Court File and Parties

Court File No.: CV-17-00130430-0000
Date: 2025-04-25
Court: Ontario Superior Court of Justice

Between:
Christopher Morgis and Jo-Anne Morgis, Plaintiffs
– and –
Massoud Ghandchi and Abdollah Pour Ahmadi, Defendants

Appearances:
Adam Huff, Counsel, for the Plaintiffs
Serena Rosenberg, Counsel, for the Defendant Ghandchi
Alison Kuchinsky, Counsel, for the Defendant Ahmadi

Heard: March 17, 2025

Reasons for Decision by: S. J. Woodley

Overview

1The Plaintiff, Christopher Morgis, brings this motion pursuant to Rule 48.14(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an extension of time to set the within action down for trial and for an order for a timetable for the completion of remaining steps necessary to have the action set down for trial.

Facts

2The within action was commenced by the plaintiffs on May 24, 2017. The action arises from an agreement between the plaintiffs and defendants to remove the plaintiffs’ personal property and chattels from the property municipally known as 24 Eversley Hall, King City.

3The plaintiffs are the former registered owners of the property which was listed under Power of Sale on January 24, 2014; April 24, 2014; July 25, 2014; October 28, 2014; and October 13, 2016.

4On January 15, 2017, SMV Financial Service Inc. (“SMV Financial”), as vendor under Power of Sale, entered into a binding agreement with the defendant Abdollah Pour Ahmadi (“Ahmadi”) to purchase the property for $3,200,000. The defendant Massoud Ghandchi (“Ghandchi”) acted as Ahmadi’s realtor on the purchase. The agreement included various chattels that were being sold to Ahmadi. The purchase of the property was completed by Ahmadi on February 2, 2017. When Ahmadi took possession of the property it was in the care and control of SMV Financial.

5After Ahmadi took possession of the property, the plaintiff Christopher Morgis (“Morgis”) contacted Ghandchi and asked that the plaintiffs be permitted to remove numerous chattels from the property. An agreement was made to allow the plaintiffs to remove the chattels if they provided a $5,000 security deposit and fulfilled certain obligations. The plaintiffs only provided an $800.00 security deposit and attended the property on three separate occasions with movers, and on various occasions on their own, to remove numerous chattels.

The Actions

6On March 24, 2017, the plaintiffs commenced the within action (the “first action”) seeking, among other things, damages in the amount of $350,000.00, and an order that the defendants release all personal property being detained by the defendants plus interest and costs.

7That same day, the plaintiffs commenced a second action under court file no. CV-17-00130431-0000 (the “second action”) against the within defendants and SMV Financial (the vendor) and Sunil Bhardwaj (the vendor’s representative, “Bhardwaj”) as additional parties seeking similar relief.

8On April 21, 2017, counsel for Ghandchi served a Statement of Defence and crossclaim in both actions.

9On May 5, 2017, counsel for the defendant Ahmadi served a Statement of Claim and crossclaim in both actions.

10In May 2017, the plaintiffs brought a motion for return of their deposit and for return of the plaintiffs’ chattels unilaterally scheduled for June 7, 2017. Morgis did not respond to requests in both May and June of 2017, whether the co-defendant SMV Financial or Bhardwaj had been served with the Statement of Claim, and if the motion was proceeding against them as well.

11The plaintiffs’ motion did not proceed on June 7, 2017.

12On June 28, 2017, counsel for Ahmadi wrote to Morgis and asked, inter alia, regarding the status of the second action. Morgis responded on July 7, 2017, that he had settled with SMV Financial and would not be proceeding against them. Counsel for Ghandchi contacted Bhardwaj that same day and was advised that he was not aware of any settlement and had never been served with the Statement of Claim.

13Morgis did not serve the motion record in June or July of 2017, despite repeated promises to do so. On July 14, 2017, counsel for Ahmadi wrote to Morgis to advise that he could attend at the subject property to remove the plaintiffs’ last remaining chattels from the subject property. On July 20, 2017, an agent for the plaintiffs attended at the property as agent for the plaintiffs to retrieve the remaining chattels from the property and executed a document confirming the presence and removal of those chattels from the property.

14The plaintiffs decided to proceed with a motion for return of the security deposit given to Ahmadi and replevy of personal property. In the motion record served by the plaintiffs in support of their motion, the plaintiffs attached a copy of the Memo which had been agreed to by the parties. The Memo was altered by the plaintiffs and deleted the obligations of the plaintiffs. As a result, an unaltered copy of the Memo was attached to the responding materials prepared by counsel for Ghandchi that had been signed by all the parties.

15On October 10, 2017, the plaintiffs’ motion was heard by Associate Justice Muir, who dismissed the motion and ordered costs payable to Ghandchi in the amount of $2,000.00 within 30 days and costs payable to Ahmadi in the amount of $2,000.00 in the cause.

16On December 5, 2017, after the close of pleadings, Morgis served a sworn affidavit of documents in the first action, signed only by him. No affidavit of documents was served for Mrs. Morgis.

17On December 6, 2017, Ghandchi’s lawyer wrote to Morgis requesting clarification with respect to Schedule “B”, noting that no affidavit of documents had been served for the second action, nor from Mrs. Morgis, seeking a status update with respect to the second action, and advising that the first action and second action constituted a multiplicity of proceedings. Counsel for Ghandchi also enquired why they had still not received the cost award in the sum of $2,000.00 which was due on November 9, 2017.

18Nothing was heard in this matter for 5.5 months until May 26, 2018, when Morgis wrote to Ahmadi’s lawyer (without copying Ghandchi’s lawyer) requesting Ahmadi’s affidavit of documents and seeking to schedule examinations.

19On June 11, 2018, Ahmadi’s lawyer wrote to Morgis advising that the issues raised by Ghandchi’s lawyer’s December 6, 2017 letter had not been addressed, that the first action constituted a multiplicity of proceedings, that Mrs. Morgis had not served an affidavit of documents, that Mrs. Morgis would need to be included in the examinations for discovery, that the costs award payable from the October 10, 2017 motion owed to the defendants remained outstanding, and that both lawyers (for Ahmadi and Ghandchi) should be copied on all correspondence.

20Nothing further was heard in this matter for 13 months. Morgis has sworn that during “much of that time” he was not well and his illness significantly inhibited his ability to push forward with the litigation. However, at no point did Morgis advise the defendants of this fact.

21On July 24, 2019, Morgis wrote to Ghandchi’s lawyer (without copying Ahmadi’s lawyer) advising he would be responding to her December 5, 2017, email.

22On July 29, 2019, counsel for Ahmadi wrote to Morgis (copying counsel for Ghandchi) advising that he (Philip Holdsworth) had taken over carriage of the file for the duration of Ahmadi’s counsel’s maternity leave, and that he (Morgis) was to write to him (Holdsworth) directly.

23Nothing further was heard of from the plaintiffs for a further 6 months until January 24, 2020, when Morgis wrote to counsel for Ghandchi not copying counsel for Ahmadi and sent a consent to dismiss the second action and asked that she execute the same. Morgis did not advise that a consent to dismiss the second action was signed nearly two years earlier as against SMV Financial and Bhardwaj.

24Emails were exchanged regarding the second action, including on February 5, 2020, when Morgis advised he would be dropping off the cost award for the first action, then discontinuing the second action, and then move forward with the first action. Counsel for Ghandchi reminded Morgis that the issues that had been set out in their letter of December 6, 2017, had not yet been resolved.

25On February 10, 2020, Morgis advised that the second action would be dismissed, and he sent a draft Order with respect to the same. Counsel for Ghandchi responded and advised Morgis that he had still not addressed the issue of unnecessary legal costs being incurred as a result of commencing the second action for the same relief he was seeking in the first action. In response, Morgis advised “I have not yet pressed criminal charges that are being contemplated”.

26On February 12, 2020, counsel for Ghandchi advised that her client was prepared to agree to dismiss the second action without costs in exchange for a full and final release. Counsel further advised Morgis that the consent he had forwarded did not have SMV Financial as a signatory and asked if Bhardwaj had confirmed he was agreeable to the dismissal of the action and crossclaims. Morgis never advised that SMV Financial or Bhardwaj had already signed a consent.

27On February 14, 2020, counsel for Ghandchi contacted Bhardwaj to ascertain if Morgis had been in touch with them.

28On February 21, 2020, Bhardwaj advised that he had not heard from the plaintiffs.

29On February 28, 2020, Morgis wrote to Ghandchi’s lawyer advising that he wanted to proceed with the first action and sought confirmation that the Release re the second action did not include claims related to the first action. Again, Ahmadi’s lawyer was not copied with this correspondence.

30On March 3, 2020, Ghandchi’s lawyer wrote to Morgis advising of the purpose of the Release and enclosed an amended Release to reflect the first action was proceeding.

31Nothing further was heard in this matter for 3.5 months until June 16, 2020, when the defendants received a Notice of Appointment of Lawyer appointing Colin A. Brown as plaintiffs’ counsel.

32On July 22, 2020, Mr. Brown wrote to defendants’ counsel to attempt to schedule examinations for discovery and requested they deliver an affidavit of documents no later than August 2020.

33On July 23, 2020, Ghandchi’s lawyer wrote to Mr. Brown informing him that there were numerous issues that needed to be addressed prior to scheduling examinations and suggested a conference call between counsel to address matters directly.

34On July 30, 2020, counsel participated in a conference call to review the history of the Actions. Mr. Brown was informed that no affidavit of documents had been served by Mrs. Morgis, that there were issues regarding Schedule “B” for Morgis’ Affidavit, that Morgis’ Affidavit was deficient for failing to disclose all documents relating to the Power of Sale. Mr. Brown agreed to discuss matters with his clients and advise.

35Nothing was heard from Mr. Brown for 2.5 months until November 17, 2020, when Mr. Brown sent Ghandchi’s lawyer a cheque to satisfy the October 2017 costs award of Associate Justice Muir (3 years after it was due) and requested Ghandchi’s affidavit of documents.

36On November 17, 2020, counsel for Ghandchi replied advising that the issues raised on July 30, 2020, still needed to be addressed – including the multiplicity of proceedings, the dismissal and release of the second action, and Morgis’ deficient affidavit of documents. Counsel suggested that Mr. Brown obtain instructions and then counsel could schedule another conference call to discuss the issues directly.

37On November 25, 2020, Mr. Brown wrote to defendants’ counsel requesting their affidavit of documents and confirming that he would provide affidavits for both plaintiffs. Mr. Brown sought dates for discovery and advised that the plaintiffs would not be “pressing forward” with the other action.

38On November 26, 2020, Ghandchi’s lawyer advised Mr. Brown that she was prepared to schedule discoveries on the understanding that the second action would be resolved prior to attending the discoveries. Counsel enquired whether the plaintiffs were prepared to honour the settlement reached respecting the second action.

39On December 3, 2020, Ghandchi’s lawyer served his affidavit of documents and Schedule “A” productions. Counsel reminded Mr. Brown that she had not received a response to her November 26, 2020, letter, and requested a response to same.

40On December 3, 2020, Ahmadi’s lawyer wrote to Mr. Brown advising that Ahmadi was not prepared to take any further steps in the first action including preparing an Affidavit of Documents or attending discoveries until the plaintiffs honoured the terms of settlement of the second action and served proper Affidavit of Documents.

41Nothing further was heard from Mr. Brown for approximately eleven (11) months.

42On October 18, 2021, Mr. Brown wrote to defendants’ counsel advising that he had instructions to bring a motion to schedule discoveries if the parties could not agree on a schedule.

43On October 21, 2021, Ghandchi’s lawyer wrote to Mr. Brown summarizing the history of the litigation, including that they had not heard from Mr. Brown for 11 months, that he had not provided clarification regarding the second action and Release, that he had not responded to her November 26, 2020 letter, and that the defendants had not received a sworn Affidavit of Documents from both plaintiffs along with Schedule “A” productions. Counsel suggested a second conference call.

44On November 2, 2021, counsel participated in a second conference call. Mr. Brown advised that he wanted to proceed with a motion to consolidate the first and second actions. Mr. Brown was reminded that the defendants still required an affidavit of documents from the plaintiffs.

45On November 10, 2021, counsel participated in a third conference call. Mr. Brown advised that he would seek instructions with respect to the first action.

46Nothing further was heard from Mr. Brown for five (5) months until April 13, 2022, when Mr. Brown wrote to the defendants’ counsel enclosing a detailed property record with photographs of certain chattels advising that the plaintiffs were prepared to pay for the return of the chattels. Counsel engaged in settlement discussions about the chattels until July 5, 2022.

47On July 5, 2022, Mr. Brown wrote to defendants’ counsel advising that the plaintiffs had decided not to proceed with the second action and were prepared to sign a partial release relating to the second action for improvident sale, mental anxiety and depression, and punitive damages.

48Nothing further was heard from Mr. Brown for a further 4.5 months until September 15, 2022, when Mr. Brown requested dates for examinations for discovery in the first action. Mr. Brown made no mention of the second action.

49On October 3, 2022, Ghandchi’s lawyer wrote to Mr. Brown advising that all parties had agreed to a discontinuance on a without costs basis of the second action in exchange for the plaintiffs’ execution of a release and attached the release, which had been amended to allow the first action to continue. Counsel asked if the plaintiffs were prepared to execute the release and discontinue the second action.

50Also on October 3, 2022, counsel for Ghandchi wrote to Mr. Brown regarding the first action noting in response to his request for examination dates that the first action and the second action had not been set down for trial by the fifth anniversary of their commencement and as a result he would need to proceed with a motion for a status hearing.

51On October 20, 2022, counsel for Ghandchi sent a follow up letter to Mr. Brown requesting a response to her October 3, 2022, letter regarding the second action.

52On October 25, 2022, after the expiry of the deadline to set the first action and the second action down for trial, Mr. Brown served a Notice of Motion in the first action to set a timetable and extend the time to set the first action down for trial. No Notice of Motion has been commenced with respect to the second action.

53On October 27, 2022, Ghandchi’s lawyer wrote to Mr. Brown acknowledging his Notice of Motion and asking that he advise with respect to the plaintiffs’ intentions regarding the second action.

54On October 27, 2023, following the filing of the Motion to Extend, Mr. Brown served Morgis’ sworn supplementary Affidavit of Documents and Schedule “A” productions.

55No response has been received to the letters from Ghandchi’s lawyer dated October 3, 20, and 27, 2022, regarding the second action.

56Despite Mr. Brown advising that Mrs. Morgis would be providing an affidavit of documents, no such affidavit has been served. Instead, counsel at the hearing suggested that Mrs. Morgis wished to remove herself from the proceedings, however, no formal motion was made in this regard.

Issues

57The plaintiffs seek to extend the time to set the matter down for trial, which the defendants oppose. As such, the motion is proceeding as a status hearing.

58There are three issues raised on this motion:

a. What is the test on a contested status hearing?
b. Have the plaintiffs provided an acceptable explanation for the litigation delay?
c. Have the plaintiffs demonstrated that the defendants would suffer no non-compensable prejudice should the action be allowed to continue?

Review and Analysis

Issue #1: What is the test on a contested status hearing?

59Rule 48 offers a number of mechanisms that allow the court to control the pace of litigation with a view to resolving disputes in a timely manner. Subrule 48.14(1) empowers the registrar to dismiss an action for delay where it has not been set down for trial by the fifth anniversary of the commencement of the action unless the court orders otherwise.

60Subrule 48.14(1) does not apply if a party files the timetable and draft contemplated by subrule 48.14(4) at least thirty (30) days before the expiry of the fifth anniversary of the commencement of the action. The plaintiffs did not file a timetable or a draft order in this action.

61Subrule 48.14(5) provides that if the parties do not consent to a timetable under subrule 48.14(4), any party may, before the expiry of the applicable period referred to in subrule 48.14(1), bring a motion for a status hearing. The plaintiffs brought the motion after the expiry of the fifth anniversary of the commencement of the action.

62At the status hearing contemplated by subrule 48.14(5), it is incumbent on the plaintiffs to “show cause” why the action should not be dismissed for delay. The court may dismiss the action for delay if it is not satisfied that the action should proceed.

63The decision of a judge presiding at a status hearing is discretionary. The test is two-fold and conjunctive and well-settled: see Beshay v. Labib, 2024 ONCA 186, citing 1196158 Ontario Inc. v. 6274013 Canada Limited, 2012 ONCA 544; Home Town Financial (Timmins) Corporation v. Levesque, 2020 ONCA 349; Faris v. Eftimovski, 2013 ONCA 360; and Kara v. Arnold, 2014 ONCA 871.

64The plaintiff must establish that there is “an acceptable explanation” for the delay and must also demonstrate that the defendant will not suffer any non-compensable prejudice if the action is allowed to proceed. As Sharpe J.A. explained in 1196158 Ontario Inc., at paras. 32-33:

The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the judge to dismiss the action, even if there is no proof of actual prejudice to the defendant.

As I have noted, the goal of the civil justice system is [to] ensure "the just, most expeditious and least expensive determination of every civil proceeding on its merits". Consideration of actual prejudice focuses on the just determination of the dispute on its merits. The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. At some point, a party who has failed to respect the rules designed to ensure timely and efficient justice loses the right to have its dispute decided on the merits. If that were not the case, the rules and the timelines they impose would cease to have any meaning and any hope of ensuring timely and efficient justice would be seriously jeopardized.

65As noted by Dawe J.A. in Beshay, at para. 12, “the Rules previously required dilatory plaintiffs to bring a motion under r. 48 if an action had not been set down for trial within two years, but this deadline has now been extended to five years. This affects the balance between the competing policy goals of having civil actions decided on their merits and of “ensur[ing] timely and efficient justice”.”

Issue #2: Have the Plaintiffs Provided an Acceptable Explanation for the Litigation Delay?

66In the present case, the plaintiffs sought to explain their failure to do anything to move this action forward for more than five years on various grounds including personal illness, the COVID-19 pandemic, and the attempted resolution of a duplicitous action. The plaintiffs also maintained that, during these years, they obtained an order from Associate Justice Muir that required the defendants to “preserve” the property claimed by the plaintiff.

67While I accept that Mr. Morgis suffered from a serious illness, no dates or details were provided related to the illness. No evidence was presented regarding the nature of his illness nor its impact on the plaintiffs. The fact that Mr. Morgis was ill is simply a bald assertion contained in Mr. Morgis’ affidavit which does not form a basis upon which this court can conclude that the illness interfered with the pursuit of this claim.

68With respect to the plaintiffs’ claim that delay was occasioned by attempts to resolve the duplicitous proceeding, the plaintiffs are responsible for the commencement of the duplicitous proceeding and are the authors of any delay associated with the duplicity. The plaintiffs cannot rely upon complications that they themselves created to escape consequences that accompany such complications.

69Parties are expected to put their best foot forward and present cogent evidence to support explanations for delay. Bald assertions of illness or delays caused by a parties’ own actions, are insufficient to discharge the onus.

70With respect to any claim that the defendants share in the delay, as stated in 1196158 Ontario Inc., at paras. 28-29, “a party who commences the proceeding bears primary responsibility for its progress”. However, a defendant’s passivity in the face of inaction by a plaintiff may be a relevant factor in the contextual analysis.

71In the present case, while the defendants were under no obligation to assist the plaintiff in moving the claim forward, the defendants did in fact seek to assist and move the matter forward. More specifically, the defendants wrote clear and concise letters setting out the terms and conditions to move the matter forward, in part, as follows: pay the costs ordered against them by Associate Justice Muir on October 10, 2017; make appropriate corrections to Morgis’ served affidavit of documents; produce the documents listed on Morgis’ served affidavit of documents; prepare and serve an affidavit of documents for the plaintiff Mrs. Morgis; execute the Release for the second action (revised by the Defendants to allow the first action to continue); sign a consent to the dismissal of the second action; and obtain a dismissal of the second action.

72However, despite the defendants’ queries and planned conference calls with the plaintiffs and their counsel, the plaintiffs neither corrected the documents, filed an affidavit of documents for Mrs. Morgis, executed the revised Release, nor obtained the dismissal of the second action.

73Despite being under no obligation, the defendants did take steps to move the matter forward but their efforts were undone by the plaintiffs’ own resistance and inactivity. There is no merit to any argument which attempts to place blame for the delay upon the defendants.

74In the circumstances, I find that the plaintiffs have not provided any satisfactory explanation for the delay.

Issue #3: The Defendants Will Suffer Non-Compensable Prejudice

75The prejudice to be considered is the prejudice to the defendants’ ability to defend the action that would result from its restoration: MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, at para. 25.

76There is no onus on a defendant to demonstrate prejudice at a status hearing: Kendrim et al v. Home Trust Company, 2021 ONSC 5420, at para. 34; and 1196158 Ontario Inc., at para. 32.

77The passage of an inordinate length of time after a cause of action arises presumptively gives rise to trial fairness concerns. Even if there is no actual prejudice, allowing stale claims to proceed will often be unfair to the litigants. The longer the delay, the stronger the inference of prejudice to the defence case that flows from the delay. The Court must consider all of the circumstances in evaluating the strength of the presumption of prejudice: Burgess v. University Health Network, 2022 ONCA 105, at para. 18; Langenecker v. Sauvé, 2011 ONCA 803, at para. 11; DK Manufacturing Group Ltd v. MDF Mechanical Limited, 2019 ONSC 6853, at paras. 28–29.

78The absence of actual prejudice does not automatically or inevitably trump the values of timeliness and efficiency. A party who has failed to respect the rules designed to ensure timely and efficient justice must at some point lose their right to have their dispute decided on the merits: 1196158 Ontario Inc., at para. 33.

79The defendants submit that they will suffer non-compensable prejudice should the action be allowed to continue. The first action has not meaningfully progressed beyond the documentary discovery stage despite being commenced in 2017. The defendants submit that it would be unfair to allow the first action to continue and subject the defendants to examinations for discovery given the passage of time since the events giving rise to the plaintiffs’ claim arose.

80Having considered the issue of delay, I accept the defendants’ submission and find that no persuasive argument was presented by the plaintiffs to rebut the presumption that is inherent in long delays.

81However, even if the defendants would not suffer prejudice from the delay, I would still dismiss the motion and the action on the basis of finding that the plaintiffs had not provided any credible explanation for the delay.

Determination of Motion

82For the foregoing reasons, I hereby dismiss the plaintiffs’ motion and order that the within action be dismissed for delay.

83If the parties are not able to agree on costs, the defendants may file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this decision, and the plaintiffs may file responding costs submissions on the same terms within a further 15 days. Reply, if any, is limited to one page, to be filed within a further 5 days.

Justice S. J. Woodley
Released: April 25, 2025

Morgis v. Ghandchi, 2025 ONSC 2486