Superior Court allows report’s late service upon accepting counsel’s explanation for delay

In an action seeking damages for injuries allegedly arising from a motor vehicle accident, the Ontario Superior Court found it appropriate to allow the late service of an expert report upon finding the explanation of the plaintiff’s counsel reasonable. 

In Kasongo v. Stanley, 2026 ONSC 2731, the plaintiff was a pedestrian during the incident on Oct. 24, 2017. Her action – set down for trial on Apr. 2, 2024 – sought special damages, loss of income, and costs of future care.

The plaintiff served medical reports under the Rules of Civil Procedure, RRO 1990, Reg 194. 

In particular, the plaintiff served a cost-of-care report on July 11, 2025, 34 days before the pre-trial conference on Aug. 14, 2025, and around 14 months before the trial’s scheduled commencement on Sept. 8, 2026. 

The report dated June 25, 2025, compiled and estimated the future costs of recommended treatments mentioned in prior expert reports. The plaintiff moved to abridge the time for service of this report. 

Opposing the motion, the defendant alleged that: 

• The service of the report contravened r. 53.03(1) of the rules, which required the service of expert reports at least 90 days before the pre-trial conference 
• The plaintiff breached r. 53.08 due to the absence of a reasonable explanation for the delay, which arose from her counsel’s lack of attention to the relevant timelines 
• Permitting the report would cause a risk of delay not compensable by costs, as well as prejudice due to the need to retain a responding expert 

Late service accepted

The Ontario Superior Court of Justice granted the plaintiff’s motion to abridge the time for the service of the report and ordered each party to bear their own costs. The court found the report admissible, subject to future trial rulings.

First, the court ruled that the plaintiff’s counsel offered a reasonable explanation under r. 53.08 for the failure to comply with the timelines in r. 53.03(1). The court did not see deliberate non-compliance or disregard for the rules. 

The court acknowledged that the delay arose from the inadvertence of the plaintiff’s counsel in a busy practice. In finding counsel’s explanation reasonable in the circumstances, the court explained that he: 

• diarized the timeline 
• verbally ordered the report via his experienced law clerk in January 2025 
• did not follow up because he was busy 
• overlooked the matter amid competing professional obligations 
• obtained and served the report within a relatively short period after the deadline 
• recognized that it was his responsibility rather than blaming staff 

The court noted that the plaintiff’s counsel explained that he immediately filed the present motion last March once he realized that defence counsel was objecting to the filing of the report. 

The court accepted that the plaintiff’s counsel reasonably believed that the defence was waiving strict compliance with the rules because they discussed the report and a witness list with the report’s author during the pre-trial conference. 

Second, the court held that allowing the report would not cause prejudice to the defendant that costs or case management could not address. The court noted that the necessity of obtaining a responding expert report was a common consequence of litigation. 

Third, the court addressed the interests of justice. Upon balancing the reason for the delay, the lack of non-compensable prejudice, and the report’s possible usefulness, the court accepted the late service of the report. 

According to the court, excluding the report could fragment the evidence and possibly lengthen the trial. The court found the report relevant to quantifying the claim for future care costs and potentially useful for an efficient, organized presentation of evidence.