Court File and Parties
Court File No.: CV-16-555528 Motion Heard: February 13, 2026 Superior Court of Justice – Ontario
Re: Anoopkrishna Jayagopal, Felicia Satkunan and Markandu Satkunan, also known as Satkunan Markandu, Plaintiffs And: Ponnan Singarajah, Singarajah Aananthalojani also known as Aananthalojani Singarajah, and Thampiah Siripathy, Defendants
Before: Associate Justice L. La Horey
Counsel: Vitali Luchko, Counsel for the moving party plaintiffs Justin P. Baichoo, Counsel for the responding party defendants Ponnan Singarajah, Singarajah Aananthalojani also known as Aananthalojani Singarajah Christina Tassopoulos, Counsel for the defendant Thampiah Siripathy (observing)
Heard: February 13, 2026 by videoconference
Endorsement
1The plaintiffs bring this motion for an order extending the time for service of a new expert appraisal report and for leave to amend their statement of claim to increase the damages claimed.
2The defendants Ponnan Singarajah and Singarajah Aananthalojani also known as Aananthalojani Singarajah (the "Singarajah Defendants") oppose the motion. The defendant Thampiah Siripathy does not oppose.
3For the reasons that follow, the plaintiffs' motion is granted.
Background
4This action arises out of a failed real estate transaction. The plaintiffs entered into an agreement of purchase and sale ("APS") for the purchase of residential property (the "Property") owned by the Singarajah Defendants. The transaction was scheduled to close on May 24, 2016. The plaintiffs allege that the Singarajah Defendants wrongfully failed to close the transaction. To mitigate their damages, the plaintiffs entered into a new agreement of purchase and sale for a different property on June 11, 2016. The plaintiffs seek damages equal to the difference between the purchase price of the Property under the APS of $1,085,000 and the value of the Property on June 11, 2016.
5The statement of claim was issued on June 24, 2016. The plaintiffs claim damages of $200,000 for the breach of the APS. The Singarajah Defendants have defended the claim and asserted a counterclaim.
6The plaintiffs retained Appraisal Group Inc. ("AGI") to prepare an appraisal of the Property as of June 11, 2016. Their report dated October 12, 2016 ("AGI Appraisal") was served on the defendants. The report stated that the value of the Property on June 11, 2016, was estimated to be $1,160,000. Based on this report, the plaintiffs quantified their damages for breach of the APS as being $75,000.
7The plaintiffs brought a motion to amend their statement of claim. The proposed amendments included reducing the claimed damages for breach of the APS from $200,000 to $75,000 in line with the appraisal. On October 23, 2018, Associate Justice Jolley granted the plaintiffs leave to amend upon payment of the Singarajah Defendants' costs thrown away. The plaintiffs were ordered to pay the costs of the motion.
8Examinations for discovery have been held and a mediation has taken place. The plaintiffs obtained extensions to the set down date on two occasions on consent.
9The Singarajah Defendants served a responding expert appraisal report dated on October 28, 2024, in advance of the pre-trial scheduled for January 31, 2025.
10The plaintiffs served a certificate of readiness dated January 27, 2025. In that certificate, the plaintiffs' lawyer, Mr. Juriansz, states that he recently learned that the experts who authored the plaintiffs' expert appraisal had retired and were thus unable to testify. He stated that he would need to obtain a new report which he would have by the end of February 2025.
11On January 31, 2025, the first pre-trial took place before my colleague Associate Justice Brown. His report states that there was insufficient time following the conclusion of settlement discussions at the pre-trial to deal with contested trial management issues. He therefore adjourned the pre-trial to May 1, 2025, to deal with trial management issues.
12Associate Justice Abrams presided over the adjourned pre-trial which proceeded on May 1 and May 6, 2025. The trial was set the week of January 11, 2027.
13On this motion, the plaintiffs rely on the affidavit of H. Keith Juriansz sworn October 9, 2016 (the "Juriansz Affidavit"). Mr. Juriansz deposes that when he was preparing for the pre-trial conference he noted that the AGI Appraisal was co-authored by Wayne Crawford and Tony Lima. He recalled they had recently retired but thought that they would be able to testify about past reports.
14At paragraph 13 of his affidavit, Mr. Juriansz deposes that he spoke to Mr. Crawford who advised that both he and Mr. Lima had retired, given up their professional designations, were no longer insured, and therefore they could not testify at trial. They were not prepared to reinstate their professional designations and obtain insurance.1
15The plaintiffs obtained an expert appraisal report from Beth Marshall (the "Marshall Appraisal") which was served on September 23, 2025. In her report, Ms. Marshall opines that the market value of the Property as of June 11, 2016, was $1,210,000. Based on this report, the plaintiffs calculate their damages as $125,000, an amount greater than the $75,000 based on the first appraisal.
16The plaintiffs served their notice of motion on May 14, 2025, with a November 28, 2025 return date. The motion record was served on October 10, 2025. The Singarajah Defendants served their responding record on November 24, 2025. The motion was then adjourned to February 13, 2026.
Law and Analysis
Preliminary Issue
17The defendants take the position that the Juriansz Affidavit is vague, contains blanket statements with very little detail, hearsay, double hearsay and argument. They submit that this affidavit should be given "very little, if any weight, and should be struck out."
18Rule 39.01(4) of the Rules of Civil Procedure states: "An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit."
19Hearsay is permitted on motions. However, there may be an issue as to weight depending on the circumstances. In Jacobson v Atlas Copco, Justice Ellies stated:2
Although rule 39.02(1) of the Rules of Civil Procedure permits cross-examination of an affiant, that right is largely illusory when it comes to hearsay evidence. About the best the cross-examiner can hope to do is to cross-examine on whether the affiant truthfully recounted what was said, not whether what was said was true. For this reason, courts have held that less weight and more scrutiny should be given the closer the hearsay evidence comes to the dispositive issue in the motion …
20When Mr. Juriansz speaks about the steps that he took as counsel, there is no hearsay problem. The paragraph in his affidavit about his conversation with one of the authors of the AGI Appraisal contains hearsay. The defendants did not make clear their objection to the affidavit until they delivered their factum about a week before this hearing. They did not ask for independent confirmation that the authors of the first appraisal had indeed retired. This is a Simplified Procedure case. I would not have expected the plaintiffs to go to the expense of obtaining an affidavit from Mr. Crawford on this point. I would not have thought that whether the experts were retired would be a contentious point. I am prepared to accept Mr. Juriansz' evidence that the reason the plaintiffs obtained a second appraisal is because the authors of the first appraisal told him that they could not testify.
21I agree with the defendants that the Juriansz Affidavit contains argument. This is improper and I will ignore those portions of the affidavit.
Leave to bring motion to amend post set-down
22Rule 48.04(1) provides that any party who has set the action down for trial may not bring a motion without leave of the court.
23As the Singarajah Defendants correctly point out, the plaintiffs' notice of motion does not seek leave pursuant to rule 48.04(1). They say this is a fatal flaw. At the hearing, Mr. Luchko explained that the plaintiffs believed that Associate Justice Abrams granted leave under rule 48.04(1) to bring this motion. In my view, the report is ambiguous on this point. Mr. Luchko advised that the plaintiffs are seeking leave pursuant to rule 48.04(1), if leave is necessary. The defendants are not prejudiced by the plaintiffs' failure to advert to rule 48.04(1) in their notice of motion and I will consider whether leave ought to be granted.
24In my decision in Khatib v Goeasy Ltd.,3 I discussed the caselaw on the test for granting leave.
25In this case, there has been an unexpected change in circumstances giving rise to this motion (the plaintiffs' need to retain a new expert because the original experts are unavailable due to retirement). This motion is not being brought on the eve of trial. The trial is about 11 months away. In my view, it is in the interests of justice that leave be granted to the plaintiffs to bring this motion.
Leave to Serve an Expert Report Outside the Prescribed Time
26Parties are required to serve expert reports not less than 90 days before the pre-trial conference (Rule 53.03(1)). Rule 53.03(4) provides that the court may extend this timeline on motion.
27The parties agree that the test articulated in Rule 53.08(1) applies to a motion to extend the time for service of expert reports.4
28Under Rule 53.08(1) the party seeking leave must establish that:
(a) there is a reasonable explanation for the failure; and
(b) granting 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.
Reasonable Explanation
29Neither side pointed me to any case where leave was sought to file a late expert report because the first expert had retired or died.
30In my view, the plaintiffs have provided a reasonable explanation for seeking leave to deliver a late expert report. Counsel only became aware of the experts' refusal to testify while preparing for pre-trial.
Prejudice
31The Singarajah Defendants contend that they would be prejudiced if the plaintiffs are given leave to file the Marshall Appraisal and this prejudice cannot be compensated for by costs. They argue that the litigation will have to be "restarted" if the plaintiffs are given leave. I disagree. The Marshall Appraisal does not address issues of liability. The appraisal report is relevant only to the calculation of damages. The Singarajah Defendants can obtain a new responding report.
32In my view, there is no prejudice that cannot be compensated for by costs. The plaintiffs have said that they are prepared to compensate the Singarajah Defendants for their reasonable costs thrown away in obtaining the original responding report.
33The parties may seek a further pre-trial once all the expert reports have been served. If a further pre-trial takes place, the defendants should be compensated for the costs thrown away in respect of the pre-trial attendance before Associate Justice Brown.5 Similarly, if the parties decide to engage in further mediation based on the new appraisal, the plaintiffs should pay the costs of the mediator.
Undue Delay
34The late service of the new expert report will not cause any undue delay in the trial. The trial is set for January 2027. There is ample time for the Singarajah Defendants to obtain a new responding report, or a supplement to their existing appraisal, if they are so advised.
35The Singarajah Defendants criticize the plaintiffs' conduct of the proceeding in general. They submit that the plaintiffs have not been diligent in the litigation. For the most part these criticisms are not relevant to the motion before me.
36The plaintiffs delivered their replacement expert report many months after it was promised. In January 2025, plaintiffs' counsel said that the report would be delivered in February 2025. However, the report was not served until September 2025, after three pre-trial attendances. This delay is troubling, but does not rise to the level of undue delay. There is time for the defendants to obtain a responding report. The trial will not be delayed if I grant leave.
37Although the plaintiffs could have served a replacement report sooner and brought this motion on more quickly, their delay in doing so is not fatal to this motion.
Conclusion
38For these reasons, I am extending the time for the plaintiffs to deliver the Marshall Appraisal.
Defendants' Critique of the Marshall Appraisal
39In their factum, the Singarajah Defendants criticize the Marshall Appraisal under the heading "Unreliability & Suspicious Nature of the New Expert Report". They also submit that the Marshall Appraisal fails to meet the criteria for an expert report. I am not deciding whether the report is admissible and is objective and non-partisan. I am only deciding if leave should be granted to the plaintiffs for late service of the report. The defendants can make their objections about the report to the trial judge.
Test for the Amendment of Pleadings
40The plaintiffs seek leave to further amend their statement of claim to increase the amount claimed for breach of the APS from $75,000 to $125,000.
41In Old Republic Insurance Co. of Canada v. Gurshan Trucking Inc., Justice Perell succinctly summarized the law with respect to the amendment of pleadings as follows:6
32 Rule 26.01 provides: "[o]n motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment." The rule is mandatory, and amendments must be allowed unless the responding party can demonstrate prejudice that cannot be compensated by costs. Increasing the amount of the damages claimed is not prejudicial, and the mere fact that an amendment substantially increases the quantum of damages is not a basis to deny an amendment. [citations omitted, emphasis added]
42In the case at bar, the only amendment sought is to increase the quantum of damages. The increase in damages does not give rise to any prejudice.
43The Singarajah Defendants rely on the decision of Avedian v. Enbridge Gas Distribution Inc. (c.o.b. Enbridge Gas Distribution)7 where the Court of Appeal upheld the decision of the motion judge denying the plaintiffs' request to amend their claim. Avedian is distinguishable as the court in Avedian found that the claims in the proposed amended pleading were different than previously advanced, such that the claims "materially altered the factual framework and the evidence to be called."8 That is not the case here. The increase in quantum does not materially alter the factual framework of the claim. In Avedian, the Court of Appeal dismissed the appeal without prejudice to the appellants bringing a fresh motion to amend the amount of damages claimed.9
Disposition
44The time for the plaintiffs to deliver their expert report is extended to the date they served the Marshall Appraisal, September 23, 2025.
45The Singarajah Defendants shall have 120 days from today to deliver an expert responding report or supplementary report. If the defendants need longer, and the plaintiffs do not agree, the parties may request a case conference.
46The Singarajah Defendants are entitled to their costs thrown away in respect of the late delivery of the Marshall Appraisal. The costs thrown away cannot be quantified at this time, as costs will depend on whether they obtain a new responding report, decide to rely on the existing report or some combination thereof. If a further pre-trial is held to discuss settlement, the Singarajah Defendants shall be entitled to recover the costs thrown away in respect of the pre-trial before Associate Justice Brown. If the parties decide to engage in a further mediation, the plaintiffs should pay the costs of the mediator.
47The plaintiffs shall pay to the defendants their costs thrown away in respect of the late service of the Marshall Appraisal to be quantified by the trial judge, or by me after the conclusion of trial, at the direction of the trial judge.
48The plaintiffs' motion to further amend the statement of claim to increase the prayer for relief to $125,000 is granted.
49At the hearing, I was advised that there was an offer to settle the motion. Therefore, I did not hear cost submissions. I encourage the parties to agree to costs. If they cannot, they can advise my assistant trial co-ordinator and I will set a schedule for the delivery of costs submissions. If I do not hear from counsel within three weeks, I will assume that costs have been agreed.
L. La Horey, A.J.
Date: February 13, 2026
Footnotes
- The defendants object to this evidence as hearsay and double hearsay.
- Jacobson v. Atlas Copco Canada Inc., 2015 ONSC 4 at para 31
- 2023 ONSC 5103
- See King v. Wal-Mart Canada Corp., 2025 ONSC 4947 at para 14.
- In his pre-trial report, Associate Justice Brown says that the parties canvassed settlement and thus this pre-trial could be considered to be "wasted" because the plaintiffs had not served the appraisal they were relying on. The May 2025 pre-trial attendances were not wasted because they dealt with trial management.
- Old Republic Insurance Co of Canada v Gurshan Trucking Inc, 2024 ONSC 448 at para 32
- Avedian v. Enbridge Gas Distribution Inc. (c.o.b. Enbridge Gas Distribution), 2023 ONCA 289
- Avedian at para 5
- Avedian at para 10