Court File and Parties
Court File Nos.: CV-15-00000817-0000 and CV-15-00001176-0000 Date: 2025-12-31 Ontario Superior Court of Justice
Between:
WAZIM AKBAR GANESH, SHARDA GANESH, DAVID FRANCISSEN, and TIFFANY GANESH, Plaintiffs
-- and --
HIS MAJESTY THE KING IN RIGHT OF ONTARIO and JOHN DOE(S), JANE DOE(S) and JORDAN MCPHEE, Defendants
Adam Huff and Maya Yuel, (Articling Student), Agent for Counsel for the Plaintiffs
Timothy Gindi and Liam Dart, Counsel for the Defendant Crown
Between:
PAUL JOSEPH DIXON, JOSEPH DIXON and MARILYN DIXON, Plaintiffs
-- and --
HIS MAJESTY THE KING IN THE RIGHT OF ONTARIO, JORDAN MCPHEE, JOHN DOE and JOHN DOE, Defendants
Heard: November 24, 2025
Reasons for Decision
ten Cate J.
Overview
[1] These motions seek to set aside Registrar's dismissal orders issued in May of 2024, in two related inmate assault/conditions of confinement actions commenced in 2015.
[2] The actions arise from an incident at Hamilton Wentworth Detention Center where the Plaintiffs, Wazim Ganesh and Paul Dixon, were incarcerated. On November 21, 2014, Mr. Ganesh was violently attacked and sexually assaulted by another inmate, Jordan McPhee. Mr. Dixon tried to assist Mr. Ganesh, but Mr. McPhee attacked him. Mr. Ganesh alleges he suffered a traumatic brain injury and Mr. Dixon alleges a concussion, damage to his left eye and psychological injuries.
[3] The Plaintiffs rely on the factors in Piedrahita v. Costin, 2023 ONCA 404, and a contextual approach to reinstatement, emphasizing the parties' consensual timetables, pandemic disruptions, and counsel's early-2024 practice upheaval. The Crown resists, pointing to inordinate delay, presumed and actual prejudice (including deceased and missing witnesses), incomplete pleadings, and the contemporary "culture shift" toward timely civil adjudication.
[4] For reasons that follow, I grant the motions, set aside the dismissal orders, and reinstate both actions on strict terms. Despite the length of delay, the explanation is adequate in context, the Plaintiffs have always intended to pursue their claims, they moved promptly once they learned of the dismissal, and the Crown has not demonstrated significant prejudice that would render a fair trial impossible--particularly given its consent to multiple timetables and ongoing engagement through late 2023.
[5] In arriving at this disposition, I apply the four factors as articulated and clarified by the Court of Appeal in Piedrahita--an expressly contextual, non-rigid framework balancing timeliness with adjudication on the merits. I also take account of the Court of Appeal's recent guidance in Barbiero v. Pollack, 2024 ONCA 904, which underscores the harm of delay and the justice system's need for firm timetables, while recognizing that prejudice must be assessed in light of the entire litigation chronology and conduct on both sides.
Procedural Background
[6] The actions were commenced in 2015. Between 2017 and 2023, the parties exchanged productions, engaged with related Criminal Injuries Compensation Board matters, and--critically--entered multiple consensual timetables, including orders extending the time to set the matter down for trial.
[7] In 2019, Plaintiffs' counsel noted McPhee in default in both actions.
[8] Discovery planning occurred in 2019-2020, with further attempts to schedule in 2021-2023. The pandemic disrupted discovery logistics: Mr. Ganesh sought an in-person examination given medical and personal considerations, while the Crown did not object. Through 2022-2023, the parties continued to exchange correspondence regarding outstanding records and discovery scheduling. In November of 2023, counsel for the Crown wrote to counsel for the Plaintiffs requesting additional productions and advised that the Crown would provide further productions.
[9] In the spring of 2024, Plaintiffs' counsel faced a sudden practice transition from his former law firm. On February 22, 2024, he opened his own practice, but for some period, he had no access to his files, including these. The Ganesh plaintiffs moved to counsel's new firm, but the Dixon plaintiffs elected to remain with his former firm.
[10] On May 15, 2024, new counsel for Dixon delivered a notice of change of lawyer and a draft litigation timetable. On the same day, the registrar's dismissal orders were issued in both actions.
[11] The Plaintiffs cite Crown participation in setting dates, consent to extensions, and failure to deliver a promised supplementary list of documents, all of which shaped the pace of litigation. The Crown cites a delay of nine years without oral discoveries, deceased individuals, including one guard (2021) and another record author (2022), as well as concerns about fading memories, gaps in medical evidence for Ms. Sharda Ganesh, and the potential for substituted parties for "John Doe".
Legal Framework
[12] The only issue is whether the court should exercise its discretion to set aside the dismissal orders. Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allows the court to set aside a registrar's dismissal order on such terms as are just.
[13] In Piedrahita, the Court of Appeal clarified that on a motion to set aside a registrar's order the following test applies: (1) the length of litigation delay and whether the plaintiff has provided an adequate explanation for it; (2) whether the failure to meet the mandated time limits was due to inadvertence; (3) whether the motion to set aside the dismissal order was brought promptly; and (4) whether delay by the plaintiff has caused significant prejudice to the defendant in presenting their case at trial (at para. 8). This test is "not a rigid one-size fits all"; the court is required to consider all the factors to determine the order that is just (at para. 9). 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: Prescott v. Barbon, 2018 ONCA 504 (at paras. 14-15).
[14] The Court of Appeal's recent decision in Barbiero v. Pollack, 2024 ONCA 904, in the context of Rule 24.01 dismissals, stressed that delay itself causes harm and criticized a historically "tolerant attitude toward delay." While Barbiero confirmed that inordinate, inexcusable delay may justify dismissal even absent specific prejudice evidence, the decision does not displace the contextual analysis on motions to set aside registrar's dismissals; rather, it informs how courts assess prejudice and timeliness.
[15] Labelle v. Canada (Border Services Agency), 2016 ONCA 187 remains instructive: prejudice cannot be manufactured by a defendant's own failure to preserve evidence, interview witnesses, or pursue obvious steps; prejudice must be tethered to the plaintiff's delay and actual trial fairness concerns.
[16] Courts have also encouraged parties to adopt remote technology to advance discovery efficiently, especially where pandemic constraints impede in-person attendances: Arconti v. Smith, 2020 ONSC 2782.
Analysis
[17] The evidentiary record discloses: (a) multiple consent timetables and extensions; (b) pandemic-related disruptions with reasonable preferences for in-person discovery; (c) ongoing document requests and Crown's non-delivery of a promised supplementary list; and (d) early-2024 counsel practice upheaval causing file transfer delays. The record is clear that the Crown was fully engaged until late 2023, consenting to timetables and not objecting to the pace of litigation. On these facts, I find the delay explained in context.
[18] The culture-shift authorities do not require perfection where the defendant participated in setting the pace and benefited from negotiated indulgences. Barbiero reinforces that courts must manage delay, but it does not convert every long file into an automatic dismissal where timelines were repeatedly consented to and court-ordered timetables contemplated realistic steps amid pandemic constraints.
[19] The Plaintiffs' explanation is acceptable. It reflects shared responsibility for pace, pandemic realities, and a short, acute period of inadvertence linked to counsel's transition rather than sustained abandonment.
[20] The evidentiary record includes client affidavits and emails in 2023 querying status, counsel's repeated attempts to schedule discoveries, and continued exchanges about productions. This supports a consistent intention to prosecute and demonstrates that missing the set-down deadlines resulted from inadvertence, not deliberate inaction. This factor favours reinstatement under Piedrahita.
[21] Moreover, the motions were brought forthwith after the registrar's dismissals became known in May 2024. The Crown does not seriously contest promptness; this factor favours reinstatement.
[22] The Crown invokes presumed prejudice due to the passage of time, relying on Barbiero and broader culture-shift commentary. Barbiero indeed confirms that delay can itself amount to prejudice under Rule 24.01 dismissals; however, the Piedrahita framework for reinstatement requires a contextual inquiry into whether significant prejudice renders a fair trial impossible.
[23] The Crown identifies deceased witnesses (including Paul Iacoviello (2022) and JD White (2021)), fading memories, and potential deficiencies in medical corroboration for Ms. Sharda Ganesh. It argues that a fair trial cannot proceed without independent recollections of guards regarding Mr. McPhee's propensity for violence and their observations, and that discovery would have been the mechanism to crystallize witness lists and narrow issues.
[24] On the present record I am not satisfied that the Crown has shown significant prejudice caused by Plaintiffs' delay that would preclude a fair trial because: (i) occurrence reports and internal investigation materials exist in copious form, including multiple staff statements contemporaneous to the incident; (ii) the deaths of Mr. White and Mr. Iacoviello occurred before or shortly after consent timetables, and the Crown continued to engage and consent post-deaths; (iii) as to Ms. Ganesh's claim, the Crown has not shown that essential medical evidence was available and would have been obtained but for delay; and (iv) the Crown's own passivity or acquiescence in setting timetables and deferring discoveries informs the prejudice analysis.
[25] I recognize Barbiero's admonitions and accept that delay harms the system and parties. But on this set-aside motion, with documentary anchors and consensual timetables, the Crown has not demonstrated significant, trial-precluding prejudice attributable to Plaintiffs' delay.
[26] The Plaintiffs now confirm they do not seek substitutions or additions of John Doe defendants, which limits prejudice concerns tied to unknown parties. The pleadings will require modest housekeeping (see order below), but that is manageable.
[27] Consistent with Carioca's Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592, the entire conduct of the litigation must be assessed, including the defendant's role in the pace and timetables. Carioca's restored an action to the trial list notwithstanding five years of delay, emphasizing that motions are not a blame game and that both sides must play their part. Those principles apply here--the Crown's consents and engagement mitigate claims of surprise or trial prejudice.
[28] I do not accept that the Crown "pulled the rug" in a manner warranting censure; parties may change positions. But equity and fairness weigh in favour of notice and warning where indulgences have been jointly crafted and relied upon for years. The Registrar's dismissals cannot retroactively sanitize the history of consent timetables or convert shared delay into Plaintiff-only fault.
[29] The Plaintiffs' preference for in-person discoveries was reasonable amid medical considerations and shifting restrictions. Meanwhile, Arconti v. Smith confirms courts may and should deploy remote discovery tools to avoid undue delay.
[30] These are close calls in a justice system rightly intolerant of inordinate delay. Yet the context--consent timetables, pandemic-era accommodation, documentary anchors, and a short acute period of counsel-caused inadvertence--favours a merits-based adjudication under strict case management. Weighing all factors under Piedrahita, and mindful of Barbiero's culture-shift emphasis on timeliness, the just result is to reinstate with a strict, enforceable timetable.
Disposition and Orders
[31] The Registrar's dismissal orders dated May 15, 2024, in both actions are therefore set aside and the actions are reinstated subject to the following timetable:
Pleadings housekeeping (including any removal of "John Does" and confirmation of parties) within 30 days;
Sworn, updated Affidavits of Documents to be exchanged within 60 days;
Oral Discoveries to commence within 120 days and complete within 180 days. Unless otherwise agreed, discoveries shall proceed by videoconference absent compelling medical or due-process reasons; parties to cooperate on technological logistics;
All undertakings from discoveries to be answered within 45 days of each transcript delivery;
Plaintiffs to identify any experts and serve reports within 200 days; Crown to identify any experts and serve reports within 270 days; and
Plaintiffs to set down both actions within 365 days.
[32] A Case Conference may be requested through Trial Co-ordination with me to address any issues arising from this timetable.
Costs
[33] The quantum of costs is agreed at $15,000 but entitlement is not agreed. The Plaintiffs shall deliver costs submissions (maximum four pages) within 15 days; the Crown shall deliver its responding submission within 15 days thereafter.
"Justice E. ten Cate"
Justice E. ten Cate
Released: December 31, 2025