Court File and Parties

CITATION: Banninger v. Fournier, 2026 ONSC 3035

COURT FILE NO.: CV-18-76916

DATE: 2026/05/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Annemarie H. Banninger, Plaintiff

-and-

Susan Fournier, Defendant

BEFORE: Justice A. Doyle

COUNSEL: Michael Switzer for the Plaintiff

Yalda Aziz and Adam Imtiaz for the Defendant

HEARD: May 21, 2026 at Ottawa

REASONS FOR DECISION

[1] The defendant brings a motion compelling the plaintiff to attend a neuropsychological assessment (independent medical report) with Dr. Christopher Hope, a Neuropsychologist on May 27, 2026 at 9 a.m. and an order granting the Defendant leave to serve the resulting expert report upon receipt. The report would not comply with the deadlines set out in r 53.03(2) of the Rules of Civil Procedure R.R.O 1990, Reg. 194 (the Rules) which requires that expert reports be served at least 60 days before the pre-trial conference.

[2] The defendant submits that counsel had made all efforts to arrange for the independent medical assessment in a time frame that would allow the report to be filed in accordance with the timelines in r 53.03(2) but the plaintiff was not cooperative. She has failed to explain why she was not able to attend the appointment with Dr. Hope on the proposed dates.

[3] The plaintiff objects as the defendant has not provided a reasonable explanation for the delay and since the trial is scheduled for September 2026, the plaintiff would suffer prejudice as she will not be able to arrange for a responding report in time for the trial.

[4] For the reasons that follow, the court dismisses the defendant’s motion.

Background

[5] This action arises from a motor vehicle accident which occurred on May 16, 2017. The plaintiff alleges she sustained injuries including significant neuropsychological and cognitive impairments including traumatic brain injury, post-concussive syndrome, personality changes, cognitive deficits and aphasia.

[6] A statement of claim was issued on June 25, 2018 and the matter was set down for trial in January 2020. A trial date was set for March 4, 2024.

[7] At the pre-trial conference before Justice Ryan Bell held on December 8, 2023, the court vacated the trial date on consent to permit the parties to serve expert reports.

[8] At the January 10, 2024 trial management conference, the trial was rescheduled for an 8-week trial commencing September 8, 2026 with a pre-trial to be arranged for January 2026.

[9] The defendant’s file was transferred to the current counsel of record in November 2025 and the firm delivered a notice of change of lawyer on February 12, 2026.

[10] A pre-trial is scheduled to be heard on May 29, 2026.

[11] The deadline for service of expert reports was March 30, 2026.

[12] The defendant’s counsel indicate that they contacted assessment providers when they took carriage of the file and secured an Ottawa-based assessment date with Dr. Hope for March 6, 2026 and with Dr. Rajka Soric, physiatrist for March 17, 2026. Both assessors confirmed that their reports could be completed in time to permit service of the reports by March 30, 2026.

[13] The plaintiff attended the appointment with Dr. Soric.

[14] The plaintiff’s counsel advised that the plaintiff could not attend a weekday neuropsychological assessment with Dr. Hope prior to March 23, 2026 due to work commitments.

[15] Defendant’s counsel made further efforts to accommodate the plaintiff’s availability including lunchtime or weekend attendances. However, Dr. Hope’s office advised that the assessment could not be completed over a lunchtime as it would take seven hours.

[16] Defence learned that the next assessment dates were April 16 and April 30, 2026.

[17] The plaintiff counsel advised that they would not attend an independent medical assessment if the corresponding report could not be served in accordance with the Rules.

Legal Framework

[18] Pursuant to s. 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”. As stated in Chapell v. Marshall Estate [2001] O.J. No. 3009, at para. 9, the examination is a manner 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.”

[19] In Tyner v. Phillips 2023 ONSC 5207, Justice Muszynski stated 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.”

[20] In Awua v. Virk 2025 ONSC 3164, at para. 19, Justice Mandhane confirmed that the moving party must satisfy the court that:

1. There is a reasonable explanation for the failure to file on time; and

2. Granting leave would not cause prejudice to the plaintiff that could not be compensated for by costs or an adjournment and cause undue delay in the conduct of the trial

[21] 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 60 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.

[22] 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.

[23] 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.

[24] 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.

[25] A review of recent case law is set out in Kasongo v. Stanley 2026 ONSC 2731 at paras. 16 to 32.

Discussion

[26] Before determining whether the court will compel the plaintiff to attend an independent medical assessment, the court will determine whether it grants the defendant leave to file a late independent medical report.

[27] The first issue is whether the defendant has provided a reasonable explanation for the failure to comply with the timelines set out in r. 53.03(1).

[28] The court finds that the current defendant counsel has explained the delay on their part in obtaining a timely independent neuropsychological assessment and the corresponding report. They assumed carriage of the file in November 2025 and after reviewing the file, they realized that an assessment had not been completed.

[29] The defendant explained that they made numerous efforts to locate an assessor and suggested a date but the plaintiff had work commitments and could not attend on March 6, 2026.

[30] The urgency to arrange an assessment and imposing deadlines on the plaintiff is due to the defendant making last minute arrangements with a fast-approaching pre-trial date. The plaintiff had work commitments.

[31] However, the defendant has not provided an explanation of why no attempts were made from January 2024 to November 2025 (almost 2 years) to arrange for an independent medical assessment and the corresponding report.

[32] There is no evidence from the previous counsel representing the defendant (an experienced law firm) explaining why they did not proceed with obtaining an expert report within the timelines of r. 53.03.

[33] The plaintiff had requested to cross-examine the affiant on the affidavit filed for this motion but the defendant wished to proceed with this motion as it was time sensitive.

[34] This is understandable as the defendant has serious time limitation issues because the pre-trial is scheduled for May 29, 2026 but this means that the record lacks evidence regarding efforts by the defendant to obtain an independent medical before current counsel took over the file.

[35] In Rosato et al. v. Singh et al. 2025 ONSC 1794, Justice Lemay confirms that the amendments to the rules were designed to address the chronic problem of late adjournment of trials due to non-compliance with the rules regarding the serving and filing of expert reports. Justice Lemay granted leave for the late service of expert reports as “mistakes can happen to us all” (para. 36).

[36] In Rosato, the file had been turned over to different counsel within the same firm for personal reasons. Counsel had not put their mind to the fact that a standard of care report was necessary. There was an explanation. The court found that “a client should not be penalized for a lawyer’s mistake particularly where there is no real prejudice to the other side. (para. 33). He found that was a reasonable excuse (although at the “low end” of reasonable, para. 37)

[37] In other words, he held that “sins of the lawyer” should not be visited on the client and that a client should not irrevocably be placed in jeopardy because of the conduct of their counsel. Graham v. Vandersloot et. al., 2012 ONCA 60, (2012) 108 O.R. (3d) 641 at para. 10. (para 33).

[38] In conclusion, the court had an explanation for the failure to obtain a standard of care report, namely, that the lawyer “did not avert to the fact that a standard of care opinion would be required in spite of the fact that the Defendants were arguing that the third parties had fallen below the standard of care.” (para. 35).

[39] The court found it was obvious that negligence was at play, but nevertheless, acknowledged that “mistakes can happen to us all”. (para. 36)

[40] In the case at bar, there is no explanation for the failure of previous counsel to obtain an independent medical report.

[41] Here, the defendant has failed to meet the criteria of the first step in obtaining leave under r. 53.08 which is to provide a reasonable explanation of the 2-year delay.

[42] The defendant counsel has not proffered any evidence of the explanation: that it was a mistake, an oversight, inadvertence or failure to consider that an independent neuropsychological report was necessary or a strategic decision.

[43] Also, there is no evidence here or any submission that there was a “judgment call” on the part of the previous counsel for the defendant as in Perline v Chung et al. 2026 ONSC 1601.

[44] To suggest that a change in counsel for the defendant midstream provides an excuse for late reports would undermine the very intent and purpose of the amendment of r. 53.03. It would erode its effectiveness.

[45] The record is completely devoid of any evidence as to why nothing was done from January 2024 until the new defendant counsel took carriage of the file.

[46] Further, if I am wrong and the defendant have provided a reasonable explanation, the prejudice to the plaintiff is high as the report would not be served until the end of June/early July and this would not give the plaintiff sufficient time to respond to the defendant’s medical report and would result in the adjournment of the trial.

[47] I acknowledge the defendant’s submission that a defence medical assessment is necessary as the plaintiff’s main complaints are neuropsychological in nature.

[48] However, allowing a late report on the eve of trial is highly prejudicial to the plaintiff and not in the interests of justice. The accident occurred almost 9 years ago, the trial was to have taken place 2 years ago, and it would cause significant prejudice to the plaintiff to have the adjournment of another civil trial which, given the current civil list backlog, would not take place for another 2 years.

[49] Accordingly, the defendant’s motion is dismissed.

[50] Regarding costs, the plaintiff is presumptively entitled to costs. I encourage the parties to resolve the issue of costs. Otherwise, the plaintiff may file their 2-page costs submissions by June 2, 2026, the defendant may file their 2-page costs submissions by June 9, 2026 and the plaintiff may file a one-page reply by June 16, 2026.

Justice A. Doyle

Date: May 25, 2026

CITATION: Banninger v. Fournier, 2026 ONSC 3035

COURT FILE NO.: CV-18-76916

DATE: 2026/05/25

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Annemarie H. Banninger, Plaintiff

-and-

Susan Fournier, Defendant

COUNSEL: Michael Switzer for the Plaintiff

Yalda Aziz and Adam Imtiaz for the Defendant

REASONS FOR DECISION

DOYLE J.

Released: May 25, 2026