Superior Court of Justice – Ontario

Court File No.: CV-19-58
Date: 2025-03-31

RE: Maria Digalis, Plaintiff
AND: Mark Andre Dajka and Sophia Ann Dajka, Defendants

Before: Justice C. Boswell

Counsel:
Lorne Levine for the Plaintiff
Mark Andre Dajka, in person
No one appearing for Sophia Ann Dajka

Heard: 2025-03-20

Endorsement on Dismissal Motion

[1] The defendant, Mark Dajka, moves to dismiss this six-year-old action for delay. He relies on rules 24.01(1)(c) and 48.14(1) of the Rules of Civil Procedure. For the reasons that follow, the motion is dismissed.

Background

The Alleged Loans

[2] The defendants are former spouses. The plaintiff is the mother of the defendant, Sophia Dajka, and the former mother-in-law of the moving party, Mark Dajka.

[3] In 1999, the defendants borrowed $227,000 from the plaintiff in order to acquire a residence in Toronto (“Home 1”). The loan was secured by a mortgage.

[4] In November 2003, the defendants sold Home 1 and bought a home in Ajax (“Home 2”). The mortgage to the plaintiff was discharged on Home 1 and registered against Home 2. The plaintiff allegedly loaned the defendants a further $25,000 to help them with improvements to Home 2.

[5] In July 2007, the defendants bought a third home as an investment (“Home 3”). The mortgage to the plaintiff was discharged from Home 2 even though that home was not sold. The defendants were apparently having difficulty arranging a mortgage on Home 3 because of the mortgage in favour of the plaintiff on Home 2. The plaintiff says she agreed to discharge the mortgage, even though the loan remained outstanding.

[6] In August 2011, the defendants sold Home 2 and bought a home in Whitby (“Home 4”). The plaintiff allegedly loaned the defendants $50,000 to assist them with the purchase of Home 4. They have repaid $37,500 of that loan, she says, leaving $12,500 outstanding.

[7] In addition, at some point between the purchase of Homes 3 and 4, the plaintiff allegedly loaned the defendants $22,000 to buy a car. In all, the plaintiff alleges that she loaned the defendants $324,000, of which $286,500 remains outstanding.

[8] The loans do not appear to have been documented by any form of loan agreement, apart from the initial mortgage. No specific repayment terms were ever agreed upon, other than that the mortgage referred to the balance owing as “on demand”.

The Claim

[9] In or about 2018, the defendants separated.

[10] On January 8, 2019, the plaintiff issued a Statement of Claim seeking payment of $286,500 from the defendants, together with an order restraining them from selling Home 4.

[11] Mr. Dajka delivered a Statement of Defence on or about February 21, 2019. I do not know if Sophia Dajka ever delivered a Statement of Defence. She did, however, enter Minutes of Settlement with the plaintiff in July 2019. She agreed that she would pay to the plaintiff $143,250 when Home 4 sold. The action was discontinued against her on August 30, 2019.

[12] The plaintiff appears to have filed an affidavit of documents on March 5, 2020. There is no evidence to indicate that the defendant served or filed an affidavit of documents. No examinations for discovery have been conducted by either side.

[13] When the action began, the plaintiff was represented by counsel, Bradley Burns. It appears that Mr. Burns may have initiated a motion for summary judgment which was first before the court on December 19, 2019 and adjourned on consent. It was put over to March 19, 2020 and not heard because of the COVID-related shutdown of the court. It appears that it has never been returned for a hearing.

[14] In any event, the plaintiff and Mr. Burns eventually parted ways. A Notice of Intention to Act in Person was filed by the plaintiff on August 3, 2022.

[15] A trial record was filed on November 1, 2023.

[16] A pre-trial conference has not been scheduled.

The Motion

[17] Mr. Dajka served his motion to dismiss on March 11, 2025. The motion is dated September 18, 2024, which appears to have been the date that Mr. Dajka sought and obtained a hearing date of March 20, 2025 from the local trial co-ordinators’ office.

[18] Mr. Dajka relies on rules 24.01 and 48.14(1) in support of his motion.

[19] Rule 48.14(1) provides for a Registrar’s dismissal of an action for delay if it is not set down by the fifth anniversary of its commencement. Rule 24.01(2) provides that the court shall dismiss an action for delay if subrule 48.14(1) applies, unless the plaintiff demonstrates that dismissal of the action would be unjust.

[20] Rules 24.01(2) and 48.14(1) have no application here, given that the action was set down for trial on November 1, 2023, which is within the mandated five-year time frame.

[21] Rule 24.01(1)(c) provides that a party 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. Although the action has been set down for trial, it was not set down within six months.

[22] I confess that I have never before been presented with a motion to strike an action for delay when that action has already been set down for trial. Concerns about party-driven delay generally focus on the period preceding the listing for trial. Once a proceeding is listed for trial, any further delays tend to reflect court backlogs, not party inertia. Having said that, the next step in the process is a judicial pre-trial. The scheduling of a pre-trial does require some minimal participation of the parties. To date, that step has not been taken in this case, despite the fact that the action was listed for trial almost a year-and-a-half ago.

[23] The application of r. 24.01(1)(c) is not limited to the pre-listing period. I will, accordingly, proceed to the analysis required by that rule.

Discussion

[24] The test to dismiss a proceeding for delay under r. 24.01(1)(c) is three-pronged. The moving defendant must establish the presence of delay that is:

(i) inordinate;
(ii) inexcusable; and
(iii) prejudicial, 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.

[25] I will consider the three prongs of the applicable test in order:

(i) Is the delay inordinate?

[26] Inordinate delay is measured by the time it has taken for the action to proceed from commencement to the motion to dismiss. Here, that covers the period from January 8, 2019 to March 11, 2024, which is 62 months in total. That said, this time period includes 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 plaintiff with that suspension reduces the period of delay to 56 months.

[27] There are no bright line rules about what constitutes an inordinate delay. A contextual approach is required. Some cases are obviously more complex and time-consuming than others. See Bourque v. Nogojiwanong Friendship Centre, 2018 ONSC 2494, para. 31.

[28] This case is not complicated. It is a straightforward claim regarding an alleged debt that, according to the plaintiff, has been acknowledged by the defendant. The claim is sufficiently straightforward that the plaintiff launched a motion for summary judgment after the close of pleadings without conducting discoveries.

[29] Oddly, the claim was set down for trial in November 2023. Despite the passing of a trial record, there is no evidence of any active attempts by the plaintiff – who has the responsibility of moving the claim along – to get it pre-tried and tried. Mr. Levine submitted during argument that he was just in the process of seeking a triage court date in order to fix a pre-trial when the defendant initiated this motion. While I do not doubt the veracity of his submission, there is nothing in the evidentiary record to support it.

[30] On the basis of the thin evidentiary record before me, I conclude that very little has gone on in this action for almost five years. In my view, in the context of this particular claim, the delay has been inordinate.

(ii) Is the delay inexcusable?

[31] Whether 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.

[32] No meaningful explanation for the delay has been offered in evidence by the plaintiff. The simple fact is, she has not pursued the claim with any reasonable dispatch.

(iii) Is the fair trial of this proceeding prejudiced?

[33] The third prong of the applicable test requires the moving party to demonstrate that the inordinate delay has been prejudicial to him in that it has created a substantial risk that a fair trial of the issues will not be possible.

[34] To establish this third prong of the test, a moving party may provide evidence of actual prejudice. Mr. Dajka has not done so here. He alleges that he may be prejudiced because his ex-wife is likely to testify for the plaintiff. That alleged prejudice has nothing to do with the test applicable on a motion to dismiss for delay. The co-defendant’s testimony in favour of the plaintiff may be unfortunate for Mr. Dajka, but it is not unfair.

[35] A moving party may alternatively rely on presumed prejudice which is inherent in long delays. See Ali v. Fruci, 2014 ONCA 596, para. 15.

[36] In some cases, presumed prejudice may be enough to satisfy the third prong of the test under r. 24.01(1)(c). The longer the delay, the stronger the inference of prejudice becomes. I am not satisfied, however, that this is one of those cases where presumed prejudice is sufficient to satisfy the court that the moving party’s right to a fair trial is meaningfully compromised.

[37] Prejudice is presumed, as delays stretch on, because of the fact that memories fade, witnesses become unavailable for one reason or another, and documents go missing over the course of time. A plaintiff may rebut a presumption of prejudice by offering evidence to demonstrate that, despite the delay, a fair trial can still occur.

[38] The plaintiff offered little, by way of responding evidence, to rebut any presumption of prejudice caused by the delay here. Having said that, this is a very simple case. It seems unlikely to me to require any witnesses beyond the plaintiff and the two defendants. It also strikes me as highly likely that the three parties will have little difficulty remembering the transactions in issue. The advancement of funds from the plaintiff to the defendants is also reflected in transactional records, including the mortgage and a $50,000 bank draft. It also appears that Mr. Dajka acknowledged at least a significant part of the debt in a text exchange with his former spouse that occurred just weeks before the claim was issued in this action.

[39] I am simply not satisfied that a fair trial has been prejudiced. Said another way, on the record before me I am not satisfied that there is a substantial risk that a fair trial is no longer possible as a result of the delays incurred to date. In the result, I am not satisfied that the third prong of the applicable test has been met and the motion must be dismissed.

Costs

[40] The plaintiff is entitled, as the successful party, to her costs of the motion on a partial indemnity scale. While the factors enumerated at r. 57.01 are instructive in fixing an appropriate fee, the overarching principles to be applied on an assessment of costs are fairness, reasonableness and proportionality.

[41] Here, the plaintiff seeks just under $5,000 in partial indemnity costs, inclusive of fees and HST. In my view, that amount is a little rich for this particular motion. The motion materials filed were very modest. No factums were prepared, nor was the court referred to any legal authorities, save to some minimal references in Mr. Dajka’s affidavit. The argument was less than one hour.

[42] I fix the plaintiff’s costs at $3,000, plus HST of $390, for a total of $3,390, payable by Mr. Dajka within 30 days.

C. Boswell

Date: March 31, 2025