Late expert reports refused in motor vehicle collision action; extension of time denied.
The plaintiff was injured in motor vehicle collision on April 3, 2018 and he commenced an action in 2019. As in most serious motor vehicle claims, expert evidence was required to establish damages. The plaintiff ultimately sought to rely on two key reports: a future care cost assessment and an orthopaedic surgeon’s report.
Under Rule 53.03(1), expert reports must be served at least 90 days before the pre-trial conference. The plaintiff served the defendant with his notice of motion for an extension of time to serve the proposed expert reports just prior to the pre-trial, which was held on November 28, 2024. At the time that the notice of motion was served, the experts had not been retained and no reports existed.
The pre-trial conference was adjourned to September 9, 2025, to give the plaintiff time to obtain the expert reports and either secure the defendant’s consent to late-filing or bring a motion for an extension of time.
The plaintiff served the two expert reports on March 25, 2025, four months after the original pre-trial date was scheduled, and brought a motion under Rule 53.03(4) seeking extension of time. The defendant opposed the motion.
The procedural history of the motion was lengthy, having been adjourned multiple times for numerous reasons including a missed confirmation, supplemental materials being served late and finally being heard on the seventh motion date set. The motion was finally heard on December 10, 2025, which was approximately one month before the scheduled January 2026 trial.
Justice Petersen confirmed that she had discretion under 53.03(4) to extend the time for service but assessed the motion using the Rule 53.08 leave criteria: whether there was a reasonable explanation for the delay and whether granting leave would cause non-compensable prejudice or undue trial delay.
The plaintiff relied on oversight, expert availability and delays obtaining records. The court found that the evidence did not support those explanations, and noted that the affidavits lacked particulars, including evidence regarding any early efforts to retain experts or secure assessments. During argument, the plaintiff acknowledged that the experts were not retained before pre-trial because the hope was that the case would settle and the expense could be avoided.
The court found this was no inadvertence but a conscious litigation decision to risk non-compliance with the Rules as a cost-saving measure. That did not amount to a reasonable explanation.
Although the reports were served months before trial, the court rejected the argument that this eliminated prejudice. The defendant had opposed admissibility from the outset and was not required to incur the cost of responding expert reports while the motion remained unresolved. Granting the motion at that stage would have forced the defendant either to proceed to trial without responding expert evidence or to scramble to retain experts on very short notice.
Admitting the reports would have required adjourning the trial to the next civil sittings, at least five months later. The collision occurred more than seven years earlier and the plaintiff’s failure to comply with expert timelines had already delayed the trial by a year. A further adjournment was found to be undue.
The motion was dismissed and the plaintiff was not permitted to rely on late expert reports.
Justice Petersen acknowledged the seriousness of the consequences but distinguished prior cases involving genuine oversight or minimal delay. Here, the court found the non-compliance was deliberate, the motion was not pursued diligently, liability remained in dispute and trial delay was unavoidable. While the ruling significantly impaired the plaintiff’s damages case, the court noted the plaintiff was not left without recourse.
