Rong Juan Wang et al. v. Rahul Kesarwani et al., 2026 ONSC 2090

CITATION: Rong Juan Wang et al. v. Rahul Kesarwani et al., 2026 ONSC 2090

COURT FILE NOS.: CV-17-00580240-0000, CV-19-00614935-0000, CV-17-579773-0000

DATE: 20260409

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RONG JUAN WANG; YI HAO INVESTMENTS INC., Plaintiffs

AND:

RAHUL KESARWANI; MALTI KESARWANI; 994179 ONTARIO LTD.; ARDEN AL; HERSHEY GUEVERA AL; YAN-LING DING; SHERRY WONG; ANDREW CHRISTOPHER WOODS; DANIEL MARTIN WOODS, Defendants

RE: GLOBAL INVESTMENT HOLDINGS INC., Plaintiffs

AND:

GUEVARA HERSHEY AL, RONGJUAN WANG and YI HAO INVESTMENTS INC., Defendants

RE: YI HAO INVESTMENTS INC.C., Plaintiffs

AND:

MARIA KAPETANIOS, Defendant

AND

RONG JUAN WANG (also known as JUDY WANG), PETER ZHANG (also known as YONG FENG FAN, also known as SID JIE ZHANG), RAHUL KESARWANI, MALTI KESARWANI, 994179 ONTARIO LTD, ARDEN AL, HERSHEY GUEVERA AL, YAN-LING DING, SHERRY WONG, ANDREW CHRISTOPHER WOODS, DANIEL MARTIN WOODS, and YI HAO INVESTMENTS INC. Defendants by Counterclaim

BEFORE: AKAZAKI J.

COUNSEL: Andrew Francis, for Global Investment Holdings Inc. Michael B. Miller and Patricia McLean, for RongJuan Wang and Yi Hao Investments Inc. (Uninsured Claims) Raffaele Sparano, for Yi Hao Investments Inc. (Insured Claims) Bryan C. McPhadden, for Rahul Kesarwani Scott Turton, for Arden Al, Hershey Guevera Al, Yan-Ling Ding, Sherry Wong Conner Harris, for 994179 Ontario Inc. and Malti Kesarwani Abid Syed, for Andrew Christopher Woods and Daniel Martin Woods

HEARD: April 8, 2026, in writing

ENDORSEMENT

OVERVIEW

[1] This case management decision addresses the disorder that befell this nine-year multi-party proceeding, after a lawyer defendant stubbornly left a vital part of his defence until the eve of trial. Hundreds of years ago, the Royal Courts of Justice succeeded medieval trial by combat for the resolution of private grievances. However, modern litigants in a Canadian court still need to plan and prepare diligently for the trial and to observe the rules of engagement applicable to all the participants. The trial in this case is scheduled to start on April 27, 2026, under three weeks from now.

[2] By Motion Record dated March 27, 2025, Rahul Kesarwani sought leave to bring a motion to be heard by me as the Rule 77 case management judge, for an order permitting him to rely at trial on a responding handwriting expert report of Samiah Ibrahim, dated January 30, 2026, and to conduct further examination for discovery of Judy Wang. I had already denied leave to bring the motion, on December 17, 2025. Thus, the eleventh-hour motion was presumptively vexatious and an abuse of process. That Mr. Kesawarni is a lawyer or that he is represented by counsel appointed by the Lawyers’ Professional Indemnity Company did not mean court orders were less binding on him. Nevertheless, I invited submissions to inform me whether I should reopen the issue and allow the motion to be heard.

[3] Instead of filing submissions, Mr. Kesarwani’s counsel has now withdrawn the part of the motion for further discovery and has decided the part dealing with the expert report shall be traversed to the trial judge. This conduct followed a pattern of attempts to outrun the consequences of missed deadlines for retaining an expert and delivering a report on the original and vital issue necessitating trial, apparently in the belief of the inevitability of leave ultimately being granted.

[4] The issue of a responding handwriting expert report emerged during the December 13, 2024, case conference. Seven years into the litigation, Mr. Kesarwani’s counsel had yet to hire a document examiner in a case where the authenticity of signatures on mortgage documents was a critical issue. Even if the originals remained available for examination, the idea of “wet” signatures may have been at best figurative by this point. His reason for postponement of hiring a document examiner was the formal service deadline under subrule 53.03(2), 60 days before the pretrial conference. Previously, there was neither a schedule pursuant to subrule 53.03(2.2) nor one imposed by the court.

[5] Nevertheless, the actions and counterclaims had been referred to case management to avoid the mayhem of parties and counsel appearing at the opening of trial with a laundry list of unresolved procedural complaints. The plaintiffs argued that the longer they had to wait for this defendant to bring forward a reason to doubt their expert’s opinion, contained in reports from 2021 and 2023, they could not prepare for trial. This grievance was well founded in the basic idea, in any litigation requiring technical forensic assistance, that retaining a qualified expert is the first task and not the last. Otherwise, neither counsel’s case preparation nor client’s instructions will be properly informed.

[6] The case management judge’s duty in this troubled and lengthy litigation was to shepherd the parties to a state of readiness, even if that meant compelling Mr. Kesarwani to get ready on pain of having to defend the trial without what he needed. I therefore ordered him to hire a responding expert by February 1, 2025, and to serve the report by March 1, 2025.

[7] At the April 7, 2025, case conference, counsel for Mr. Kesarwani informed the court that he had now retained an expert. However, the expert had made examination of an original of one of the documents a condition of starting his review. No one has yet to explain the disappearance of the original mortgage documentation with wet signatures while in transit between the law offices. The combined effect of the missed deadline and the expert’s apparent refusal to proceed with his mandate was that extending the deadline was pointless. I therefore directed that one day of the trial be devoted to spoliation and for leave to permit an expert to testify under subrule 53.03(3).

[8] The expiry of the deadline for service of the report and the transition of the continuity of the original documents from search to spoliation meant there was an impasse in the delivery of a responding expert report that only negotiation with the expert to prepare an opinion with the existing scanned or copied artefacts could unblock. In circumstances where the party in default refused to extricate himself from that state, the only provisional outcome that was fair to all parties was to shift the issue from setting a timetable to budgeting a day of trial for the spoliation and late expert report issue.

[9] At the December 17, 2025, case conference, Mr. Kesarwani’s counsel requested leave to bring a motion to shorten the 60-day service deadline for a responding expert report prior to the January 15, 2026, pretrial conference. Because there was still no expert report to consider, I declined leave for what remained an academic exercise. His counsel then served an expert report on January 30, 2026. Two months later, his counsel requested my judicial assistance to convey a further request to bring the motion, but this time with the expert report attached. The expert made this comment about the unavailability of the original documents:

There are several limitations imposed on the examiner when copies are substituted for originals. Such limitations include the inability of the examiner to identify or determine: pen pressure, sequence of line crossing, ink examination, erasures, and traced lines or indented impressions, etc.

In this case the quality of the reproduced documents was assessed for examination suitability and all were found to contain sufficient line detail for comparison purposes.

[10] It is my duty to dispose of the remaining motion, at least to determine what happens next, considering the interaction between the rule-defined roles of the case management judge and of the trial judge. Once a party has brought a motion, his counsel may not unilaterally adjourn it to the trial judge.

[11] For the detailed reasons that follow, I dismiss the motion for leave and refuse to adjourn the motion to the trial judge. The motion must be brough de novo to the trial judge under subrule 53.03(3) (and rule 53.08), as I directed a year ago. Similarly, any question about spoliation or the continuity of possession of the original documents after the plaintiffs served their expert reports will be the domain of the trial judge.

ANALYSIS OF THE MOTION FOR LEAVE AND RULE 53.03(4)

[12] The motion for which Mr. Kesarwarni seeks a second time for leave to bring is governed by subrule 53.03(4). That provision grants the rule 77 judge jurisdiction to relieve a party from compliance with provisions for service of expert reports in advance of the pretrial conference:

(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. O. Reg. 570/98. s. 3; O. Reg. 186/10, s. 4; O. Reg. 383/21, s. 15; O. Reg. 18/22, s. 9.

[13] A long time ago, Rule 53.03 used to require service of expert reports at least ten days before trial. Ten days were an accommodation to the trial preparation workflow of the trial lawyers of the day, in a docket filled with short traffic accident cases. The ultimate issue rule kept reports concise, and the formal requirements for a report were limited to the expert’s “name, address and qualifications and the substance of his or her proposed testimony”: Westerhof v. Gee Estate, 2015 ONCA 206, at para 31.

[14] Ten days eventually became too short for parties to respond to the increasingly complex technical evidence required to meet the verbal thresholds in the Insurance Act, R.S.O. 1990, c. I.8 and to the proliferation of injury litigation from iatrogenic causes. The ten-day period, before the advent of medico-legal assessment businesses, also emerged as a tactical advantage to institutional defendants who could draw on a roster of experts to be retained at short notice. As illustrated in Peirson v. Bent (1993), 13 O.R. (3d) 429, 1993 CanLII 8559 (ON SC), at page 437, the ten-day rule had shifted from advance notice to postponement of a justice participant’s obligation to fairness in dispute resolution. Litigants could delay hiring experts to keep adversaries guessing about the nature of the defence.

[15] During the ensuing decades, Rule 53 underwent overhauls to advance the service deadline to months prior to the pretrial conference, to permit meaningful settlement negotiations. In 2010, following the recommendations of the Ontario Attorney General’s Civil Justice Reform Project and the release of the Hon. Stephen Goudge’s report of the Inquiry into Pediatric Forensic Pathology in Ontario, the contents of expert reports were to contain more detailed information about the expected testimony and required an undertaking of impartiality.

[16] To prevent a perceived injustice to clients of their lawyers’ failure to instruct experts to meet the new deadlines, rule 53.08 provided a safety valve by requiring trial judges to grant leave to allow use of late reports, unless real prejudice or undue delay of trial would result. As a holdover of the wide liberalization of judicature rules in 1984, the presumptive right to use late reports effectively undercut the policies behind the rule changes by saving parties or their counsel from consequences of procrastination or abuse.

[17] The current rules 53.03 and 53.08, last amended in O. Reg. 18/22, disallowed consent late service if it would jeopardize the trial date and made the default trial ruling a denial of leave to call an expert witness, in the absence of reasonable explanation for the delay. The 2022 rule changes addressed the systemic problems of civil court backlogs exacerbated by last-minute trial adjournments and of injustice to parties’ right to their day in court, both associated with abuse of the trial judge’s discretion fettered in favour of allowing late reports: Forsung v. Neadow, 2023 ONSC 5873, at para. 26.

[18] Both subrules 53.03(3) and 53.08(1) reserve the issue of leave to allow expert testimony to the trial judge. The new text of rule 53.08 reversed the onus for leave, by requiring the “party responsible for the applicable failure” to satisfy the trial judge that there is a reasonable explanation for the failure and that granting leave would not prejudice the opposing party or unduly delay the trial: James Bay Resources v Mak Mera Nigeria, 2023 ONSC 2398, at para. 37.

[19] As Muszynski J. stated in Forsung, at paras. 18-19, a sanctioned extension of time will obviate the trial judge’s need to determine whether leave should be granted to permit the expert to testify. This includes the task of determining whether there exists a reasonable explanation for the failure to comply with the service rules for expert reports. A judge presiding over any other stage of proceedings, including a rule 77 case conference, can extend or abridge time under subrule 53.03(4), effectively determining the issue of the expert’s ability to testify, subject to the ordinary rules for qualification as an exception to the hearsay rule.

[20] During my case management on this issue, the only time I engaged subrule 53.03(4) was on December 13, 2024, when I abridged the time to get this complex commercial case ready for a pretrial conference in the face of Mr. Kesarwani’s insistence that he did not need to retain an expert until a date for that conference was set to calculate the 60-day interval. As far as I am aware, he did not seek leave to appeal my order that he serve the expert report by March 1, 2025. Should I now entertain a motion to extend the service deadline nunc pro tunc to January 30, 2026, after I already denied leave to bring the motion?

[21] During the lengthy arc of the case management of these proceedings, Mr. Kesarwani treated the case management orders as advisory and avoidable. There was no reason why he, as a defendant, could not have instructed his counsel to retain an expert to examine the documents before the plaintiffs did and at any time before the originals were lost or mislaid. In fact, the immediate hiring of an expert without waiting for plaintiffs to serve a report is a known marker of excellence. Early forensic investigation allows parties to control the factual record and the litigation narrative from the outset. No counsel, however skilled or experienced, should harbour the conceit of pleading on behalf of a client on a forensic science issue and expecting a “hired gun” later to parrot the lawyer’s opinion at trial. See: Moore v. Getahun, 2015 ONCA 55, at paras. 33-35. Indeed, if the best practice had been followed, the mediator could have used the rebuttal opinion as additional leverage for settlement.

[22] Now, so close to trial and during final trial preparations, any further case management intervention on this issue risks treading on the trial judge’s role under rule 53.08 and causing injustice to the plaintiffs. I therefore conclude there remains no basis for me to grant leave to bring the motion or to adjourn it to the trial judge. Any request for leave must be brought de novo during the trial process, as already stated in my case management directions of April 7, 2025.

CONCLUSION AND COSTS

[23] The motion for leave to bring the motion under subrule 53.03(4) to extend the time to serve the expert report to January 30, 2026, is dismissed.

[24] So close to trial, I will not burden the parties with the task of preparing bills of costs for the motion. Costs are awarded to the plaintiffs in the actions, in any event of the cause and on a substantial indemnity basis. The fixing of these costs is reserved to the trial judge. If Mr. Kesawarni is successful and is awarded costs after trial, the costs so fixed shall be set off from his costs award.

Akazaki J.

Date: April 9, 2026