Ontario Superior Court of Justice

Court File No.: CV-17-00000140-00A1
Date: 2025-03-24

Between

Mary Camilla Rosato, Czeslaw J. Konwisarz, and Alexander Carl Konwisarz
Plaintiffs
No one appearing, for the Plaintiffs

and

Charnjit Singh, Narinder Singh, Cushman and Wakefield Ltd.
Defendants
Tim Gleason and Megan Phyper, for the Defendants

and

Kamaljit Gidda and Landlink Real Estate Ltd.
Third Parties
Aaron Postelnik, for the Third Parties

Heard: March 17, 2025

Reasons for Judgment
Michael G. LeMay

Introduction

[1] This matter involves a failed real estate transaction from 2015. The Plaintiffs were the vendors of the property. The transaction did not close. The Plaintiffs sued the Defendants for damages. The Plaintiffs and the Defendants settled their action back in August of 2018. The Defendants brought a third-party claim against their real estate agent, claiming contribution and indemnity. That action has been proceeding slowly for some years. A pre-trial was held in October of 2024, and the matter is set for the Assignment Court in April of 2025, with an anticipated trial date of May of 2025.

[2] This is a motion brought by the Defendants for leave to late-serve an expert report addressing the issue of negligence on the third-party. The expert report had not yet been prepared when the pre-trial was held in October of 2025. It was served on the third-party in December of 2025 but a motion for leave to late-serve the expert report was not served until February of this year.

[3] For the reasons that follow, I have reluctantly come to the conclusion that the Defendants should be given leave to late serve their expert’s report on standard of care, on strict terms that I will review below.

Facts

[4] As noted above, this was a failed real estate transaction. On December 5, 2015, the Plaintiffs and the Defendants entered into an Agreement of Purchase and Sale (“APS”) for $2,850,000 for a house on a large piece of land in Caledon. On February 8, 2016, the Defendants advised that they would not complete the APS because they had discovered that the property could not be developed in the way that they thought it could be developed. The Plaintiffs accepted the repudiation of the APS.

[5] The Plaintiffs then sued the Defendants for damages as a result of the repudiation of the APS. That action was settled in 2018. The Defendants, in turn, sued their real estate agent, the third-parties Mr. Kamaljit Gidda and Landlink Realty Inc.

[6] The Defendants were originally represented by Mark Alter. In June of 2018, they retained Mr. Roy Wise as counsel. The Defendants’ current counsel, Leora Wise, began assisting their then counsel Roy Wise as agent in this matter in 2022. She was formally retained by the Defendants on June 11, 2024 and formally came on the record on August 23, 2024.

[7] The third-party action, which was issued on September 28, 2017, has moved slowly through the Court system. Given the arguments, it is helpful to briefly set out a history of the various steps in this litigation.

[8] The third parties served their Affidavits of Documents in December of 2018. Discoveries were then scheduled and cancelled on a number of occasions between 2018 and 2022. In September of 2021, the Defendants requested that the discovery dates scheduled for September 8 and 9, 2021 be adjourned due to an error in the third-party claim that needed to be amended. The amendments were not completed until July of 2022.

[9] In September of 2022, almost five years after the third-party claim was issued, a timetable was imposed by McSweeney J. That timetable required various steps to be taken within the next year. It required the action to be set down by September 28, 2023, failing which the matter would be dismissed by the Registrar for delay.

[10] Discoveries were conducted in February of 2023. The matter was duly set down for trial on September 12, 2023.

[11] In early December 2023, the trial coordinator offered dates for a pre-trial for the matter. The offered dates were January 26, April 5, July 12 or October 25, 2024. Ms. Wise was available on a number of those dates. Mr. Postelnik was only available on October 25, 2024. Ms. Wise asked Mr. Postelnik to explain his lack of availability prior to that date, which precipitated a tart exchange of e-mails between counsel. In any event, the pre-trial was booked for October 25, 2024.

[12] On August 21, 2024, Ms. Wise wrote to Mr. Postelnik advising that she was requesting an adjournment of the pre-trial scheduled for October 25, 2024. The stated reason for this request was that the Applicant’s evidence is not ready and that a pre-trial would be “premature”. This request for an adjournment was opposed.

[13] The pre-trial was held on October 25, 2024, before Trimble J. At that time, the Defendants’ counsel asked for leave to serve an expert report on the issue of negligence. The third parties were opposed to that request. Trimble J. declined to make an order, but removed the matter from the October 28, 2024, assignment court list and placed it on the February 2025 assignment court list.

[14] According to the Pre-Trial Conference Report (“PTCR”), there were some other minor steps (further productions and the procurement of transcripts) to be completed, but the parties were otherwise ready for trial. The PTCR contains a deadline of 90 days to serve the standard of care report.

[15] On December 20, 2024, the Defendants served a standard of care report on the counsel for the third parties. That report concludes that the actions of the third parties fell below the standard of care for real estate agents. While I make no judgment as to whether this conclusion is correct, I am of the view that the third-parties will want to respond to this report at trial if leave to call the expert who provided the report is granted.

[16] On January 28, 2025, Ms. Wise asked counsel for the third parties, Mr. Postelnik, whether he would consent to the late service of this expert report. On January 31, 2025, Mr. Postelnik advised that his clients were not consenting to the late service of the expert report and were seeking the earliest available trial date.

[17] A motion for leave to late-serve the expert report was served by the Defendants on February 6, 2025. Assignment Court was held on February 10, 2025. At that time, Ms. Wise advised that she was not available for trial in February as a result of personal reasons. Although the third parties objected to any delay in the trial, Miller J. moved the matter to the April assignment court so that it would be called in the May sittings.

[18] The Defendants’ motion for leave to file the expert report late was originally returnable February 24, 2025. However, that motion was adjourned so that the third parties could conduct cross-examination of Ms. Wise on her Affidavit in support of the motion. That cross-examination was held on March 4, 2024.

[19] Ms. Wise’s Affidavit states, in essence, that she had been focused on the misrepresentation issues in the file as the misrepresentation claim was “more prominent”. However, she states that, in preparing for the pre-trial and preparing the amended pleading, she came to realize that a standard of care report might be necessary and that the time for serving such a report had passed.

[20] In respect of the request to adjourn the pre-trial in August of 2024, Ms. Wise deposed (on cross-examination) that this request was made because of an issue in respect of whether the evidence on the usability of the land was sufficient. She also deposed that the need for a standard of care report really came into focus for her prior to and at the pre-trial.

Issue

[21] There is one issue on this motion, which is whether the Court should grant leave to the Defendants for the late service of an expert report.

Law and Analysis

a) The Law

[22] Rule 53.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that a party who intends to call an expert witness at trial shall serve an expert report not less than ninety (90) days before the pre-trial conference. Rule 53.03(2) provides that any responding expert reports must be served at least sixty (60) days before the pre-trial conference.

[23] Rule 53.03(3) states that experts cannot testify at trial without leave if their reports are not filed in accordance with the Rules. Leave to rely on a late served expert report can be given on consent, by the pre-trial judge or by the Court on a motion.

[24] This request is proceeding by way of a motion. The test for whether leave should be granted is as set out in Rule 53.08: Quinn et al. v. Rogers et al., 2024 ONSC 1967, para. 16. The test is as follows:

• Is there a reasonable explanation for the failure to serve the report in a timely way?
• Would granting leave cause prejudice to the opposing party that could not be compensated for by costs or an adjournment?
• Would granting leave cause undue delay in the conduct of the trial?

[25] The elements of this test are conjunctive, in that a party seeking to rely on a late-served expert report must meet all of the elements of the test. The onus to demonstrate that the test has been satisfied rests with the party who is seeking to have the late-served report admitted.

[26] Before turning to the specific elements of the test, I want to briefly comment on the policy reasons for this approach. As noted in Agha v. Munroe, 2022 ONSC 2508, the recent amendments to Rule 53.03 were designed to address a substantial problem with the way that civil litigation is conducted in the Province of Ontario. Since the pre-amendment provisions of Rule 53.03 required trial judges to grant leave to admit late-served expert reports unless prejudice could be demonstrated, there was a recurring tendency for counsel, sometimes for both parties, to arrive at a judicial pre-trial without their expert reports completed. This tendency created delays in the adjudication of disputes and resulted in wasted Court time because a pre-trial could not address the substance of the case without the expert reports.

[27] The change in Rule 53.08 was designed to address this issue. It was also designed to address the larger culture of delay that exists in the adjudication of civil disputes in Ontario. That culture has been the subject of judicial criticism in Hryniak v. Mauldin, 2014 SCC 7, and more recently by the Court of Appeal in Barbiero v. Pollack, 2024 ONCA 904. This concern must be kept in mind when applying the elements of the test.

A Reasonable Excuse?

[28] The Defendants’ counsel argued that the excuse proffered in this case, that of solicitor’s inadvertence, is a reasonable excuse on the facts of this case. The counsel for the third parties disagreed, and argued that the excuse of solicitor’s inadvertence is, on the facts of this case, unreasonable as the need for a report on the standard of care should have been obvious.

[29] In resisting this motion, counsel for the third-parties relies on the decision in Harris v. Grand River Hospital, 2025 ONSC 282. Counsel for the third-parties rightly points out that, in Harris, the delay was before the pre-trial. In the case before me, the late-served report was not delivered until after the pre-trial, which makes the delay more troubling. The problem with that argument is that the decision in Harris was based on the fact that there was no explanation for the late service of the expert report (see paragraph 16).

[30] In this case, there is an explanation, which is solicitor’s inadvertence. Counsel for the Defendants points to the decision in Quinn where the Court stated (at paras. 22, 25 and 26):

[22] I find Agha to be distinguishable from the case before me. In Agha, the explanation provided by the plaintiff’s counsel for not having served expert reports was because the cost of obtaining those reports was prohibitive; and the request for leave for late service was made after the trial had begun and related to expert reports that had not yet been prepared. A decision not to obtain expert reports prior to trial is deliberate and is not the same thing as an inadvertent mistake in a delivery deadline. Further, in Agha, the time needed to obtain and serve the reports was effectively unknown. Here, the reports were served some months ago and the Plaintiffs have had them in hand since that time, which is in keeping with the purpose of the Rules to ensure that parties have reasonable notice of expert opinions.

[25] A lawyer’s inadvertence in meeting a deadline required by the Rules can constitute a “reasonable explanation” for a failure to meet the deadline: see Noori v. Grewal, 2011 ONSC 5213, para. 26, citing Nugent v. Crook (1969); Purkis v. 736007 Ontario Ltd., [2001] O.J. No. 324 (Ont. Div. Ct.); and Tarsitano v. Drutz, 2013 ONSC 5605, para. 32; aff’d 2014 ONCA 351.

[26] It is a fact of life that mistakes can happen to us all. Sometimes, mere inadvertence is the sole cause of a mistake.

[31] In Quinn, the motions judge notes that the explanation was “sparse” and that no real details were provided. However, she still accepted the explanation as being reasonable.

[32] Similarly, in Seo v. Francis, 2024 ONSC 4341, para. 27, the Court was faced with a request for an extension of time to deliver expert reports. The Court granted that extension at the pre-trial. In terms of the explanation that was proffered by counsel, the Court stated:

[27] At the pretrial before me, the plaintiff’s counsel indicated that the reason for the delay was turnover within his law firm with different counsel handling it from day to day as well as personal issues. I agree that this is on the low end of being a reasonable excuse, but a client should not be penalized for a lawyer’s mistake particularly where there is no real prejudice to the other side. It would not assist the backlog or the civil justice system to replace a lawsuit by a plaintiff against a defendant with a lawsuit by a plaintiff against her lawyer.

[33] These cases provide some guidance as to the circumstances in which the explanation of solicitor’s inadvertence would be accepted. Both this Court and the Court of Appeal have expressed the view that the “sins of the lawyer” should not be visited on the client and that a client should not irrevocably be placed in jeopardy because of the conduct of their counsel. Graham v. Vandersloot et al., 2012 ONCA 60, para. 10.

[34] That brings me to the explanation in this case. The issue in this case is that a standard of care report was not served in a timely way in a negligence action. While there may be exceptions (see Anderson v. Chasney), in most circumstances expert testimony will be required to demonstrate that a professional has fallen below the standard of care in their profession.

[35] Ms. Wise’s explanation is, in essence, that she did not avert to the fact that a standard of care opinion would be required in spite of the fact that the Defendants were arguing that the third parties had fallen below the standard of care. While I agree that the third party claim, which was not drafted by Ms. Wise, was somewhat opaque, paragraph 41 clearly engages negligence as it states that the third parties “did not demonstrate reasonable knowledge” in respect of the transaction.

[36] From my perspective, it should have been obvious that negligence was alleged in this action. However, I also understand, as my colleague observed in Quinn, that mistakes can happen to us all. Counsel for the third parties argues that we cannot know what was going on in Ms. Wise’s mind at the relevant time and that the explanation that is offered is not, for a good lawyer, a good explanation. I agree with that observation. However, mistakes often don’t have good explanations because, to put it colloquially, a mistake is when “someone screwed up”.

[37] As a result, I accept the explanation in this case as being a reasonable excuse. However, I would note three points in that regard. First, like my colleagues, I view the explanation as being at the “low end” of reasonable. Second, I would not want to be taken as making a finding that, any time a solicitor claims inadvertence, the Court will accept the explanation. While not before me, I would note that a case like this one, but where Ms. Wise had drafted the pleading and been counsel of record from the outset rather than stepping in halfway through might well have turned out differently. In short, this is a “close call”.

[38] Finally, in the Defendants’ factum, they rely on the decision in 1196158 Ontario Inc. v. 6374013 Canada Limited, 2012 ONSC 544, para. 19 for the proposition that the Court will “strive to avoid a purely formalistic and mechanical application of timelines that would penalize parties for technical non-compliance…”. The case before me is not an incident of “technical non-compliance”. The failure to prepare expert reports in advance of the pre-trial denies the parties, and particularly the other side, from the benefit of a confidential and candid discussion of the merits of their case with a judicial officer. This is a substantive right that aids the parties in better understanding the merits of their case and the strategy that should be adopted to advance it. It is no answer to this concern to say that a second pre-trial could be scheduled. That would just encourage further delays.

Is There Prejudice to the Third Party in This Case?

[39] The only prejudice in this case is the delay that has occasioned as a result of the glacial pace at which this litigation has been moving. The bulk of the responsibility for this slow pace rests with the Defendants and not with the third-parties. While I acknowledge that the personal third party is now older and has medical conditions, I received no evidence that would suggest that those medical conditions are either interfering with his ability to testify or posing a risk to his ability to testify in the immediate term.

[40] As a result, I am persuaded that there is no prejudice in this case that cannot be managed by costs or an adjournment. However, the delays that have been occasioned to date inform my analysis of the final branch of the test.

Would Admitting the Report Unduly Delay The Trial?

[41] Again, this branch of the test concerns me. Counsel for the Defendants argues that a trial date has not been set in this matter. That is not my understanding. The matter has been placed on the Orangeville Assignment Court list in April of 2025. An Assignment Court date usually means that the matter will be heard in the next sittings, in May of 2025. As a result, there is a trial date, and it is looming.

[42] This brings me back to the delays in this case. They have been substantial, and the vast bulk of them rest at the feet of the Defendants and their counsel and not on the third parties. The Defendants set the matter down for trial less than a month before it would have been automatically dismissed for delay pursuant to a judge’s order. This suggests that the trial is very close to the point of being unduly delayed.

[43] My concerns in this regard are heightened by the delays in bringing the motion. The Defendants were aware that this motion had to be brought on October 25, 2024, and that the third parties were going to oppose it. They served their expert report on December 20, 2024. They did not ask the third parties’ counsel whether their position had changed for more than a month.

[44] In my view, good practice would have required the Defendants to inquire if the third parties were going to oppose the late service of this expert report when it was served. The Defendants should then have brought their motion within a couple of weeks (even accounting for the Christmas holidays) of serving the report rather than waiting until days before the assignment Court.

[45] That being said, we are still far enough away from the trial (almost two months) that the third parties should be able to obtain a responding expert’s report. As a result, I am of the view that the Defendants have met this branch of the test as well. However, as I observed on the first branch, this too is a “close call”. The admission of this report should be on terms, however, that ensure that the third parties are not prejudiced, or are prejudiced as little as possible. I will set those terms out in the conclusion.

Conclusion and Costs

[46] For the foregoing reasons, I have reluctantly come to the conclusion that leave should be granted to admit the late served expert report on the following terms:

a) The third-parties can, if requested, have the matter traversed to a later assignment Court if they need to have a responding report commissioned.

b) The third-parties must deliver their responding report within sixty (60) calendar days of the release of these reasons or at least ten (10) calendar days before the assignment Court, whichever is earlier.

c) If the third-parties deliver a responding report, then the Defendants shall have twenty-one (21) calendar days to deliver a reply report. This deadline is peremptory on the Defendants.

d) If the matter is moved to a different assignment Court, the date chosen and the trial date shall be at the request of the third parties and peremptory on the Defendants. In other words, if the trial has to be moved to a different sitting, then the schedule of counsel for the Defendants shall not be taken into account in choosing the trial date.

[47] The parties are encouraged to agree on the costs of this motion. In the event that they are unable to agree on costs, each party shall serve, file and upload costs submissions of no more than three (3) single-spaced pages, exclusive of bills of costs, offers to settle and case-law within ten (10) days of the release of these reasons.

[48] Each party shall then have ten (10) days thereafter to serve, file and upload reply costs submissions of no more than two (2) single-spaced pages, exclusive of case-law.

[49] In making their costs submissions, I would direct counsel to the decisions in Mollicone v. Town of Caledon, 2011 ONSC 883, para. 14, Algra v. Mingay and Feltham v. Mingay, 2019 ONSC 5410 and Egredzija v. Gullett, 2019 ONSC 7150, paras. 33-37. Counsel are invited to comment on these decisions in their costs submissions.

[50] In addition to serving, filing and uploading the costs submissions, counsel are to provide an additional electronic copy to my judicial assistant. There are to be no extensions to the timetable for costs submissions, even on consent, without my leave. If I do not receive submissions in accordance with this timetable, then there shall be no order as to costs.

[51] Finally, I will thank all three counsel (as I did in Court) for a well-presented and focused argument.

Released: March 24, 2025