Francis v. Schneider, 2025 ONSC 2491
COURT FILE NO.: CV-3081/17
DATE: 2025-04-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ashley Francis, Plaintiff
AND: Robert Schneider, Richard Elliot, George Lidster and Sherri Hughes, Defendants
BEFORE: S. Mathai
COUNSEL:
Ashley Francis, self-represented
Ashleigh A. Martin, Counsel for Robert Schneider
Nassim Rahimi, Counsel for Sherri Hughes
HEARD: 2025-04-08
Endorsement
[1] The plaintiff seeks to set aside the Registrar’s dismissal order dated September 12, 2024, and seeks summary judgment against the defendants, Mr. Schneider and Ms. Hughes (collectively, “defendants”). The defendants oppose both motions.
[2] At the outset of the hearing, I advised Ms. Francis that I would not hear the summary judgment motion because the action was dismissed and because there were questions as to whether she had complied with Speyer J.’s June 13, 2024, order (described below).
[3] For the reasons that follow, I grant the plaintiff’s motion to set aside the Registrar’s dismissal order, subject to a timetable described below.
A. Nature of Claim and Procedural History
[4] The action arises out of a motor vehicle accident that occurred on November 22, 2015, in Orillia, Ontario. The statement of claim was issued on November 20, 2017. The statement of claim alleges that Mr. Schneider lost control of his vehicle and started a multi-vehicle collision which caused the plaintiff to collide with other involved vehicles. The plaintiff alleges that she suffered permanent impairment including a traumatic brain injury.
[5] Various statements of defence were delivered between March 26, 2018, and December 20, 2019. The defendants deny both liability and the plaintiff’s entitlement to damages.
[6] I am advised that oral discoveries of the defendants were completed in November 2019, and that the defendants’ undertakings are complete. The plaintiff’s examination for discovery was completed on November 28, 2019. During the examination for discovery, the plaintiff gave 16 undertakings.
[7] The action as against Richard Elliot and George Lidster was dismissed on consent on December 20, 2019, and June 6, 2022, respectively.
[8] Former counsel for the plaintiff removed himself from the record on September 12, 2023. Shortly thereafter, in October 2023, the plaintiff began communicating directly with counsel for the defendants in the hopes of settling the action and answering various undertakings. On May 6, 2024, the plaintiff delivered a Notice of Intention to Act in Person.
[9] In oral submissions, the plaintiff advised that from 2022 to 2023, she had several discussions with her former counsel about what she perceived to be a lack of movement on the file. As a result of her dissatisfaction, the plaintiff decided to represent herself and requested her file back from previous counsel. In her factum, the plaintiff states that, “After years of fighting to get answers/action from her previous legal counsel; the Plaintiff decided to take on the claim herself. Despite her condition and limitations; the Plaintiff felt this was her only option”.
[10] The defendants brought a motion to compel the plaintiff to comply with her undertakings. In response, the plaintiff, now self-represented, commenced a summary judgment motion seeking judgment against the defendants. In her responding motion materials, the plaintiff again takes umbrage with the conduct of her former counsel and alleges that counsel was “neglectful” in the handling of the file (Exhibit D to the plaintiff’s affidavit sworn June 3, 2024).
[11] Both motions were heard before Speyer J. on June 13, 2024. Speyer J. refused to hear the plaintiff’s summary judgment motion and ordered the plaintiff to produce documents responsive to the undertakings within 60 days.
[12] The plaintiff delivered her answers to undertakings on August 13, 2024. The plaintiff’s response describes her efforts to comply with the June 13, 2024, order. The defendants argue that the plaintiff has not complied with Speyer J.’s order.
[13] The deadline to set this action down for trial was initially November 20, 2022. That deadline was extended pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17, which suspended the running of limitation periods and procedural time periods from March 16, 2020, to September 14, 2020. Despite procedural time periods starting again on September 17, 2020, the Ontario Superior Court of Justice refrained from administratively dismissing claims for delay until May 13, 2024 (see Mi5 Print & Digital v. Larmer, 2025 ONSC 729, para. 14).
[14] On September 12, 2024, the action was dismissed by the Registrar pursuant to Rule 48.14(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. On September 27, 2024, the plaintiff wrote to the court indicating that she received the dismissal order on September 25, 2024. The correspondence demonstrates that the plaintiff believed that the action was dismissed because she had not completed her undertakings. The plaintiff asked that the court, “allow [her] the opportunity to properly submit [her] response to [the] order for undertakings”. On October 9, 2024, the plaintiff commenced a motion to set aside the Registrar’s dismissal order.
B. Analysis and Findings
[15] The test for setting aside a 48.14(1) order is well established. It requires a motions judge to consider the following four factors, often referred to as the Reid factors (see Piedrahita v. Costin, 2023 ONCA 404, para. 8):
i) have the plaintiffs provided a satisfactory explanation for the litigation delay;
ii) have the plaintiffs led satisfactory evidence to explain that they always intended to prosecute the action within the applicable time limits but failed to do so through inadvertence;
iii) have the plaintiffs demonstrated that they moved forthwith to set aside the dismissal order as soon as the order came to their attention; and
iv) have the plaintiffs convinced the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiffs’ delay or as a result of steps taken following the dismissal of the action?
[16] There was a time where the jurisprudence from this court required the plaintiff to satisfy each of the Reid factors. However, the Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63, 85 O.R. (3d) 179, rejected this rigid approach in favour of a contextual approach that requires a court to consider and weigh all relevant factors to determine an order that is just (see also Prescott v. Barbon, 2018 ONCA 504, paras. 13-15 and Marché d'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, paras. 20-21).
[17] In Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887, 104 O.R. (3d) 689, Laskin J.A. observed that the overriding objective is to achieve a result that balances the interests of the parties and takes account of the public's interest in the timely resolution of disputes. The four factors provide a structured approach to achieving this result (see also Prescott, at para. 15).
[18] The plaintiff’s affidavit sworn in support of her motion to set aside the dismissal order does not explicitly address the Reid factors. This is not surprising given that the plaintiff is self-represented and would, naturally, struggle with preparing an affidavit that addresses the legal test.
[19] I am mindful of the fact that the burden on setting aside a Registrar’s dismissal order falls to the moving party and a moving party that fails to lead evidence addressing the Reid factors does so at their own peril. Nevertheless, I am required to review the record before me in weighing the Reid factors to determine an order that is just.
(a) The plaintiff has explained some of the delay
[20] In evaluating this factor, I must consider the delay as a whole – from the initiation of this claim (November 20, 2017) to the date of the dismissal order (September 12, 2024) (see Grillo Barristers P.C. v. Kagan Law Firm P.C., 2022 ONCA 303, para. 6). The key question is whether the plaintiff has adequately explained the delay in the progress of the action.
[21] The motion record does demonstrate that the action moved along, albeit slowly. Oral discoveries were completed by November 2019 and two defendants were let out of the action by June 2022.
[22] There are two periods of time where it appears that no active steps were taken to move this action forward. The first is the period between the dismissal against Mr. Elliot (December 20, 2019) and the dismissal against George Lidster (June 6, 2022). This delay amounts to nearly two and a half years. Nothing in the record before me explains what, if anything, happened during this period.
[23] The next period of delay occurred between the date of the dismissal of the action against Mr. Lidster (June 6, 2022) and the date the plaintiff’s former counsel removed himself from the record (September 12, 2023). Based on the plaintiff’s oral submissions, substantiated in part by the record, this delay was caused by the breakdown of the plaintiff’s relationship with her former counsel. I am satisfied that the plaintiff has explained this delay. To be clear, I make no finding about the conduct of the plaintiff’s former counsel as they were not given notice of the motion.
[24] Since October 2023, the plaintiff has been active on the file and has taken steps to move this action forward. The plaintiff responded to the defendants’ request for answers to undertakings, sought settlement of the action, responded to the motion for undertakings and commenced an ill-conceived motion for summary judgment. After Speyer J.’s order, the plaintiff attempted to answer the undertakings and delivered a response to the defendants approximately one month before the action was dismissed by the Registrar.
[25] Based on the plaintiff’s actions from October 2023 onward, I am confident that the plaintiff has not made a deliberate decision not to advance the litigation. The contrary is true. The plaintiff has taken numerous steps to advance the litigation forward, albeit not to the satisfaction of the defendants.
[26] That said, there is a significant period from December 2019 to June 2022, where there is no explanation for the apparent lack of forward progress in the prosecution of this action. As a result, I find that this factor favours upholding the Registrar’s dismissal order. However, the significance of the lack of explanation for the one period of delay is dulled by her explanation for the subsequent delay and the active steps she has taken since October 2023, to move the action forward.
(b) The plaintiff always intended to prosecute the action, but inadvertently failed to meet the deadlines under the Rules
[27] Since October 2023, the plaintiff has taken several steps that demonstrate that she always intended to prosecute the action. The plaintiff even commenced a motion for summary judgment. Putting aside the wisdom of such a motion, the plaintiff has clearly demonstrated her intention to prosecute the action. This is not a situation like many of the cases relied upon by the defendants where no action or little action has taken place after the close of pleadings and the party or the party’s lawyers have effectively abandoned a file (see for example Bourque v. Nogojiwanong Friendship Centre, 2018 ONSC 2494; Ali v. Fruci et al, 2014 ONCA 596; Grillo Barristers P.C. v. Kagan Law Firm P.C., 2022 ONCA 303).
[28] In oral submissions, the plaintiff advises that she did not know that the action had to be set down for trial within five years. In the circumstances, I accept the plaintiff’s oral submission that she was not aware that she was required to set the action down for trial within the times prescribed by the Rules. This is confirmed, in part, by her correspondence with the court on September 27, 2024, where it appears that the plaintiff believed her action was dismissed for failing to complete her answers to undertakings.
[29] While ignorance of the law is no excuse, it does provide an explanation for why the action was not set down for trial despite the close of pleadings and the completion of discoveries. I therefore find that the plaintiff missed the deadline due to inadvertence.
(c) The plaintiff moved forthwith to set aside the dismissal order as soon as the order came to their attention
[30] The action was administratively dismissed on September 12, 2024. On September 27, 2024, the plaintiff wrote to the court and advised that she received the dismissal order by mail on September 25, 2024. On October 9, 2024, the plaintiff commenced a motion to set aside the Registrar’s dismissal order. On the record before me, I find that the plaintiff moved expeditiously to set aside the dismissal order. In oral argument, counsel for Ms. Hughes, who was tasked with addressing the Reid factors for both defendants, conceded that the plaintiff had moved forthwith to set aside the dismissal order.
(d) No evidence of prejudice caused by the delay or dismissal order
[31] The fourth Reid factor requires the plaintiff to convince the court that the defendants have not demonstrated any significant prejudice (see: Prescott, at para. 14).
[32] Prejudice is a key consideration on a motion to set aside a dismissal order (see Finlay v. Van Paassen, 2010 ONCA 204, para. 28). The plaintiff is not required to adduce affirmative evidence to establish that the defendants will not suffer prejudice. Rather, the court must consider all the circumstances in evaluating whether the plaintiff has met their burden (MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28, para. 32).
[33] In considering the fourth factor, I must answer two questions. First, has the plaintiff established that there will be no significant prejudice to the defendants’ ability to defend the action? In this question, the court is only concerned with prejudice that arises from steps taken following dismissal or which would result from the restoration of the action, not the sheer passage of time (see Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592, para. 5; MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, para. 25; Chrisjohn v. Riley, 2015 ONCA 713, para. 36). Second, in light of the delay at issue, does the principle of finality and the defendants’ reliance on the security of its position warrant upholding the dismissal order? (see H.B. Fuller Co. v. Rogers, 2015 ONCA 173, para. 28; Giant Tiger, at paras. 36-40).
[34] Ultimately, courts must balance any prejudice to the defendant against the prejudice to the plaintiff from having the case dismissed (see Armstrong v. McCall, para. 12). As Sharpe J.A. noted in Giant Tiger, at para. 34:
Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.
[35] The record before me does not demonstrate any actual prejudice to the defendants’ ability to present their case at trial. The motor vehicle accident occurred in November 2015. As a result, there is a concern that witnesses may not recall what occurred nearly 10 years ago. In this case, however, discoveries are complete. The transcripts from discoveries can be used to refresh the main witnesses’ recollections (the defendants or the individuals who are no longer defendants to the action), impeach witnesses or the transcripts can be admitted into evidence, if necessary (i.e. hearsay exception). There is no suggestion that there are any other witnesses on the issue of liability that may be impaired in their ability to recall what occurred during the accident.
[36] Further, there is no evidence that documents are unavailable because of steps taken following dismissal or which would result from the restoration of the action. In oral submissions, the defendants point to a few of the plaintiff’s answers to undertakings which the defendants argue demonstrate that complete answers cannot be obtained due to the passage of time. None of the answers demonstrate that evidence cannot be obtained. Rather, the plaintiff’s answers demonstrate that she is still trying to obtain the documentation sought, not that the documents are not available.
[37] Counsel for the defendants argue that the plaintiff’s 2015 Ontario Disability Support Program (“ODSP”) file may no longer be available as it is their understanding that these records are only kept for seven years. There is nothing before me that would allow me to find that the plaintiff’s ODSP file is not available and, even if it is not available, that its unavailability arises from the time following the dismissal order as opposed to the passage of time. I note that based on the defendants’ theory, the ODSP file would not have been kept past 2022, which is well before the September 12, 2024, dismissal order.
[38] The absence of actual prejudice is not determinative of the fourth Reid factor. I must also engage in the balancing exercise described by Sharpe J.A. in Giant Tiger. In conducting that balancing, I find that the public interest in having the action decided on the merits outweighs the prejudice to the defendants’ reliance on the finality of the dismissal order. I come to this conclusion for six reasons.
[39] First, the action has been ongoing for almost seven years (November 2017 to September 2024). This is only two years past the five-year deadline set out in the Rules (as noted above, the 5-year deadline was extended as described above). While the action has moved slowly and has suffered from delays, I do not find that the delay at issue is inordinately long. Moreover, the plaintiff was taking active steps to move the file along after she became self-represented. Second, I find that some of the delay is explained, in part, by the plaintiff’s breakdown in relationship with her former counsel. Third, except for the outstanding undertakings, discoveries are complete. Absent the dismissal order, the action could be set down for trial immediately and the plaintiff would still be required to comply with her undertakings. Fourth, there is no evidence of actual prejudice. Fifth, prior to the dismissal order, the plaintiff took steps to move the action forward. Sixth, the plaintiff moved quickly to set aside the dismissal order.
[40] In coming to this conclusion, I have considered Brown J.A.’s decision in Barbiero v. Pollack, 2024 ONCA 904. Relying on Barbiero, the defendants urge me to find that the delay alone in this case is sufficient prejudice that warrants dismissing the plaintiff’s motion. There is some merit to the defendants’ argument.
[41] In Barbiero, Brown J.A. signalled a shift in the Court of Appeal’s views on prejudice caused by delay. In dismissing an appeal from an order dismissing an action for delay under Rule 24.01, the Court of Appeal found that inordinate delay alone can constitute sufficient prejudice to warrant a dismissal of an action. This was a departure from previous jurisprudence which had held that inordinate delay only creates a rebuttable presumption of prejudice (see Langenecker v. Sauvé, 2011 ONCA 803).
[42] The facts of Barbiero assist in understanding how Brown J.A. concluded that inordinate delay alone could cause prejudice. In that case, the plaintiff commenced a proposed class action in 2003 that was certified on consent the same year. Nearly 21 years later, the plaintiff had not completed discoveries and had not set the action down for trial. After 21 years of minimal litigation activity, the defendants successfully moved to dismiss the proceeding for delay. In upholding the motion judge’s decision, Brown J.A. found at para. 22:
Rule 48.14(1)1 provides that the registrar shall dismiss an action for delay where it has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action. Consequently, if an action has not been set down for trial within those five years, the action crosses the line and begins to move into the realm of “inordinate” delay. An action that has not been set down for trial 21 years after it was started has strayed deep into the dark wood of “inordinate” delay.
[43] Brown J.A.’s decision is a welcomed development in the law. It recognizes the need to create a “culture shift” in a civil justice system that is all too tolerant of lengthy delay. Finding that inordinate delay alone is sufficient to establish prejudice is more in keeping with Rule 1.04 which requires a judge and parties to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.
[44] There is no doubt that Barbiero is an important decision but its applicability to this case is not clear. In my view, there are three key distinguishing features between Barbiero and the present case.
[45] First, Barbiero addressed the test for dismissing an action for delay under Rule 24.01, not the test for setting aside a dismissal order made pursuant to Rule 48.14(1). There is nothing in Barbiero that suggests that the decision has displaced any of the well-established Reid factors, including the fourth factor.
[46] Second, and most importantly, the delay at issue in this case is far shorter than the delay at issue in Barbiero. In Barbiero, the plaintiff had not set the action down for trial in 21 years and there was a period of six and a half years where there was no evidence of any steps being taken in the litigation (Barbiero, at paras. 23-25). The delay at issue in this case has begun, “to move into the realm of inordinate delay” (Barbiero at para. 22) but is a far cry from the delay at issue in Barbiero. In distinguishing Barbiero in this manner, I recognize that there is no specific length of time that sets a bright line on whether delay is inordinate or not. Each case must be decided on its own facts.
[47] Third, the motion judge in Barbiero found that the defendants suffered actual prejudice because of the 21-year delay. This finding was upheld by the Court of Appeal (paras. 30-32). In this case, I have found no evidence that the defendants will suffer prejudice to their ability to defend the action.
[48] It is important to note that the length of delay and presumed prejudice caused by the delay does play an important role in the Reid factors. The length of the delay can and should be considered as part of the fourth Reid factor (see Giant Tiger, at para. 34). As noted above, I have considered the length of delay at issue in this case but have found that, in the circumstances of this case, the finality and security of position principle is outweighed by the countervailing principle of having this action decided on its merits.
Conclusion
[49] Having considered all the factors, I conclude that the Registrar’s dismissal order should be set aside. While some of the delay has not been explained, the remaining Reid factors favour setting aside the dismissal order.
[50] Regrettably, this action has been moving along at a slow pace and should move forward on an expedited timetable. As a result, I grant the plaintiff’s motion and order the following timetable that will ensure the timely progress of the action:
| Remaining steps to be completed | By which party | Date to be completed |
|---|---|---|
| Outstanding undertakings | All parties | On or before June 30, 2025 |
| Any motions arising from undertakings | Defendants | Commenced by July 30, 2025 |
| Mediation (if required) | All parties | By January 30, 2026 |
| Set down for trial | Any party | By February 27, 2026 |
[51] I make no order with respect to costs. While the plaintiff was successful, the defendants’ position was reasonable in that the plaintiff’s record did not directly address the test for setting aside an administrative dismissal order. In addition, the dismissal order was issued because of the plaintiff’s delay in moving this action forward and her inadvertently failing to set the action down for trial. As a result, the parties shall bear their own costs on this motion.
Date: April 24, 2025
S. Mathai