In the recent blog post, Expert Reports: Serve or be Served, we discussed the case of Okafor v Wilson (2025 ONSC 6972) wherein the Ontario Superior Court of Justice denied the plaintiff’s motion for an extension of time to serve their expert reports pursuant to the Rules of Civil Procedure.
The Court has since released a new decision, Okafor v Wilson, 2026 ONSC 716, in which the plaintiffs’ claim for non-pecuniary general damages and healthcare expenses were struck for a failure to lead the necessary medical expert evidence. In doing so, the Court shared some stern remarks for plaintiffs’ counsel, highlighting the importance of producing expert evidence that complies with the regulations under the Insurance Act as well as the potential consequences of failing to do so.
Facts
In 2018, the plaintiff and defendant were involved in a motor vehicle accident, following which the plaintiff brought legal proceedings to recover damages from the defendant. At a previous motion between the parties (discussed here), the plaintiff sought an extension of time to serve expert reports. However, the Court refused to grant this relief, leaving the plaintiff with no admissible expert opinion evidence before trial.
Following the Court’s refusal to grant the extension of time, the defendant brought a motion to strike the plaintiffs’ claim for non-pecuniary general damages and healthcare costs. According to the defendant, the plaintiff failed to produce the evidence required to substantiate claims for non-pecuniary damages and healthcare costs as prescribed by subsections 4.3(1) to (5) of Ontario Regulation 461/96 enacted under the Insurance Act.
Applicable Law
Ontario Regulation 461/96 applies to court proceedings adjudicating issues arising from automobile accidents. Section 4.3 of Regulation 461/96 (the “Regulation”) prescribes what evidence is necessary to prove a serious impairment of an important physical, mental or psychological function (“serious impairment”) under section 267.5 of the Insurance Act, which requires a plaintiff seeking damages for healthcare expenses or non-pecuniary loss to establish that they sustained serious impairment.
Subsection 4.3(2) of the Regulation lists substantive requirements of the evidence necessary to prove serious impairment. Among these, the expert evidence must explain (a) the nature of the impairment, (b) the permanence of the impairment, (c) the specific function that is impaired, and (d) the importance of the specific function to the person. Subsection (3) requires that the physician be trained for and experienced in assessing or treating the alleged impairment. Subsection (4) requires the assessing physician to provide a conclusion explaining that the alleged impairment is directly or indirectly a consequence of the use or operation of an automobile.
Notably, section 4.3 does not require all tendered evidence to be presented by an expert in compliance with these requirements. However, the prescribed expert evidence is necessary to establish serious functional impairment under section 267.5 of the Insurance Act.
Before the Court
The plaintiff argued that, while he did not have any expert evidence that complied with the requirements in section 4.3 of the regulations, the available medical and expert evidence, when assessed together as a whole, does meet these regulatory requirements. The Court disagreed, explaining that the plaintiffs’ evidentiary burden under section 4.3 cannot be satisfied by relying on the available medical evidence in its totality.
Instead, section 4.3 requires the plaintiff to lead evidence from one or more properly qualified physicians as required by subsection (3) that includes the physician’s opinions related to the matters listed under subsections (2), (4) and (5). This includes an opinion about whether the plaintiff suffered a permanent and serious impairment of an important physical, mental, or psychological function as a result of the use or operation of an automobile.
Simply put, “an expert’s report that does [not] address each item listed in s 4.3 (2), (4), and (5) does not satisfy the requirements of s. 4.3.” Furthermore, the Court held that even if the plaintiff was permitted to rely on the totality of evidence to satisfy section 4.3, the available evidence in this instance fell short of doing so.
In light of these strict requirements, the Court allowed the defendant’s motion and dismissed the plaintiffs’ claims for both non-pecuniary general damages and healthcare expenses.
Counsel’s Non-Compliance
On the first day scheduled for trial, counsel uploaded the plaintiffs’ medical documents to the Court’s portal, Case Centre, which consisted of 12,720 pages. There were no hyperlinks to the materials listed in the index. Counsel’s factum for the motion also did not contain any hyperlinks to the exhibits attached to Affidavit evidence. As such, the Court was unable to locate much of the evidence relied on by the plaintiff during the proceedings. The matter was adjourned to the next day, and the Court requested that plaintiff’s counsel prepare a list of documents in support of their position with references to the Case Centre page numbers.
The next day, plaintiffs’ counsel appeared with a stack of photocopies of evidence without Case Center page reference numbers. Unsurprisingly, the Court refused to accept these photocopies. As a result, the motion hearing took four hours to complete instead of one hour as anticipated due to counsel’s difficulties locating the evidence that they sought to rely on.
Noting counsel’s failure to abide by the Provincial and regional practice directions, the Court held that it “will no longer tolerate counsel’s continued failure to comply with the requirements […] let alone the principles of good advocacy”. As such, continued failure to comply with these obligations may result in an adjournment with an order for costs against the solicitor, or worse, the Court’s refusal to consider the improperly filed materials.
Conclusion
The message is clear. To establish entitlement to non-pecuniary damages and healthcare costs, a plaintiff must adduce evidence that complies with section 4.3 of Ontario Regulation 461/96 under the Insurance Act. If the plaintiff fails to do so, these claims may be struck for non-compliance. Additionally, it is crucial that lawyers abide but their professional obligations and act competently in pursuing a matter. Otherwise, there may be consequences for both counsel and their client, including an order for payment of costs which may be made payable against the lawyer personally rather than their client in appropriate circumstances, or the dismissal of their claims.
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].
