Court File and Parties

Court File No.: CV-21-00000749-0000 Date: 2025-08-28 Ontario Superior Court of Justice

Between: Jason Todd King, Plaintiff – and – Wal-Mart Canada Corp., Defendant

Counsel: Robert H. Littlejohn, for the Plaintiff Sabrina Lucenti, for the Defendant

Heard: August 26, 2025

Reasons for Decision

Justice R.E. Charney:

Introduction

[1] The Plaintiff brings this motion pursuant to Rules 53.03(4) and 53.08 for leave to deliver an expert economic loss report despite the pre-trial conference having been completed.

[2] The relevant Rules provide as follows:

Experts' Reports

53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

Sanction for Failure to Address Issue in Report or Supplementary Report

(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,

(a) a report served under this rule;

(b) a supplementary report served on every other party to the action not less than 45 days before the commencement of the trial; or

(c) a responding supplementary report served on every other party to the action not less than 15 days before the commencement of the trial.

Extension or Abridgment of Time

(4) The time provided for service of a report or supplementary report under this rule may be extended or abridged,

(a) by the judge or associate judge at the pre-trial conference or at any conference under Rule 77;

(b) by the court, on motion; or

(c) on the written consent of the parties, except that the parties may not consent to an extension that would affect the scheduled trial date.

Evidence Admissible only with Leave

53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,

(a) there is a reasonable explanation for the failure; and

(b) granting the leave would not,

(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or

(ii) cause undue delay in the conduct of the trial.

(2) Subrule (1) applies with respect to the following provisions:

5. Subrule 53.03 (3) (failure to comply with requirements re experts' reports).

Facts

[3] This action arises from an injury sustained on November 30, 2019 by the Plaintiff when he was shopping at the Defendant Wal-Mart. He alleges that as a result of the injury he now experiences chronic eye pain, headaches, excessive watering of his right eye, worsened blurry vision and worsened photophobia. He has been diagnosed with Corneal Neuropathic pain.

[4] The Plaintiff alleges that his injuries resulted in his increased absenteeism from work in 2021 and 2022 and the eventual departure from his employment. He has struggled to secure, hold and maintain employment.

[5] This action was commenced by way of a Statement of Claim issued on June 2, 2021. This action was commenced under the Simplified Procedure provided in Rule 76 of the Rules of Civil Procedure as the Plaintiff's claim was for money in the amount of $200,000 or less.

[6] Wal-Mart delivered its Statement of Defence on July 14, 2021.

[7] The Plaintiff alleges that he has suffered a loss of income and will continue to suffer a future loss of income and loss of earning capacity. This includes claims for past and future income loss, reduced earning capacity, loss of working life expectancy and loss of competitive advantage.

[8] Examinations for Discovery were completed on April 26, 2022. In his affidavit of documents the Plaintiff included income records in support of his economic loss claim and at his examination for discovery he confirmed that he would be advancing an economic loss claim.

[9] The Plaintiff served an expert medical report on May 2, 2023, and the Defendant served a responding medical report on August 15, 2024. The gap between the two reports was the result of the Plaintiff's failure to attend scheduled defence medical assessments on December 5, 2023, December 27, 2023 and February 12, 2024. The Plaintiff did attend the defence medical on May 28, 2024.

[10] The matter was set down for trial on July 25, 2023.

[11] On April 7, 2025, the Pre-Trial Conference was held and a trial date was fixed for January 2026. At the Pre-Trial Conference, Plaintiff's counsel advised that he planned to obtain a financial losses report. He took the position that he could not obtain the report until a trial date had been fixed and that the Defendant would have the opportunity to obtain a responding report prior to trial. The Associate Justice made an order at the Pre-Trial granting the Plaintiff leave to bring the within motion.

[12] On April 30, 2025, counsel for the Plaintiff wrote to Principe Nafekh Ltd. to request that an Economic Loss report be prepared in regard to this matter. The report was completed and delivered to counsel for the Plaintiff on May 22, 2025, and was served on the Defendant the following day, May 23, 2025.

Analysis

[13] Since the test set out in Rule 53.08(1) is conjunctive, both subrules (a) and (b) must be met.

[14] There is no dispute that the two part test articulated in Rule 53.08(1) applies to a motion to extend the time for service of expert reports: Van Belois v. Bartholomew, 2023 ONSC 5799, at para. 14.

[15] The issue in this case is whether the Plaintiff has provided "a reasonable explanation" for the failure to file these two reports 90 days prior to the pre-trial hearing, as required by Rule 53.08 (1)(a).

[16] In Agha v. Munroe, 2022 ONSC 2508, RSJ Edwards reviewed some of the background and case law that gave rise to the amendment of Rule 53.08 in 2022. He noted, at para. 7, that the "late delivery of expert reports prior to March 30, 2022 was the subject of considerable negative judicial commentary". He concluded, at paras. 18 and 25:

Fundamentally, the aforesaid amendment, in my view, will result in a change in how trial judges will be required to consider motions that essentially ask for an indulgence resulting from the late service of an expert report and the admissibility of that evidence at trial. Where the old rule provided that leave of the trial judge "shall be granted", the new rule now is permissive using the language "may be granted".

The new rule provides that leave "may be granted". The old rule provided that leave "shall be granted". The court, when confronted with a request for the late service of an expert's report to enable a party to call that expert at trial must be satisfied that there is a reasonable explanation for the failure to serve the experts reports within the timelines specified by the Rule.

[17] Finally, RSJ Edwards stated, at paras. 30 and 32:

The purpose of the new rule is, in my view, clear and obvious. The first purpose is to send a very loud and clear message to all sides of the Bar, that expert reports are to be served in a timely manner and in accordance with the provisions of Rule 53.03(1) and (2).

Lawyers and litigants need to adapt to the new rule immediately. The late delivery of expert reports simply will not be rubber-stamped by the court. By shifting the onus to the party seeking the indulgence and changing the word "shall" to "may", the exercise of the court's discretion will, in my view, result in far fewer adjournments and more productive pre-trials. There will always be circumstances that are beyond the control of counsel and the parties which will fall within the definition of a "reasonable explanation" for failing to comply with the timelines for the service of expert reports. In this case, no such reasonable explanation was provided to the court.

[18] Post pre-trial delay is "more troubling" than delay that occurs before the pre-trial: Rosato et al v. Singh et al, 2025 ONSC 1798, at para. 29.

[19] In this case, the pre-trial conference occurred more than 5 years after the accident and nearly 4 years after the Statement of Claim was issued. There was lots of time to obtain expert reports prior to the pre-trial conference and the Plaintiff obtained his expert medical report in May 2023 and in accordance with the provisions of Rule 53.03(1) and (2).

[20] The Plaintiff takes the position that "reasonable" explanation means a "modest" explanation: Azzeh v. Legendre, 2017 ONCA 385, at para. 75, interpreting the term "reasonable excuse". For my part, I do not find that substituting the word "modest" for the word "reasonable" contributes to the analysis to be undertaken.

[21] I accept the Plaintiff's position that the types of circumstances that will amount to a "reasonable explanation" have not been exhaustively defined or catalogued.

[22] The Plaintiff's explanation for the proposed late expert reports is two-fold:

[23] First, this matter was brought under the Simplified Procedure (Rule 76), which sets out a $25,000 limit on the costs and disbursements a party to an action can recover (Rule 76.12.1). He takes the position that, given this limit, he should not be compelled to pay for an expert report until after the pre-trial.

[24] I reject this argument as a "reasonable explanation". If accepted, it would mean that Rule 53.03 does not apply to actions commenced under Rule 76. But such a conclusion is directly contrary to Rule 76.09.1, which provides that "A party who intends to call expert evidence at the trial of the action shall comply with Rule 53.03". Given the express terms of Rule 76.09.1, it cannot be a reasonable explanation that the action was commenced under Rule 76.

[25] Second, the Plaintiff argues: "An accurate and complete Economic Loss report could not be obtained until the trial date for the matter had been fixed since it is the trial date which determines the end point for the Plaintiff's past economic losses and the start date for the Plaintiff's future economic losses/loss of competitive advantage." He argues:

Any economic loss report obtained in advance of a trial date being fixed will be inaccurate and of diminished value to the trier of fact. In the alternative, it will be intentionally vague since the date past income losses end and future income losses begin is unknown. This would also be of reduced value to the trier of fact. In either case, a new report would have to be obtained once the trial date is known so that the past and future income loss awards can be correctly calculated.

[26] Once the trial date was fixed, the Plaintiff moved to obtain and serve an Economic Loss report.

[27] The Plaintiff also argues that the Defendant has known of the Plaintiff's intention to file an economic loss report since the examinations for discovery, and all of the relevant documentation necessary to obtain the report was disclosed to the Defendant at that time.

[28] If accepted, the Plaintiff's argument would mean that Rule 53.03 does not apply to economic loss/lost income reports since the trial date is rarely fixed until the pre-trial.

[29] This is not a reasonable explanation; it is a request for a blanket exemption for certain categories of expert reports.

[30] The Plaintiff has claimed income loss and loss of competitive advantage since the claim was issued in 2021. By his own admission, all of the relevant documentation to support the claim has been available since his examinations for discovery in 2023. The only item missing was the actual trial date. The Plaintiff could have requested an expert report with an estimated trial date, and if an updated report was necessary when the actual trial date was determined (as is commonly the case) that could have been easily obtained. It would not amount to a "second report", but simply a recalculation of figures based on the actual date of trial.

Conclusion

[31] I conclude that the Plaintiff has failed to provide a reasonable explanation for his failure to comply with Rule 53.03(2). Since the test set out in 53.08(1) is conjunctive, both subrule (a) and (b) must be met. Thus, the failure to provide a reasonable explanation is determinative of the motion, and it is not necessary to consider prejudice to the plaintiff or undue delay in the conduct of the trial: Van Belois v. Bartholomew, 2023 ONSC 5799, at para. 25.

[32] Accordingly, the Plaintiff's motion is dismissed.

[33] Costs payable on a partial indemnity basis are fixed at $3,500 all inclusive, payable by the Plaintiff to the Defendant.

Justice R.E. Charney

Released: August 28, 2025