Court File and Parties

Court File No.: CV-18-00000575-0000 Date: 2025-08-25

ONTARIO

SUPERIOR COURT OF JUSTICE

Between:

FLORA NABROTZKY Plaintiff

- and -

STEVEN MCKAGUE and STEPHANIE CURRIE Defendants

Counsel:

• Steven Gadbois, for the Plaintiff
• Michael Polvere, for the Defendant

Heard: August 21, 2025

Reasons for Decision

(Motion to set aside administrative dismissal)

LATIMER J.

1The Plaintiff filed claim in 2018. Very little has happened since. Some of the blame lies with the Covid-19 pandemic, but not all. No documents have been shared, there is no discovery plan, nor any discoveries complete.

2The reason for what the Defendant's counsel called "radio silence" is clear – the Plaintiff was content with the status quo that developed after she filed her claim. This litigation concerned ownership of a thirty-foot strip of land between properties owned by the Defendant and the Plaintiff. The Plaintiff alleges the property was sold to her in 1994 by the prior owner, but no public documentation exists. The Defendant bought the land in 2014 and possesses title.

3Between her (contested) purchase in 1994 and 2014, the Plaintiff cared for the land and treated it as her own. That changed in 2014, when the Defendant exerted ownership over what he believed he had just purchased. In 2018, however, after the Plaintiff filed her statement of claim, the Defendant was content to not force the issue and leave it for resolution by the courts.

4That resolution never came, for the reasons set out above. The Plaintiff was content with this new status quo – renewed possession of the disputed land and no corresponding stress and expense of litigation. Nothing was done on the file until Fall 2024, when the Registrar administratively dismissed the Plaintiff's claim.

5The Plaintiff moves to set aside the dismissal. She submits that an equitable assessment of the Reid factors provides a second chance for a final resolution. Mr. Gadbois reminds the court of two overarching legal principles – 1) cases should be decided on their merits, 2) in a timely manner to maintain public confidence in the administration of justice. It is submitted in this case that the former should outweigh the latter and this motion should be allowed.

6The Defendant submits that the Plaintiff's inaction has prejudiced his client and the overall fact-finding process. The Plaintiff's claim appears founded on witness memories, some from thirty years ago. Further, the Defendant has been financially prejudiced because of the ongoing cloud this litigation has placed on his title.

7The parties agree my assessment should focus on four questions:

1. Has there been a satisfactory explanation for the delay?

2. Was the delay caused by inadvertence?

3. Has the Plaintiff moved promptly to set aside the dismissal order?

4. Has there been prejudice to the Defendant?

Analysis

8This is a contextual analysis; the Plaintiff, who bears the onus, need not satisfy every step. These questions are the lens through which I assess what result is ultimately in the interests of justice: Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 OR (3d) 179 (CA), at paras. 23-24.

9Beginning with the first question, while there is a clear explanation for the delay – and perhaps even an understandable reason – I cannot conclude that it is a satisfactory explanation when I consider the purpose of the civil justice system. It is an arena where citizens bring disputes for resolution. The act of filing a claim, to a degree, disadvantages the other side. In this case, beyond the expenditure of legal fees, the Defendant's property value was negatively impacted by the spectre of ongoing litigation. It would be bad policy for the court to incentivize litigants to file a claim but go no further, out of a contentment with the status quo the claim had achieved.

10Second, I do not accept that the delay in this case was caused by inadvertence. As I understand the evidence, the Plaintiff studiously ignored the claim, just as – to use an idiom - one would let a sleeping dog lie.

11Third, I accept that, once notified of the administrative dismissal, the Plaintiff has moved diligently to set it aside. Plaintiff's counsel has fairly but firmly put her position before the court, not overplaying his hand but instead highlighting the more emotional parts of the evidence in aid of succeeding on the motion. While ultimately not successful, I viewed it as astute advocacy in the circumstances.

12Finally, prejudice. I am satisfied there is both financial prejudice to the Defendant and, overall, what might be called evidentiary prejudice. I take judicial notice that memory lessens over the passage of time. A case reliant on the memory of witnesses on dated matters does not just impact the moving party, it impacts the entire fact-finding process. While I acknowledge that this claim always involved a historical aspect (i.e. it was filed in 2018 relying on information from 1994 through 2014), the Plaintiff's knowing act of delay has exacerbated this difficulty. While not determinative on this motion, I do consider this fact a relevant consideration.

Decision

13Overall, the Plaintiff has not met her onus to satisfy me that the administrative dismissal should be overturned. The motion is dismissed.

14The parties are encouraged to agree on costs. In the event they cannot, the Defendant may file written submissions of no more than three pages, exclusive of attachments, by September 10, 2025. The Plaintiff may respond in kind no later than September 22, 2025.