Ehsani v. Sadighi, 2025 ONSC 1982

COURT FILE NO.: CV-16-00128004-0000
DATE: 2025-03-31
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Faraz Ehsani, Mojgan Khani, 1874063 Ontario Inc., and Anita Navid, Minor by her Litigation Guardian, Faraz Navid Ehsani, Plaintiffs
AND: Vahid Sadighi, Bita Akbari, and Greenlife Health Group Corp., Defendants

BEFORE: C. Boswell
COUNSEL: David Myers for the Plaintiffs; Ted Laan for the Defendants
HEARD: 2025-03-19

ENDORSEMENT on Dismissal Motion

Introduction

[1] The plaintiffs issued a claim against the defendants on September 13, 2016. Eight years, 187 days later, the plaintiffs move for a status hearing to keep the claim alive. The defendants move to dismiss it for delay.

The Claim

[2] The plaintiffs agreed to purchase a chiropody business from the defendants. They allege that after the purchase closed, and they began to operate the business, they realized that the defendants’ business model relied heavily on fraudulent insurance claims. They assert that the business was not viable if operated lawfully. Indeed, after a short period of time, they went out of business, losing a significant investment in the process.

[3] The plaintiffs sue for damages for what they characterize as fraudulent misrepresentation. They seek compensation for their lost investment. They also seek damages for personal injury. The plaintiff, Mojgan Khani, alleges that as a result of the loss of the business, she became deeply depressed. The minor plaintiff, Anita Navid, sues for damages for the loss of care, comfort, and companionship she would have received from her mother, had her mother not fallen into a deep depression. I note that the minor plaintiff is, in fact, no longer a minor, having turned 18 in April 2024.

The Progress of the Action

[4] The evidence filed on the motion is not a model of clarity when it comes to documenting the history of the proceedings. In support of their request for a status hearing, the plaintiffs filed the affidavit of a clerk, Ms. Asghar, from their lawyer’s office. The defendants take issue with the fact that the affidavit was sworn by a clerk and not by counsel. Nothing ultimately turns on the identity of the deponent, in my view, so I do not intend to spend any time on it. For what it is worth, however, I agree with the defendants that, given the contentiousness surrounding the history of this proceeding, it would have been preferable had counsel sworn the affidavit.

[5] At any rate, I will do my best to cobble together an account of the proceedings to date.

[6] As I noted, the Statement of Claim was issued on September 13, 2016. It is not clear when the claim was served but it appears that a defence was delivered on or about October 26, 2016. Ms. Asghar’s affidavit indicates that a Notice of Intent to Defend was served October 26, 2016, which I accept was the case. She does not indicate when the Statement of Defence was served. I note that both the Notice of Intent to Defend and the Statement of Defence are dated October 26, 2016. It seems unlikely they were both served on the same date, but again, nothing really turns on the precise date that the defence was filed. The defence was prepared by Farahmand Law Group, who were the defendants’ counsel at that time.

[7] At some point between the end of October 2016 and the beginning of May 2017, the defendants retained new counsel. An Amended Statement of Defence was delivered on or about May 4, 2017 by new counsel, Hemad Mokhtari, of Ahmed Law.

[8] According to Ms. Asghar, Affidavits of Documents were exchanged by late 2017. Examinations for discovery were commenced on December 18, 2017 but were not completed. Further disclosure was apparently required, for reasons not identified in the evidentiary record. That disclosure appears to have been completed by early May 2019. Details are lacking about what went on between December 2017 and May 2019.

[9] Ms. Asghar deposed that attempts were made by the plaintiffs’ counsel to arrange for dates for continued examinations for discovery during the balance of 2019, without success. Correspondence was attached to her affidavit that reflects requests being made by the plaintiffs’ counsel in July, September and October, 2019 to set dates to conclude the discoveries. It appears, however, that in the fall of 2019, Mr. Mokhtari was in the process of moving his practice from Ahmed Law to another firm. Examination dates were not agreed upon.

[10] On November 11, 2019, the defendants served a Notice of Change of Solicitor, reflecting that Mr. Mokhtari was now practicing with Rousseau Mazzucca LLP. Further attempts were purportedly made throughout 2020 by the plaintiffs to arrange for continued examinations for discovery. The only correspondence filed by the plaintiffs to support those attempts reflects that dates were sought by the plaintiffs’ counsel in October and November 2020. Yet again, Mr. Mokhtari appears to have been in the process of moving his practice and he deferred setting dates. On November 24, 2020, he served a Notice of Change of Solicitor reflecting that he was now practicing with Keyser Mason Ball LLP.

[11] Examinations for discovery were eventually largely completed by September 22, 2021, though the examination of the defendant, Vahid Sadighi, remained outstanding.

[12] On May 17, 2024, the plaintiffs served their motion for a status hearing. The reasons why the motion was not heard until March 19, 2025 are not clear to me. Undoubtedly, some of the delay during that period must be attributed to the court’s backlog of civil motions. That said, this motion was on an ordinary list for motions less than one hour. The wait times for those motions are generally within several months.

[13] No explanation has been offered about what happened between September 22, 2021 and May 17, 2024, other than that the plaintiffs’ counsel “had a significant changeover in personnel that may have led to some confusion regarding follow-ups on the file with regards to the availability of the remaining Defendant to be examined.”

[14] For ease of reference, I have set out the progress of the action in chart form, at Appendix “A”. There are significant periods of unexplained delay which include:

• 17 months between December 2017 (when examinations for discovery began) and May 2019 (when a revised Affidavit of Documents was served by the plaintiffs);
• 11 months between November 2019 and October 2020 (the time between the service of a Notice of Change of Solicitor by the defendants and the plaintiffs’ request to schedule continued discoveries);
• 10 months between November 2020 and September 2021 (the time between the service of the defendants’ second Notice of Change of Solicitor and the continuation of examinations for discovery) though I accept that some part of that time was taken up by the need to find a mutually acceptable date for examinations;
• 32 months between September 2021 and May 2024 (the time between the continued examinations for discovery and the plaintiffs’ motion for a status hearing).

The Motions

[15] The plaintiffs move for a status hearing under r. 48.14(5) of the Rules of Civil Procedure. Rule 48.14(1) provides for administrative dismissals of actions that have not been set down for trial by the fifth anniversary of the commencement of the action. Rule 48.14(5) provides that an administrative dismissal may be avoided if, at least 30 days before the expiration of the five-year anniversary, the plaintiffs move for a status hearing.

[16] The hearing of a motion under r. 48.14(5) is to be convened as a status hearing. Pursuant to r. 48.14(7), the plaintiffs bear the onus, at the status hearing, to show cause why their claim ought not to be dismissed for delay. The court may either dismiss the proceeding for delay or, alternatively, if satisfied that the action should proceed, fix a timetable for the completion of all necessary steps to get the matter listed for trial.

[17] The defendants move, by way of a countermotion, for an order dismissing the action for delay, under r. 24.01(1)(c) and r. 48.14(1). Rule 24.01(1)(c) provides that a defendant may move to have an action dismissed for delay where the plaintiff has failed to set it down for trial within six months after the close of pleadings.

[18] Rule 48.14(1), as I noted, provides for administrative dismissals of actions not set down within five years of their commencement. Administrative dismissals are the bailiwick of the Registrar. That said, r. 24.01(2) provides that the court shall dismiss an action for delay if r. 48.14(1) applies, unless the plaintiff demonstrates that the dismissal would be unjust. I will proceed on the basis that the defendants’ reliance on r. 48.14(1) is really reliance on r. 24.01(2).

The Governing Principles

[19] The legal tests to be applied to the two motions before the court are a little different.

[20] At a status hearing under r. 48.14(7), the plaintiffs have the burden of demonstrating why their action ought not to be dismissed for delay, according to a conjunctive, two-part test. See Khan v. Sun Life Assurance Co. of Canada, 2011 ONCA 650, para 1, and Farrage Estate v. D’Andrea, 2020 ONSC 5200, at para. 22. The plaintiffs have two hurdles. They must:

(i) provide an acceptable explanation for the delay; and
(ii) satisfy the court that if the action were allowed to proceed, there would be no non-compensable prejudice to the defendants.

[21] The test to dismiss a proceeding for delay under r. 24.01(1)(c) is similarly straightforward, though the onus is now on the defendants. They have three hurdles to meet. They must establish that the delay is:

(i) inordinate;
(ii) inexcusable; and
(iii) prejudicial to them in that it gives rise to a substantial risk that a fair trial of the issues will not be possible.

See Ticchiarelli v. Ticchiarelli, 2017 ONCA 1, para 12. See also NWG Investments Inc. v. Fronteer Gold Inc., 2024 ONCA 331, para 2.

[22] Inordinate delay is measured by the time it has taken for the action to proceed from commencement of the claim to the motion to dismiss (or in this case the motion for a status hearing). Here, that covers a period of seven years and eight months. To be fair, this time period includes a stretch of roughly six months during the COVID-19 pandemic when limitation and litigation time periods were suspended by Ont. Reg. 72/20. That regulation was in effect from March 16, 2020 to September 13, 2020, a total of 183 days. Crediting the plaintiffs with that suspension reduces the period of delay to roughly seven years and two months.

[23] There are no hard and fast rules about what period of delay constitutes an inordinate delay. The determination is contextual. See Bourque v. Nogojiwanong Friendship Centre, 2018 ONSC 2494, para 31. Not all cases are alike. Some are more complex and inherently more time consuming than others.

[24] Whether the delay is inexcusable involves a consideration of the adequacy of any explanation offered for it. See Langenecker v. Sauve, 2011 ONCA 803, para 9. Explanations that are “reasonable and cogent” or “sensible and persuasive” will generally suffice. See DeMarco v. Mascitelli (2001), 14 C.P.C. (5th) 384, at para. 26.

[25] Finally, prejudice may be implied, or it may be established by evidence. Prejudice to the defendants is inherent in lengthy delays, given that memories fade, witnesses may disappear, and documents may be lost. The longer the delay, the stronger the inference is that the defendants have been prejudiced. See Langenecker, at para. 11. There may also be case-specific evidence of prejudice, though none was offered in this instance.

[26] The applicable test under r. 24.01(2) is a little murkier. There appears to be relatively little jurisprudence on it and what exists is not consistent. For instance, in Smith v. Armstrong, 2018 ONSC 2435, para 25, Gordon R.S.J., held that the applicable test under r. 24.01(2) is the same as that applied at a status hearing – in other words the test applicable under r. 48.14(7).

[27] In 6970001 Canada Inc. (c.o.b. Zaatar & Zeit) v. Aviva Insurance Co. of Canada, 2018 ONSC 2971, para 21, Master Pope held that the applicable test under r. 24.01(2) was the same test that is applied under r. 24.01(1)(c). Sweeney J. came to a similar conclusion in Nanak Homes Inc. v. Arora, 2019 ONSC 6654, para 11.

[28] It is unnecessary that I attempt to resolve the different approaches to r. 24.01(2) in the caselaw, given that the motions before the court require an analysis under both r. 48.14(7) and r. 24.01(1)(c). It would appear that one or the other of those tests applies. A separate r. 24.01(2) analysis is therefore not required.

Discussion

[29] I appreciate that the tests to be applied to the competing relief sought by the parties differ somewhat. But there is some overlap between them. I propose to proceed with the analysis in a somewhat blended way, but it will be clear that, regardless of which test is applied, it is appropriate that the plaintiffs’ action be dismissed for delay.

The Delay is Inordinate

[30] This case has been outstanding for eight-and-a-half years. For the reasons set out above, I am treating the period of delay, for the purposes of the motions before me, as seven years and two months. That time must be considered contextually, but it must be said that the delay here would be inordinate in just about any case. It should not have taken anywhere near seven years to get this case listed for trial.

[31] The amounts involved in this case are modest and barely exceed the Simplified Rules limit. The issues do not appear to be particularly complex.

[32] In my view, this aspect of the case is not a close call. The delay here is inordinate. The defendants have met their first hurdle under r. 24.01(1).

The Delay is Inexcusable

[33] One of the principal difficulties for the plaintiffs on these motions is that almost no explanation has been offered for the delays in this case.

[34] The explanations on offer are essentially twofold.

[35] First, the plaintiffs complain that they were frustrated in setting dates for continued examinations for discovery due to the number of times the defendants changed solicitors. It is true that, following the date that discoveries began (December 18, 2017) and the date they were largely completed (September 22, 2021), the defendants served two separate Notices of Change of Solicitor. I accept that Mr. Mokhtari’s moves in the fall of 2019 and 2020 were somewhat frustrating for the plaintiffs. Those moves undoubtedly made it more difficult to schedule continued examinations for discovery.

[36] That said, it is the plaintiffs’ responsibility to move their case forward. The fact that Mr. Mokhtari switched law firms on two different occasions should not have posed an impediment that held up discoveries for almost four years. This was not a case where completely new counsel were brought in time and again. Mr. Mokhtari was counsel of record since at least May 2017. In my view, the plaintiffs’ efforts to push the matter forward and to complete discoveries were feeble.

[37] Second, the period between September 2021 and May 2024 is described as a time when personnel changed at the office of plaintiffs’ counsel. The file somehow fell through the cracks. This is certainly an explanation. But it could hardly be described as “reasonable and cogent” or “sensible and persuasive”.

[38] The plaintiffs have failed to provide a reasonable explanation for the delays. It appears to me that between the time pleadings closed in May 2017 and the time the plaintiffs’ motion was brought in May 2024 seeking a status hearing, the plaintiffs managed only to exchange documents and conduct three days of discoveries. That is an unacceptable pace, and no reasonable explanation has been offered for it.

[39] In the result, I find that the defendants have met their second hurdle under r. 24.01(1)(c). At the same time, the plaintiffs have failed to meet their first hurdle under r. 48.14(7) – to provide an acceptable explanation for the delay. The plaintiffs’ motion fails at this hurdle.

There is a Substantial Risk that a Fair Trial is no Longer Possible

[40] The defendants’ third and final hurdle requires them to demonstrate that the inordinate delay has been prejudicial to them in that it gives rise to a substantial risk that a fair trial of the issues will not be possible.

[41] Prejudice may be of two sorts. There may be case-specific evidence that demonstrates actual prejudice. Or there may be presumed prejudice which is inherent in long delays. See Ali v. Fruci, 2014 ONCA 596, para 15. In some cases, though not all, presumed prejudice may be enough to satisfy the third prong of the test under r. 24.01(1)(c).

[42] The defendants have offered no evidence of actual prejudice. They rely entirely on presumed prejudice to establish this part of the applicable test.

[43] I accept that a reasonably strong presumption of prejudice arises with the passage of more than seven years. It is not entirely clear to me how the plaintiffs intend to prove their claim, or how the defendants intend to rebut it. Undoubtedly witnesses will be required, on both sides, to testify to events that occurred long ago now. Memories fade, witnesses become unavailable for one reason or another, and documents go missing. These factors give rise to a rebuttable presumption of prejudice that undermines trial fairness.

[44] The plaintiffs have offered no evidence to rebut the presumption of prejudice that arises here. They have not offered any indication as to what evidence will be required at trial and whether that evidence has, in some way, been preserved. Nor have they identified what witnesses are likely to be required on each side and whether those witnesses continue to be available.

[45] At 7+ years, the presumption of prejudice is strong, but not so strong as to be all but irrebuttable. That said, without any evidence to rebut the presumption of prejudice that arises here, the court is left with little choice.

[46] In the result, I am satisfied that the presumed prejudice arising from the inordinate delay in the circumstances present here has not been rebutted and that the defendants have met their third, and final, hurdle. The plaintiffs’ claim is dismissed for delay under r. 24.01(1)(c).

Costs

[47] The parties are urged to reach an agreement on costs. If they cannot agree, they may make brief written submissions to the court, not to exceed two pages. The defendants’ submissions are to be delivered by April 14, 2025 and the plaintiff’s submissions are to be delivered by April 28, 2025. They may be filed with the court by delivering them by email to my judicial assistant at Jennifer.Smart@Ontario.ca.

C. Boswell
Date: March 31, 2025

Appendix “A”

Date	Step	Unexplained Delay
September 13, 2016	Statement of Claim Issued
October 26, 2016	Notice of Intent to Defend
May 4, 2017	Amended Statement of Defence
May 2017 - Dec 2017	Exchange of Affidavits of Documents
December 18, 2017	Examinations for Discovery Begin
Dec 2017 - May 2019	Further Production of Documents	17 months
July - Oct 2019	Plaintiff seeks dates for continued exams
November 11, 2019	Notice of Change of Solicitor
Oct - Nov 2020	Plaintiff seeks dates for continued exams	11 months (from Notice of Change)
November 24, 2020	Notice of Change of Solicitors
September 21-22, 2021	Continued examinations	10 months (from Notice of Change)
May 17, 2024	Plaintiff’s motion for status hearing	32 months