial on January 12, 2026.
The plaintiff scheduled a motion hearing for an extension of time on February 20, 2025. The plaintiff then adjourned the matter twice to February 28 and then to April 10. However, the plaintiff failed to secure this motion date.
In the interim, on March 25, 2025, the plaintiff served the defendant with its two expert reports. These reports were 1) a future care costs assessment and 2) an orthopaedic surgeon’s report, both of which may have been crucial to the plaintiff’s case.
The motion was rescheduled once again to May 30, 2025. However, the plaintiff failed to file the necessary confirmation form and the motion was administratively struck. The motion was rescheduled to July 18, 2025, and once again to August 12, 2025.
The August motion hearing did not proceed for several reasons, including the plaintiff’s late service of its supplemental motion record and an administrative oversight by the defendant. As such, the motion was heard on December 10, 2025, giving rise to this decision.
Service of Expert Reports: Rules 53.03 & 53.08
Rule 53.03(1) of the Rules provides that a party that intends to call an expert witness at trial must serve all other parties with an expert report at least 90 days prior to the pre-trial conference. Rule 53.03(4) provides that the time to serve an expert report may be extended or abridged by the judge at a pre-trial conference, by the court on motion by any party, or where the parties consent.
If a party fails to serve an expert report in accordance with prescribed timelines, Rule 53.08(1) provides that the party may not call the expert witness to testify unless leave of the court is obtained. To obtain leave of the court, the judge must be satisfied that:
- (a) there is a reasonable explanation for the failure [to abide by the prescribed timelines in Rule 53.03]; and
- (b) granting the leave would not,
- cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
- cause undue delay in the conduct of the trial.
The Court’s Decision
In this case, Justice Petersen refused the plaintiff’s motion for an extension of time to serve its two expert reports. Beginning her analysis, Justice Petersen noted that, while Rule 53.03(4) does not specify what criteria are applicable to assess whether an extension should be granted, the criteria under Rule 53.08(1) for granting leave to introduce late-served expert evidence have been considered in previous decisions to determine whether an extension should be granted. As such, and in the circumstances of this case, Justice Peterson accepted that it was appropriate to rely upon these factors to assess the plaintiff’s motion request.
Reasonable Explanation
In assessing the available evidence, Justice Petersen found that no such reasonable explanation for the delay put forward by the plaintiff was substantiated by the evidence. The plaintiff claimed that the experts were required to review extensive medical records, causing the delay. However, affidavits filed by the plaintiff’s legal assistant suggested that the delay was primarily caused by a “simple oversight” by the plaintiff’s counsel. There were no further details of what exactly this oversight was, nor was any evidence of the extensive review by the experts provided.
Additionally, the court noted that there was no evidence to suggest that the plaintiff sought to retain experts prior to the pre-trial conference. The court noted that counsel for the plaintiff admitted that this was in hopes of avoiding the expense of obtaining the reports. As such, the plaintiff’s actions amount not to a “simple oversight” but instead “deliberate non-compliance with the Rules.” Justice Peterson noted that, while a lawyer’s inadvertence may constitute a reasonable explanation for late service, a strategic decision such as this does not.
Prejudice to the Defendant
The plaintiff submitted that there was no prejudice to the defendant as it served the expert reports in March 2025, 10 months prior to the scheduled trial date. As such, the plaintiff argued that the defendant had plenty of time to obtain responding reports. However, Justice Petersen disagreed. She explained that the plaintiff’s motion for an extension of time was not guaranteed to succeed. As such, there was no reason for the defendant to incur the costs of obtaining a responding report until the motion was heard.
The plaintiff also argued that, since the defendant consented to several of the motion hearing adjournments, it shared responsibility for the motion hearing’s delay. Again, Justice Petersen rejected this submission, holding that the plaintiff was the cause of the motion hearing’s delay. Additionally, if the motion was granted, the defendant would be prejudiced as it would need to obtain its responding reports before trial in January 2026 or proceed without them.
Undue Trial Delay
The third and final factor was whether the trial would be unduly delayed if the extension was granted. Justice Petersen found that it would. As Justice Petersen explained, the trial would be pushed back at least five additional months when the plaintiff’s non-compliance had already delayed the trial by a whole year. Most notably, at the time this motion was heard, the originating motor vehicle accident occurred over seven years prior.
2022 Amendments to Rule 53.08
In her analysis, Justice Petersen provided insightful remarks into the purpose behind the 2022 amendments to the expert report service rules, providing useful guidance into their proper application. Prior to these amendments, trial judges were obliged to grant leave to admit into evidence expert reports that were served late unless prejudice to the opposing party could be established. Consequently, counsel for plaintiffs and defendants would frequently attend pre-trials without any expert reports, limiting the effectiveness of pre-trial efforts to resolve the dispute.
The amendments were intended to address these concerns. The revised Rule 53.08 makes it more difficult to introduce late-served expert reports and motivates parties to act diligently in both acquiring and serving their reports, thus leading to more-productive pre-trial conferences. Notably, the legislature chose not to include the criteria contained in Rule 53.08 in Rule 53.03(4). As such, a motion judge is not necessarily required to be satisfied of these criteria when presented with a motion under Rule 53.03(4) to extend or abridge the service deadlines. Nonetheless, this case suggests that these factors can be used to guide courts when applying Rule 53.03(4).
Conclusion
The takeaway is simple: parties should move diligently to obtain and serve any expert reports that they will rely upon within the timelines prescribed by the Rules. As Justice Petersen demonstrated in this decision, a failure to do so may result in a claim of solicitor’s negligence against a party’s own lawyer. As such, it is in the best interest of all parties to diligently obtain and serve expert reports such that disputes can be resolved in a just and expeditious manner.
Daniel Hinds is an articling student at ZTGH and the author of this blog. If you have any questions about this blog, please contact Daniel by email at [email protected].
