Superior Court of Justice – Ontario

Court File No.: CV-22-0120-00
Date: 2025-05-26
Location: 10 Louisa Street, Orangeville ON L9W 3P9

Re:
Plaintiff: Alexander Awua
Defendant: Rajandeep Singh Virk

Before: R. Mandhane

Counsel:
Adam Kuciej, for the Plaintiff
Kari-Anne Layng and Jonathan Schrieder, for the Defendant

Heard: May 26, 2025, in person

Endorsement

Introduction

[1] This is a motor vehicle accident case. The Plaintiff claims over two million dollars in damages arising out of injuries suffered in a car accident on January 20, 2022. The Defendant is represented in these proceedings by his insurance company.

[2] The Defendant now brings a motion to compel the Plaintiff to attend two defence medicals and to serve its expert reports late. The Plaintiff opposes the motion.

Overview

[3] The Plaintiff served a trial record on April 25, 2024, and a pretrial conference was scheduled for May 2, 2025. As such, the Plaintiff’s deadline to serve expert reports was February 3, 2025, and the Defendant’s deadline to serve responding reports was March 4, 2025: Rule 53.02(2), Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[4] Both parties failed to comply with Rule 53.03(2.2) which required them to set a schedule for the service of expert reports within sixty days of the matter being set down for trial.

[5] That said, the Plaintiff substantively complied with the rules by serving the following expert reports on the Defendant before February 3, 2025:

a. Participant expert reports from a physician and neuropsychologist, produced with the Plaintiff’s affidavit of documents on February 23, 2023;
b. A multi-disciplinary catastrophic impairment disorder report authored by a neurologist, physiatrist, psychiatrist, and occupational therapist, served on November 18, 2024;
c. A physiatry assessment report, served February 16, 2024;
d. An independent medical examination (physiatry) report, served January 3, 2025, and an addendum report, served February 4, 2025; and
e. A future costs of care report (occupational therapist), served January 3, 2025.

[6] To the extent that some of the accompanying information for the Plaintiff’s expert reports (i.e. acknowledgment of expert duties, CVs) followed some weeks after the deadline, I find that the Defendant had sufficient notice about the substance of the Plaintiff’s case by the deadline imposed by the rules for serving expert reports.

[7] In January 2025, the Defendant began taking steps to have the Plaintiff assessed by a neurologist, neuropsychologist, and physiatrist. Two of the assessments were scheduled to take place after the deadline for filing defence expert reports. There is no evidence that the Defendant sought earlier dates. The Defendant communicated the appointment dates to the Plaintiff on or before January 22, 2025. The Plaintiff did not object to two of the assessments being scheduled to take place after the deadline, but the Defendant also did not seek the Plaintiff’s consent to late service of its expert reports.

[8] The parties attended at mediation on March 31, 2025, but were unable to settle the matter. As of the mediation, the Defendant had not served any Defence expert reports.

[9] The Plaintiff attended the defence neurology assessment that was scheduled for before the deadline for service of the responding reports.

[10] The Defence neuropsychology assessment took place on March 14, 2025 but a report was never written because Plaintiff’s counsel indicated the same day that his firm had a conflict with the expert. The Plaintiff then refused to reattend for a further neuropsychology assessment because it would have taken place beyond the deadline for serving responding expert reports.

[11] The Defence physiatry assessment was scheduled for April 16, 2025, but the Plaintiff again refused to attend because the report would not be filed on time.

[12] The Defendant’s independent medical examination (neurology) report dated April 12, 2025 was served after the deadline—on April 17, 2025.

[13] Justice Agarwal conducted the pretrial conference on May 2, 2025. The parties were unable to settle the matter. At that point, the Defendant had only served one expert report.

[14] The parties are scheduled to attend assignment court on August 5, 2025 to schedule a date for trial in Orangeville. I inquired with the Registrar and am advised that the next assignment court date after August would be in October 2025.

[15] The Defendant now brings a motion for an extension of time to serve its expert neurologist report, as well as for an order compelling the Plaintiff to attend two additional defence medical assessments, one with a neuropsychologist and the second with a physiatrist, and to serve those reports late.

[16] While the Plaintiff is willing to accept late service of the neurology report, he opposes the remainder of the motion. The Plaintiff says that I should not exercise my discretion to extend the time for service of two additional expert reports because the Defendant has not provided a reasonable explanation for the delay. The Plaintiff says that the Defendant is trying to engage in trial by ambush and unduly delay the hearing of this matter. Even if I were inclined to allow the Defendant to serve its expert reports late, the Plaintiff says that I should not order the two additional assessments because they are duplicative of the Defence neurology report.

Analysis

[17] Pursuant to section 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court has the discretion to order a plaintiff to attend a defence medical examination “where the physical or mental condition of a party to a proceeding is in question.” Such an examination is a way to “put the parties on equal footing by allowing the defendant to meet the case advanced by the plaintiff and to respond to the allegations made by the plaintiff in the statement of claim”: Chapell v. Marshall Estate, [2001] O.J. No. 3009, at para. 9.

[18] The timing of a defendant’s request for a medical examination must be considered on motions for leave to file late expert reports: Lamothe v. Sudbury Trail Plan Association, 2023 ONSC 3176, at para. 25. As stated by Justice Muszynski in Tyner v. Phillips, 2023 ONSC 5207, at para. 33: “An order compelling the plaintiff to attend a medical examination cannot be divorced from the service of the expert report that the examination will generate and that the rules dictate must be served forthwith.”

[19] In determining whether leave should be granted to file late expert reports, the Defendant must satisfy me that: (1) there is a reasonable explanation for the failure to file on time; and that (2) granting leave would not cause: (i) prejudice to the Plaintiff that could not be compensated for by costs or an adjournment, or (ii) undue delay in the conduct of the trial: Mohamud v. Juskey, 2023 ONSC 4414, at paras. 23-27.

[20] The Defendant provides various explanations for missing the deadlines, including counsel’s inadvertence, the expert’s schedules, and the Plaintiff’s failure to object to the assessment dates when he was first advised about them in January 2025. In his affidavit, Defendant’s counsel states that, “It was always defence counsel’s intention to obtain expert reports before pre-trial, and although defence counsel’s office scheduled independent medical examination on January 10, 2025, almost two months in advance of the deadline for service of expert reports, this ultimately did not allow enough lead time to ensure that the assessments were able to take place, and the reports to be issued within the timeframe required by the Rules.”

[21] I agree with Plaintiff that the Defendant’s affidavit does not provide a reasonable explanation for its delay in obtaining the responding expert reports. If the Defendant always meant to obtain reports, why didn’t it take any steps to do so after receiving the multi-disciplinary catastrophic impairment disorder report back in November 2024, or after agreeing to the May 2025 pretrial conference dates? The simple intention to file reports is not a reasonable explanation in the absence of taking any concrete steps: Nykilchuk v. 2244301 Ontario Inc. et al, 2024 ONSC 5025, at para. 25.

[22] Leaving it to January 2025 to start obtaining expert reports due in March 2025 is unreasonable because it was inattentive and illustrative of the problem that rule 53.08 is meant to address: Mohamud, at para. 58. The Defendant is a professional litigant that would have known that it can sometimes take months to arrange for assessments and reports, especially because unforeseen issues often arise (for example, conflicts etc.).

[23] I agree with the Plaintiff that a reasonable inference that flows from the evidence on this motion is that the Defence was delaying incurring the costs associated with obtaining responding reports until the last minute in the hopes of settling the matter at mediation or at the pretrial. This was a litigation strategy that cannot be condoned in the face of the clear language of the rules and the culture change they dictate.

[24] I would also add that this situation was primarily of the Defendant’s own making. While both parties should have put their minds to a timetable for exchange of reports, and the Plaintiff should have been clearer about its expectation that the Defendant comply with the rule when it was advised about the assessment dates being after the deadline, it was ultimately up to the Defendant to comply with the Rules. If the Defendant intended to rely on the Plaintiff’s consent for late filing of expert reports, it should have sought a written consent rather than relying on an inference based on the Plaintiff’s conduct. If the Defendant had sought the Plaintiff’s consent for late filing back in January and it was withheld, the Plaintiff could have filed a motion in a timely manner and preserved the assignment court date.

[25] Having found that the Defendant’s explanation for not serving the expert reports on time to be unreasonable, I am not prepared to allow for late service of the reports. This is sufficient to dismiss the entire motion because I am not prepared to order the Plaintiff to attend assessments where the reports are not admissible at trial.

[26] However, if I am incorrect, and the explanation offered by the Defendant for missing the deadlines is reasonable, I find that the late filing would cause undue delay of the trial and would dismiss the motion on that basis.

[27] The Defendant concedes that allowing late filing of the reports would mean that this matter would not be ready to proceed to assignment court until October 2025 rather than August 2025. If the trial date is pushed beyond the Fall sittings, that will lead to prejudice insofar as more of the Plaintiff's pre-trial income being subjected to the 70% cap on pre-trial income loss and lead to the applicable statutory deductible being indexed for inflation next year: Lamothe v. Sudbury Trail Plan Association, 2023 ONSC 3176, para. 38.

Result

[28] The Defendant’s motion to late serve the independent medical examination (neurology) report is granted; the remainder of the motion is dismissed.

[29] The parties agreed on the quantum of costs. The Defendant shall pay the Plaintiff $3,500 in costs.

R. Mandhane