Citation: Sevenplex Developments Inc. v. Mazzen Holdings Inc., 2026 ONSC 549

DIVISIONAL COURT FILE NO.: DC-25-601 and DC-25-603 DATE: 2026-01-30

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Sevenplex Developments Inc., Appellant AND: Mazzen Holdings Inc. and Frank Mazzotta, Respondent

AND RE: Sevenplex Developments Inc., Appellant AND: Armour Heights Developments Inc., 2283836 Ontario Inc., 2605435Ontario Inc., Aquino Brothers Holdings Inc., 2365757 Ontario Limited, Manupar Holdings Ltd. o/a Trade Electrical Contractors, 1873556 Ontario Inc., 2337095 Ontario Inc. o/a Sky Wireless Communications, 2318481 Ontario Inc., Grandbury Developments Inc., 1157135 Ontario Ltd., Integral Management and Consulting Ltd., Giannace Family Holdings Inc., 2162699 Ontario Inc., Carrier Alliance Inc., Weston Tae Kwon Do Ltd., 2601430 Ontario Inc., VRP Developments Inc., 2073133 Ontario Inc., 2241401 Ontario Inc., Sagawest Developments Inc., Aces Capital Inc., 2568300 Ontario Inc., 1883891 Ontario Ltd. o/a Wildcard Inc., Best Field Services Limited, John Doe and ABC Corp., Respondents

BEFORE: Sachs, O’Brien, and Kaufman JJ

COUNSEL: William Pepall and Rebecca Shoom, for the Appellant Ronald B. Moldaver, K.C., for the Respondent

HEARD at Toronto: January 27, 2026

ENDORSEMENT

Overview

[1] Sevenplex Developments Inc. (the “Plaintiff”) appeals from the decision of Associate Justice D. M. Brown (the “motions judge”) dismissing two actions following a status review under Rule 48.14(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. At the hearing of the appeal, we dismissed the appeal with reasons to follow. These are those reasons.

[2] The Plaintiff commenced two related actions in 2017 and 2018 (the “2017 Action” and the “2018 Action”). The actions arise from disputes between adjacent property owners. At the time of the status review, the actions were approximately seven years old and six and a half years old, respectively. Neither had advanced beyond the pleadings stage.

[3] The motions judge applied the two‑part conjunctive test set out in Henderson v. Kenora‑Rainy River Districts Child & Family Services, 2022 ONCA 387 (“Henderson”) to determine whether the actions should be dismissed for delay. Under that test, the plaintiff must show: (1) an acceptable explanation for the delay; and (2) that permitting the action to proceed would not cause the defendant non‑compensable prejudice. The motions judge concluded that the plaintiff failed to provide an acceptable explanation for the delay and dismissed the actions on that basis. The motions judge found that the second part of the test was met.

[4] The Plaintiff argued that the motions judge erred in his appreciation of the Henderson test, failed to give due consideration to facts that explained the delay, erred in his consideration of the Defendants’ conduct and erred in finding that Plaintiff’s counsel did not intend to advance the litigation within the timelines prescribed by the Rules.

Standard of Review

[5] The decision on a motion to dismiss for delay is discretionary and entitled to deference. A reviewing court may set it aside if the motions judge proceeded on an erroneous legal principle or made a palpable and overriding error of fact. The reviewing court also may intervene if the motions judge gives no or insufficient weight to relevant considerations: H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, at para. 19.

Analysis

Did the motions judge err in his appreciation of the Henderson test?

[6] The Plaintiff submits that the motions judge erred in applying the Henderson test. It argues that the first branch of the test requires a contextual assessment, but that the motions judge instead applied a rigid, formalistic approach by evaluating the Plaintiff’s explanations for delay on a month‑by‑month basis and concluding that they were insufficient. The Plaintiff further contends that the motions judge failed to give appropriate weight to the principle that, when balancing the competing policies of adjudicating matters on their merits and promoting timely, efficient resolution, the courts favour determining disputes on their merits. We are not persuaded by these submissions.

[7] The motions judge reviewed the litigation history in detail and concluded that the Plaintiff failed to provide an acceptable explanation for approximately 42 months of delay in the 2017 Action and approximately 50 months of delay in the 2018 Action. In our view, the motions judge considered and weighed all relevant factors in determining that dismissal was the just result in the circumstances. He addressed the nature of the actions, the steps taken at various stages, the conduct of the Defendants, the explanations offered by the Plaintiff and its counsel, and the overall length of the delay. Ultimately, the motions judge was troubled that, by the expiry of the deadline to set the actions down for trial, they remained at the pleadings stage and the Plaintiff had taken no meaningful steps to move them forward. In other words, the motions judge both examined the case in detail and performed an overall contextual analysis of the justice of the case. There was no error in this aspect of his analysis.

[8] As for the contention that the motions judge failed to give adequate effect to the principle favouring resolution of disputes on their merits, the balancing of the competing policy considerations is a discretionary judgment. We are not persuaded that the motions judge erred in concluding that, on the facts of this case, the balance favoured dismissing the actions.

Did the motions judge fail to give due consideration to facts that explained the delay?

[9] The Plaintiff submits that the motions judge failed to give due consideration to the following facts that it alleges explained the delay:

(a) The proceeding before the Local Planning Appeal Tribunal (LPAT);

(b) The Plaintiff’s change of counsel;

(c) The Plaintiff’s counsel’s preparation of a draft Affidavit of Documents;

(d) The Plaintiff’s counsel’s preparation of a draft Statement of Claim;

(e) The Defendants’ allegation that Plaintiff’s counsel had a conflict of interest; and

(f) Settlement discussions between the parties.

[10] This argument is directed at the motions judge’s fact finding. As such, to succeed, the Plaintiff must demonstrate a palpable and overriding error.

[11] For the most part, the alleged failures relate to the motions judge’s consideration of the twenty-seven-month period between January 28, 2021 and May 4, 2023. The Plaintiff also alleges the motions judge failed to consider the process before the LPAT, which concluded with a decision dated May 16, 2019.

[12] Starting with the LPAT, the Plaintiff submits the motions judge erred in stating there was no evidence connecting the tribunal proceeding to the delay in the civil actions. We disagree. Counsel took this court to one subparagraph in one affidavit that referenced a minor variance application, appeal and subsequent redevelopment of the property, which the Plaintiff pursued “in an effort to mitigate its damages.” There is no explanation as to how the steps connected to the minor variance application caused delay, nor why the civil actions could not proceed in tandem with them. To the extent the Plaintiff’s point was that it did not want to pursue the civil actions until it had obtained the LPAT decision, the motions judge noted that there was a period of ten months after the release of the LPAT decision during which the Plaintiff did not take steps to advance the civil actions. There was no error in the motions judge’s conclusion that the Plaintiff had not sufficiently explained its delay during this period.

[13] Turning to the twenty-seven-month period of delay, on January 28, 2021 the Plaintiff received a decision dismissing its Rule 21 motion. This prompted it to hire new counsel. According to the Plaintiff, the motions judge failed to appreciate the delay that hiring new counsel caused.

[14] The motions judge’s decision notes that “[t]he plaintiff retained new counsel who served a notice of change of lawyers on February 10, 2021, two weeks after the dismissal of the Rule 21 motion.” Thus, in this case, it did not take the Plaintiff long to hire new counsel. If the Plaintiff is suggesting that the motions judge failed to consider that it would have taken new counsel some time to review the file, which contributed to the delay, there is no evidence to this effect in either of the affidavits filed by the Plaintiff in support of the motion at issue. Neither the Plaintiff’s president nor the new counsel who was retained deposed that there was a delay of note incurred because of their need to review the file. Therefore, it is not surprising that the motions judge did not consider this a factor that contributed to the delay at issue in any significant way.

[15] The motions judge notes that the Plaintiff offered an explanation for the 27-month delay that included a statement from his lawyer that he and his colleagues were working on the file internally. According to the motions judge, no details were provided as to what work was done. The Plaintiff submits that in making this statement the motions judge ignored the evidence that during this period his lawyers prepared a draft Affidavit of Documents and a draft Fresh as Amended Statement of Claim. These facts would not have affected the result and thus cannot be considered overriding errors (even if it could be argued that they were palpable, which we do not agree they were). In the end, the motions judge made the decision he did about the time period in question because “whatever work was done by the plaintiff’s lawyers from October 2021 to May 2023, it did not perceivably advance either action.” Preparing a draft affidavit of documents and a draft amended statement of claim did not advance the action as there is no evidence that either document got served or filed. Focusing on what steps actually advance an action is appropriate since one of the crucial interests at stake on this motion was the public’s interest in timely and efficient justice. Preparing drafts of documents that do not get filed is very different from taking steps to crystallize a damages claim, which was found to be a satisfactory explanation for delay in Curlew Gardens Developments Inc. v. Terraprobe Inc., 2023 ONSC 5531. The latter actually advanced the resolution of the issues; the former did not.

[16] The motions judge found that in the fall of 2021 Plaintiff’s counsel wrote to Defendants’ counsel proposing that the two actions be consolidated. At that point “[t]he defendants in the 2017 Action also alleged that counsel for the plaintiff was in a conflict of interest due to previous retainers by the defendant and threatened a cross motion to remove them from the record. The plaintiff did not bring the threatened motion to consolidate and there was no motion by the defendants for removal.” According to the Plaintiff, this consideration of the conflict allegation did not adequately recognize the delay that such an allegation can cause. We agree that a motion to disqualify a counsel for conflict is a matter that could cause a significant delay. However, it is not a palpable and overriding error to find that an allegation of conflict without such a motion is not a sufficient explanation for why Plaintiff’s counsel (who rejected the suggestion of conflict) did not proceed with the next steps in the action. According to the affidavit material filed on behalf of the Plaintiff, the intention was to proceed with single discoveries.

[17] The Plaintiff also argues that the motions judge did not consider the fact that in May of 2023, the parties were engaged in settlement discussions. While settlement discussions can certainly be an explanation for delay, in this case, it is not clear what, if any, impact the settlement discussions at issue had. According to the motions judge’s reasons, the Plaintiff brought a motion for consolidation and an extension of the set down deadline on May 4, 2023 and served its motion materials on May 26, 2023. The motion was originally scheduled for August. Thus, it is not obvious how any settlement discussions that may have occurred in May would have delayed the progress of the action. An error that is not obvious is not a palpable error.

Did the motions judge err in his consideration of the Defendants’ conduct?

[18] We also dismiss the argument that the motions judge erred when he failed to find that conduct by the Defendants contributed to the delay. The Plaintiff specifically relies on the Defendants’ allegation of a conflict of interest against Plaintiff counsel. As set out at para. 9 of his Decision, the motions judge was well aware that the conduct of a defendant can be relevant in the delay assessment. But the motions judge was not required to find the Defendants contributed to the delay in this case. It would have been up to the Defendants to bring a motion alleging conflict, which they did not do. The motions judge was not required to find that merely making the allegation of a conflict delayed the actions.

Did the motions judge err in his finding that the Plaintiff’s counsel did not intend to advance the actions within the timelines in the Rules?

[19] Finally, the Plaintiff alleges the motions judge erred in his conclusion at para. 31 of his decision that the Plaintiff lawyers must have made a conscious decision not to advance the actions within the timelines in the Rules. The motions judge’s comments must be read in conjunction with para. 23 of the Decision, in which he sets out the second factor in the Reid test (as reproduced in Henderson). That factor asks whether the plaintiff has shown it always intended to prosecute the action with the time limits in the Rules but failed to do so through inadvertence. The motions judge found in this case that the evidence did not support an intention to prosecute the action within the time limits and that the failure to do so was not through inadvertence. This conclusion was amply supported by the record. Reading the decision as a whole, there was no error in the motions judge’s statements that the failure to prosecute within the requirements of the Rules was conscious and not inadvertent.

Disposition

[20] The appeal is dismissed. As agreed by the parties, the Plaintiff shall pay costs of $14,000 all-inclusive to the Defendants.

Sachs J.

O’Brien J.

Kaufman J.

Date: January 30, 2026