Superior Court of Justice

Barrie Court File Nos.: CV-19-1338 and CV-19-1339 Date: 2025-12-02

Ontario Superior Court of Justice

Court File No.: CV-19-1338

Between:

DARRIN VAILLANCOURT, Plaintiff

– and –

R.K. MOONEY INSURANCE BROKERS LTD., RANDY MOONEY, and WENDY CLARKE, Defendants

Counsel:

Rachel Andrews, for the Plaintiff

Steven Canto, for the Defendants

Court File No.: CV-19-1339

DARRIN VAILLANCOURT, Plaintiff

– and –

THE CORPORATION OF THE CITY OF BARRIE, Defendant

Counsel:

Rachel Andrews, for the Plaintiff

Tyler Macks, for the Defendant

Heard: November 20, 2025

Reasons for Decision

CHARNEY J.:

[1] These two actions arise out of a single vehicle accident that occurred on July 26, 2017 on a municipal road in Barrie, Ontario. The Plaintiff, Darrin Vaillancourt, was riding his motorcycle in the rain. When he applied his brakes, his rear wheel locked, causing him to lose control and be thrown onto the road. As a result, the Plaintiff suffered catastrophic injuries.

[2] The Plaintiff alleges that his wheels locked due to the water that had accumulated in the wheel track rutting on the road surface, and that the City of Barrie failed to keep the road in a reasonable state of repair in accordance with s. 44(1) of the Municipal Act, S.O. 2001, c. 25. This gave rise to the action under Court File No. CV-19-1339, Vaillancourt v. City of Barrie, which I will refer to as the "Tort action".

[3] The Plaintiff commenced a claim for accident benefits with his automobile insurance provider, the Guarantee Company of North America ("GCNA"), and was advised that his motorcycle was uninsured as he did not have liability coverage at the time of the accident. Relying on s. 31(1) of the Statutory Accident Benefits Schedule, GCNA informed the Plaintiff that it was not required to pay income replacement benefits, housekeeping expenses, or visitor expenses.

[4] The Plaintiff commenced an action against his insurance brokers, R.K. Mooney Insurance Brokers Ltd. ("Mooney"), for professional negligence due to their alleged failure to ensure that his policy included liability coverage: Court File No. CV-19-1338, Vaillancourt v. R.K. Mooney Insurance Brokers Ltd. (the "Broker action").

[5] The Statements of Claim in both actions were issued on July 25, 2019.

[6] Since both actions arise out of the same occurrence – the motorcycle accident of July 26, 2017 - the actions are to be tried together or one immediately after the other, pursuant to Rule 6.01(d): Order of McCarthy J. dated September 29, 2023.

[7] The two actions are currently scheduled for a five week non-jury trial before me in September 2026.

[8] The City of Barrie has brought a motion for summary judgment seeking dismissal of the Tort action on the ground that the Plaintiff failed to comply with the 10-day notice period in s. 44(10) of the Municipal Act, 2001, and the conditions of s. 44(12) of the Act are not met.

[9] This summary judgment motion was placed on the long motion running list, to be brought back on 3 days notice to the parties.

[10] On May 12, 2025, R.S.J. Edwards directed that two issues that needed to be determined by the trial judge be heard on November 20, 2025:

a. Late served expert reports

b. The order of the trial – specifically the Broker action.

Tort Action

[11] When the motion began on November 20, 2025, the Defendant's summary judgment motion was on my docket.

[12] The parties to that motion advised that it had been placed on my docket in error. The parties were to be given 3 days notice of the hearing of the summary judgment motion, but they did not find out that it had been placed on the docket until November 19, 2025. The moving party's lawyer discovered that it had been scheduled for November 20, 2025 when he checked the docket on the 19th. Both parties advised the Registrar that they could not proceed with such short notice. The Registrar confirmed with the parties that the only matters being heard on November 20, 2025 were the two issues set out by R.S.J. Edwards in his May 12, 2025 Endorsement, and that the City of Barrie's summary judgment motion "continues to be on the running list and will be called when judicial resources become available".

[13] Given that neither party wanted to proceed with the summary judgment motion, it was not heard on November 20, 2025.

Broker Action

[14] As per the direction of R.S.J. Edwards, two issues were addressed on this motion: late served expert reports and the order of trial. I will address each in turn.

i) Order of Trial

[15] Although the two actions arise out of the same occurrence – the July 26, 2017 motorcycle accident – the facts relating to the two actions are distinct.

[16] The Tort action relates to the weather and road conditions on July 26, 2017, and the damages suffered by the Plaintiff as a result of the accident. Both liability and damages are in dispute.

[17] The Broker action relates to the interactions between the Plaintiff and his Broker prior to the accident. The Plaintiff's claim against the Broker is limited to any claim the Plaintiff may have had against his Statutory Accident Benefits (SABS) insurer (GCNA) for income replacement benefits, housekeeping expenses and visitors expenses: R.S.J. Edwards Pre-Trial Judge's Report, April 11, 2025. These benefits are set out in O. Reg. 34/10: Statutory Accident Benefits Schedule. The only issue in the Broker action is liability and entitlement. If the Broker was negligent, the quantum of the SABS benefits entitlement are not in dispute.

[18] Counsel for Mooney takes the position that his client does not need to participate in the Tort action trial, his client's liability and the quantum of benefits is independent of Barrie's liability. He also advises that he does not intend to participate in any of the cross-examinations of the Plaintiff's medical experts, because the Plaintiff meets the definition of catastrophic impairment.

[19] At the April 11, 2025 pre-trial, R.S.J. Edwards made the following Order regarding the evidence to be called in this case:

The evidence in chief of ALL witnesses is to be done by affidavit evidence including that of all experts. The P is to serve all affidavits no later than August 1/26. The D shall serve all of their affidavits no later than August 20/26... Witnesses will attest to the authenticity of their affidavit and will then be allowed 10 minutes in warm up with counsel calling the witness after which the witness will be tendered for cross examination

[20] The only witness in the Tort action who may also have to testify at the Broker action is the Plaintiff. It will not prejudice the Plaintiff to testify twice. Indeed, it may well be to his advantage to testify (and be cross-examined) about the motor vehicle accident and his interactions with his insurance broker on separate days. This will allow him to focus on each issue separately.

[21] Accordingly, the Tort action will proceed first (subject to Barrie's summary judgment motion), followed immediately after by the Broker action.

[22] The Plaintiff will testify and be cross-examined separately about the facts relating to the Tort action and the Broker action as each action is heard.

[23] The Plaintiff will be required to call any other witness only once. The Plaintiff shall provide opposing counsel with a timetable of when the witnesses are anticipated to be called at each stage of the trial. Counsel for either Defendant may participate at any stage of the trial, but if they intend to cross-examine any Plaintiff witness, they must cross-examine when that witness is called to testify.

ii) Late Served Expert Report

[24] On March 30, 2023, counsel for both actions attended trial scheduling court. The Plaintiff sought an order that the pre-trials scheduled for April 3, 2023 be adjourned due to, among other things, his difficulties finding a broker's negligence expert despite efforts to do so.

[25] The adjournment of the pre-trial was not opposed by the City of Barrie, but was opposed by Mooney. On March 30, 2023, Sutherland J. adjourned the pre-trial for the Tort action, but ordered that the pre-trial of the Broker action proceed as scheduled.

[26] The pre-trial conference in the Broker action proceeded on April 3, 2023. One of the issues was the late service of the Plaintiff's expert report on broker negligence. Fraser J. made the following Order:

(a) Counsel for the Plaintiff shall serve his expert report on broker negligence by April 30, 2023 without prejudice to the other parties to argue its admissibility including that it was not served in advance of this pre-trial.

(b) The other parties shall serve any responding report within six months of the receipt of that Plaintiff's report referenced in paragraph (a) above.

[27] The case was adjourned for a further pre-trial.

[28] On June 2, 2023, the Plaintiff delivered his Standard of Care Expert Report, which is dated April 18, 2023.

[29] June 2, 2023 was five months after the deadline imposed by the Rules, and just over a month after the without prejudice deadline imposed by Fraser J. at the April 3 pre-trial conference.

[30] The Broker Defendants retained an expert who produced a Standard of Care Expert Report and Supplementary Report dated August 21 and 27, 2023, respectively.

[31] On September 18, 2023, the Plaintiff's expert produced a Rebuttal Report.

[32] The next pre-trial was a joint pre-trial held on April 11, 2025 before R.S.J. Edwards.

Analysis

[33] 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).

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

[35] 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.

[36] The Plaintiff takes the position that he meets the test for admission of the late-served expert report because "there is a reasonable explanation for the failure" to deliver the report prior to the pre-trial conference, and the delay will not cause prejudice to the opposing party or delay the trial.

[37] Only the first test – is there a reasonable explanation for the failure? – is in dispute on this motion. Given the passage of time since the report was served, the fact that the Broker Defendants have already filed reply reports, and the trial is still 9 months away, there is no prejudice to the Defendants and the admission of the report will not delay the conduct of the trial.

[38] The Plaintiff submits the following as its explanation for the late-served report:

a. Prior to the first pre-trial, the Plaintiff's Counsel made efforts to find and retain an expert but unfortunately had difficulty doing so. On March 30, 2023, a few days after finally finding and retaining an available expert, the Plaintiff sought an adjournment of the joint pre-trial to later in April 2023 so that the report could be prepared before the pre-trial occurred...

b. In advance of Justice Fraser's deadline of April 30, 2023, the Plaintiff's expert, Peter Morris, prepared a Standard of Care Report dated April 18, 2023.

c. Unfortunately, due to turnover of staff at the time and inadvertence, the report was not immediately served. As soon as Plaintiff's Counsel became aware of this, the report was served on June 2, 2023.

[39] In Agha v. Munroe, 2022 ONSC 2508, R.S.J. 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.

[40] Finally, R.S.J. 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.

[41] 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. In Rosato, LeMay J. explained the importance of having the expert reports before the pre-trial, at para. 38:

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.

[42] The new Rule sets out a new test to guide the court in the exercise of its discretion: Agha, at para. 19. The bar for admitting late expert reports has been raised by the 2022 amendment to the Rules: Pinchin v. Ikemoto, 2025 ONSC 3575, at para. 58. Accordingly, the decisions pre-dating the 2022 amendment relied on by the Plaintiff in this motion must be approached with caution and may be of little or no value.

[43] The explanations put forward by the Plaintiff are problematic. If either were accepted, it could effectively nullify the Rule.

[44] The Statement of Claim was issued on July 25, 2019. The first pre-trial before Justice Fraser was held on April 3, 2023, nearly 4 years later. Citing "difficulty finding an expert" as a reasonable explanation after 4 years would amount to granting carte blanche to any lawyer to ignore the timelines in the Rule.

[45] I have similar concerns about "turnover of staff" as an explanation. R.S.J. Edwards held, in Longo v. Westin Hotel Management, L.P., 2024 ONSC 3676, at para. 11, that "to lay the blame at the feet of Junior counsel or a law clerk does not meet the definition of a "reasonable explanation".

[46] Similarly, Boswell J. held that "inattentiveness to the requirements of the file" cannot "rise to the level of reasonableness when one is assessing the explanation for non-compliance with r. 53.01… If r. 53.08(1) offers what defence counsel described as an "escape clause" in the circumstances present here, then it will be diluted to the point of ineffectiveness.": Mohamud v. Juskey, 2023 ONSC 4414, at paras. 58-59.

[47] Moreover, the term "inadvertence" is a broad, indeterminate term that could capture virtually any negligent conduct, from a brief delay to prolonged neglect. "Inadvertence" simply means that the failure was not "deliberate". It seldom is. The Plaintiff's affidavit in support of its position on this motion does not describe what the inadvertence was or explain how or why it occurred, other than the "turnover of staff". The Plaintiff should not be able to avoid the consequence of his failure to comply with the timelines simply by saying "inadvertence".

[48] On the other hand, some courts have accepted "inadvertence" as being at "the very low end of being reasonable": James Bay Resources v. Mak Mera Nigeria, 2023 ONSC 2398, at paras. 62 and 76.

[49] See also Quinn et al v. Rogers et al., 2024 ONSC 1967, at para. 25, although this case relies exclusively on pre-2022 amendment cases.

[50] In Seo v. Francis, 2024 ONSC 4341, Papageorgiou J. accepted "turnover" of staff as a reasonable explanation, at para. 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.

[51] See also: Rosato, which accepted "inadvertence" as a reasonable explanation, in part because of a change in lawyers midway through the proceedings. LeMay J. stated, at para. 37:

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".

[52] Applying these principles to the case before me, there is one factor that tips the balance in the Plaintiff's favour. Although the pre-trial conference was commenced on April 3, 2023, the pre-trial was adjourned for a further pre-trial. The further pre-trial did not proceed until two years later, on April 11, 2025.

[53] Although the Plaintiff's expert report was served after the April 3, 2023 pre-trial, it was served nearly two years before the reconvening of the pre-trial on April 11, 2025. Thus, in the unique circumstances of this case, the expert reports were filed in time to benefit from the "confidential and candid discussion of the merits of their case with a judicial officer" as referenced by LeMay J. in Rosato.

[54] But for the adjournment of the pre-trial in this case, the result would have been different.

[55] For this reason, leave is granted to admit the late served expert reports.

[56] The parties have agreed that costs of this motion should be in the cause.

Justice R.E. Charney

Released: December 2, 2025