Superior Court of Justice – Ontario

Re: The Estate of James Bruce McCallen, as represented by its Litigation Administrator, Liam James McCallen, Ryan Edward McGrath, Michelle Ann McCallen, Liam James McCallen, Sarah Ashley McGrath and Carly Marie McGrath, Plaintiffs

And:

Bradford Tic Tac Sports Bar & Grill, Piermari Hotels Limited operating as The Village Inn, Christopher Meinshausen-Tomassetti, Ebenezer Ampadu, Jillian Clare, Julien Zenczuk, James Paniccia, Claudio Fiaes and Marques McBride, Defendants

Before: Associate Justice Mak

Counsel:

Kiet Truong, for the Plaintiffs Ari Lokshin, for the Defendant Christopher Meinshausen-Tomassetti No one else appearing for the remaining Defendants

Heard: September 15 and November 12, 2025, by videoconference

Reasons for Decision

[1] This action arises from an alleged assault on September 12, 2015 between the late James Bruce McCallen and the plaintiff Ryan McGrath, and the defendants Christopher Meinshausen-Tomassetti, Ebenezer Ampadu, Jillian Clare, Julien Zenczuk, James Paniccia, Claudio Fiaes and Marques McBride.

[2] The plaintiffs claim that this alleged assault resulted in serious injuries to Mr. McGrath and catastrophic injuries leading to Mr. McCallen's death on September 24, 2015.

[3] The Statement of Claim, issued September 8, 2017, was not served personally or by an alternative to personal service on the defendant Christopher Meinshausen-Tomassetti.

[4] The plaintiffs bring this motion for an order to validate the service of the Statement of Claim on Mr. Meinshausen-Tomassetti ("this defendant"). Mr. Meinshausen-Tomassetti opposes this relief and brings a cross-motion for an order dismissing the action for delay as against him pursuant to r. 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"), or in the alternative, pursuant to the Court's inherent jurisdiction to control its own process.

[5] The plaintiffs also bring this motion for eight other orders. I have addressed this requested relief in a separate endorsement, as it proceeded unopposed.

[6] The issues before the Court are as follows:

(a) Should the Court validate service of the Statement of Claim on Mr. Meinshausen-Tomassetti?

(b) Should the Court grant the plaintiffs an extension of time to serve the Statement of Claim on Mr. Meinshausen-Tomassetti?

(c) Should the Court dismiss this action for delay as against Mr. Meinshausen-Tomassetti?

Validation of Service of the Statement of Claim on Christopher Meinshausen-Tomassetti

[7] The test for an order validating service is found in r. 16.08:

Validating Service

16.08 Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,

(a) the document came to the notice of the person to be served; or

(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person's own attempts to evade service.

[8] At the motion hearing, the plaintiffs submitted the Court should validate the service of the Statement of Claim on this defendant on either February 9, 2018 or February 18, 2021.

A. Should the Court validate the service of the Statement of Claim on Mr. Meinshausen-Tomassetti on February 9, 2018?

[9] In the Affidavit of Attempted Service of Akwasi Nimade, Mr. Nimade states that on February 9, 2018, he attempted to serve this defendant with the Statement of Claim by leaving a true copy with him at an address in Bradford, Ontario, but was unsuccessful. Mr. Nimade spoke to Elke Grosskopf, who advised him this defendant did not reside there and lived in Toronto. Ms. Grosskopf was later identified as this defendant's mother.

[10] Mr. Nimade's affidavit is silent with respect to the following:

(a) Whether Mr. Nimade left a copy of the Statement of Claim with Ms. Grosskopf or at the Bradford residence;

(b) Whether Mr. Nimade advised Ms. Grosskopf about the Statement of Claim; and

(c) Whether Mr. Nimade advised Ms. Grosskopf that he wanted to serve the Statement of Claim on Mr. Meinshausen-Tomassetti.

[11] Mr. Meinshausen-Tomassetti, in his affidavits sworn October 24, 2024 and June 3, 2025, states as follows:

(a) In 2018 he was living in Toronto and not living at the Bradford address;

(b) His mother never informed him that someone came to her house looking for him;

(c) In 2018 he did not know that the plaintiffs or anyone else were trying to serve him with anything;

(d) He never told his mother to take steps to conceal where he was residing;

(e) Because he was not aware of anyone attempting to serve him, he could not have been and was not evading service of any claims; and

(f) He found out about this lawsuit only after Elizabeth Ford, law clerk at the law firm retained by the plaintiffs, spoke to his mother in mid-February 2021, and when Ms. Ford asked his mother to ask this defendant to contact the plaintiffs' lawyers.

[12] The affidavit evidence of Mr. Meinshausen-Tomassetti is uncontroverted. He was not cross-examined on his affidavits.

[13] Ms. Ford states in her supplementary affidavit, sworn October 24, 2024, at paragraphs 9 and 11:

It is unlikely that Ms. Grosskopf would not have an address for both of her sons, both living at [the Toronto address] on February 9, 2018....Thus, it would be logical to deduce that Christopher Meinshausen-Tomassetti would, through his mother, know that the Plaintiffs were attempting to serve the Statement of Claim on him in February 2018.

These statements do not abide by either r. 4.06(2) or r. 39.01(4), which state as follows:

Affidavits

Contents

4.06(2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.

Evidence by Affidavit

Contents - Motions

39.01(4) An affidavit for use on a motion may contain statements of the deponent's information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

I have therefore disregarded these statements because they are inadmissible argument and/or opinion evidence. As Ms. Ford was not qualified or tendered as an expert, her opinion is neither admissible nor probative of anything: Obita v. Algonquin College, 2024 ONSC 2901 at para. 18, citing China Yantai Friction Co. Ltd. v. Novalex Inc., 2023 ONSC 3424.

[14] After considering the parties' submissions and affidavits, the Court is unable to find that the Statement of Claim came to the notice of Mr. Meinshausen-Tomassetti on February 9, 2018, or was served on that date in such a manner that it would have come to the notice of this defendant except for his own attempts to evade service. The Court accepts this defendant's uncontroverted affidavit evidence that he was not attempting to evade service.

B. Should the Court validate the service of the Statement of Claim on Mr. Meinshausen-Tomassetti on February 18, 2021?

[15] I am satisfied that on or about February 18, 2021, the Statement of Claim came to the notice of Mr. Meinshausen-Tomassetti. Ms. Ford states in her supplementary affidavit, sworn October 24, 2024, that on February 18, 2021 she sent this defendant email correspondence containing the Statement of Claim. This defendant states he received a copy of this email. His lawyer wrote to plaintiffs' counsel on February 23, 2021, advising them that this defendant forwarded to him this email attaching the Statement of Claim.

[16] Paragraphs 27 to 33 of Ms. Ford's affidavit, sworn October 15, 2024, and paragraphs 12 to 22 of Ms. Ford's supplementary affidavit, sworn October 24, 2024, outline the chronology of events after the February 9, 2018 attempt to serve this defendant with the Statement of Claim. I have outlined the chronology below:

(a) "[T]he plaintiffs were psychologically dealing with the results of the criminal trial" -- a mistrial on May 2, 2018 and a dismissal of charges in May 2019 -- and "matters were further complicated" by the introduction of a third party.

(b) On September 17, 2018, plaintiffs' counsel proposed to the corporate defendants that they wait for the criminal matter to conclude before proceeding with examinations for discovery in this matter. The corporate defendants agreed.

(c) "There was a claim that another Bradford bar establishment should be added to the civil action in mid 2019 which resulted in further complication and delay...While the addition of Big Momma's Soul Food as a defendant was being considered, the world went into lock-down with the COVID-19 pandemic in March 2020."

(d) The COVID-19 pandemic starting in March 2020 caused an "unprecedented delay, coupled with the complications of trying to clarify whether the Third Party claim had any merit, the introduction of alleged new evidence, and the continued non-response of the individual defendants."

(e) In early 2021, "given that the Courts were starting to establish procedure during the ongoing reoccurrences of COVID-19", plaintiffs' counsel worked to complete the pleadings and schedule discoveries, and turned its attention to continuing its investigation into the possible addition of another defendant, reviewed their documentation and used the Internet to try to locate the defendants who had not yet been served, including Mr. Meinshausen-Tomassetti.

(f) In early to mid February 2021, Ms. Ford was able to locate Mr. Meinshausen-Tomassetti after performing an internet search on "Elkie Goffendl". She spoke to this defendant by phone. On February 18, 2021, she sent him email correspondence with a copy of the Statement of Claim.

[17] Ms. Ford's statement at paragraph 27 that "the plaintiffs were psychologically dealing with the results of the criminal trial" does not abide by either r. 4.06(2) or r. 39.01(4). The statement is either inadmissible hearsay -- as Ms. Ford states the plaintiffs' "psychological dealings" as a fact, not a belief -- or opinion evidence. Therefore, following my reasoning above at paragraph 13, I disregard this statement.

[18] I have also disregarded paragraph 34 of Ms. Ford's affidavit, sworn October 15, 2024, because the statements contain opinion and/or argument. Again, these statements do not abide by either r. 4.06(2) or r. 39.01(4) of the Rules.

[19] I do not accept Ms. Ford's statement that the pandemic delayed the plaintiffs in their attempts to locate and serve this defendant for two reasons. First, Ms. Ford provided no detail as to how and why the pandemic caused this delay. Second, her ability to locate this defendant's mother using an internet search in early 2021 -- which led to this defendant contacting plaintiffs' counsel shortly thereafter -- suggests this causal link does not exist.

[20] Even if the Court factors in the alleged delay caused by the pandemic, the plaintiffs did not provide evidence to the Court of any attempts to further locate and serve the Statement of Claim on Mr. Meinshausen-Tomassetti from February 9, 2018 to March 2020.

[21] At this motion hearing, the plaintiffs submitted the agreed-upon abeyance of the discovery process between plaintiffs' counsel and counsel for the corporate defendants on September 17, 2018 effectively stopped the time for service of the Statement of Claim on this defendant. The plaintiffs did not point to any legislation or case law in support of their position. Ms. Ford's supplementary affidavit, sworn October 24, 2024, at paragraph 14 states this "stay" is "the normal course of action taken by parties when trying to establish liability". Following my reasoning above at paragraph 13, I disregard this statement as inadmissible argument.

[22] While it may have been reasonable to delay the discovery process -- as plaintiffs' counsel correctly stated in their email correspondence to counsel for the corporate defendants that the criminal trial's findings of fact would have direct bearing on the issues in the lawsuit -- this agreement was not a reasonable excuse for the plaintiffs to delay serving Mr. Meinshausen-Tomassetti with the Statement of Claim.

[23] Holding the discovery process in abeyance until the conclusion of a criminal matter does not relieve plaintiffs from serving defendants with the Statement of Claim within the timelines prescribed by the Rules and addressing service issues in a timely fashion. I note plaintiffs' counsel appeared to agree with this notion in their September 17, 2018 email correspondence, stating: "We are also working on bringing motions to effect service on the remaining defendants, and if they fail to defend we will note them in default."

[24] After considering the parties' affidavits, the Court finds the plaintiffs either neglected to or chose not to locate and serve this defendant with the Statement of Claim until early 2021. In fact, the plaintiffs did nothing to advance their claim against Mr. Meinshausen-Tomassetti between February 9, 2018 and early 2021. The plaintiffs did not provide evidence of any communications with this defendant, or any attempts to locate or communicate with this defendant during this three-year period. Mr. Meinshausen-Tomassetti also states in his affidavit that from September 2015 to February 2021, he did not receive any communications from the plaintiffs or their lawyers, and he was not aware of any attempts to serve him.

[25] For a motion to validate service of the Statement of Claim on a defendant where there has been a passage of time of approximately 10 years from the date of the incident to the motion hearing, a presumption of prejudice exists in favour of the defendant due to the passage of time. In that situation, the defendant does not need to prove prejudice: Matton v. Yarlasky ("Matton") at para. 10, aff'd 2007 ONCA 134.

[26] Applying Matton, given the passage of time since the 2015 incident and the 2017 issuance of the Statement of Claim, a presumption of prejudice exists in favour of this defendant. Upon reviewing this parties' affidavits, the Court also finds actual prejudice as against this defendant, detailed as follows:

(a) If this matter proceeds to trial, this defendant would be asked to recall events that happened over 10 years ago. This defendant stated his memory and recollection of those events would be severely impacted by over a decade of delay.

(b) There are no documents that could help this defendant recall the details of what happened or corroborate any version of events. The plaintiffs did not identity or provide the Court with any existing documents that could aid this defendant in recalling the events at issue in this proceeding. Plaintiffs' counsel submits the police file should have detailed accounts of what occurred through witness statements and personal statements given by this defendant to the police, and this defendant's testimony at the criminal trial will assist his memory. I find the plaintiffs' submissions are speculative and therefore without merit. The plaintiffs have yet to obtain the police file, and the non-party served with the plaintiffs' Wagg motion, South Simcoe Police Service, has not confirmed the nature or contents of any documents they possess that are responsive to the Wagg motion. Of note, the plaintiffs' submissions that this defendant testified at the criminal trial are based on paragraph 26 of Ms. Ford's supplementary affidavit, which I have disregarded as per paragraph 27 below, because she does not state the source of this information or the fact of the belief.

(c) This defendant is no longer in contact with any of the other individual defendants. He has no way of contacting them or finding them. He has not been able to contact them since at least 2019 or 2020. From a review of Ms. Ford's affidavits, it appears the plaintiffs also have not been in contact with the other individual defendants since at least 2018. Therefore, I reject the plaintiffs' submission that this defendant must show his efforts to locate these defendants, when the plaintiffs have also apparently been unable to locate them.

(d) This defendant has lost the opportunity to examine the plaintiff Sarah Ashley McGrath because she passed away in 2023. I do not accept the plaintiffs' submission that because Ms. McGrath did not know the facts of the alleged incident, her involvement in the litigation is "peripheral". She is a plaintiff in this matter, and together with four other plaintiffs, she seeks $1,000,000 in Family Law Act, R.S.O. 1990, c. F.3, damages and $1,000,000 in aggravated, punitive and exemplary damages from the defendants.

(e) This defendant does not have a viable opportunity to find and/or interview any third-party witnesses to the incident, if there were any. The plaintiffs did not provide any evidence to the Court to the contrary.

(f) If service is validated on this defendant as of February 18, 2021, any crossclaims this defendant makes against the remaining defendants are presumptively statute-barred, as the two-year limitation period to deliver his crossclaim runs from the date he was served with the Statement of Claim. As such, the limitation period to deliver any crossclaims presumptively expired on February 18, 2023. I reject the plaintiffs' suggestion that this defendant was passive and should have preserved the limitation period for crossclaims by filing a Statement of Defence and Crossclaim prior to February 18, 2023, following my reasoning in paragraph 81 below.

[27] Paragraphs 23 to 27, 43 and 44 of Ms. Ford's supplementary affidavit, sworn October 24, 2024, purport to be responsive to Mr. Meinshausen-Tomassetti's affidavit, sworn October 24, 2024, regarding prejudice. I have disregarded these paragraphs of Ms. Ford's affidavit, except for paragraph 23, the first sentence of paragraph 43 and the following portion of the last sentence in paragraph 44: "had the criminal charges against him dropped and received a copy of the Statement of Claim via email on February 18, 2021." Following my reasoning in paragraph 13 above, these paragraphs are replete with argument and/or opinion, and therefore do not abide by either r. 4.06(2) or r. 39.01(4). I have also disregarded Ms. Ford's statement at paragraph 43 that this defendant "attended the criminal trial in 2018 and 2019 as a witness when he agreed to speak against the other defendants" because she does not advise of the source of this information or the fact of the belief.

[28] The plaintiffs rely on several decisions, including United Jewish Appeal of Greater Toronto v. 100181947 Ontario Inc., 2024 ONSC 6414 ("United Jewish Appeal of Greater Toronto"), Xela Enterprises Ltd. v Castillo, 2014 ONSC 352 ("Xela Enterprises"), and McCann v. Yalda, 2019 ONSC 5684 ("McCann") in support of the relief sought. For the following reasons, I find these decisions do not support the relief sought.

[29] In United Jewish Appeal of Greater Toronto, the Court stated: "Courts may validate service over email where the defendant agrees to accept service in this manner and participates in the litigation", citing Lake v. Toronto District School Board, 2023 ONSC 1807 at paragraphs 3 and 11. Relying on United Jewish Appeal of Greater Toronto, the plaintiffs submit the Court should validate service because this defendant had actual notice and participated in the litigation.

[30] The facts in this matter are distinguishable from United Jewish Appeal of Greater Toronto. In that case, the defendant participated in the litigation by communicating with the plaintiff, signing Minutes of Settlement and participating in scheduling a case conference. The defendant repeatedly expressed a desire to resolve the litigation and compensate the plaintiff for the damages they suffered. By contrast, Mr. Meinshausen-Tomassetti's participation in this litigation was limited to putting forth the position that he had not been duly served with the Statement of Claim, communicating with plaintiffs' counsel regarding the plaintiffs' motion, and attending at appearances pertaining to this motion.

[31] The plaintiffs' position is that the facts of this matter exceed the threshold applied by the Court in Xela Enterprises and therefore the Court should validate service on this defendant. However, the facts in Xela Enterprises are distinguishable.

[32] In Xela Enterprises, the plaintiffs amended the Statement of Claim on February 28, 2013. The Court validated service of this Claim on the defendants because although personal service was unsuccessful, a copy of the pleading was left at their residences in March 2013, a second copy was sent the same day to the address by Federal Express, a copy was sent to their counsel who attended at the motion, and the parties agreed the Fresh Statement of Claim came to the notice of the defendants. In contrast, in this matter, the plaintiffs did not provide evidence to the Court that the Statement of Claim came to the attention of this defendant within the six-month service deadline prescribed in r. 14.08(1) of the Rules, in my reasons detailed above at paragraphs 9 to 14.

[33] The plaintiffs' position is that the facts in McCann are similar to the facts of this motion, and therefore the Court should validate service on this defendant. In McCann, the plaintiffs did not duly serve the defendants with the Statement of Claim, but the Court found it would exercise its discretion under r. 16.08 in favour of the plaintiffs because the defendants were placed on notice of the Statement of Claim and the ensuing noting in default.

[34] The facts in McCann are distinguishable from the facts in this matter. In McCann, the Court found the defendants first received notice of the Statement of Claim within six months of its issuance, in part because they retained counsel approximately one or two months after the Statement of Claim was issued. Therefore, the Court found the defendants had not suffered any legal prejudice. In this matter, this defendant first received notice of the Claim over 3 years after the Statement of Claim was issued.

[35] The Court in McCann, citing the Court of Appeal in Matton v. Yarlasky at paragraph 3, recognized the Court's power under r. 16.08 is discretionary. Thus, even if the Statement of Claim came to a defendant's notice, the Court maintains discretion as to whether to validate service.

[36] After considering the parties' submissions and affidavits, for the foregoing reasons, the Court exercises its discretion and declines to validate service of the Statement of Claim on this defendant on February 18, 2021.

Extension of Time to Serve the Statement of Claim on Mr. Meinshausen-Tomassetti

[37] Even if the Court were to validate service of the Statement of Claim on this defendant on February 18, 2021, the Court would be required to find the plaintiffs met the test for an extension of time for service under r. 3.02 due to r. 14.08(1).

[38] Rule 14.08(1) states: "Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued." The Statement of Claim was issued on September 8, 2017, and therefore according to r. 14.08(1), it was required to be served on or before March 8, 2018.

[39] The relevant portions of r. 3.02 of the Rules state as follows:

Extension or Abridgment

General Powers of Court

3.02 (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just. R.R.O. 1990, Reg. 194, r. 3.02 (1).

(2) A motion for an order extending time may be made before or after the expiration of the time prescribed. R.R.O. 1990, Reg. 194, r. 3.02 (2).

[40] The leading decision on extending the time for service of a Statement of Claim is the Court of Appeal's decision in Chiarelli v. Wiens, 46 O.R. (3d) 780 (C.A.) ("Chiarelli"). While the Court has the authority and discretion, under r. 3.02(1), to extend the time for service of the Statement of Claim, as the Court of Appeal stated in Chiarelli at paragraph 10, "the court should not extend the time for service if to do so would prejudice the defendant."

[41] In Rowland v. Wright Medical Technology Canada Ltd., 2015 ONSC 3280, Perell J. summarized the principles from Chiarelli, as follows at paragraph 19:

In Chiarelli v. Wiens, supra, at paras. 14-16, the Court of Appeal articulated the following principles for determining whether to grant an extension of time for the delivery of the statement of claim: (1) although the onus is on the plaintiff to show that the defendant will not be prejudiced by an extension of time, the plaintiff cannot be expected to speculate and the defendant has at least an evidentiary obligation to provide some details of prejudice; (2) the defendant cannot create prejudice by his or her failure to do something that could reasonably have been done; (3) the prejudice that will defeat an extension of time for service must be caused by the delay; (4) an extension of the time for service should not be denied simply because the delay is longer than the applicable limitation period; and (5) each case should be decided on its facts, focusing on whether the defendant is prejudiced by the delay.

[42] In Tookenay v. O'Mahoney Estate, 2024 ONSC 709 ("Tookenay"), Howard J. at paragraph 32 set out factors for the Court to consider in determining whether an extension of time to serve a Statement of Claim should be granted, including:

(a) the length of the delay,

(b) the evidence filed that explains the delay,

(c) whether the evidence regarding the explained delay is sufficient,

(d) whether or not the plaintiff moved promptly for an extension of time after the period expired,

(e) whether or not the delay in serving the claim resulted from the direction, participation, or involvement of the plaintiff personally in the service of the claim,

(f) the extent to which the defendant, themselves, bears some or all of the responsibility for this delay,

(g) whether or not it was reasonable for a defendant to infer from all the circumstances that the plaintiff had abandoned his claim,

(h) whether the applicable limitation period for the action has already expired,

(i) whether the defendant had notice before the expiry of the limitation period that the plaintiff was asserting a claim against the defendant, and

(j) whether the defendant would suffer prejudice if the motion is granted.

[43] At the motion hearing, the plaintiffs submitted that the COVID-19 pandemic and the agreed-upon abeyance of the discovery process due to the related criminal proceedings are sufficient reasons for the Court to grant this extension under r. 3.02. They did not provide any law or any other submissions to the Court on this issue.

[44] Having considered the parties' submissions and affidavits, the principles in Chiarelli and the non-exhaustive factors in Tookenay, I find as follows:

(a) The delay is approximately 3.5 years between the issuance of the Statement of Claim and the date upon which the Court finds Mr. Meinshausen-Tomassetti first received notice of the Statement of Claim (i.e. February 18, 2021).

(b) The evidence regarding the explained delay in serving the Statement of Claim is insufficient, as outlined above at paragraphs 16 to 24.

(c) The plaintiffs did not move for an extension of time after the period expired. At no point prior to the hearing of this motion did the plaintiffs amend their Notice of Motion to seek this relief or advise the Court they were seeking this relief, despite this defendant first alerting the plaintiffs to this issue by correspondence dated February 23, 2021 and continuing to do so by way of email correspondence dated May 25, 2021, November 3, 2021 and April 28, 2022, and by way of this defendant's responding factum. The plaintiffs first acknowledged this issue during the motion hearing, when plaintiffs' counsel answered in the affirmative when I asked him whether the Court would need to extend the time for service of the Statement of Claim if the Court validates service on February 18, 2021.

(d) It is unknown whether the delay in serving the Claim resulted from the direction, participation or involvement of the plaintiffs personally in the service of the claim. The plaintiffs did not swear or affirm affidavits for this motion, and Ms. Ford's affidavits do not speak to the plaintiffs' involvement in the service of the Claim.

(e) This defendant does not bear any of the responsibility for this delay. There is no evidence before the Court that he was evading service of the Statement of Claim at any time. Rather, the evidence before the Court indicates he first became aware of the Statement of Claim after Ms. Ford spoke to this defendant's mother in mid-February 2021. Shortly thereafter, he telephoned Ms. Ford, spoke to her and provided her with his email address.

(f) It was reasonable for this defendant to infer from all the circumstances that the plaintiffs had abandoned their claim. The limitation period for the action presumptively expired in September 2017. This defendant states, and the Court finds, he did not have notice before the expiry of the limitation period that the plaintiffs were asserting a claim against him. Plaintiffs' counsel sent correspondence to this defendant, dated January 19, 2016, by regular mail to an address in Toronto stating the Estate of Jim McCallen intended to commence an action against him. This defendant stated in his affidavits, and the Court finds, that while he was residing at this Toronto address at this time, he did not receive any correspondence from the plaintiffs during this time, including this letter. Even if this defendant received this letter, the plaintiffs provided no evidence to the Court that the plaintiffs advised this defendant between January 19, 2016 and February 18, 2021 of their intention to pursue this claim as against this defendant.

(g) The applicable limitation period for the action has expired. Further, the applicable limitation period for the crossclaims as against the remaining defendants has presumptively expired, as outlined above in paragraph 26(f).

(h) This defendant would suffer prejudice if the Order is granted to extend the time for service of the Statement of Claim to February 18, 2021, as outlined above at paragraph 26. He did not create this prejudice by a failure to do something that could reasonably have been done. The prejudice to this defendant has been caused by the delay.

(i) As noted in paragraph 27 above, various paragraphs of Ms. Ford's affidavits purport to speak to the defendant's prejudice. Upon reviewing the parties' affidavits, and after disregarding these paragraphs of Ms. Ford's affidavits, and the Court finds the plaintiffs have not discharged their onus to show this defendant will not be prejudiced by an extension of time.

[45] For the foregoing reasons, the Court exercises its discretion under r. 3.02 and declines to extend time for service of the Statement of Claim on Mr. Meinshausen-Tomassetti to February 18, 2021.

Dismissal of the Action for Delay as against Mr. Meinshausen-Tomassetti

[46] Mr. Meinshausen-Tomassetti brings this cross-motion to dismiss the claim as against him due to delay, pursuant to r. 24.01 or the Court's inherent jurisdiction.

[47] The Court may derive its jurisdiction to dismiss an action for delay either from r. 24.01 or through its inherent jurisdiction to prevent an abuse of its own process. In determining whether the Court should dismiss the action as an exercise of inherent jurisdiction, the Court applies the same test as in r. 24.01: Carson v. Scheuer, 2015 ONSC 2593 at para. 40.

[48] Rule 24.01 states:

Where Available

24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,

(a) to serve the statement of claim on all the defendants within the prescribed time;

(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;

(c) to set the action down for trial within six months after the close of pleadings; or

(d) Revoked: R.R.O. 1990. Reg. 194, r. 24.01 (2).

(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off. R.R.O. 1990, Reg. 194, r. 24.01; R.R.O. 1990, Reg. 194, r. 24.01 (2); O. Reg. 770/92, s. 7; O. Reg. 533/95, s. 4 (1).

(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. O. Reg. 259/14, s. 6.

[49] The plaintiffs submit Mr. Meinshausen-Tomassetti has no standing to bring this motion because he is not a party to the action, and therefore requires leave to intervene as an added party under r. 13.01(1). I have disregarded paragraphs 4 to 7 of Ms. Ford's affidavit, sworn June 18, 2025, save for the first sentence of paragraph 4, because they are replete with argument on this issue. The plaintiffs did not provide any legislation or case law in support of this argument.

[50] The Court finds Mr. Meinshausen-Tomassetti is named as a defendant and is therefore a party to this action. He has standing to bring this motion. The Court also finds this defendant can bring this motion under r. 24.01(1)(a) because the plaintiffs failed to serve this defendant with the Statement of Claim within the prescribed time.

[51] An order dismissing an action for delay is a severe remedy, as the plaintiffs are denied an adjudication on the merits of their claim. However, sometimes an order dismissing an action for delay is the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to a defendant: Langenecker v. Sauve, 2011 ONCA 803 at para. 3 ("Langenecker").

[52] The test for dismissing an action for delay under Rule 24.01 is well-established (see North Toronto Chinese Alliance Church v. Gartner Lee Ltd., 2012 ONCA 251, leave to appeal refused [2012] S.C.C.A. No. 248; Armstrong v. McCall, and Woodheath Developments Ltd. v. Goldman, (2003), 66 O.R. (3d) 731 (ON SCDC). An action should not be dismissed unless:

(a) The default is intentional and contumelious, or

(b) The plaintiffs or the plaintiffs' lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible.

[53] This defendant submits that he can succeed on either branch of the test.

[54] In considering the first branch of the test, the Court will consider whether the delay is insolently abusive and humiliating, and demonstrates a disdain or disrespect for the court's process: Carson v Scheuer, 2015 ONSC 2593 at para. 37. The Court will also consider whether the delay is at least reckless and perhaps wilful, and whether it is the sort of default for which there is no reasonable explanation: Cardillo v. Willowdale Contracting et. al, 2020 ONSC 2193 at para. 34. Motions under this branch are rare, and are usually accompanied by a breach of one or more court orders: Langenecker at para. 6.

[55] In support of this defendant's position, this defendant points to the specific conduct of plaintiffs' counsel. For example:

(a) As detailed below in paragraph 63, they scheduled several appearance dates regarding this motion unilaterally and without consulting this defendant's lawyer.

(b) As detailed below in paragraph 63, despite the fact the plaintiffs' motion to validate service on this defendant was pending, on March 20, 2025, plaintiffs' counsel threatened to note this defendant in default unless this defendant served his Statement of Defence by March 21, 2025. When this defendant's counsel advised plaintiffs' counsel he opposed the plaintiffs' proposed course of action, plaintiffs' counsel stated merely stated they would seek instructions to delay the noting in default of this defendant to March 25, 2025.

[56] While the Court does not approve of the plaintiffs' conduct as noted above in paragraph 55, after considering the plaintiffs' and their counsel's conduct over the timeline of the action up to September 15, 2025, the delay does not rise to the level of being insolently abusive and humiliating, and does not demonstrate a disdain or disrespect for the court's process. The Court also does not find the delay to be reckless and wilful.

[57] In considering the second branch of this test for a dismissal for delay, such an order will be justified where the delay is inordinate, inexcusable and prejudicial to the defendant in that it gives rise to a substantial risk that a fair trial of the issues will not be possible: Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 at para. 12 ("Ticchiarelli").

A. Is the Delay Inordinate?

[58] The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss: Langenecker at para. 8. This proceeding was commenced by way of a Statement of Claim issued on September 8, 2017 and this motion was first heard over 8 years later, on September 15, 2025. The Court finds this delay of over 8 years to be inordinate.

B. Is the Delay Inexcusable?

[59] A determination of whether the delay is inexcusable requires the Court to examine the reasons for it and whether they present an adequate explanation. This examination looks for explanations that are "reasonable and cogent" or "sensible and persuasive". The Court will consider both the explanations offered for individual parts of the delay, and the overall delay and the effect of the explanations considered as a whole: Ticchiarelli at para. 16, citing Langenecker at paras. 9-10.

[60] With respect to the period between the issuance of the Statement of Claim on September 8, 2017 and February 9, 2018, no reasons were given for this part of the delay. Counsel for this defendant did not comment on this specific period. The Court finds that as the plaintiffs were still within the timeline for service of the Claim and attempted service of the Claim during this five-month period, the delay during this time can be excused.

[61] With respect to the period between the date of attempted service of the Statement of Claim on February 9, 2018 and this defendant's receipt of the Statement of Claim on or about February 18, 2021, the Court finds the reasons for this part of the delay do not present an adequate explanation, for the reasons stated above at paragraphs 16 to 24.

[62] While the plaintiffs may have advanced their claims as against the corporate defendants during these 3 years and into late 2021, as the plaintiffs and the corporate defendants attended at discoveries in November 2021, this does not excuse the plaintiffs from failing to advancing their claim as against this defendant: see Hercules Moulded Products Inc. v. Rogers, 2013 ONSC 5647 at para. 35.

[63] With respect to the period from February 18, 2021 to September 15, 2025 -- the first date of this within motion hearing -- the parties provided several affidavits with detailed and, at times, conflicting information. Below is a summary of the relevant events:

(a) On March 1, 2021, Ms. Ford advised this defendant's counsel they will be serving their motion materials on him.

(b) On March 11, 2021, plaintiffs' counsel advised this defendant's counsel the plaintiffs would not need more than 90 minutes to argue the motion. This defendant's counsel advised plaintiffs' counsel that a total of two hours would probably be required for the motion.

(c) On March 24, 2021, Ms. Ford advised this defendant's counsel of dates for long motions in Newmarket from June to September 8, 2021. This defendant's counsel responded with his availability.

(d) Counsel for Mr. Meinshausen-Tomassetti followed up with plaintiffs' counsel on May 25, 2021, November 3, 2021 and April 28, 2022 regarding whether the plaintiffs intended to bring a motion to extend time for service on this defendant.

(e) In or around late 2021, the Newmarket Court resumed hearing regular motions. Plaintiffs' counsel did not schedule any motion for 2021, citing COVID-19 related restrictions, and advised this defendant's counsel they would schedule the motion as soon as those restrictions were lifted.

(f) On November 3, 2021, Ms. Ford advised this defendant's counsel she was able to obtain motion dates for circulation.

(g) In November 2021, the plaintiff Ryan McGrath and the corporate defendants attended at their examinations for discovery.

(h) Counsel for the defendant Bradford Tic Tac Sports Bar & Grill secured a motion date of August 18, 2022 for a Wagg motion.

(i) On April 28, 2022, Ms. Ford advised this defendant's counsel the plaintiffs had conducted examinations for discovery of a corporate party, and counsel for the defendant Bradford Tic Tac Sports Bar & Grill was in the process of bringing a Wagg motion "which will be needed to properly address some of the issues in our motion....We appreciate your patience while we await the documentation from the police." In this email correspondence, Ms. Ford did not provide further explanation to this defendant's counsel regarding the necessity of a Wagg motion in relation to the plaintiffs' motion. Ms. Ford also did not advise whether the plaintiffs would bring a motion to extend time for service on this defendant.

(j) In approximately mid-2022, Ms. Ford had discussions with counsel for the defendant Bradford Tic Tac Sports Bar & Grill regarding the success of a Wagg motion, due to one or both of their concerns that the Crown would not provide a position on the Wagg motion without the pleadings being closed. It was determined that a motion for various relief, rather than only a Wagg motion, would need to be brought.

(k) Ms. Ford states she telephoned the Newmarket Court "several" times in fall 2022 to early 2023 but was unable to reach anyone at the Motions Office to obtain directions or motion dates.

(l) On March 3, 2023, Ms. Ford instructed a process server to attend the Newmarket Courthouse and obtain a copy of the file for this matter.

(m) Between March 14 and July 25, 2023, plaintiffs' counsel sought and obtained instructions from the plaintiffs as to the relief sought in this motion.

(n) In or around July 25, 2023, plaintiffs' counsel caused the plaintiffs' motion to be placed on the Central East Region's running civil long motions list, to be called for a hearing on two-days' notice not before September 30, 2023. The Court advised plaintiffs' counsel the December 8, 2023 date was only a placeholder and was confirmation that the motion was on this list. Plaintiffs' counsel had placed their motion on this list without notice to this defendant's counsel and had not canvassed available motion dates with him.

(o) This defendant's counsel next heard from plaintiffs' counsel on November 29, 2023 -- over 1.5 years after his April 28, 2022 correspondence -- when Ms. Ford advised him the plaintiffs had booked a triage court attendance for December 8, 2023 to obtain a long motion date to deal with service issues and procure the police file.

(p) On November 29, 2023, upon further review of the correspondence received from the Court, this defendant's counsel correctly advised plaintiffs' counsel that they had not booked a triage court attendance for December 8, 2023, but rather had caused the plaintiffs' motion to be placed on the running civil long motions list, as described above in paragraph 63(n).

(q) As of December 4, 2023, neither the plaintiffs nor this defendant had filed motion materials. The plaintiffs' motion was removed from the running long motions list.

(r) On December 7, 2023, plaintiffs' counsel advised this defendant's counsel they would proceed with their motion to validate service on this defendant once the plaintiffs obtained the police records and scheduled another motion date that was mutually convenient for all counsel to attend.

(s) In late April 2024, Ms. Ford wrote to the Newmarket Courthouse and obtained dates for a short motion to address the Wagg motion and a timetable. The plaintiffs booked October 30, 2024 for the plaintiffs' motion. Plaintiffs' counsel scheduled this motion date without notice to this defendant's counsel and without their consent.

(t) On June 4, 2024, plaintiffs' counsel served the Notice of Motion by email on counsel for the corporate defendants and this defendant, and advised this motion was scheduled as a short motion to be heard on October 30, 2024. The plaintiffs advised they would serve their motion materials by July 15, 2024, and asked for responding materials to be served by September 15, 2024.

(u) On June 4, 2024, this defendant's counsel advised plaintiffs' counsel that the plaintiffs' motion could not be argued in under an hour, especially given all the other relief being sought in their motion. He requested the motion be adjourned to a long motion date or that the relief sought against this defendant be adjourned to a mutually convenient date. Plaintiffs' counsel did not respond.

(v) On July 4, 2024, this defendant's counsel advised he had instructions to bring a cross-motion to dismiss the action for delay as against this defendant and would be serving his motion materials in due course. He reiterated he was seeking an adjournment of the plaintiffs' motion to a long motion date. Ms. Ford stated plaintiffs' counsel was on personal leave and would respond upon their return.

(w) The plaintiffs did not serve their motion materials by their self-imposed deadline of July 15, 2024. On July 18, 2024, this defendant's counsel asked plaintiffs' counsel for the status of their materials. Ms. Ford advised that plaintiffs' counsel remained on leave and the motion record would be served upon their return. She did not provide a date for their return.

(x) On October 10, 2024, this defendant's counsel asked for confirmation from plaintiffs' counsel that they would adjourn the motion to a mutually convenient date because the plaintiffs had not yet served motion materials. This defendant's counsel again requested a long motion date for this motion. Plaintiffs' counsel stated they did not agree to adjourn the motion and asked for this defendant's counsel to file their motion materials in accordance with the Rules.

(y) On October 21, 2024, plaintiffs' counsel served their motion record on this defendant's counsel. This defendant's counsel asked plaintiffs' counsel to confirm whether, at the motion hearing on October 30, 2024, they intended to proceed with the motion to validate service and the other requested relief to compel this defendant to various courses of action, or whether the plaintiffs only intended to proceed with the Wagg motion.

(z) On October 30, 2024, plaintiffs' counsel and this defendant's counsel appeared before Sutherland J. This defendant's counsel sought an adjournment of this motion for various reasons, including insufficient time to argue this motion in under one hour. In his endorsement, Sutherland J. stated this was not a "regular" (i.e. short) motion but appeared to be at least a two-hour motion. He adjourned the plaintiffs' motion to triage court in order for the parties to obtain a long motion date.

(aa) On January 3, 2025, the registrar dismissed this action for delay.

(bb) On January 20, 2025, on the application of an individual at the Newmarket Filing Office and for reasons unknown, the Court set aside the dismissal.

(cc) On March 20, 2025, Ms. Ford threatened to note this defendant in default unless this defendant served his Statement of Defence by March 21, 2025. This defendant's counsel opposed the plaintiffs' proposed course of action. Ms. Ford then advised this defendant's counsel they would seek instructions to delay the noting in default of this defendant to March 25, 2025.

(dd) On March 25, 2025, this defendant's counsel and plaintiffs' counsel attended before Sutherland J. at triage court. The Court did not schedule a long motion date at this time. This defendant states the reason for not scheduling this motion is because the Court determined the motion was not ready to proceed. Ms. Ford states their counsel advised the Court this motion was to be adjourned as this defendant's motion materials were not completed -- they had neither filed nor served their factum. The Court adjourned this motion to a civil case conference.

(ee) On May 13, 2025, plaintiffs' counsel and this defendant's counsel attended before Edwards J. for a case conference. The Court imposed a timetable for the remaining steps for the plaintiffs' motion -- namely, this defendant's responding record, the plaintiff's reply, cross-examinations and exchange of facta, with the defendant's factum as the final step. The factum was to be served by July 25, 2025.

(ff) On September 15, 2025, counsel for the plaintiffs and this defendant appeared before me for the hearing of the plaintiffs' motion, scheduled as a long motion, and this defendant's cross-motion.

(gg) Due to time constraints, the Court did not hear the cross-motion on September 15, 2025. The motion was adjourned to November 12, 2025.

[64] The Court finds the plaintiffs have not presented reasonable and cogent, or sensible and persuasive explanations for the majority of the period from February 18, 2021 to September 15, 2025, for the reasons detailed below.

[65] Due to the pandemic, regular motions did not resume at the Court until late 2021. However, the plaintiffs have not provided an adequate explanation as to why they did not schedule or attempt to schedule this motion from late 2021 to approximately July 25, 2023:

(a) It was unreasonable for the plaintiffs to delay bringing this motion due to an anticipated unfavourable Crown response to the Wagg motion. The plaintiffs did not refer to any legislation or case law, or provide any evidence in support of their position that the Crown would not provide a position on this motion without the pleadings being closed. Of note, the Wagg motion before me was not served on the Crown but only the South Simcoe Police Service ("SSPS"), and the relief sought was only from the SSPS. By correspondence dated November 30, 2023 and October 24, 2024, the SSPS advised plaintiffs' counsel they would not oppose an order for records from them provided the order includes certain clauses, and in the meantime, the SSPS would begin to compile the documents. The SSPS did not comment on the status of the action's pleadings.

(b) Neither the plaintiffs nor their counsel advised the Court why plaintiffs' counsel took over four months, from March 15 to July 25, 2023, to seek and obtain instructions from the plaintiffs for the relief sought on this motion. None of the plaintiffs swore or affirmed affidavits for this motion or the cross-motion. Therefore, the Court has no evidence to find there is an adequate explanation for this period of delay.

(c) Ms. Ford states she was unable to speak to anyone by phone at the Motions Office from fall 2022 to early 2023 to obtain motion dates or direction from the Court. However, Ms. Ford told this defendant's counsel on November 3, 2021 that she was able to obtain motion dates for circulation, and counsel for the defendant Bradford Tic Tac Sports Bar & Grill secured a motion date of August 18, 2022 for their Wagg motion. Further, Ms. Ford wrote to the Court on March 1 and July 26, 2021 to try to schedule this motion, and the Court responded to her correspondence. Ms. Ford also corresponded with the Court by email in 2023. The Court therefore finds that the "several calls" made by Ms. Ford to the Newmarket Courthouse from fall 2022 to early 2023 do not constitute reasonable efforts to obtain motion dates or direction from the Court.

(d) Even if the Court were to factor in this period of approximately 3 to 4 months, from fall 2022 to early 2023, the plaintiffs did not provide a reasonable explanation for the remainder of this period regarding scheduling this motion.

[66] Turning to the period of July 25, 2023 to November 29, 2023, the Court finds the reasons for the delay for this period do not provide an adequate explanation.

[67] On or about July 25, 2023, plaintiffs' counsel put this matter on the running civil long motion list under the mistaken impression this was a triage court attendance on December 8, 2023. While this mistake can be excused, what cannot be excused are the plaintiffs' resulting actions:

(a) Inexplicably, the plaintiffs did not advise any of the defendants, including this defendant, of this December 8, 2023 date until November 29, 2023 -- over four months after the plaintiffs booked this date.

(b) Plaintiffs' counsel scheduled this date without consulting any of the defendants, including this defendant, on their availability to attend. Therefore, even if December 8, 2023 had been a triage court date to schedule a long motion, there was no guarantee that all parties would have been able attend, especially given the plaintiffs' short notice provided to the defendants of this date.

[68] On November 29, 2023, when plaintiffs' counsel first advised this defendant's counsel of the December 8, 2023 date, this defendant's counsel immediately spoke to plaintiffs' counsel by phone and advised them of their mistake. This quick correction suggests the plaintiffs could have rectified this mistake well before November 29, 2023 if they had communicated this December 8, 2023 date to this defendant's counsel well prior to November 29, 2023.

[69] The Court finds the reasons for the delay from November 29, 2023 to April 2024 do not provide an adequate explanation for the delay. On December 7, 2023, plaintiffs' counsel advised this defendant they would proceed with their motion to validate service on this defendant once the plaintiffs obtain the police records and obtain a mutually convenient motion date. However, the plaintiffs provided no evidence to the Court that they booked this Wagg motion or indeed did anything to advance this matter between November 29, 2023 and April 2024, when they booked this motion as a short motion, other than cause their motion to be removed from the running long motions list.

[70] The Court finds the reasons for the delay from April 2024 to October 30, 2024 do not present an adequate explanation for the delay. Plaintiffs' counsel contributed to this delay by booking this motion as a short motion in April 2024, and maintaining this position despite the long list of various relief sought by the plaintiffs and in the face of this defendant's counsel advising he would be opposing the motion for an Order to validate service. This position of plaintiffs' counsel necessitated the parties' counsel to attend at the Court on October 30, 2024 to argue a contested adjournment of this motion. The Court agreed this motion should be heard as a long motion and adjourned it to triage court so the parties could obtain a long motion date.

[71] Ms. Ford baldly states no long motion dates were available in late April 2024. However, she does not explain why plaintiffs' counsel took no other efforts to schedule a long motion date or detail any other efforts from April 2024 onwards to obtain long motion dates, including having this motion placed on the running civil long motions list, as they had done in or around July 25, 2023.

[72] The Court finds the reasons for the delay from October 30, 2024 to September 15, 2025 present an adequate explanation. The remaining events from October 30, 2024 to September 15, 2025 concerned the scheduling of this motion. The parties appear to somewhat disagree on the reasons why the Court did not schedule a long motion date at triage court on March 25, 2025. However, neither party submitted it was due to any fault of the plaintiffs, who had served their motion record on October 21, 2024.

[73] Approximately 25 months -- consisting of 5 months from 2017 to 2018, 10 months in 2021 and 10 months from 2024 to 2025 -- have reasons for the delay that present an adequate explanation. The remaining time period -- from September 8, 2017 to September 15, 2025 less these 25 months -- consists of approximately 71 months or almost 6 years where the Court has found no adequate explanation for the delay.

[74] The plaintiffs rely on several decisions in support of dismissing this defendant's motion. For the following reasons, I find these decisions do not aid the plaintiffs' position.

[75] The plaintiffs rely on 1351428 Ontario Limited (Wineyard) v. 1037598 Ontario Ltd., 2011 ONSC 4767 ("1351428 Ontario Limited (Wineyard)") in support of dismissing this defendant's motion because in that matter, the defendants did not seek an order to dismiss the action for delay prior to the matter being struck off the list. The plaintiffs rely on this fact to advance the proposition that this defendant's motion is delayed and reactive to the plaintiffs' motion, and this defendant should have brought his motion prior to the plaintiff's motion.

[76] 1351428 Ontario Limited (Wineyard) is distinguishable from this matter. In that proceeding, the plaintiffs brought an application to restore the action to the trial list after it had been struck. The Court found there was no default on the part of the plaintiff other than having the action restored to the trial list, the plaintiff had prosecuted the action, the delay was not inordinate and inexcusable such as would give to a presumption of prejudice, and there was no evidence of actual relevant prejudice if the trial should proceed. In this matter, the Court has found the delay to be inordinate and inexcusable, and as detailed below at paragraphs 85 to 89, there is evidence of actual prejudice if the trial should proceed.

[77] The plaintiffs rely on Armstrong v. McCall ("Armstrong") and Slota v. Kenora-Rainy Reivers Districts Child and Family Services, 2020 ONSC 8105 ("Slota") to advance their position that this defendant's conduct has complicated and impeded the scheduling of this motion and the advancement of this matter. The plaintiffs submit this defendant should not have attempted to adjourn the motion and "cause further delay" but "should have simply filed their Statement of Defence to move the matter along."

[78] The facts of Armstrong are distinguishable from this matter. In Armstrong, the delay was only in setting the matter down for trial, and a considerable body of relevant documentary evidence existed that the defendants could use to refresh their memories if necessary. In this matter, pleadings have not yet closed, and the plaintiffs did not present evidence of existing documents this defendant can use to refresh his memory.

[79] Further, in Armstrong the defendants brought three motions to dismiss the action for delay. The second motion to dismiss occurred just over 6 months after the first motion to dismiss. Approximately less than 1.5 years later, contrary to the court's Practice Direction requiring consultation with the plaintiffs' counsel, the defendants booked a third motion to dismiss the action for delay. In this matter, this defendant brought only one motion to dismiss.

[80] The plaintiffs cite Slota at paragraph 19 in support of their position regarding this defendant's conduct, including the following statement: "[I]n a civil case, counsels' duties require them to cooperate to find the most efficient, affordable, and proportionate adjudication process for the fair resolution of their clients' disputes."

[81] The plaintiffs' reliance on Slota does not assist their position. This defendant's counsel was not required to cooperate with the plaintiffs' counsel by delivering his client's Statement of Defence. This defendant was entitled to essentially agree that he was duly served with the Statement of Claim by delivering his Statement of Defence. However, no law required him to take this position. It was his choice, and his right, to advance the position that he was not properly served with the Claim. Therefore, contrary to the plaintiffs' suggestion, I find this defendant acted well within his legal rights including his rights within the Rules. Further, I find this defendant's counsel did not act uncooperatively by assisting his client in the exercise of his client's rights.

[82] If this defendant's conduct complicated and impeded the scheduling of this motion and the advancement of this matter, this may have occurred between October 30, 2024 and September 15, 2025, as detailed above in paragraph 72 because this defendant did not deliver his motion materials until after the case conference on May 13, 2025, as per the Court-ordered timetable. Otherwise, I reject the plaintiffs' submission that this defendant's conduct complicated and impeded the scheduling of this motion and the advancement of this matter.

[83] In light of the foregoing, the Court finds the overall delay with respect to this defendant to be inexcusable.

C. Is the Delay Prejudicial to Christopher Meinshausen-Tomassetti?

[84] For the Court to consider whether the delay is prejudicial to Mr. Meinshausen-Tomassetti, the test is whether the delay creates a substantial risk that a fair trial of the issues will not be possible. Inordinate delay generates a presumption of prejudice. Memories fade and fail, witnesses can become unavailable, and documents can be lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay: Ticchiarelli at para. 28, citing Langenecker at para. 11.

[85] The plaintiffs have an evidentiary burden to demonstrate that this defendant has not been prejudiced, for example by key witnesses being available or documents having been preserved. In addition to relying on the inference of prejudice arising from the inordinate delay, this defendant can lead evidence of actual prejudice: Ticchiarelli at para. 29.

[86] The Court finds there is a presumption of prejudice due to the inordinate delay. The plaintiffs have not rebutted this presumption of prejudice. The plaintiffs have not provided evidence to the Court that documents have been preserved or key witnesses are available. They have not established the issues do not depend on witnesses' recollection or that all necessary witnesses are available with a detailed recollection of the events: Baranick v Counsel Trust Company at paras. 16 to 18.

[87] The plaintiff Ryan McGrath and the corporate defendants attended at examinations for discovery in November 2021. However, the Court was not presented with any affidavit evidence from Mr. McGrath or the corporate defendants, or transcripts from these discoveries. Therefore, the Court is unable to find that the necessary witnesses are available with a detailed recollection of the events giving rise to this action.

[88] The Court also finds there is evidence of actual prejudice, as outlined above at paragraph 26. The Court therefore finds the delay creates a substantial risk that a fair trial of the issues will not be possible.

[89] The plaintiffs cite Peakovic v. Ford Motor Company of Canada, 2019 ONSC 6763 in support of their position that this defendant's motion should be dismissed because this defendant has been passive, has not displayed any sense of urgency in moving the matter forward, and their passivity is inconsistent with the presence of prejudice.

[90] The facts of Peakovic are distinguishable. The Court in Peakovic found there was no evidence that any of the defendants took any steps to move the action forward. In this matter, this defendant has not been passive. His counsel has corresponded with plaintiffs' counsel since 2021 regarding the plaintiffs' motion and the service issues, as discussed above. Further, despite the Court in Peakovic finding the defendants had been passive, the Court found the defendants had been prejudiced by the plaintiffs' delay, and dismissed the plaintiffs' action for delay. Therefore, I do not find the plaintiffs' reliance on Peakovic to assist their position.

[91] The motion judge's order dismissing this action for delay is a discretionary order: Ticchiarelli at para. 14. For the foregoing reasons, the Court exercises its discretion and dismisses this action for delay as against Mr. Meinshausen-Tomassetti under Rule 24.01.

Disposition

[92] For the foregoing reasons, the Court orders as follows:

(a) The plaintiffs' motion to validate service of the Statement of Claim on Mr. Meinshausen-Tomassetti is dismissed.

(b) The Court declines to grant the plaintiffs an Order extending the time to serve the Statement of Claim on Mr. Meinshausen-Tomassetti to February 18, 2021.

(c) The action is dismissed as against Mr. Meinshausen-Tomassetti pursuant to Rule 24.01 of the Rules.

Costs

[93] The parties provided costs outlines at the motion hearing. If the parties cannot agree to the disposition of the costs of the motion, they may make submissions in writing, not exceeding three pages each -- the plaintiffs within 20 days and this defendant within 10 days thereafter -- to the attention of the Trial Coordinator.

Associate Justice Mak

Date: February 12, 2025