CITATION: Juriansz v. Gurevich., 2026 ONSC 2163
DIVISIONAL COURT FILE NO.: 743/24 DATE: 20260417
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
H. KEITH JURIANSZ, Estate Trustee with a Will of the Estate of EVGENIYA CHERNUKHINA, deceased
Akshay Sandhir, for the Appellant
Plaintiff/Appellant
– and –
SOFIA GUREVICH, SABRINA GUREVICH, BORIS GUREVICH and ANATOLY GUREVICH, also known as ANDY GUREVICH
Arkadi Bouchelev, for the Respondents
Defendants/Respondents
HEARD: June 3, 2025
rEASONS FOR DECISION
FAIETA J.
[1] The appellant, H. Keith Juriansz, Estate Trustee with a Will of the Estate of Evgeniya Chernukhina, appeals from the decision of Associate Justice Todd Robinson dated October 28, 2024 that dismissed this action for delay and discharged the certificates of pending litigation (“CPLs”) that the deceased plaintiff obtained against two properties in Toronto.
[2] For the reasons described below, this appeal is dismissed.
BACKGROUND
[3] This action was commenced on December 22, 2014. It includes the following allegations:
• Evgeniya is a 79-year-old retired individual. Defendant Sofia Gurevich is her cousin. Defendant Boris Gurevich is Sofia’s husband. Defendant Anatoly Guervich is Sofia’s son. Defendant Sabrina Gurevich is Sofia’s daughter-in-law.
• In 2008, at Sofia’s urging, Evgeniya moved to Canada from Russia. Sofia asked Evgeniya to transfer her monetary assets to accounts in Ontario where they would be safeguarded by Sofia, held in trust for Evgeniya, and used only with her consent. Evgeniya transferred $539,640 USD to Sabrina.
• Evgeniya authorized Sofia to purchase a condominium in Toronto for her using these funds. In August 2009, Sofia and Sabrina purchased a condominium at 133 Torresdale Avenue, Toronto for $225,300 (“the Toronto property”). However, they misused these trust funds by taking title in their own names as joint tenants and placed a mortgage of about $168,000 on title.
• Evgeniya resided alone in the condominium.
• Sofia did not return the funds used to buy this condominium to Evgeniya.
• Sofia commenced an application to evict Evgeniya from the condominium. Evgeniya states that she first learned that her funds were not being safeguarded by Sofia at this time. Following a mediation, Evgeniya agreed to vacate the condominium by March 31, 2015. Evgeniya was unrepresented, did not understand the agreement, and was under duress when she signed it.
• Sofia and Boris were registered as joint tenants of 12 Ellery Drive, Richmond Hill (“the Richmond Hill property”).
• Sabrina and Anatoly were registered as joint tenants of 58 Carness Crescent, Keswick, (“the Keswick property”).
• Sofia, Boris, Sabrina, and Anatoly converted Evgeniya’s funds to their own use.
• Sofia was liable to Evgeniya in negligent misrepresentation, fraudulent misrepresentation, and breach of fiduciary duty.
• Boris, Sabrina, and Anatoly knowingly assisted in Sofia’s fraudulent and dishonest design.
[4] On January 27, 2015, Associate Judge McAfee granted leave to obtain CPLs in connection with the Toronto property and the Keswick property.
[5] On March 26, 2015, the defendants delivered their Statement of Defence.
[6] On March 9, 2017, the defendants attempted to conduct an examination for discovery of Evgeniya. In the middle of the examination, Evgeniya’s lawyer terminated the examination citing concerns about Evgeniya’s mental capacity.
[7] In April and May, 2017, Evgeniya’s lawyer provided two letters from Dr. Kuruvilla, a hematologist, who explained that she had been diagnosed with cancer and undergoing chemotherapy treatments since February 1, 2017.
[8] In August 2017, the defendants were provided with a letter from Evgeniya’s family doctor which opined that she had sufficient mental capacity to continue with this claim despite her ailments which included glaucoma and cancer.
[9] No further examinations for discovery took place in 2017 or 2018.
[10] In May 2019, the defendants’ lawyer was advised by Evgeniya’s lawyer that her examination for discovery could not be scheduled due to her deteriorating medical condition. Dr. Kuruvilla opined that Evgeniya had another six to twelve months to live.
[11] In early July 2019, Evgeniya’s lawyer advised the defendants’ lawyer that he wished to conduct a Rule 36.02(2) examination for the purpose of taking Evgeniya’s evidence before trial: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It was agreed that Evgeniya’s capacity should be assessed before this examination. No Rule 36.02(2) examination or continued examination for discovery were held. Further, the respondents were not examined for discovery.
[12] In January 2020, Evgeniya’s lawyer advised the defendants’ lawyer that Dr. Rachel Witten was Evgeniya’s niece and attorney for personal care and, as such, wished to act as Evgeniya’s litigation guardian. In addition, the defendants’ lawyer was told that a capacity assessor had found that Evgeniya was incapable of managing property and giving instructions to counsel.
[13] In June 2020, Evgeniya’s lawyer advised that he intended to bring a motion for the appointment of Dr. Witten as Evgeniya’s litigation guardian. No such motion was filed.
[14] There were no further communications between the parties until August 1, 2023, when the defendants’ lawyer notified Evgeniya’s lawyer that he had been instructed to bring a motion for an order dismissing the action for delay.
[15] On August 9, 2023, Evgeniya’s lawyer notified the defendants’ lawyer that they wanted to schedule mandatory mediation and set the action down for trial even though examinations for discovery had not been completed.
[16] On August 22, 2023, the respondents served their motion to dismiss for delay. On that same day, Evgeniya’s lawyer advised that they had recently discovered that Evgeniya had passed away on March 17, 2023 at the age of 88.
[17] In her Last Will and Testament dated July 22 2015, Evgeniya named Dr. Witten as her primary Estate Trustee. Dr. Witten is also the sole beneficiary of the Estate. On March 5, 2024, Dr. Witten renounced her right to act as Estate Trustee. At the time of her death, Evgeniya had no debts other than about $150,000 owed to her lawyers for their legal fees and disbursements in this action.
[18] On June 7, 2024, the motion to dismiss this action for delay, pursuant to Rule 24.01(1)(c) and Rule 24.01(2), was heard along with the motion to discharge the CPLs. Both motions were granted: Chernukhina (Estate of) v. Gurevich, 2024 ONSC 5941.
ISSUES
[19] The appellant raises the following issues on this appeal:
Did the Associate Justice err in finding that the respondents had not established that the appellant was in breach of an Order and the Rules of Civil Procedure?
Did the Associate Justice err in failing to place the burden on the moving party to establish that it had complied with Order and the Rules of Civil Procedure?
Did the Associate Justice err in finding that the appellant’s delay in prosecuting this action was inexcusable?
Did the Associate Justice err in finding that there was a substantial risk that a fair trial might not now be possible?
Did the Associate Justice err in finding it would not be unjust to dismiss this action pursuant to Rule 24.01(2)?
Did the Associate Justice err in finding that the CPLs should be discharged?
JURISDICTION AND STANDARD OF REVIEW
[20] Appeals from a final order of an Associate Judge are heard by a single judge of the Divisional Court, pursuant to s. 19(1)(c) and s. 21(2)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[21] As noted Stewart J. in Poshnjari v. Timothy's Coffees of the World Inc., 2016 ONSC 1076, at para. 4:
The standard of review on an appeal from the order of a master is the same as that for an appeal from an order of a judge: correctness for an error of law, palpable and overriding error for an error of fact, and correctness or palpable and overriding error for a question of mixed fact and law, depending on whether there is an extricable legal principle.
[22] In Hydro-Québec v. Matta, 2020 SCC 37, [2020] 3 S.C.R. 595, at para. 33, Côté J. stated:
An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result. As Morissette J.A. so eloquently put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 (), [translation] “a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions. The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see. [Citations omitted.]
LAW
[23] Rule 24.01of the Rules of Civil Procedure states:
(1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(d) Revoked: R.R.O. 1990. Reg. 194, r. 24.01 (2).
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. [Emphasis added.]
[24] Rule 48.14(1) of the Rules of Civil Procedure states:
(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.
The action was struck off a trial list and has not been restored to a trial list or otherwise terminated by any means by the second anniversary of being struck off.
[25] In Faris v. Eftimovski, 2013 ONCA 360, 363 D.L.R. (4th) 111, at paras. 35-38, Tulloch, JJ.A., as he then was, stated:
In the case of a motion to dismiss for delay brought by the defendant, the defendant must not be in default under the rules and the plaintiff must be delinquent by having failed to: serve the statement of claim on all defendants within the prescribed time; note in default any defendant who has failed to deliver a statement of defence within thirty days after the default; set the action down for trial within six months after the close of pleadings; or move for leave to restore an action to the trial list within thirty days after the action was struck off.
These are short timelines. As P.M. Perell & J.W. Morden describe in The Law of Civil Procedure in Ontario, 1st ed. (Markham: LexisNexis Canada, 2010), at p. 418, motions to dismiss for delay are rarely brought by defendants despite the fact that many actions do not advance within the time standards prescribed by rule 24.01. The authors explain that this is because judges and masters are reluctant to deny a plaintiff his or her day in court at a point that might be quite early in the proceedings.
Accordingly, a high threshold has been established to dismiss an action for delay under rule 24.01. The test has developed from a line of jurisprudence originating with the English case of Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.). On a rule 24.01 motion, an action should not be dismissed unless: (a) the delay is intentional and contumelious; or (b) 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: see Woodheath Developments Ltd. v. Goldman (2001), 2001 28019 (ON SC), 56 O.R. (3d) 658 (Master), aff’d. (2003) 2003 46735 (ON SCDC), 66 O.R. (3d) 731 (Div. Ct.), leave to appeal refused (2004) 44 C.P.C. (5th) 101 (C.A.).
In Armstrong v. McCall (2006), 2006 17248 (ON CA), 213 O.A.C. 229, at para. 11, this court explicitly adopted the test in Woodheath to be applied on a rule 24.01 motion. [Emphasis in original.]
[26] The appellant states that the Associate Justice made numerous errors, particularly in relation to the application of rule 24.01(1), that are described below.
Issue #1: Did the Associate Justice err in finding that the respondents had not established that the appellant was in breach of an Order and the Rules of Civil Procedure?
[27] The appellant alleged that the respondents were barred from bringing the motion to dismiss for delay on the grounds that they were in “default under the rules or an order of the court” within the meaning of Rule 24.01(1) in that:
(a) the defendants are in default of an order of now-retired Master Short made on April 20, 2016 (“2016 Order”);
(b) the defendants have failed to produce sworn affidavits of documents; and
(c) the non-affiant defendants failed to produce themselves for examination in advance of this motion under subrule 39.03(1) of the Rules.
[28] The appellant alleges that the Associate Justice made errors in its consideration of each of these grounds.
[29] In finding that the appellant was not in breach of the 2016 Order, the Associate Justice stated, at paras. 10-17:
With respect to the alleged breach of the court order, on November 23, 2015, Master Short granted a preservation order and directed the defendants to produce flow charts with respect certain funds, with supporting documentation. When the parties appeared again before Master Short in April 2016, he directed the defendants to provide an updated flow chart and produce a further affidavit of documents disclosing various specific additional documents, including income tax returns, bank records, property purchase records, and documents related to an alleged Russian investor. The plaintiff estate argues that these documents were not produced.
Other than a bald assertion of non-compliance made in the estate trustee's supplementary affidavit, there is no evidence before me of any breach of Master Short's order by the defendants. The estate trustee acknowledges that the defendants did serve a fresh affidavit of documents, but did not include a copy of it in any of his affidavits. During cross-examination of Sabrina Gurevich on her affidavits, both defendants' counsel and Ms. Gurevich denied that the defendants are in breach of the order. That is consistent with Ms. Gurevich's reply affidavit. Further questions posed to Ms. Gurevich about documents during her cross-examination were premised on the defendants not having produced the documents, but that was neither established nor agreed.
At the return of this motion before me on April 22, 2024, I heard submissions on the plaintiff's request for a further adjournment, which I granted. In my reasons for adjournment, I ordered that Ms. Gurevich re-attend cross-examination to answer certain refused questions, none of which related to the production ordered by Master Short. My view was then, as it is now, that refusals of the questions put to Ms. Gurevich on the documents in Master Short's order were proper, since they lacked any established foundation. I thereby give no weight to those refusals in assessing whether the defendants were in default of Master Short's order.
The estate trustee has sworn the only responding affidavits on this motion. He states that he is the lawyer for the plaintiff and has personal knowledge of the matters in his affidavit. However, he was not the lawyer appearing before Master Short, he does not discuss his involvement in the motions, and there is no correspondence before me to or from him at the time (including not being copied on those emails that are in the record). His evidence appears to be based entirely on hearsay from other lawyers.
Significantly, the list of alleged deficiencies in what was produced by the defendants was not given until the estate trustee's supplementary affidavit, which was sworn and served after the deadlines ordered by Brown A.J. for affidavits and after the defendants had already cross-examined on the estate trustee's responding affidavit. By the time of that cross-examination, the defendants had served all of their affidavits in compliance with Brown A.J.'s timetable for this motion. The estate trustee's first affidavit (the only one that had been served by that time) does not identify any specific deficiencies in what the defendants had actually produced. Instead, it focuses on a dispute with defendants' counsel over a newly produced document allegedly prepared by the wire transfer department of the Toronto-Dominion Bank. Ms. Gurevich's reply affidavit was accordingly sworn at a time when no specific deficiencies in the defendants' productions pursuant to Master Short's order had been identified.
The estate trustee's supplementary affidavit on this motion was served the day before Sabrina Gurevich was cross-examined and well outside the timetable fixed by Brown A.J., which required the plaintiff estate to serve its responding affidavits by January 31, 2024. The defendants complied with the timetable to serve their materials and complete cross-examinations. The plaintiff estate did not. In my view, it was procedurally unfair to effectively sandbag the defendants with fresh evidence on particulars of alleged non-compliance with Master Short's order outside the court-ordered timetable and immediately prior to a cross-examination.
In any event, the estate trustee's alleged deficiencies are uncorroborated and his personal knowledge has not, in my view, been established. The bald assertion that the defendants are in continuing breach of Master Short's order has not been made out on the evidence or in argument before me.
I am reinforced in that view by the lack of any contemporaneous correspondence identifying non-compliance with Master Short's order. There is also no evidence explaining why nothing appears to have been done since April 2016 to raise the alleged breach with the defendants. The defendants served a fresh affidavit of documents as ordered. It is not unreasonable to expect that the unsatisfied plaintiff would raise her concerns about non-compliance and afford the defendants an opportunity to provide their position or, if they agreed that they had not fully complied with the order, to do so. [Emphasis added.]
[30] The appellant submits that the Associate Justice committed a palpable and overriding error of fact by “unjustifiably undermining” the affidavit evidence from Mr. Juriansz that the appellant was in default of the 2016 Order. Mr. Juriansz acknowledged that he delegated the carriage of this action to various lawyers in his firm. Given the reasons described above, I find that the Associate Justice made no palpable and overriding error in finding that the appellant had not established that Mr. Juriansz had personal knowledge of the relevant matters described in his affidavit and more generally made no palpable and overriding error in finding that the respondents continue to be in breach of the 2016 Order.
[31] The appellant alleges that the Associate Justice erred in failing to find that the defendants were in default of failing to produce a sworn affidavit of documents. In this regard, the Associate Justice stated, at paras. 18-19:
With respect to the defendants' affidavits of documents being unsworn, there is no admissible evidence before me on whether they were or were not sworn. The affidavits of documents are not in the record before me. The only evidence is found in a second supplementary affidavit of the estate trustee. It baldly asserts that no sworn copies of the defendants' affidavits of documents were ever served. In my view, though, that affidavit is not properly considered in deciding this motion.
In addition to being served outside the deadlines ordered by Brown A.J., the second supplementary affidavit was served after the plaintiff estate had already cross-examined Ms. Gurevich on her affidavit. It was accordingly prepared and served in breach of subrule 39.02(2) of the Rules. That subrule prohibits a party who has cross-examined on an affidavit to subsequently deliver an affidavit for use at the hearing without consent or leave of the court. Neither was obtained. The affidavit squarely addresses issues raised by the plaintiff estate during Ms. Gurevich's cross-examination. Admitting it, particularly in support of barring the defendants' motion, would be procedurally unfair. [Emphasis added.]
[32] I find that the Associate Justice made no palpable and overriding error in finding that there was no admissible evidence regarding whether the affidavit of documents was unsworn.
[33] In respect of the submission that the respondents were in breach of Rule 39.03(1) for failure to produce the non-affiant defendants for examination in advance of this motion, the Associate Justice stated, at paras. 20-23:
With respect to the alleged failure of the defendants to produce themselves for examination under subrule 39.03(1) of the Rules, I have already addressed it. In my reasons for adjournment, I denied leave to conduct examinations of the other defendants. I was satisfied that any right to examine them had not been exercised diligently as required by subrule 39.03(3).
I do not find the defendants' failure to produce the non-affiant defendants to be unreasonable or a default under the Rules. As discussed in my reasons for adjournment, when the examinations were requested, defendants' counsel sought information on the purpose of the examinations to seek instructions. That was a reasonable request. No response was provided. Absent confirmation of the purpose for the examination, defendants' counsel did not produce his clients. In my view, the plaintiff estate's request for examination of the defendants for an undisclosed purpose in advance of this motion was unreasonable. The defendants were entitled to know the purpose of examination to assess relevance and proportionality in order to provide a position.
The examinations were also not raised before Brown A.J. when the timetable for this motion was fixed. No cogent explanation was provided for waiting nearly three months to alert defendants' counsel of the intention to cross-examine. Moreover, in my view, examining the non-affiant defendants would not have be proportionate in all the circumstances. The estate trustee was the plaintiff's lawyer of record at all material times. I am unconvinced that examining the non-affiant defendants would be sufficiently probative of any issues on which the plaintiff estate was capable of tendering direct evidence.
In all the circumstances, I do not fault the defendants for not voluntarily producing themselves for examination on undisclosed issues. There was no default under the Rules.
[34] Rule 39.03(1) of the Rules of Civil Procedure states that a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of his or her evidence available for use at the hearing. Rule 39.03(3) states that the right to examine shall be exercised with reasonable diligence. The appellant submits that they had a prima facie to examine the defendants and that their evidence was crucial to determining their role in delaying the prosecution of this action. The appellant’s argument on this appeal simply relitigates an argument that has been twice addressed by the Associate Justice . I find that the Associate Justice made no palpable and overriding error in finding that the respondents did not breach the Rules by failing to voluntarily produce themselves for examination.
Issue #2: Did the Associate Justice err in failing to place the burden on the moving party to establish that it had complied with Order and the Rules of Civil Procedure?
[35] The appellant submits that the burden rests with the moving party on a motion for dismissal for delay to establish that the moving party is not in breach of an Order and the Rules of Civil Procedure. The appellant submits that the Associate Justice, in finding that placed this burden on the appellant, as the responding party to this motion, and erred in doing so. The appellant provides no authority for this submission. Their position makes little sense. As it did in this case, the moving party may assert that it has complied with all Orders and the Rules of Civil Procedure. It is for the responding party, to provide evidence of non-compliance if it wishes to take the position that the motion is barred for such reason. The Associate Justice did not err in law in placing the burden of the responding party to establish that the moving party was in breach of an Order or the Rules of Civil Procedure.
Issue #3: Did the Associate Justice err in finding that the appellant’s delay in prosecuting this action was inexcusable?
[36] The appellant submits that the Associate Justice incorrectly determined that the explanation for the delay in prosecuting this action was neither “reasonable and cogent” nor “sensible and persuasive”.
[37] The appellant submits that the Associate Justice:
(a) overlooked the inherent complexity of the matter as well as the defendants’ obstructive conduct; and
(b) failed to give due weight to the reasonable explanations for the delay provided by the appellant.
[38] The Associate Justice outlined the appellant’s evidence and submissions. In finding that the appellant’s delay in prosecuting this action was inexcusable, the Associate Justice stated, at paras. 29-48:
The defendants do not allege inexcusable delay before March 2017, when Ms. Chernukhina's examination was terminated by plaintiff's counsel on the basis of capacity concerns. In my view, though, the explanation for delay proffered by the plaintiff estate from March 2017 to this motion being brought in August 2023, and even since that time, is neither "reasonable and cogent" nor "sensible and persuasive".
The sole evidence tendered in response to this motion is from plaintiff's counsel, who is now the estate trustee. Several other lawyers and clerks were involved along the way. Dr. Rachel Witten, the plaintiff's niece, agreed to become litigation guardian in January 2020. She was presumably responsible for instructing plaintiff's counsel on advancing the litigation from that time. None of the other lawyers, clerks, or Dr. Witten have provided any evidence on this motion to explain the delay.
From the evidence before me, some limited steps occurred during 2017, including case conferences before Master McGraw (as then titled). Other than a production motion heard in July 2018, no other steps appear to have been taken in 2018.
In July 2019, plaintiff's counsel wrote to defendants' counsel to propose that Ms. Chernukhina's evidence be preserved by completing a rule 36 examination before trial in lieu of continued examination for discovery, subject to agreeing to reasonable accommodations to address Ms. Chernukhina's medical circumstances and health. In response, defendants' counsel asked for clarification on how undertakings would be addressed and whether there remained capacity concerns. Plaintiff's counsel agreed to permit requests for undertakings and proposed a capacity assessment. Defendants' counsel sought clarification on the capacity assessment and proposed that discoveries be completed first with a rule 36 examination proceeding immediately thereafter. He also proposed a motion for directions. There is no cogent evidence of any response to the questions and proposals from defendants' counsel or addressing when steps were initially taken to advance a capacity assessment.
In January 2020, an affidavit of Ms. Chernukhina's niece, Dr. Rachel Witten, was prepared. It attached a capacity assessment conducted in December 2019, which found Ms. Chernukhina to be incapable of managing her property or instructing her lawyers. In her affidavit, Dr. Witten attests to a power of attorney for property and her willingness to act as litigation guardian.
The absence of evidence from Dr. Witten on this motion is stark. Based on the record before me, she agreed to act as litigation guardian and continued in that capacity until her aunt's passing in March 2023. During that period, very little occurred. Dr. Witten's affidavit in support of being appointed litigation guardian was submitted to the court in January 2020 and a lawyer spoke to several potential witnesses in August 2021. There is otherwise no cogent evidence of any steps being taken to advance the litigation during the period leading to Ms. Chernukhina's passing. There is also nothing before me supporting that Dr. Witten had any intention of advancing this action or what, if anything, she did during that period or understood that plaintiff's counsel was doing.
Silence from the plaintiff continued until August 2023, when defendants' counsel provided notice of the defendants' intention to bring this motion. In response, approximately one week later, a law clerk with plaintiff's counsel sought to schedule mandatory mediation and indicated that the action would then be set down for trial. Plaintiff's counsel then proceeded to try to have a mandatory mediator assigned.
It was only after this motion was brought in late August 2023 that plaintiff's counsel advised defendant's counsel that "Ms. Chernukhina recently passed away." The uncontested evidence before me is that plaintiff's counsel was unaware of her death until August 15, 2023, when advised by Dr. Witten after contacting her for instructions on the file. However, there is no evidence on what communications, if any, occurred between Dr. Witten and plaintiff's counsel prior to that point and why plaintiff's counsel was unaware of his client's passing for five months.
From October 2023 to April 2024, shortly before the first return of this motion before me, steps were being taken. Proof of death was obtained and plaintiff's counsel proceeded to file for a certificate of appointment of estate trustee with a will and obtain an order to continue. Those steps, however, appear to have been in direct response to this motion.
I acknowledge that the COVID-19 pandemic suspension of court operations took place during the period of delay. I accept that period is excusable delay, since the suspension was beyond the control of all parties. However, civil court operations ceased for only a relatively short period (during which I note the court accepted the filing of Dr. Witten's affidavit).
The plaintiff estate focuses on Ms. Chernukhina's health as the primary explanation for delay. I agree with the defendants that her illness is not, in and of itself, a sufficient explanation for taking essentially no substantive steps to advance the litigation to trial since March 2017. Despite capacity concerns at that time, no formal capacity assessment was conducted until December 2019, well over 2.5 years after Ms. Chernukhina's examination was stopped.
By April 2017, Ms. Chernukhina had been diagnosed with stage III lymphoma and was receiving chemotherapy. A doctor's letter in April 2017 indicated that there were "fairly minor side effects" from the chemotherapy, which were described as "fatigue but little else".
In August 2017, five months after the plaintiff's examination was stopped by her lawyer, Ms. Chernukhina's family physician prepared a letter outlining Ms. Chernukhina's medical conditions and his opinion on her capacity. Ms. Chernukhina's medical conditions were noted to include glaucoma, a heart condition, hypertension, and dyslipidemia, but were described as "currently stable." In addressing the impacts of chemotherapy and depression from the lymphoma diagnosis and eviction, the physician stated that Ms. Chernukhina's physical ability to participate in litigation was limited, but his belief was that "she does have the mental capacity to continue with the lawsuit."
No cogent explanation has been provided for why Ms. Chernukhina could not be produced for examination, with accommodation for her medical conditions, given her family physician's view in August 2017 that she had sufficient mental capacity.
There is no cogent evidence of any further medical updates until May 2019, when plaintiff's counsel provided a letter from a hematologist confirming that Ms. Chernukhina's "aggressive lymphoma" was incurable, with a "guarded" prognosis. The letter noted a typical survival of six to twelve months. The doctor stated that the nature of her illness "could potentially affect her ability to attend a full-day discovery in May 2019." The lawyer's covering letter states, in part, as follows:
We are currently seeking further information related to our client's health conditions and her ability to attend at her examinations for discovery. We expect that certain accommodations will be required if our client is to attend at an examination, and we will provide you with more information as it becomes available. In the circumstances, we are not in a position to schedule our client's examination at this time.
In July 2019, plaintiff's counsel wrote to defendants' counsel to propose that Ms. Chernukhina's evidence be preserved by completing a rule 36 examination before trial in lieu of continued examination for discovery, subject to agreeing to reasonable accommodations to address Ms. Chernukhina's medical circumstances and health. In response, defendants' counsel asked for clarification on how undertakings would be addressed and whether there remained capacity concerns. Plaintiff's counsel agreed to permit requests for undertakings at the examination and agreed to a capacity assessment. Defendants' counsel sought clarification on the capacity assessment and proposed that the discovery be completed first with a rule 36 examination proceeding immediately thereafter. He also proposed a motion for directions. There is no evidence of any response to the questions and proposals of defendants' counsel nor when steps were taken to advance a capacity assessment, which as already noted did not occur until December 2019.
Based on the record before me, it appears that Ms. Chernukhina lost capacity during the period of delay. Moreover, Ms. Chernukhina was given a terminal diagnosis with six to twelve months to live in May 2019. When plaintiff's counsel proposed proceeding with an examination, he did not raise or maintain the prior capacity concerns expressed in March 2017. When asked by defendants' counsel if there were continued capacity concerns, plaintiff's counsel then proposed a capacity assessment. Nevertheless, despite a terminal diagnosis, a capacity assessment was not immediately arranged or undertaken. There is no evidence of any urgency by Ms. Chernukhina, Dr. Witten as her litigation guardian, or her counsel to take steps to preserve her evidence.
The fact of witness interviews having taken place does not assist in explaining the delay. They occurred in two discrete periods in August 2021 and August 2023 and the substance of those interviews constitutes double hearsay. The estate trustee did not conduct the interviews himself. Rather, he attests to what his associate has told him about them. The potential witnesses' proposed evidence is also circumstantial and does not directly address dealings between the parties.
I reject the plaintiff estate's submissions that I should consider the defendants' complacency during the delay. The defendants sought to proceed with their examination in 2017 by bringing a motion to compel re-attendance. That motion was adjourned to case conferences before Master McGraw and ultimately sidelined because of Ms. Chernukhina's health conditions. In my view, the ball was in the plaintiff's court from that point. There was little that the defendants could meaningfully do until the plaintiff was willingly produced for examination. The fact that the plaintiff appears to have lost capacity during the period of her treatment and lack of attention to this litigation is not the fault of the defendants. Even the litigation guardian, Dr. Witten, does not appear to have meaningfully sought to advance the claim.
I am frankly unclear on what the plaintiff estate expects the defendants should have done differently in all the circumstances. I find that the plaintiff estate has not cogently or persuasively explained the delay in this action. [Emphasis added.]
[39] The submission that the Associate Justice failed to give due weight to the explanations provided by the appellant for the delay in prosecuting this action are not borne out by the reasons for decision and are nothing more than a request that this court substitute its views for that of the Associate Justice. I find that the Associate Justice made no palpable and overriding error in finding that the appellant’s delay in prosecuting this action was inexcusable.
Issue #4: Did the Associate Justice err in finding that there was a substantial risk that a fair trial might not now be possible?
[40] In Woodheath Developments Ltd. v. Goldman, 2003 46735 (ON SCDC), [2003] 66 O.R. (3d) 731 (Div. Ct.), Then J. stated at para. 4:
It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of 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.
[41] The Associate Justice did not rely on presumed prejudice but rather, found that actual prejudice. He stated, at paras. 50-55:
In my view, there is a strong presumption of prejudice in this case that has been exacerbated by the actual prejudice of Ms. Chernukhina losing capacity and now having passed away. Plaintiff's counsel sought to characterize Ms. Chernukhina's passing as being prejudice solely to the plaintiff, and that it benefits the defendants. I agree that it is prejudicial to the plaintiff's case, but it is also prejudicial to the defendants' case.
Based on the pleading and materials before me, this case will largely turn on direct oral dealings and representations between the parties. Although the plaintiff estate submits that this is largely a document case, I disagree. A core allegation in the statement of claim is that there was an oral trust agreement with Sofia Gurevich pursuant to which Ms. Chernukhina's funds in Russia were transferred to Canada and, further, that her money was used by Sofia Gurevich and Sabrina Gurevich to purchase the property in Toronto on Ms. Chernukhina's behalf, where she lived until she was wrongfully evicted. These all appear to have been oral arrangements (denied by the defendants).
Ms. Chernukhina's examination for discovery was interrupted by plaintiff's counsel and has never been completed, despite her family physician opining in August 2017 that she had capacity at that time. The defendants are unable to examine on or test the plaintiff's case. Ms. Chernukhina's evidence has not been preserved. The record does not support a finding that any non-party witnesses have probative evidence that could fairly stand in lieu of Ms. Chernukhina's own direct evidence. I am unconvinced that Ms. Chernukhina's evidence is not required for a fair determination of the disputed issues. On the record before me, her direct evidence is central to the case.
I reject the plaintiff estate's argument that this case turns on whether or not funds were received by the defendants from a Russian investor or were taken from Ms. Chernukhina. That is part of the case, but not the entirety of it. Even if the plaintiff estate proves that Ms. Chernukhina's funds were used, that does not lead inevitably to judgment. The circumstances under which those funds were used, including Ms. Chernukhina's knowledge and/or approval of it, will reasonably need to be explored at trial.
It is, in my view, significant that no capacity assessment was conducted between March 2017 and December 2019, despite the plaintiff's counsel having capacity concerns, with no explanation for failing to do so. As of May 2019, Ms. Chernukhina was given a terminal prognosis of six to twelve months. A capacity assessment was still not undertaken until seven months later. There is no evidence on what happened after the proposal to preserve Ms. Chernukhina's evidence in July 2019 and the assessment taking place. In my view, Ms. Chernukhina's evidence has been lost through no fault of the defendants.
The defendants have also tendered evidence of personal prejudice from the delay and ongoing presence of the CPLs. I need not address that issue. During the inordinate and inexcusable delay in this action, a key party witness lost capacity and, several years later, died. Her central evidence on oral dealings was not preserved. The record does not support any meaningful efforts to try to preserve that evidence at any point after her initial lymphoma diagnosis. In my view, given the issues in dispute, there cannot be a fair trial without her evidence on dealings and agreements with the defendants. [Emphasis added.]
[42] The appellant submits that this is a document-based action and that prejudice sufficient to create a substantial risk for a fair trial cannot be found. The Associate Justice considered and rejected this assertion. I find that the Associate Justice made no palpable and overriding error in finding that there was a fair trial would not be possible without Evgeniya’s
Issue #5: Did the Associate Justice err in finding it would not be unjust to dismiss this action pursuant to Rule 24.01(2)?
[43] In addition to finding that this action should be dismissed pursuant to Rule 24.01(1), the Associate Justice also found that it should be dismissed pursuant to Rule 24.01(2). In coming to this conclusion, the Associate Justice stated, at paras. 57-58:
Relief under subrule 24.01(2) of the Rules has two elements. I must find that (i) one of the circumstances described in subrule 48.14(1) applies to the action; and (ii) the plaintiffs have failed to demonstrate that dismissing this action would be unjust. Dismissal under subrule 24.01(2) is mandatory if both elements are satisfied. As noted earlier in these reasons, neither side provided me with any case law on the applicable test under subrule 24.01(2).
There is no question that the plaintiff estate has failed to comply with subrule 48.14(1). The action has not been set down for trial. My reasoning above for dismissing this action for delay under subrule 24.01(1) equally supports relief under subrule 24.01(2), regardless of the test to be applied. In my view, the circumstances of this case are such that it is not unjust to dismiss the action.
[44] In their Notice of Appeal, the appellant alleges that “[t]he Motion Associate Justice [erred] in determining that it was not unjust to dismiss the action.”
[45] In its Factum, the appellant submits:
Given the Respondent’s egregious conduct during litigation, the Court should set aside the Order and allow the action to proceed on its merits in the interests of justice.
[46] I find that the Associate Justice did not make a palpable and overriding error in finding that it would not be unjust to dismiss the action in the circumstances.
Issue #6: Did the Associate Justice err in finding that the CPLs should be discharged?
[47] Subsection 103(6) of the Courts of Justice Act states:
The court may make an order discharging a certificate,
(a) where the party at whose instance it was issued,
(i) claims a sum of money in place of or as an alternative to the interest in the land claimed,
(ii) does not have a reasonable claim to the interest in the land claimed, or
(iii) does not prosecute the proceeding with reasonable diligence;
(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or
(c) on any other ground that is considered just,
and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just. [Emphasis added.]
[48] The Associate Justice concluded that the CPLs should be discharged for the following reasons, at paras. 59-62:
Since I am granting the motion and dismissing this action for delay, it follows that the CPLs should be discharged. I accordingly need not address the defendants' alternative arguments for discharging the CPLs if the action continues.
Nevertheless, even if I am wrong in dismissing the action, I would still have discharged the CPLs. Pursuant to s. 103(6)(a)(iii) of the Courts of Justice Act, RSO 1990, c C.43, the court may make an order discharging a certificate of pending litigation where the plaintiff does not prosecute the proceeding with reasonable diligence. Whether or not to discharge a CPL is a discretionary decision.
In my view, as outlined above, the plaintiff, her litigation guardian, and now the plaintiff estate has not pursued the claim with anything near reasonable diligence. The inexcusable delay in this case is, in my view, even more pronounced than in the cases of Stayside Corporation Inc. v. Cyndric Group Inc.,2023 ONSC 2363 and Henein v. Alala,2021 ONSC 5871. In both of those cases, the court discharged CPLs for want of prosecution in shorter periods of delay than what is present in this case.
I agree with the defendants that demonstrating prejudice is not required for relief under s. 103(6)(a)(iii) of the Courts of Justice Act. I concur with Corthorn J.'s view in Stayside, supra at para. 37, that failure to prosecute the action diligently is sufficient, as a singular ground, to support making an order that a CPL be discharged. The failure to meaningfully advance this case is, in my view, sufficient in and of itself to discharge the CPLs.
[49] The appellant submits that the Associate Justice erred in law by relying on Stayside Corporation Inc. v. Cyndric Group Inc., 2023 ONSC 2363 for the principle that the failure to prosecute an action with reasonable diligence is sufficient, as a singular ground, to support discharging a CPL. The appellant’s position is based on a misinterpretation of Estate of Angela Sebanc v. Peter Sebanc, 2024 ONSC 2652, 93 E.T.R. (4th) 396, and there is no merit to their submission that it stands for the principle that when a defendant seeks both to dismiss an action for delay and to discharge a CPL, the same reasoning applies in assessing both motions. Under s. 103(6)(a)(iii) of the Courts of Justice Act, a CPL may be dismissed solely on the ground that the plaintiff did not prosecute the proceeding with reasonable diligence. The Associate Justice made no error of law in adopting this principle.
[50] The appellant also alleges that the CPL should not have been discharged because there were serious breaches of Court Orders and the Rules of Civil Procedure by the defendants that amounted to deliberate obstructions, and that the appellants took reasonable steps to advance the litigation despite these alleged obstructions. As determined earlier, the Associate Justice made no palpable and overriding error in finding that the plaintiff did not prosecute the proceeding with reasonable diligence.
CONCLUSIONS
[51] This appeal is dismissed. The respondents shall deliver their costs submissions by April 24, 2026. The appellant shall deliver their responding costs submissions by May 1, 2026. Each submission of costs shall be no more than three pages long, exclusive of a bill of costs and any offers to settle.
Faieta J.
Released: April 17, 2026
CITATION: Juriansz v. Gurevich., 2026 ONSC 2163 DIVISIONAL COURT FILE NO.: 743/24 DATE: 20260417
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
H. KEITH JURIANSZ, Estate Trustee with a Will of the Estate of EVGENIYA CHERNUKHINA, deceased
Plaintiff/Appellant
– and –
SOFIA GUREVICH, SABRINA GUREVICH, BORIS GUREVICH and ANATOLY GUREVICH, also known as ANDY GUREVICH
Defendants/Respondents
REASONS FOR DECISION
FAIETA J.
Released: April 17, 2026