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CITATION: Sergovich v. Trinca, 2026 ONSC 1620

DIVISIONAL COURT FILE NO.: DC-24-00000004-0000

DATE: 20260413

Firestone R.S.J. and Shore J.

BETWEEN:

JOANNE TRINCA, Executor of the Estate of John Bennett Trinca

Appellant

– and –

DANIEL SERGOVICH

Respondent

Alex R. Sharpe and Heather English, for the Appellant

Karl Arvai, for the Respondent

HEARD at London: November 24, 2025

Shore, J.:

1This appeal arises in the context of a solicitor’s negligence action, in which the solicitor, John Bennett Trinca (“Mr. Trinca”), died suddenly before the action was concluded. The appellant, Mr. Trinca’s estate, appeals the decision of Justice King (“Motion Judge”), dated August 1, 2023, dismissing their motion to dismiss the action for delay. The respondent seeks leave to bring a cross-appeal on the cost decision of the Motion Judge, dated May 31, 2024.

2Pursuant to s. 123(3) of the Courts of Justice Act,R.S.O.c.C.43, where a judge has commenced a hearing together with other judges and is for any reason unable to participate in the giving of the decision of the Court, the remaining judges may complete the hearing and give the decision of the Court unless the remaining judges are equally divided.

3The hearing panel was comprised of Firestone RSJ, Lococo J. and Shore J. Lococo J. is unable to participate in the giving of the decision on this appeal.

4We are not divided and are unanimous in this decision.

5For the reasons below, the appeal and cross-appeal are dismissed.

Background:

6In March 2017, the respondent, Daniel Sergovich (Mr. Sergovich”), commenced a solicitor’s negligence action against Mr. Trinca, in relation to multiple personal injury matters which occurred between 1996 and 2003. The issue at trial will be whether Mr. Trinca’s handling of the files fell below the standard of care.

7Mr. Trinca denied the allegations and delivered a statement of defence in January 2018. Mr. Trinca was clear that he would be seeking to have the action dismissed on the basis of the expired limitation period. The limitation issue has not yet been addressed by the Court.

8Discoveries were scheduled on three occasions (August 2018, April 2019 and January 2020) but cancelled each time, at the request of the respondent’s counsel.

9The respondent delivered his affidavit of documents in December 2019. He took no further steps to move the action forward prior to the appellant’s death.

10Mr. Trinca died unexpectedly on January 29, 2021. His widow, Ms. Joanne Trinca, became the executor of his estate and became the defendant/appellant in this capacity.

11The appellant was not examined for discovery prior to his death and therefore there is no transcript of his evidence.

12Upon the appellant’s death, the action was stayed until September 1, 2021, when an order was served continuing the action against the estate.

13In February 2021, the respondent advised that their claim would be limited to claims arising from the lawyer’s handling of two motor vehicle accident, occurring in May and August 1996.

14A trial record was served on December 17, 2021.

15On February 4, 2022, the appellant brought a motion to dismiss the action for delay, pursuant to r. 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the court’s inherent jurisdiction to dismiss matters for delay. The appellant asserted that the delay was inordinate and inexcusable, and created a substantial risk that a fair trial was not possible.

16The motion was argued over three days, between September 2022 and February 2023. On August 1, 2023, the Motion Judge released the decision, dismissing the motion.

17The Motion Judge considered the Statement of Claim as it existed at the time of the motion. The respondent filed an amended Statement of Claim but did not seek leave to amend. The decision of the Motion Judge only relates to the claims set out in the unamended Statement of Claim.

18At paragraph 74, the Motion Judge was clear that:

In the event the claim regarding the other potential causes of action is amended, the issue of whether a fair trial is possible given the death of Mr. Trinca will need to be addressed at such time pursuant to a further motion.

19The Motion Judge found that there was an inordinate delay that was inexcusable, but that the inordinate delay did not give rise to a substantial risk that a fair trial of the issues would not be possible. At paragraph 88 of the decision, the Motion Judge states “[h]owever, notwithstanding these concerns, on the specific evidence in this matter, based on the Statement of Claim as worded, I am unable to conclude that due to the death of Mr. Trinca a fair trial is impossible.

20The Motion Judge ordered costs in the sum of $46,929.37 payable by the appellant to the respondent, within 30 days following completion of the trial.

An appointment was made to settle the order, to address the issue of post-judgement interest on costs. On May 24, 2024, the Motion Judge ordered that post-judgement interest on costs shall commence 30 days after the completion of trial. He awarded the appellant costs of $1,000 for the appointment to settle the order, to be offset against the earlier costs order payable by the appellant.

Standard of Review:

21The approach to appellate standards of review was articulated by the SCC in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 262. Errors of law are reviewed on a standard of correctness, and errors of fact and errors of mixed fact and law are reviewed on a standard of palpable and overriding error, except where there is an extricable error in law, which is subject to the standard of correctness: Housen, paras. 8, 10, 36. A palpable error is one that is obvious, plain to see or clear, and an overriding error is one that is sufficiently significant to vitiate the challenged finding of fact.

Grounds of appeal:

22The appellant appeals on the following grounds:

a. Did the Motion Judge err in law by failing to consider evidence of the actual prejudice suffered by the appellant as a result of the loss of Mr. Trinca's viva voce evidence?

b. Did the Motion Judge err in law by finding that the Statement of Defence is determinative of the evidence Mr. Trinca would have given at trial?

c. Did the Motion Judge err in law by making findings, without any evidentiary basis, regarding Mr. Trinca's credibility and the weight that would have been given to Mr. Trinca's evidence at trial?

d. Did the Motion Judge err in law by conflating actual prejudice and presumed prejudice?

e. Did the Motion Judge err in law by failing to consider the allegations of negligence particularized after Mr. Trinca's death in the analysis of prejudice? and,

f. Did the Motion Judge err in law by reasoning that the appellant had an obligation to waive solicitor-client privilege over the contents of its lawyers' file in order to demonstrate that the loss of Mr. Trinca's viva voce evidence resulted in a substantial risk to a fair trial?

23Although using the language “err in law” on the grounds of appeal, most of the grounds put forth are alleging errs of fact, not law. This will be addressed further below.

24Before addressing each of the grounds of appeal raised, I will start with a general overview of the decision, to better understand why each ground of appeal is dismissed.

Analysis

25The overarching issue on appeal is whether the Motion Judge erred in finding that the delay did not give rise to a substantial risk that a fair trial of the issues will not be possible.

26The test to be applied on a motion for delay was summarized by the Court of Appeal in Armstrong v. McCall (2006), 2006 17248 (ON CA), 213 O.A.C. 229 (C.A.), at para. 11:

The principle to be applied on a motion to dismiss for delay is that the action should not be dismissed unless: (1) the default is intentional and contumelious; or (2) the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible. It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of a limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice.

27The motion proceeded on the second ground; there was no allegation that the delay was intentional. The Motion Judge correctly set out the test to be applied on a motion to dismiss for delay: The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.

28The Motion Judge found that there had been inordinate delay of three years and ten months, attributable to the respondent.

29The Motion Judge also briefly addressed some of the other grounds raised. The Motion Judge found that the five-year period to have the matter set down for trial had not expired under r. 48.14(1), the provisions of r. 24.01 did not apply, and he declined to exercise his jurisdiction to dismiss the action on this ground. The matter had been set down for trial on December 17, 2021.

30The Motion Judge then turned his mind to the next part of the test, whether the delay gave rise to a substantial risk that a fair trial of the issues would not be possible. The case law is clear that once inordinate delay has been found, there is an onus on the plaintiff to “persuade the court with convincing evidence that no prejudice will be suffered as a result of its delay, and that there is not a substantial risk that a fair trial will not be possible.”: see Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, at para. 11 and Jacob v. Playa, 2014 ONSC 6581 at para. 51.

31The Motion Judge proceeded to find that on the evidence filed for the motion and based on the Statement of Claim as currently worded, the respondent rebutted the presumption of prejudice created by the delay. The appellant was in possession of a draft Affidavit of Documents that contained the entire files of Mr. Trinca. The Motion Judge found that the files can adequately address the issue of whether Mr. Trinca was negligent and therefore the presumption of prejudice was rebutted.

32Having rebutted the presumption, the Motion Judge then considered whether the appellant proved there was actual prejudice.

33Key to the Motion Judge’s determination was that during submissions the appellant conceded that but for the untimely and unfortunate death of Mr. Trinca the delay would not otherwise have caused actual prejudice and justified a dismissal for delay. Therefore, the judge focussed on whether Mr. Trinca’s death created a substantial risk that a fair trial would not be possible.

34The Motion Judge referred to the decision in Baramnick v. Counsel Trust Company, 2007 CarswellOnt 3287 (S.C.), wherein the Court found that the requisite prejudice would be established on the death of a witness during the delay of the plaintiff if the defendant could demonstrate that witness’ evidence would have a "significant bearing" on the issues in this action. That is, it is not necessary for the defendant to satisfy the court they would have succeeded had the witness been able to testify. Rather, the test is whether the evidence would have significant bearing: see Decision at para. 105.

35The primary issue for trial is whether Mr. Trinca met the standard of care in representing the respondent and settling the claims, related to the August 1996 accident. At paragraph 97 of the decision, the Motion Judge found that:

There is nothing in the evidence before the court to suggest that if only Mr. Trinca could testify he would be able to explain to the court why he was not negligent in his handling of any of the matters on which he was counsel for Mr. Sergovich.

36During the motion, the appellant relied on the affidavit of Zachary Grace, who had no involvement in the file until after Mr. Trinca’s death. His evidence was all double hearsay. He was only called to the bar seven months after Mr. Trinca died. Paragraph 100 of the decision provides as follows:

Mr. Arvai repeatedly questioned the affiant for the defendant with respect to what evidence Mr. Trinca would have been able to provide the court through viva voce evidence if he was still alive. No such information was forthcoming.

37At paragraph 106, the Motion Judge concluded that “on the case as currently set out in the pleadings, I have nothing in the case before me that permits me to conclude that the viva voce evidence of Mr. Trinca would have a ‘significant’ bearing on the determination of this case”. The Motion Judge carried on to find that:

107All I have is a suggestion that he would have been able to explain his actions and instruct counsel to testify. There is no information in the material before me to suggest that such testimony is different than what exists in the documents or would provide greater detail or possibly a defence not yet raised. There is simply no such evidence before the court.

38The Motion Judge found that on the claim as currently worded, “those files can adequately address the issue of whether Mr. Trinca’s representation was negligent.”: see para. 89.

39With that background, I will turn to the specific grounds of appeal.

Did the Motion Judge err in law by failing to consider evidence of the actual prejudice suffered by the appellant as a result of the loss of Mr. Trinca's viva voce evidence?

40As set out above, the Motion Judge considered the evidence of the alleged prejudice suffered as a result of the loss of viva voce evidence, but found that based on the evidence of this case, and the claims set out in the current Statement of Claim, there was no evidence before the court to suggest that viva voce evidence would add to the documentary evidence available in this case. The appellant did not meet their onus. As such this was not an error of law, but at best, it relates to the application of the facts to the law. I do not find the Motion Judge made a palpable or overriding error in this regard.

Did the Motion Judge err in law by finding that the Statement of Defence is determinative of the evidence Mr. Trinca would have given at trial?

41The Motion Judge did not find that the Statement of Defence was determinative of the evidence Mr. Trinca would have given at trial. Rather, the Motion Judge found that there was no evidence before the Court that Mr. Trinca would give additional evidence at trial, other than the documentary evidence already available to the parties. I do not find an error of law in this regard.

Did the Motion Judge err in law by making findings, without any evidentiary basis, regarding Mr. Trinca's credibility and the weight that would have been given to Mr. Trinca's evidence at trial?

42The Motion Judge did opine on what weight would be given to Mr. Trinca’s evidence if the evidence was not supported by the documents/file. At paragraph 104 of the decision, the Motion Judge stated:

Assuming Mr. Trinca was able to testify at trial and orally explain his advice and the steps he took on these matters that were not fully documented, this would only lead to questions as to why none of this information was properly documented in his file. In those circumstances, the weight to be given to such oral testimony, if any, would be minimal.

43The Motion Judge considered whether, in these circumstances, Mr. Trinca’s evidence would have significant bearing on the ultimate determination and whether there was any evidence before him to suggest that the testimony would be other than what exists in the documents. The analysis returned to considering the issue of prejudice.

44An appeal is not meant to be a line-by-line analysis of the case. The issue of the weight to be given to the testimony was not a crucial factor in deciding the case and would not have changed the outcome of the motion.

Did the Motion Judge err in law by conflating actual prejudice and presumed prejudice?

45As set out above, the Motion Judge considered both the presumed and actual prejudice. The Motion Judge considered whether there was a presumption of prejudice because of the delay of three years but was ultimately satisfied that the respondent had rebutted the presumption of prejudice.

46The Motion Judge then considered the actual prejudice caused by the delay. The onus is on the appellant to prove actual prejudice. The Motion Judge found that there was no evidence before him to prove actual prejudice.

Did the Motion Judge err in law by failing to consider the allegations of negligence particularized after Mr. Trinca's death in the analysis of prejudice?

47The claims set out in the original Statement of Claim, as it relates to the August 1996 accident can be summarized as follows: Mr. Trinca pursued a tort claim on behalf of the respondent, following an accident in August 1996. The matter was settled for $29,830. The respondent believes it was inadequate, and Mr. Trinca failed to provide competent representation. Mr. Trinca settled the accident benefits file for $6,000, which the respondent also believes was inadequate and that Mr. Trinca failed to provide competent representation.

48Any allegations particularized thereafter, such as his claim for fraud, did not form part of the Motion Judge’s analysis. As set out above, the Motion Judge was clear that in the event the Statement of Claim is amended to include other causes of action, the issue of whether a fair trial is possible needs to be addressed at such time.

Did the Motion Judge err in law by reasoning that the appellant had an obligation to waive solicitor-client privilege over the contents of its lawyers' file in order to demonstrate that the loss of Mr. Trinca's viva voce evidence resulted in a substantial risk to a fair trial?

Did the Motion Judge err in law by reasoning that the appellant had an obligation to waive solicitor-client privilege over the contents of its lawyers' file in order to demonstrate that the loss of Mr. Trinca's viva voce evidence resulted in a substantial risk to a fair trial?

49The appellant misunderstood the findings of the Motion Judge. What the Motion Judge concluded is clearly set- forth at paragraphs 108-110 of his decision:

108The defendant states at para. 82 of the Factum that "Mr. Trinca would have provided evidence, consistent with, and expanding on, the allegations and denials contained in the Statement of Defence." However, that statement is just that–a statement. The court has no evidentiary basis to reach such a conclusion on this matter. A bold statement that such evidence would have been provided by Mr. Trinca does not suffice.

109While the defendant many [sic] be claiming privilege with respect to that information, that leaves the court to agree with the defendant that this case should be dismissed for delay solely on the basis of the untimely passing of Mr. Trinca. That is not significant to deprive the plaintiff of this action pre-emptively and prematurely.

110Accordingly, I am satisfied that the plaintiff has satisfied the court that the death of Mr. Trinca has not prevented the defence from providing evidence that would have a significant bearing on the determination of the issues in this action.

50The Motion Judge did not opine that there was an obligation to waive solicitor-client privilege but did find that by not waiving solicitor-client privilege in this case, they left the Court with no evidence Mr. Trinca’s testimony would have had significant bearing on the determination of the action. This case was decided because the appellant did not prove their case before the Motion Judge.

Conclusion:

51The Motion Judge applied the right test. His findings of fact and his assessment of those facts do not reveal palpable or overriding error. I would dismiss the appeal.

Grounds of the cross-appeal

52The respondent spent a significant amount of time in his factum and during submissions addressing the issue of whether the Motion Judge erred in finding that there was inordinate delay, and the inordinate delay was inexcusable. However, the respondent did not bring a cross-appeal on this issue.

53The cross-appeal was limited to the issue of costs of the motion to dismiss for delay, and specifically:

a. the quantum of costs,

b. the delay in payment of costs,

c. the commencement date of interest, and

d. the costs of $1,000.

Therefore, I will only address these issues on the cross-appeal.

Analysis of cross-appeal

54On May 31, 2024, following receipt of written submissions by the parties, the Motion Judge ordered costs payable by the appellant to the respondent, in the sum of $46,929.37 inclusive, payable within 30 days of the completion of the trial.

55The parties could not agree on the issue of the commencement date for post-judgement interest. The parties attended an appointment with the Motion Judge and both parties had an opportunity to make submissions. In a subsequent decision, dated January 30, 2025, the Motion Judge ordered interest at the rate of 7% to commence 30 days after the completion of the trial, and awarded the appellant costs of $1,000 for the appointment to be offset from the costs awarded to the respondent.

56The cross-appeal is limited to the issue of costs, and specifically the quantum of costs, the delay in payment of costs, the commencement date of interest, and the costs of $1,000.

57The respondent is seeking costs of $114,729.37. The respondent is also seeking an order that the costs be payable within 30 days of May 31, 2024, bearing an interest rate of 7% per year commencing May 31, 2024.

58Leave is required where an appeal to this court is only on the issue of costs. The test is stringent: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b). There must be strong grounds upon which the appellate court could find that the judge erred in exercising her discretion: Brad-Jay Investments Limited v. Village Developments Limited (2006), 2006 42636 (ON CA), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. Discretionary cost decisions should only be set aside on appeal if there is an error in principle or if the award is “plainly wrong”: Hamilton v. Open Window Bakery, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

59This test is designed to impose a high threshold because appellate courts recognize that fixing costs is highly discretionary, and that trial and motion judges are best positioned to understand the dynamics of a case and to render a costs decision that is just and reflective of what actually happened on the ground: Canadian Tire Corporation Limited v. Eaton Equipment Ltd., 2024 ONCA 25, C.C.L.T. (4th) 175, at para. 13 and see Giacomodonato v. PearTree Securities Inc ., 2024 ONCA 437 at para. 10.

60The Motion Judge released a 9-page decision on costs. The Motion Judge canvassed the principles for costs, including the discretionary nature of costs, the purpose of modern cost rules, the relevant factors set out in r. 57.01(1), and the overriding principle of proportionality and reasonableness.

61The respondent was seeking costs on a partial indemnity basis in the sum of $137,329.37. The Motion Judge set out reasons why the amount requested by the respondent was not appropriate in this case, including:

a. The hearing was for three days, not a trial extending for weeks.

b. The amount sought was disproportionate to the value of the claims and significantly, the complexity of the motion;

c. The appellant was the responding party on the motion, yet the fees sought were 3.5 higher than the moving party. The Motion Judge found the fees sought as “outlandish”.

d. The time spent by counsel was excessive, the equivalent of 45 full days for a three-day motion. The Motion Judge found this to be “wildly disproportionate to the amount of time that should be expected for a senior counsel to successfully defend a motion of this complexity.”

e. Parties do not have carte blanche when it comes to having costs determined.

f. The cases relied on by the respondent were significantly more complex than the motion for dismissal for delay.

g. Although the respondent served an offer to settle, it was not a proper r. 49 offer, given the lack of specificity with respect to the quantum of costs.

62The Motion Judge also gave reasons for the timing of payment of costs.

63On the issue of the commencement date for the interest on the costs, the Motion Judge rejected the respondent’s submissions. If the interest was to run from the date the order was made, as opposed to the date the costs were due, it effectively alters or amends the actual order. “It would be a perverse interpretation to conclude that interest begins to accrue on May 31, 2024 on an amount not ordered to be paid until a specifically delineated and later date [...] A proper interpretation of s. 129(1) cannot have the effect of utilizing the amount not yet owing to calculate interest”: see paragraphs 28-33 of the Cost Decision.

64The careful reasons reveal no error in principle, nor is the award plainly wrong. The amount ordered is reasonable and proportionate in all of the circumstances. There is no basis upon which to grant leave to appeal the costs order, and we therefore decline to do so.

65Even if I were inclined to grant leave to appeal the costs order, I would dismiss the appeal.

Costs

66The parties could not settle the issue of costs between them. On the issue of costs, the parties made submissions for costs on the following:

a. Costs of the appeal.

b. Costs of the cross-appeal.

c. Costs of the motion to address the late filing of the respondent’s compendium.

d. Costs of the action, if the appeal was successful.

Cost of appeal:

67On the costs of the appeal, if successful, the appellant is seeking costs on a partial indemnity basis of $21,000, inclusive of the $5,000 costs awarded on the motion for leave to appeal, and costs of $15,000 inclusive to the other side if the appeal is dismissed.

68The respondent is seeking costs of $28,250 inclusive if the appeal is dismissed, plus $5,000 for the motion for leave to appeal.

69The appeal was dismissed. The respondent is entitled to their costs of the appeal and the motion for leave to appeal.

70Having considered, the purpose of modern cost rules, the relevant factors set out in r. 57.01(1), and the overriding principle of proportionality and reasonableness, I find costs of $20,000 for the appeal and $5,000 for the motion for leave to appeal to be reasonable.

71The appellant shall pay the respondent costs of $20,000 inclusive for the appeal and $5,000 inclusive for the motion for leave to appeal.

Costs of the cross-appeal

72On the cross appeal, the appellant submits that costs of $9,200 should be awarded to the successful party. The appellant submits the cross-appeal was not complex and it was straightforward. The respondent raised issues for which leave was not granted.

73The respondent is seeking costs of $36,620 all inclusive if they are successful on the cross-appeal.

74As set out above, a significant amount of time in the materials and in oral submissions was spent on the issue of whether the delay was inordinate and whether the inordinate delay was excusable, neither of which were properly before the Court.

75The appellant was successful on the cross-appeal. Having considered the purpose of modern cost rules, the relevant factors set out in r. 57.01(1), and the overriding principle of proportionality and reasonableness, I find that $9,200 is reasonable in the circumstance and well within the range of expected outcomes.

76The respondent shall pay the appellant costs of the cross-appeal in the sum of $9,200 inclusive.

Disposition:

77The appeal and cross-appeal are dismissed.

78The appellant, Mr. Trinca’s Estate, shall pay the respondent costs of $20,000 inclusive for the appeal and $5,000 inclusive for the motion for leave to appeal.

79The respondent, Mr. Sergovich, shall pay the appellant costs of the cross-appeal in the sum of $9,200 inclusive.

Shore J.

I agree _______________________________

Firestone, R.S.J.

Released: April 13, 2026