Court File and Parties

Court File No.: CV-17-569695

Motion Heard: July 24, 2025

Reasons Released: October 28, 2025

Superior Court of Justice – Ontario

Between:

Richard Kalovski Plaintiff

- and -

City of Toronto and Canadian Pacific Railway Company Defendants

Before: Associate Justice McGraw

Counsel:

• S. Pevalin (spevalin@steinmetzlawyers.com) – Counsel for the Plaintiff
• N. Carmichael (ncarmichael@fasken.com) – Counsel for the Defendant Canadian Pacific Railway Company
• C. Davies (cara.davies@toronto.ca) – Counsel for the Defendant City of Toronto

Reasons For Endorsement

I. Background

[1] This is a status hearing motion by the Plaintiff under Rule 48.14(5) to extend the time to set this action down for trial.

[2] The Plaintiff commenced this action by Statement of Claim issued on February 15, 2017. The Plaintiff alleges that he sustained serious injuries when he was struck in the head by a falling piece of concrete as he walked underneath a bridge located on Scarlett Road in Toronto on November 28, 2016. The Plaintiff claims $2,000,000 in damages. The bridge is owned by the Defendant Canadian Pacific Railway ("CPR") and the sidewalk is owned by the City of Toronto (the "City"). The Defendants delivered Statements of Defence and Crossclaims in May 2017.

[3] The City and CPR served their affidavits of documents on December 8, 2017 and April 13, 2018, respectively. The Plaintiff served a limited unsworn affidavit of documents. Examinations for discovery were originally scheduled for March 1-2, 2018, however, they were adjourned at the request of the City. Examinations were re-scheduled for July 12 and 16, 2019, however, counsel for both Defendants advised Plaintiff's counsel that there were deficiencies in the Plaintiff's documentary productions and that they would only proceed to examinations if the Plaintiff undertook to produce further documents, preferably before his examination. The Plaintiff produced limited additional documents. In light of the production issues, the Plaintiff ultimately consented to adjourn the examination.

[4] The Plaintiff attended his first examination on September 24, 2019. However, additional document production issues were identified during the examination particularly with respect to the Plaintiff's income loss claim related to his business and therefore, the examination was adjourned on consent. The Plaintiff gave 22 undertakings and his counsel acknowledged that further efforts were required with respect to his productions. The Defendants' examinations were cancelled. The Plaintiff delivered limited medical records on January 7, 2020.

[5] The Plaintiff's current counsel was retained on January 28, 2021. The Plaintiff produced limited medical records on March 10, 2021. No further steps were taken until February 9, 2022 when Plaintiff's counsel requested that Defendants' counsel advise what documents they had already received from the Plaintiff. CPR's counsel replied that day and corresponded further with counsel regarding status of the action and outstanding documents. The Plaintiff served a Trial Record on February 11, 2022.

[6] On October 5, 2022, counsel produced 2015 tax records for the Plaintiff's business and advised that the Plaintiff was having difficulty locating his records. Counsel corresponded to identify the kinds of documents CPR had still not received. The Plaintiff served an updated unsworn affidavit of documents on May 24, 2023, and an updated sworn affidavit of documents on June 26, 2023. In the interim, CPR's counsel advised that CPR was prepared to attend examinations for discovery notwithstanding the lack of documentary production.

[7] The Plaintiff's continued examination took place on September 18, 2023. There were more production issues as the Plaintiff advised that there were "45 piles" of documents regarding his business income loss claim at his office that he had not produced. The Plaintiff gave 88 additional undertakings at his examination. On March 7, 2024, the Plaintiff produced 2 documents which partially satisfied 2 of the undertakings. Counsel sent the undertakings chart from the Plaintiff's examination to Plaintiff's counsel on March 11, 2024.

[8] On March 26, 2024, Plaintiff's counsel wrote to CPR's counsel inquired, given that the action was at risk of being administratively dismissed, whether CPR would consent to a timetable. On May 15, 2024 the parties consented to the following timetable: answers to undertakings to be delivered by July 1, 2024; mediation completed by December 1, 2024; and the action to be set down for trial by January 15, 2025. On the same day, the Plaintiff served a Notice of Motion for this status hearing returnable March 20, 2025. The Plaintiff served his Motion Record on February 27, 2025.

[9] By email dated June 27, 2024, Plaintiff's counsel advised that the Plaintiff had advised that after working with his accountant he had compiled a box with approximately 4,000 documents with respect to his business income loss claim and his outstanding undertakings which he would be delivering to counsel that day. Counsel advised that he was out of the office with an injury and requested 4-6 weeks for his office to review, organize and deliver the documents. On July 2, 2024, CPR's counsel advised that given the timetable he would have expected the documents to be delivered already. The documents were never delivered and CPR's counsel was unable to obtain a response to emails sent to Plaintiff's counsel in October-December 2024 (except an automatic response indicating that the previous lawyer had left the firm) until January 12, 2025 when Harry Steinmetz requested a copy of the undertakings chart. Mr. Steinmetz included an email asking lawyers at his firm to work on the undertakings indicating that the file was "completely ignored" by the previous two associates who worked on it.

[10] On January 20, 2025, a law clerk from Plaintiff's counsel's office contacted CPR's counsel and requested that CPR agree to a half-day mediation with a roster mediator. In subsequent correspondence, CPR's counsel advised that CPR would only agree to mediation on the condition that the Plaintiff comply with the consent timetable and provide answers to the outstanding undertakings prior to the mediation. Notwithstanding CPR's objections, the Plaintiff had a roster mediator appointed through the mediation coordinator's office.

[11] Plaintiff's counsel requested 80 minutes on the earliest possible date when this motion was scheduled. It was scheduled for 70 minutes on March 20, 2025. Counsel appeared before Associate Justice Wiebe at a case conference on March 7, 2025. The Plaintiff requested that mandatory mediation be scheduled and that the motion time be increased to 120 minutes. Associate Justice Wiebe directed that mediation could not proceed pending this motion and directed counsel to speak to the motions office regarding the motion time.

[12] When the parties first appeared before me on March 20, 2025 the Plaintiff had not filed a factum and it remained scheduled for 70 minutes which was insufficient. I adjourned the motion to June 20, 2025 for 4 hours. The motion was then rescheduled by the court for July 24, 2025.

II. The Law and Analysis

Status Hearings Generally

[13] Rule 48.14 states:

(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):

1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action.

(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing.

(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing.

(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,

(a) dismiss the action for delay; or

(b) if the court is satisfied that the action should proceed,

(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,

(ii) adjourn the status hearing on such terms as are just,

(iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or

(iv) make such other order as is just.

[14] The test on a motion for a status hearing is two-fold and conjunctive. The plaintiff bears the onus of demonstrating that: i.) there is an acceptable explanation for the delay; and ii.) that if the action were allowed to proceed, the defendant would not suffer non-compensable or actual prejudice (Faris v. Eftimovski, 2013 ONCA 360 at para. 32; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at para. 32; Kara v. Arnold, 2014 ONCA 871 at para. 9; Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 at para. 43).

[15] The plaintiff bears the onus to show cause why the action should not be dismissed for delay (Faris at para. 33). The focus of the court's inquiry is on the conduct of the plaintiff who, as the party who commenced the proceeding, bears primary responsibility for its progress (Faris at para. 33; 1196158 Ontario Inc. at para. 29). The conduct of the defendant may be relevant, such as where a plaintiff who tries to move an action along is faced with some resistance or tactics that are not consistent with a willingness to see a relatively straightforward case proceed expeditiously (1196158 Ontario Inc. at para. 29).

[16] The determination as to whether to allow an action to proceed is discretionary and determining whether it would be unfair for the action to be dismissed requires a consideration of the circumstances and a balancing of the parties' respective interests (Koepcke v. Webster, 2012 ONSC at para. 22; Carioca's at para. 43). While Rule 48.14 was designed to have some "teeth", the court should not take a rigid or purely formalistic approach to the application of timelines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits (Kara at para. 10). The court must apply a contextual approach weighing all of the relevant factors to determine the order which is just in the circumstances (Kara at paras. 12-14; Cobalt Capital CA Textile Investments, 2017 ONSC 4664 at para. 46).

[17] The Court of Appeal has identified two competing principles which arise from Rule 1.04(1) within the context of a disposition without trial: i.) the public interest in timely justice and discouraging delay; and ii.) permitting actions to be determined on their merits (Faris at para. 24; Koepcke at para. 23):

"Dismissals for delay involve a careful balance between two competing values. On the one hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines." (Kara at para. 9)

[18] The Court of Appeal has also held that determining matters on their merits is generally preferred:

"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." (Marché d'Alimentation Denis Thériault Ltée. v. Giant Tiger Stores Ltd., 2007 ONCA 695 at para. 34)

Has the Plaintiff Provided An Acceptable Explanation For the Delay?

[19] For the reasons below, I conclude that the Plaintiff has not provided an acceptable explanation for the delay.

[20] Whether an explanation for delay is "acceptable" depends on the circumstances of each case (Koepcke at para. 22). "Acceptable" does not mean that the explanation must be "good", only "adequate" or "passable" and "cogent" and the terms "acceptable", "satisfactory" and "reasonable" are interchangeable in this regard (2046085 Ontario Inc. v. Raby, 2014 ONSC 774 at para. 6; Greenwald v. Ridgevale Inc., 2016 ONSC 3031 at para. 17; Carioca's at para. 45; Postmedia Network Inc. v. Meltwater Holding B.V., 2017 ONSC 6036 at paras. 13-15). The progress of an action does not have to be ideal and the court should not conduct a week by week or month by month analysis and should consider the overall conduct of the litigation (Goldman v. Pace, 2017 ONSC 1797 at para. 5; Greenwald at para. 17; Carioca's at para. 46). The court should also consider if the plaintiff has demonstrated an intention to advance the action (Koepcke at para. 15). A plaintiff may have to give a more robust explanation to explain delay after five years than was the case after two years under the previous rule (Erland v. Her Majesty the Queen in Right of Ontario, 2019 ONSC at paras. 9 and 31; aff'd 2019 ONCA 689).

[21] This action is over 8 years old with significant overall delay and periods of delay. It is not in dispute that the primary reason for the delay is the Plaintiff's failure to produce relevant documents and answer his outstanding undertakings at all or on a timely basis. The only evidence filed by the Plaintiff is an affidavit from his current lawyer Mr. Steinmetz (the "Steinmetz Affidavit"). There is no direct evidence from the Plaintiff. This means that there is no evidence from the Plaintiff himself explaining the delay or stating that he always intended or intends to pursue this action. Plaintiff's counsel advised that the Plaintiff is not relying on his alleged cognitive impairments resulting from the incident as a reason for the delay.

[22] The Steinmetz Affidavit provides no explanation regarding the delay prior to January 28, 2021 when his current counsel was retained. This is a significant period of almost 4 years and includes the delays in initially producing documents which in turn delayed the scheduling of the Plaintiff's first examination and then resulted in an adjournment when it did proceed in addition to the year 2020 when virtually no steps were taken.

[23] In my view, the Steinmetz Affidavit does not provide an adequate explanation for the delay after January 28, 2021 nor does it support the conclusion that the Plaintiff always intended to pursue this action. Mr. Steinmetz states that the main issue in this action is the outstanding answers to undertakings, that his office has made diligent efforts to obtain the answers but has had issues obtaining them from the Plaintiff and his accountant. He sets out his office's ongoing efforts to obtain documents and answers to the outstanding undertakings from the Plaintiff and his accountant starting on June 2, 2022 with periodic follow-ups in October-November 2023, and January 2024, March 2024, June 2024 and January-February 2025. Mr. Steinmetz further explains that the Plaintiff advised at various times that he was ill, would be meeting with his accountant or would be sending the documents soon. His accountant only responded to one request and not until March 13, 2025. Mr. Steinmetz's office finally received the box of 4,000 documents on June 27, 2024. Mr. Steinmetz states: "the contents of the box, however, were disorganized and contained numerous separate documents with no clear indication of what was what". Mr. Steinmetz goes on to state that sorting through the box has taken clerks and assistants a significant amount of time because "Mr. Kalovski has not provided any assistance in identifying what documents are what in the box while still claiming that any outstanding Undertakings are in the box". A clerk requested answers to the undertakings from the Plaintiff on January 30, 2025. The Plaintiff advised that the undertakings are "in the box" and did not respond to a subsequent email on February 20, 2025. On March 19, 2025, the day before the initial return of this motion, Plaintiff's counsel produced some documents including answers to approximately 3 undertakings. Plaintiff's counsel also confirmed that the Plaintiff's accountant advised that records with respect to 26 undertakings were unavailable as his bookkeeper only keeps the relevant records for 7 years.

[24] Mr. Steinmetz's evidence demonstrates that counsel has made ongoing efforts to obtain documents and answers to the undertakings from the Plaintiff, however, the Plaintiff has delayed in providing them and not assisted in reviewing the documents he has sent so that they can be produced. As of the return of this motion, 16 of 19 undertakings given by the Plaintiff almost 6 years ago and 69 of his 85 undertakings from his 2023 examination remain outstanding. The Plaintiff did not provide any documents until he sent the box of 4,000 documents on June 27, 2024 which remain unproduced because the Plaintiff has failed to assist as requested by his counsel. The only explanation for the Plaintiff's delay in the Steinmetz Affidavit is that he was ill on one occasion, had not met with his accountant or simply had not done it. There is no explanation for why the Plaintiff has not provided any assistance in reviewing the documents to answer his undertakings other than he has told his counsel they are in the box. I do not accept that any of this is a sufficient explanation for the delay. Rather, the Steinmetz Affidavit is more of a summary of counsel's unsuccessful attempts to get the Plaintiff to fulfil his obligations. There is also no explanation for the over one-year delay until Plaintiff's counsel requested a list of documents previously provided to Defendants' counsel and the delivery of updated affidavits of documents in May and June 2023, with only limited production to the Defendants in the interim.

[25] The Plaintiff's failure to move this action forward is more pronounced given the multiple accommodations and indulgences given by the Defendants. There is no evidence or suggestion that the Defendants have contributed to the delay or impeded the progress of these proceedings. In fact, the Defendants agreed to attend examinations for discovery on two occasions notwithstanding the significant lack of documentary production and consented to a timetable 7 years into the action. When the Plaintiff failed to answer his undertakings in compliance with the consent timetable, the Defendants advised that they were still prepared to attend mediation on the condition that the undertakings were answered prior to mediation. This was reasonable in the circumstances. I reject the Plaintiff's submission that CPR is responsible for the Plaintiff's inability to set this action down for trial because they would not agree to attend mediation notwithstanding that the undertakings were not answered. In this respect, I accept the Defendants' submission that they were not obligated to agree to attend mediation given the Plaintiff's non-compliance with the consent timetable in which he agreed that they would be provided in advance of mediation. The Plaintiff failed to make any additional productions or answer his undertakings which were necessary for mediation to have any utility. By not complying with the timetable it was the Plaintiff who made it impossible for the parties to attend mediation and therefore for the Plaintiff to set the action down for trial. It was not up to the Defendants to agree to yet another timetable particularly without any commitment from the Plaintiff to answer his undertakings. I also reject the Plaintiff's argument that the Defendants should have brought a motion to compel the Plaintiff to answer his undertakings. This ignores the fact that the Plaintiff bears primary responsibility for moving his action forward and the focus here is therefore on the Plaintiff's conduct.

[26] In addition to the absence of evidence from the Plaintiff regarding his intention, there is no basis to otherwise conclude from the record that the Plaintiff intended or intends to pursue this action. The record demonstrates that the Plaintiff has taken few steps to satisfy his undertakings and produce documents and therefore move this action forward. Even when he did produce the documents, he has not provided the assistance requested by counsel to review and organize the documents in order to satisfy his undertakings. The Plaintiff has not conducted himself as a litigant who intends to move this action forward. I do not accept the Plaintiff's submission that the Plaintiff's sporadic and limited efforts to move this action forward such as answering some of his undertakings, attending examinations for discovery and trying to schedule mediation demonstrate that he intended to move this action forward.

[27] These conclusions are further supported by the limited steps, including the productions the day before the initial return date, taken by the Plaintiff to answer his outstanding undertakings or produce additional documents in the 14 months since he brought this motion, particularly no efforts to review the 4,000 documents which his counsel has identified. The Plaintiff has also not proposed a timetable to advance this action including timelines for answering the remaining undertakings and producing the additional documents in the event that the court were to extend the set down date.

[28] The Plaintiff also submits that the delay can be attributed to solicitor inadvertence. The Court of Appeal has held that the preference that actions be decided on their merits is even stronger where there is delay due to counsel's inadvertence:

"The court's preference for deciding matters on their merits is all the more pronounced where delay results from an error committed by counsel. As the court stated in Habib, at para. 7, '[O]n a motion to set aside a dismissal order, the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel.' In Marché, Sharpe J.A. stated, at para. 28, 'The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor' (citations omitted). (H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 27)

[29] There are numerous difficulties with the Plaintiff's assertion that the delay can be attributed to counsel inadvertence. There is no evidence from the Plaintiff attributing any of the delay to his counsel, stating that he relied on his counsel to complete tasks or steps or that counsel was non-responsive or any explanation regarding what counsel did or did not do that delayed the action. While Plaintiff's counsel argues that some of the delay can be attributed to his first counsel due to the delays in producing documents, there is no evidence to support this assertion in the Steinmetz Affidavit. Contrary to the claim that counsel is responsible for the delay, the Steinmetz Affidavit supports the conclusion that counsel has tried to move this action forward but has been unable to do so because the Plaintiff and his accountant have failed to cooperate or respond in a timely manner or at all. Therefore, it is the Plaintiff who has failed to do what his counsel requires in order to move the action forward. This is consistent with the overall record and supports the Defendants' submissions that the delay is attributable to the Plaintiff himself. The only evidence of counsel delay is the email from Mr. Steinmetz stating that lawyers in his office "completely ignored" the matter. In the context of the Plaintiff's overall inaction and lack of cooperation, I cannot conclude that this establishes that the delay was caused by solicitor inadvertence, if ignoring the file completely can even be characterized as inadvertence at all.

Have the Plaintiffs Established that the Defendants Would Not Suffer Non-Compensable Prejudice?

[30] I also find that the Plaintiff has failed to demonstrate that the Defendants would not suffer non-compensable prejudice if the action is permitted to proceed (1196158 Ontario Inc. at para. 32).

[31] Actual prejudice is any prejudice which would impair the Defendants' ability to defend this action resulting from the Plaintiffs' delay, not due to the mere passage of time (Carioca's at para. 57; H.B. Fuller Company et al. v. Rogers (Rogers Law Office), 2015 ONCA 173 at para. 37). Prejudice is inherent in long delays as memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost giving rise to a presumption of prejudice due to concerns of trial unfairness (Langenecker v. Sauvé, 2011 ONCA 803 at para. 11; DK Manufacturing Group Ltd. v. MDF Mechanical Limited, 2019 ONSC 6853 at para. 28; 1196158 Ontario Inc. at para. 42). The longer the delay, the stronger the inference of prejudice to the defence flowing from that delay (Langenecker at para. 11). In the absence of evidence on the availability of witnesses and relevant documents or other evidence, a plaintiff will be unable to establish that there is no non-compensable prejudice (DK Manufacturing at para. 41). The court must consider all of the circumstances in evaluating the strength of the presumption (1196158 Ontario Inc. at para. 6(b); DK Manufacturing at para. 29).

[32] This action is over 8 years old and has been plagued by ongoing delays due to the Plaintiff's outstanding undertakings and productions. This is a significant period of time over which memories have faded, some documents are now unavailable with may more still unproduced and in my view, a presumption of prejudice arises. The Plaintiff has not provided any evidence to demonstrate that the Defendants would not suffer prejudice if the set down date is extended, including any evidence confirming the availability of witnesses and documents. I accept CPR's submission that there is some prejudice related to its key witness, Roger Lemelin, Senior Bridge Manager Maintenance Canada East given the passage of time, the large number of bridges which he has inspected over the intervening years and the fact that the relevant inspection reports will be 8-12 years old by trial. However, as the volume of bridges and reports would be an issue in any event, I do not agree with CPR that this alone is sufficient to constitute actual prejudice.

[33] Mr. Steinmetz states in the Steinmetz Affidavit that he does not believe that the delay in providing answers to undertakings has affected the Defendants' ability to defend the action, that the passage of time does not constitute prejudice and that any prejudice can be compensated for by costs. These are legal submissions not evidence. He also states that he has no reason to believe that the records which his firm is seeking do not exist "rather, we either don't have them yet, or they exist somewhere in Mr. Kalovski's box of documents he provided and which we are sorting through." However, the accountant has advised that some documents are no longer available because certain records were only kept for 7 years. In my view, this is actual prejudice arising from the Plaintiff's delay as they likely could have been preserved had the Plaintiff requested them sooner. Correspondence produced by the Plaintiff indicates that these documents may have been requested for the first time in February 2025. Mr. Steinmetz's evidence also does not demonstrate that additional documents are available or have not been lost. Rather, it only confirms the uncertainty which exists because the Plaintiff has not satisfied his obligations to answer undertakings and produce documents and has failed or refused to assist in reviewing the documents. Quite simply, neither the Plaintiff nor his counsel know if the documents in the box are responsive to the outstanding undertakings or what might be missing. Nobody will know until the documents are properly reviewed and organized, however, over a year after they were delivered there is still no proposal or timeline for when the review will be completed.

[34] The unavailable documents and uncertainty regarding answers to undertakings and documents undercuts the Plaintiff's claim during oral argument that there is no prejudice because this is a document-driven case. To the contrary, even accepting that this is a document-driven case, the Plaintiff's inability to confirm what documents are available, what is missing and the lack effort to review and produce the documents further supports the conclusions that there is prejudice to the Defendants. In addition, the Plaintiff has advised that he has been unable to locate the piece of concrete which he claims fell on him, which would be evidence at trial.

[35] Having considered and weighed all of the relevant factors, I conclude that the Plaintiff has not shown cause that the time to set this action down for trial should be extended. Given the absence of an acceptable explanation for the delay, the Plaintiff's lack of intention and the prejudice to the Defendants, the proper balancing of the parties' rights is to dismiss this motion and this action.

III. Disposition and Costs

[36] Order to go dismissing the Plaintiff's motion to extend the set down date and dismissing this action for delay.

[37] If the parties cannot agree on the costs of this motion, they may file written costs submissions not to exceed 4 pages (excluding Costs Outlines and other attachments) on a timetable to be agreed upon by counsel.

Released: October 28, 2025

Associate Justice McGraw