Court File and Parties

Court File No.: CV-16-559905
Date: 2025-07-15
Superior Court of Justice – Ontario

Between:
PharmX Rexall Drug Stores Ltd., Pharma Plus Drugmarts Ltd., Katz Group Canada Ltd., and Katz Group Canada Inc.
Plaintiffs

And:
Inez Antonio, Janie Marie Antonio, John Doe Inc. (carrying on business as Colonial Cleaners), John Doe, John Doe Inc., Gore Mutual Insurance Company, Michael Johnstone, Nailund Properties Limited also known as Nialund Properties Ltd., the Estate of James Mingle also known as The Estate of John Mingle, the Estate of Anthony Mingle, The Estate of Gertrude Dagonese also known as The Estate of Gertrude Dagonese, Carlos Rachello also known as Carlo Rachello, Chubb Insurance Company of Canada, Ian Gallagher ClaimsPro Inc., SCM Insurance Services Inc., John Doe Inc. (carrying on business as ClaimsPro An SCM Company), S.J. Kernaghan Adjusters Limited also known as S.J. Kernaghan Adjuster Ltd. (carrying on business as Kernaghan Adjusters), John Doe (carrying on business as Grantie Claims Solutions), Grantie Claims Solutions GP ULC, SCM Insurance Services GP Inc. and Allianz Global Risks US Insurance Company Compagnie D’Assurance Allianz Risques Mondiaux E.-U
Defendants

Before: Wendy B. Pollak

Counsel:
Krista Chaytor & Hayden Trbizan, for the Respondents
Elen Gasparyan & Elina Marinosyan, for the Appellant Antonio

Heard: 2025-05-01

Endorsement

Introduction

[1] The appellant, Janice Antonio, Executrix of The Estate of Inez Antonio, appeals a discretionary decision from an Associate Justice (“A.J.”) to extend the time to set this action down for trial pursuant to rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The respondents, PharmX Rexall Drug Stores Ltd., Pharma Plus Drugmarts Ltd., Katz Group Canada Ltd., and Katz Group Canada Inc. (together, “Rexall”), submit that in arriving at that decision, the A.J. correctly identified the legal test, addressed and considered the relevant evidence, and properly applied that evidence to the facts and the law.

[3] The discretionary decision of the A.J. is owed a high degree of deference by this court. The appellant’s burden is to show that the A.J. committed a clearly identifiable error of law or a material misapprehension of the relevant evidence or that the analysis was clearly wrong.

Background

[4] On September 6, 2014, there was a fire at the premises municipally known as 6484 Lundy’s Lane, Niagara Falls, in a unit then owned by the late Inez Antonio (“Ms. Antonio”) and leased to certain non-parties. The fire caused damages to the neighbouring unit leased by Rexall and owned by some of the defendants. Following the fire, an agreement was reached whereby Rexall would repair the Rexall leased unit, and the defendants would compensate Rexall for the repairs. Rexall states that it was not paid in full for the repairs.

[5] The notice of action and statement of claim was served on Ms. Antonio on February 27, 2017.

[6] On or around September 2, 2021, before the set down deadline in March of 2022, the rule 48.14 motion, returning on June 6, 2022, was served on the defendants. The motion was adjourned so that the defendants could obtain counsel. The motion was rescheduled to August 28, 2023, at the request of Allianz Global Risks US, a former defendant to this action.

[7] Between November 21, 2022 and January 15, 2024, the action was discontinued against many of the defendants, except for the following:

• Ms. Antonio (now Janice Antonio, Executrix of The Estate of Inez Antonio)
• Gore Mutual Insurance Company
• Nialund Properties Limited, also known as Nialund Properties Ltd.
• The Estate of James Mingle, also known as the Estate of Jim Mingle
• The Estate of Anthony Mingle
• The Estate of Gertrude Dagonese, also known as the Estate of Gertrude Dogonese
• Carlos Rachello, also known as Carlo Rachello

(These defendants, except for Ms. Antonio, are referred to collectively as the “Nialund Defendants”)

[8] The August 28, 2023 motion date was adjourned for the reasons set out in the Endorsement of Associate Justice B. McAfee dated August 28, 2023.

[9] The motion was heard by the A.J. on May 6, 2024, with reasons for the decision dated July 30, 2024, granting Rexall’s requested relief.

Grounds of Appeal

[10] The notice of appeal of the reasons (dated August 9, 2024), summarizes the grounds of appeal as follows:

a. Errors in law:

• Finding that there is no prejudice to Ms. Antonio;
• Finding that there was an acceptable explanation for the delay provided by Rexall; and
• Failing to consider the argument that Ms. Antonio is deprived of the ability to hire an independent expert.

b. Errors of fact:

• Failing to consider evidence presented by Ms. Antonio regarding her deteriorating health condition;
• Finding that Ms. Antonio had not served a notice of intent to defend when it was in fact served on October 2, 2023; and
• Failing to consider the lapse of time and its effect on the memory of Ms. Antonio in the finding of there being no prejudice to Ms. Antonio.

c. Errors of mixed fact and law:

• Finding that Ms. Antonio is liable for damages arising from the fire, and that the only issues to be determined are the nature and cost of repairs and the question of betterment, despite there never being a finding of liability; and
• Finding that viva voce evidence of Ms. Antonio will not be required, and that the only evidence expected to be produced is documentary.

Issues on Appeal

[11] I agree that the issues on this appeal are the following:

• Did the A.J. commit a clearly identifiable error of law?
• Did the A.J. materially misapprehend the relevant evidence?
• Was the A.J. clearly wrong, such that the reasons are not defensible on an application of the relevant law to the facts?

Standard of Review

[12] The standard of review is that to successfully appeal a discretionary decision, the appellant must establish a clearly identifiable error in the application of the law, a material misrepresentation of the relevant evidence, or a result that is clearly wrong as it is not defensible on an application of the relevant law to the facts.

Analysis

[13] I find that for the reasons set out below, the A.J. correctly identified and applied the legal test on the motion. The A.J. found that there was an acceptable explanation for the delay, and if the action proceeded, Ms. Antonio would not suffer prejudice that is noncompensable. The A.J. held that “an acceptable explanation does not need to be perfect or, even, good”, and that “an adequate or possible explanation may suffice”. The A.J. found that in the exercise of her discretion, she accepted the evidence of the adequate imperfect explanation for the delay.

[14] The A.J. did consider and give weight to Ms. Antonio’s health condition and the lapse of time and the effect on witness memory. With respect to the issue of the consideration of prejudice, the A.J. found that there is a presumption of prejudice, but that that presumption does not need to be actively rebutted by Rexall. The court must consider all of the circumstances in the evaluation of the strength of the presumption. Specifically, the A.J. held that:

• There was no evidence before the court of any decline in Ms. Antonio’s health status in the years following the presumptive set down deadline (March 2022). A physician’s letter filed in support of Ms. Antonio’s cross-motion indicated that Ms. Antonio was “of competent mind and able to make her own decisions.” The evidence provided by Ms. Antonio was that she was in a long-term care facility since 2018.
• The assertions that Ms. Antonio would suffer “uncommendable” or even “fatal prejudice” attendant on this action being permitted to continue was a bald statement without foundation as there was no evidence to support the submissions.

[15] Regarding the fact that the Nialund Defendants raised the argument that Chubb’s investigative documents and evidence may no longer be available, the A.J. wrote:

[H]ow does counsel know this? Is it a fact or is it speculation? Have the Nialund defendants had any discussions with Chubb or, indeed, with any of the parties against whom the claims have been discontinued? There is no evidence from the Nialund defendants, directly, on this issue.

[16] The same analysis was applied to Ms. Antonio’s submission that there is lost and unretrievable evidence, as there was no evidence to support this submission. The A.J. noted that Rexall had preserved all relevant documents and further, that there was no evidence provided by Ms. Antonio with respect to her inability to hire an expert. I agree that the A.J. did not and should not have considered evidence which was not before the court.

[17] The evidence was that at the time of the status hearing, Ms. Antonio was 104 years old. Her memory worsened over time and her health declined so that her ability to recall specific events had eroded significantly.

[18] The A.J. did consider the available evidence about the deteriorating health condition of Ms. Antonio. Ms. Antonio did not swear an affidavit in support of the cross-motion or opposition to the Rexall motion. Most of the affidavit evidence on the motion was hearsay. At paragraph 13 of the reasons, the A.J. held:

Considering the evidence adduced on behalf of Inez Antonio and taking it at its highest and admittedly making allowances in doing so, I accept that Inez Antonio is of advanced age and is said to be suffering from a number of health issues. However, and this is key, according to Janice Antonio (and as set out in the physician’s letter filed in support of Inez Antonio’s cross-motion), Inez Antonio is communicative and is “of competent mind and able to make her own decisions”. She does not have and does not, therefore, appear to need a litigation guardian. This evidence attenuates the suggestion of prejudice. Then too, and importantly, even as at the time that this litigation was commenced, Inez Antonio was of advanced age. There is no evidence before the court as to any decline in Inez Antonio’s health status in the years following the presumptive set down deadline. [Emphasis added.]

[19] The A.J. further stated with respect to the issue of passage of time in the analysis of prejudice as follows, at paragraph 16:

And to say that Inez Antonio will suffer “uncommendable” or even “fatal prejudice” attendant on this action being permitted to continue (if it is permitted to continue), as Janice Antonio deposes on this motion, is a bald statement without foundation.

[20] The A.J. did not state that Ms. Antonio had failed to serve a notice of intent to defend. At paragraph 7 of the reasons, the A.J. wrote:

The motion was adjourned, further, to May 6, 2024. At the time that this motion was brought, none of Gore Mutual Insurance Company, Nialund Properties Limited and Inez Antonio had delivered even notices of intent to defend. [Emphasis added.]

[21] The A.J. did not make a finding that Ms. Antonio is liable for the damages incurred as a result of the fire, nor did the A.J. find that the only issues remaining are the nature, cost, and question of betterment with respect to the repairs. The A.J. referenced Rexall’s arguments and observed what is “largely” at issue in the action, at paragraph 4:

The plaintiffs say that there was a cost-sharing arrangement settled on by the parties with some repairs to be conducted by the Nialund defendants, and others by them. They say, further, that they were to be reimbursed for the costs incurred by them, which costs exceeded $1.2 million. By early May of 2015, the work was completed by the plaintiffs were not, they submit, reimbursed in full (or as they expected to be reimbursed). At issue, largely, is the question of betterment, as [sic] relates to the plaintiffs’ premises. [Emphasis added.]

[22] Further, the A.J. did not make a finding that viva voce evidence would not be required, or that the only evidence to be produced is document-based. At paragraph 14, the A.J. stated:

Then too, and in any event, the plaintiffs posit that, with the issues in the litigation being what they are (and with the focus of the inquiry being largely document based, i.e. an inquiry as to the nature and cost of repairs and the question of betterment), it does not follow that viva voce testimony on the part of Inez Antonio will be required (even if communication with Inez Antonio is strained because she is hard of hearing). Further, an accommodation can be made for her, if it needs to be. [Emphasis added.]

[23] This was a reference to the nature of the claims and preservation of documents by Rexall and that such circumstances favoured continuing the action. No findings of fact or any procedural orders that bound Ms. Antonio were made. The A.J. suggested that an accommodation could be made for Ms. Antonio in the event that there would be viva voce testimony.

Hearing de novo and Prejudice

[24] On this appeal, the plaintiff submits that the appellant improperly seeks relief for a hearing de novo, arguing that the recent passing of Ms. Antonio is proof of prejudice and submits that her evidence at trial will be highly prejudicial to the appellant.

[25] I find that a hearing de novo is not appropriate, as the decision is owed deference.

[26] As well, the appellant has not substantiated what evidence, if any, would be missing from Ms. Antonio that would not otherwise be in the possession of her estate.

[27] Finally, the action is being continued by Ms. Janice Antonio, as the executrix of Ms. Antonio’s estate. She was a former defendant in the action, who swore affidavits in support of Ms. Antonio’s cross-motion, and she has knowledge of the matters in this action.

Disposition

[28] For all of these reasons, I dismiss the appeal with costs payable to Rexall.

Costs

[29] As the respondent is the successful party on this appeal, it is entitled to its costs on a partial indemnity basis as submitted at the hearing of this appeal. However, if the parties are unable to agree on the issue of costs that arise as a result of the rules of Offers to Settle, the appellant may make submissions of no more than two pages, double-spaced, sent to the respondent, uploaded to Case Center, and with a copy sent to my assistant Roxanne Johnson at Roxanne.stammers@ontario.ca by July 24, 2025. The respondent may make submissions of no more than two pages, double-spaced, sent to the appellant, uploaded to Case Center, and with a copy sent to my assistant by August 5, 2025. No reply submissions will be accepted. If no submissions are received by August 5, 2025, costs will be deemed to be settled.

Wendy B. Pollak
Date: July 15, 2025