COURT FILE NO.: CV-19-80044
CITATION: Kasongo v. Stanley 2026 ONSC 2731 DATE: 2026/05/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Arlette Aluma Kasongo, Plaintiff -and- Scott Stanley, Defendant
BEFORE: Justice A. Doyle
COUNSEL: Tara M. Sweeney and Ryan D. Garrett for the Plaintiff Zachary Goncalves and Stefanie Pereira for the Defendant
HEARD: April 28, 2026 at Ottawa
REASONS FOR DECISION
[1] The plaintiff brings a motion for an order abridging time for service of the report of Mr. Jay Bierbrier dated June 25, 2025 (the “Report”). The Report was served on July 11, 2025, 34 days before the pre-trial conference held on August 14, 2025, and approximately 14 months before the commencement of the trial scheduled for September 8, 2026.
[2] The defendant consents to the plaintiff seeking leave but opposes the motion. The defendant submits that the service of the Report contravenes Rule 53.03(1) of the Rules of Civil Procedure R.R.O. 1990, Reg. 194 (the “Rules”), which requires that expert reports be served at least 90 days before the pre-trial conference. The defendant further argues the plaintiff has failed to meet the requirements of r. 53.08, as there is no reasonable explanation for the delay but rather this failure arises from counsel’s inattention to the applicable timelines. The defendant also asserts that permitting the Report would result in prejudice, as it would require the retention of a responding expert and could cause delay not compensable by costs.
[3] On April 28, 2026, I granted the plaintiff’s motion. These are my reasons.
Background
[4] This action arises from a motor vehicle accident that occurred on October 24, 2017. The plaintiff, who was a pedestrian, alleges she sustained injuries and seeks damages, including special damages, loss of income, and the cost of future care.
[5] The plaintiff served other medical reports in accordance with the Rules.
[6] The Report at issue is a cost of care report. It compiles and quantifies the costs of treatment recommendations set out in earlier expert reports, including those of Dr. Karabatsos dated April 10, 2023, and the plaintiff’s physicians. The Report addresses the costs of, among other things, post-vocational rehabilitation, a multidisciplinary chronic pain-management program, physiotherapy, kinesiology, pain-management modalities, and occupational therapy. From the time it was ordered, it took five weeks to be received.
[7] The purpose of the Report is to provide a consolidated estimate of the future costs of care, thereby avoiding the need to call multiple witnesses to address the costing of each recommended treatment. In that respect, it has the potential to streamline the trial and reduce its length and expense.
[8] The plaintiff set the action down for trial on April 2, 2024.
Legal Framework
[9] Rule 53.08 was amended on March 31, 2022, to impose a stricter test where a party fails to comply with the Rules including failing to file an expert report within 90 days before the pre-trial conference. The non-compliant party must satisfy both branches of the test and the court maintains discretion to deny the indulgence.
[10] Rule 53.03(3) provides that, absent a sanctioned extension or abridgement of time, an expert witness may not testify at trial unless leave is granted by the trial judge.
[11] In Agha v. Munroe, 2022 ONSC 2508, Justice Edwards emphasized that late expert reports would no longer be “rubber stamped” and the amendments were designed to send “a very loud and clear message”: at paras. 30-32.
[12] The rule was created to deal with the mischief of the chronic problem of late-served expert reports. As stated in Mohamud v. Juskey, 2023 ONSC 4414, at para. 59, the court must not use this rule as an “escape clause”, otherwise it will be diluted to the point of ineffectiveness.
[13] In Mohamud, the defence sought an order to compel the plaintiff to attend a defence medical examination. Justice Boswell concluded the defence had not offered a reasonable explanation.
[14] In Mohamud, at paras. 55 & 56, the court stated that even if the explanation is framed as inadvertence, the question is whether it is reasonable. Justice Boswell was critical of defence as the motion was brought four months after the pre-trial conference and four months before trial and requested defence medicals.
[15] Justice Boswell accepted counsel’s explanation that the law clerk had set the pre-trial without consultation of counsel but determined the explanation was unreasonable as the failure arose largely due to inattentiveness to the requirements of the file on the part of counsel and knew that the action was ready to proceed to trial and ought to have organized expert evidence.
[16] In Forsung v. Neadow, 2023 ONSC 5873, Muszynski J., the trial judge, refused to allow the plaintiff to rely on the late-served future-care and economic-loss reports which were served prior to the pre-trial. The plaintiff took no steps to address their non-compliance until the outset of the trial several months later. The court stated that seeking leave under r. 53.08 should be a last resort as non-compliance undermines the orderly administration of justice: at para. 24. The plaintiff was requesting leave for an income loss report that was served three weeks before the pre-trial conference in July 2023. Nothing was done until the morning of the trial to obtain leave.
[17] In Longo v. Westin Hotel Management L.P., 2024 ONSC 3676, the defendants failed to serve defence expert reports prior to the pre-trial conference and then sought an order requiring the plaintiff to attend three defence medical assessments with an orthopedic specialist, a physiatrist, and a psychiatrist. In the instant case, appointments have been arranged for those defence medicals to take place in July of this year, and trial six months after that.
[18] In Longo, counsel for defence suggested that junior counsel had failed in his responsibilities.
[19] The court found that “to lay the blame at the feet of junior counsel or a law clerk does not meet the definition of a ‘reasonable explanation’” and held that supervising counsel also have a responsibility to ensure that junior counsel is fulfilling his or her responsibilities to the client and to the court: at para. 11.
[20] The court referred to the reasonableness of the type of explanation by referring to Boswell J. in Mohamud, at para. 12 as follows:
While I understand it is harsh to say, my view is that the problem here was largely the result of an inattentiveness to the requirements of the file. And that can surely not rise to the level of reasonableness when one is assessing the explanation for non-compliance with r. 53.01.
[21] Finally, Justice Edwards found that the defendant failed to offer a reasonable explanation as to why defence medical examinations were not completed in a more timely fashion. The defendant had many of the plaintiff’s expert reports for over a year and had ample opportunity to seek out and obtain the consent of the plaintiff to attend defence medical examinations. If that consent had not been forthcoming, the defence could have then brought a motion to obtain an order to compel the plaintiff to attend defence medical examinations. That motion could and should have been brought in a timelier fashion well in advance of the pre-trial conference.
[22] The court held that attributing the delay or non-compliance to junior counsel or law clerks did not meet the definition of reasonable explanation as supervising counsel bears responsibility to ensure compliance with the rules. The court refused leave even though there was an absence of demonstrable prejudice as the court characterized the explanation as inattention rather than inadvertence.
[23] In Garcia v. Zaman, 2025 ONSC 7080, the court clarified the distinction between inattentiveness and inadvertence and accepted that the defendant missed the deadline due to inadvertence. No trial record had been passed and mediation had not occurred, hence counsel assumed the pre-trial would be scheduled later.
[24] The court found inadvertence on the part of trial counsel as they failed to appreciate that the pre-trial was actually taking place on April 24, 2025.
[25] In Okafor v. Wilson, 2025 ONSC 6972, paras. 23-24, the court found that although the expert reports were served almost 10 months before the trial, the responding party was under no obligation to incur the cost of obtaining responding reports until leave was granted. The non-compliant party’s failure to pursue a motion with diligence was a factor for consideration. At paras. 12-13, the court stated a party must move diligently and promptly to regularize its compliance.
[26] Justice Petersen found the delay was not true inadvertence, it was a strategic choice. Plaintiff’s counsel delayed retaining experts hoping the case would settle and avoid costs. The plaintiff repeatedly delayed and mishandled scheduling the motion. She found prejudice and found that by allowing the reports would prejudice the defendant and jeopardize the scheduled trial date.
[27] In Quinn et al. v. Rogers et al., 2024 ONSC 1967, the court addressed a motion concerning the late service of expert reports in a medical negligence case. The expert reports were served 19 days late but had been prepared before the deadline. However, the moving party pursued relief promptly on the direction of the pre-trial judge and the court found that the exclusion of the evidence would cause significant prejudice by depriving the defendants of core evidence relating to both liability and damages shortly before a jury trial.
[28] At para. 26, the court in Quinn stated: “it is a fact of life that mistakes can happen to us all. Sometimes, mere inadvertence is the sole cause of a mistake”.
[29] The defendant physicians served their expert reports 19 days after the deadline, approximately 41 days before the pre-trial conference.
[30] The plaintiffs argued that granting the extension would cause significant prejudice, as they had prepared for a trial without liability disputes. They expressed concerns about the impact on trial strategy and potential delays.
[31] The court considered the timing of the late reports and the potential prejudice to both parties. It noted that the plaintiffs had sufficient time to obtain legal advice and prepare a reply expert report. The court also highlighted that the defendant-physicians would face greater prejudice if the extension was denied, as excluding their expert evidence would significantly impact the defense.
[32] The court granted the extension, determining the potential prejudice to the plaintiffs could be mitigated by costs or an adjournment, and denying the extension would unduly prejudice the defendant-physicians.
(a) Reasonable Explanation
[33] The first issue is whether the plaintiff has provided a reasonable explanation for the failure to comply with the timelines set out in r. 53.03(1).
[34] The evidence of plaintiff’s counsel, Mr. Garrett, is the deadline for service of the expert report—May 16, 2025—was diarized. In January 2025, he had verbally instructed his experienced law clerk to arrange for the preparation and service of the Report.
[35] Mr. Garrett explained that in early 2025 he was engaged as lead counsel in a complex construction litigation matter that required approximately one month of discoveries in April 2025, with extensive preparation in the preceding months. There were two million documents with aggregate damages claimed of approximately $40 million.
[36] At the end of April 2025, he instructed his junior counsel to organize the medical reports. On May 12, 2025, he realized that no care-costing report had yet been obtained. He then determined that a consolidated care costing report would be the most efficient approach and took steps to obtain it. The Report was subsequently served within approximately one month.
[37] He did not follow up with the law clerk from January 2025 to May 12, 2025 but became aware of the absence of this report, when his junior counsel advised him there was no care-costing report.
[38] The court finds that Mr. Garrett’s conduct was inadvertent, and he has provided a reasonable explanation for the delay. The evidence establishes this was not a case of deliberate non-compliance or disregard for the Rules. The deadline was identified, and steps had been delegated, but the matter was overlooked in the context of competing professional obligations.
[39] Mr. Garrett acknowledges that defence counsel objected to the late filing of the Report on July 11, 2025, when she received it.
[40] However, the conduct of the defence led him to believe they were no longer insisting on strict compliance of the Rules. In addition, Mr. Garrett told defence counsel that he would not object to them obtaining a responding report.
[41] His uncontroverted evidence is the Report was discussed at the pre-trial conference, which was attended by Mr. Laing as Ms. Pereira was not available. Mr. Laing did not raise any objection regarding the Report at the pre-trial conference.
[42] The author of the Report was also referenced at the pre-trial conference before Justice Kershman as his endorsement lists Mr. Bierbrier as a witness. While the defendant disputes the significance of this, there is no evidence before me contradicting the plaintiff’s position that the Report was discussed.
[43] It was a reasonable assumption by the plaintiff’s counsel that the defendant was not objecting to the Report.
[44] In these circumstances, I am satisfied the plaintiff has provided a reasonable explanation for the delay within the meaning of r. 53.08. The delay arose from inadvertence in a busy practice, and the Report was obtained and served within a relatively short period thereafter.
[45] In addition, he has explained why he brought this motion only in March 2026, when he realized that defence counsel was objecting to the filing of the Report.
[46] In conclusion, in the particular circumstances in this case, the court finds the plaintiff’s counsel has provided a reasonable explanation because:
- Mr. Garrett acknowledges that it was his responsibility, and he is not blaming staff;
- He had diarized the timeline and in January 2025, he verbally ordered the Report through his experienced law clerk but did not follow up as he was busy;
- It was reasonable for him to believe defence was no longer insisting on the strict compliance with the Rules as the Report was discussed at the pre-trial conference and its author was on the witness list that was also discussed;
- Moreover, the misunderstanding borne out of the evidence is: when Mr. Garrett realized in March 2026 that the defendant was not waiving strict compliance with the Rules, he immediately brought a motion. Otherwise, he confirmed that he would have brought this motion earlier; and;
- The offers by the defendant after the pre-trial incorporated aspects of the future care costs report.
(b) Prejudice
[47] The second issue is whether permitting the Report would cause prejudice to the defendant that cannot be compensated by costs or an adjournment.
[48] The Report was served approximately 14 months before the scheduled trial date. As of the hearing of this motion, the defendant has had the Report for approximately nine months.
[49] In my view, this timeline provides the defendant with ample opportunity to review the Report and, if necessary, obtain a responding expert report.
[50] The defendant submits that it will incur additional expense and that there is a risk of delay. However, the need to obtain a responding expert report is a common consequence of litigation and, in this case, does not amount to non-compensable prejudice.
[51] There is no persuasive evidence before me that demonstrates allowing the Report will necessitate an adjournment of the trial. The trial remains several months away, and the litigation timetable can accommodate any responsive steps required by the defendant.
[52] I am therefore not satisfied the defendant will suffer prejudice that cannot be addressed through costs or case management.
(c) Interests of Justice
[53] The overarching consideration is what is fair and just in the circumstances. The Rules are to be liberally construed to secure the just determination of every proceeding on its merits, consistent with r. 1.04.
[54] The Report is relevant to the quantification of the plaintiff’s claim for future-care costs and may assist in presenting that evidence in an efficient and organized manner. Excluding it would risk fragmenting the evidence and potentially lengthen the trial.
[55] Balancing the explanation for the delay, the absence of non-compensable prejudice, and the potential utility of the Report, I am satisfied it is appropriate to permit its late service.
Disposition
[56] The plaintiff’s motion to abridge time for service of the Report of Mr. Jay Bierbrier dated June 25, 2025, is granted. The Report is admissible, subject to any further rulings at trial.
[57] Regarding costs, although the plaintiff was successful, the motion was necessary due to their conduct. Given the particular circumstances of this case, the defendant, who had originally objected to the Report, conducted itself as if the Report was evidence at trial, that is, it was discussed at the pre-trial conference, the author was a witness on the Pre-trial endorsement, and their offers to settle included components of the costs discussed in the Report.
[58] Given the above, I am not inclined to order costs. Each party will bear their own costs.
Justice A. Doyle
Date: May 8, 2026
CITATION: Kasongo v. Stanley 2026 ONSC 2731 COURT FILE NO.: CV-19-80044 DATE: 2026/05/08
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Arlette Aluma Kasongo, Plaintiff -and- Scott Stanley, Defendant
COUNSEL: Tara M. Sweeney and Ryan D. Garrett for the Plaintiff Zachary Goncalves and Stefanie Pereira for the Defendant
REASONS FOR DECISION
DOYLE J.
Released: May 8, 2026