Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AMELIE MONAPIERRE LATORTUE, DJEMCY ROLAND PIERRE and DJAIMI-RO PIERRE (Minor under the age of 18 by his litigation Guardian AMELIE MON PIERRE LATORUTE), Plaintiffs
AND:
SAYYED A. TAQAVI and UMME S. TAQAVI, Defendants
BEFORE: Associate Justice Fortier
COUNSEL: Susanne M. Sviergula, Agent for the Lawyer for the Plaintiffs Sarah Bedard, for the Defendants
HEARD: March 26th, 2026
ENDORSEMENT
Introduction
1The Plaintiffs move to set aside the Registrar’s order dated May 7, 2025, dismissing this action for delay, and to reinstate the action and extend the time for it to be set down for trial. The Defendants oppose this motion.
Background
2This action commenced on September 20, 2019, arising from a motor vehicle accident on August 25, 2018. The Plaintiff, Amelie Monapierre Latortue, claims damages for injuries sustained in the accident. The Plaintiffs Djemcy Roland Pierre and Djaimi-Ro Pierre each make claims pursuant to the provisions of the Family Law Act.
3The Defendants’ insurer acknowledged the claim in October 2019 and requested productions from counsel for the Plaintiffs, who is not counsel at the motion. The Defendants were subsequently noted in default, learned of this on February 26, 2021, retained counsel, and the default was set aside on consent in March 2021. The Defendants delivered a statement of defence and jury notice on April 6, 2021.
4In March 2021, the parties exchanged emails regarding document production. The Plaintiffs delivered initial medical productions in May 2021, and correspondence continued throughout June regarding scheduling and productions.
5Examinations for discovery were initially scheduled for November 2021. At that time, counsel for the Defendants proposed proceeding with examinations of the Plaintiffs only, given that the accident was a rear-end collision. The discoveries were later adjourned to December 10, 2021, at counsel for the Plaintiffs’ request due to medical reasons.
6The Plaintiffs delivered an unsworn affidavit of documents on December 1, 2021. Discoveries did not proceed, as the Defendants took the position that productions were incomplete.
7In 2022, the Plaintiffs continued to obtain and produce medical evidence, including assessments relating to catastrophic impairment. Further productions, including expert reports confirming catastrophic impairment, were delivered in October 2022.
8At a case conference on December 9, 2022, the court ordered the Plaintiffs to deliver outstanding productions and scheduled a further attendance. At a second case conference on March 29, 2023, the court imposed a timetable, requiring completion of productions and discoveries by October 31, 2023. The Defendants requested a further and better affidavit of documents and continued to follow-up regarding outstanding productions throughout 2023. Discoveries did not take place by October 31, 2023.
9The Plaintiffs delivered additional productions in December 2023 and March 2024, including materials via USB and electronic links. Unfortunately, the Defendants experienced issues in accessing the documents. At a further case conference on May 3, 2024, the court imposed updated deadlines, including completion of discoveries by July 31, 2024, and extended the deadline to set the matter down for trial to January 31, 2025.
10Issues persisted regarding access to documents. In June 2024, counsel for the Plaintiffs advised counsel for the Defendants that the Plaintiff, Ms. Latortue was ill and hospitalized and he was unable to obtain instructions from her at that time. In August 2024, the Plaintiffs expressed interest in settlement while awaiting a further expert report.
11The Defendants made an offer to settle on October 15, 2024; the Plaintiffs responded with a counteroffer on November 14, 2024.
12During the winter of 2024–2025, counsel for the Plaintiffs experienced significant medical issues and advised counsel for the Defendants in April 2025 that he may require surgery.
13On May 7, 2025, the action was dismissed for delay. Regrettably, the Defendants withdrew their offer to settle the same day. The Plaintiffs promptly sought consent to set aside the dismissal, which was refused.
14The motion to set aside was brought on July 29, 2025, initially in writing, and later converted, at the Defendants’ request, to an oral motion. The earliest available hearing date was March 26, 2026.
The Law
15Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, sets out the statutory framework for the registrar’s dismissal of an action for delay. It provides that an action must be set down for trial on or before the fifth anniversary of the date it was commenced, unless that deadline is extended by a timetable established on consent or by the Court.
16Rule 37.14 states that a party affected by an order of a registrar may move to set aside or vary that order, and on such a motion, the court may do so on such terms as are just.
17The test for setting aside a Rule 48.14(1) order is well established. The court is to consider the four factors commonly referred to as the Reid factors, as set out in Piedrahita v. Costin, 2023 ONCA 404 at para. 8:
Have the Plaintiffs provided a satisfactory explanation for the litigation delay?
Have the Plaintiffs led satisfactory evidence that they always intended to prosecute the action within the applicable time limits, but failed to do so through inadvertence?
Have the Plaintiffs demonstrated that they moved promptly to set aside the dismissal order once it came to their attention?
Have the Plaintiffs established that the Defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the delay or steps taken following dismissal?
18No one factor is necessarily determinative. This is not a rigid, one-size-fits-all test. The court must weigh all factors to determine what is just. The overriding objective is to balance the parties’ interest in having their case heard on the merits with the public interest in the timely resolution of disputes: Prescott v. Barbon, 2018 ONCA 504, at paras. 14–15.
Discussion and Analysis
19The Defendants argue that the Plaintiffs have failed to meet the onus required to set aside the registrar’s dismissal order. They submit that, in the nearly six years since the action was commenced, the Plaintiffs have not demonstrated a sustained intention to advance the litigation beyond the pleadings stage, notwithstanding multiple court-imposed timetables. In their submission, the Plaintiffs have failed to provide a satisfactory explanation for the delay, have not established that the delay arose from inadvertence, did not move with sufficient promptness, and have not demonstrated the absence of non-compensable prejudice.
20For the reasons that follow, I do not accept these submissions. When the record is considered as a whole and in its proper context, I am satisfied that the Plaintiffs have met the applicable test and that it is just to set aside the dismissal.
Explanation for the Delay
21The first Reid factor requires the court to determine whether the Plaintiffs have provided a satisfactory explanation for the delay. This analysis is not conducted in the abstract. Rather, it requires a contextual and fact-specific assessment of the course of the litigation, the conduct of the parties, and any external factors that may reasonably have contributed to the delay: Carioca’s Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592 at para. 55.
22A review of the record establishes that, although the action did not proceed expeditiously, it cannot fairly be characterized as stagnant or abandoned. The action commenced, pleadings were completed following the setting aside of default, and the parties engaged in an ongoing process of document production, scheduling of discoveries of the plaintiff and attendance at several case conferences. Timetables were imposed and revised by the court, and the parties participated in those case management steps. It is not denied however, that document production was problematic.
23Importantly, the delays that did arise were not attributable to inattention or neglect. They occurred in a context that included:
the impact of the COVID-19 pandemic in the early stages of the proceeding;
ongoing disputes and practical difficulties relating to the scope and format of document production;
the Plaintiff’s medical condition, including hospitalization; and
significant medical challenges faced by Plaintiffs’ counsel, including anticipated surgical intervention.
24These are not trivial considerations and, in my view, depending on the circumstances of each case, delay must be assessed in light of the realities of litigation, including health-related disruptions and structural challenges in managing personal injury claims involving extensive medical evidence.
25It is also significant that certain steps in the litigation were influenced by the Defendants’ own positions. Discoveries did not proceed, at least in part, because the Defendants took the position that productions were incomplete. While that position may have been open to them, it nonetheless contributed to the overall pace of the proceeding. In addition, the Defendants initially suggested that only the Plaintiff’s discovery might be necessary, reflecting an acknowledgment that liability was not in significant dispute.
26When the chronology is viewed holistically, there are periods of delay; however, they are interspersed with ongoing activity. There are no lengthy, unexplained gaps during which the Plaintiffs can be said to have abandoned or ignored the action. Counsel for both parties remained in communication, productions continued to be made over time, and the matter progressed incrementally.
27In these circumstances and taking into account the larger context approach mandated by the Court of Appeal in Carioca’s, I am satisfied that the Plaintiffs have provided a reasonable and acceptable explanation for the delay.
Inadvertence
28The second Reid factor focuses on whether the delay arose from inadvertence as opposed to a deliberate disregard of the Rules or court orders. The purpose of this inquiry is to distinguish between litigants who have intentionally failed to comply with their obligations and those who, despite an intention to proceed, have failed to meet deadlines due to mistake, oversight, or circumstances beyond their control: Viney v. Cameron et al., 2012 ONSC 3301 at para 34.
29There is no evidence on this record of deliberate non-compliance or a strategic decision to ignore established timelines. To the contrary, the evidence demonstrates a continuing intention on the part of the Plaintiffs to advance the action. This is reflected in the ongoing production of medical and other records, participation in case conferences, and engagement in settlement discussions.
30Of particular importance is the timing immediately preceding the dismissal. The record indicates that Plaintiffs’ counsel was in active communication with defence counsel regarding the status of the file and next steps. This is inconsistent with any suggestion that the file had been abandoned or consciously set aside.
31The delay instead appears to have arisen from a combination of factors, including difficulties in obtaining and producing comprehensive medical documentation, the Plaintiff’s health issues, and the significant medical challenges faced by Plaintiffs’ counsel.
32In these circumstances, it would be unjust to attribute the delay to anything other than inadvertence and circumstance. On motions such as this one, the court is primarily concerned with the rights of the litigants, not the conduct of their lawyer. The law will not ordinarily allow an innocent client to suffer the irrevocable loss of the right to proceed due to the inadvertence of their lawyer: Finlay v. Van Paassen, 2010 ONCA 204 at para. 33.
33I am therefore satisfied that the second Reid factor has been met.
Promptness in Bringing the Motion
34The third factor requires the court to consider whether the Plaintiffs acted promptly upon learning of the dismissal order.
35The evidence demonstrates that the Plaintiffs moved with reasonable diligence. Upon receiving notice of the dismissal, Plaintiffs’ counsel immediately sought the Defendants’ consent to set it aside. When that consent was refused, the Plaintiffs proceeded to bring a motion dated July 29, 2025, approximately three months after the dismissal.
36While not immediate, this period is not excessive in the circumstances. Moreover, the motion was subsequently converted to an oral hearing on consent, and the hearing date was set at the earliest availability of the court, a factor entirely outside the Plaintiffs’ control.
37Viewed fairly and contextually, the Plaintiffs acted with sufficient promptness to satisfy this branch of the test.
Prejudice
38The final factor requires the Plaintiffs to convince the court that the Defendants have not demonstrated any significant prejudice in presenting their case as a result of the Plaintiffs’ delay.
39The Defendants’ primary submission on prejudice relates to the alleged incompleteness of productions and the uncertainty surrounding what records may ultimately be available. They argue that this impairs their ability to assess the case, conduct discoveries, and marshal responsive evidence, particularly in relation to causation, damages, and credibility.
40These concerns are not without some foundation. The state of the productions is a legitimate issue in the litigation and has contributed to delay. However, the test is not whether some prejudice exists, but whether significant and actual prejudice has been established on the evidence.
41On this record, I am not satisfied that such prejudice has been demonstrated. There is no evidence that key witnesses have become unavailable, that memories have irretrievably faded in a way that cannot be addressed at trial, or that relevant documents have been lost or destroyed as a result of the delay or the dismissal itself.
42Many of the categories of documents identified by the Defendants, such as tax records, employment records, hospital records, and treatment notes, are of a type that are typically retained and remain accessible through institutional record-keeping systems. While there may be some limitations, such as with respect to the temporal availability of certain OHIP summaries, the Plaintiffs have identified alternative sources of information that can address those gaps.
43It is also significant that the Defendants were placed on notice of the Plaintiffs’ intention to challenge the dismissal on the very day it occurred. Any steps taken thereafter were taken with knowledge that the dismissal might not be final.
44Further, at the time of dismissal, the parties were actively engaged in settlement discussions, including the exchange of offers. This is inconsistent with the notion that the delay had irreparably compromised the Defendants’ ability to defend the action.
45In these circumstances, I am not persuaded that the Defendants will suffer significant, non-compensable prejudice if the action proceeds.
Conclusion
46As indicated earlier, no one factor is necessarily decisive of these motions. Rather, a contextual approach is required where the court weighs all relevant considerations to determine the result that is just. The overriding objective is to achieve a result that balances the interests of the parties and takes account of the public interest in the timely resolution of disputes: Prescott at paras. 14-15.
47Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, granting the plaintiff an indulgence is generally favoured: MDM Plastics Limited v. Vincor International Inc. 2015 ONCA 28 at para 26.
48In my view, the Plaintiffs have satisfied each of the four Reid factors. Accordingly, balancing the interests of the parties, and taking into account the strong preference for resolving disputes on their merits where it is just to do so, I conclude that this is an appropriate case to grant relief and reinstate the action.
Disposition
49The Plaintiffs motion is granted. The dismissal order of the registrar is hereby set aside, and the action is reinstated.
50The Plaintiffs provided a draft order with a proposed timetable for the next steps in the action. In my view the Plaintiffs’ proposed timetable is reasonable. Accordingly, the parties shall adhere to the timetable below for the next steps in the litigation. The timetable is peremptory to the Plaintiffs.
Examinations for discovery Within 120 days of the date of this Order
Answers to all undertakings (or requests for such answers from any third parties) Within 60 days of completion of the examinations for discovery
Any discovery related motion(s) To be scheduled within 30 days of the deadline for answers to all undertakings
Mediation March 1, 2027
Set down for trial No later than March 26, 2027,
51Both parties provided their cost outlines. The Plaintiffs’ partial indemnity costs, including disbursements and HST, are in the amount of $7,268.84. The Defendants’ partial indemnity costs, inclusive of HST and disbursements, are $3,054.39.
52Costs are in the discretion of the court, and the general rule is that costs are awarded to the successful party. The Court of Appeal has emphasized that fixing costs does not begin and end with a calculation of hours multiplied by rates. The objective is to determine an amount that is fair and reasonable for the unsuccessful party to pay, not necessarily the amount actually incurred by the successful party: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para. 26.
53The Plaintiffs were successful on the motion. Given what was at stake for the Plaintiffs, it was not unreasonable for them to have invested more time than the Defendants, and this possibility ought reasonably to have been within the Defendants’ contemplation.
54In exercising my discretion with respect to costs, I find that an award to the Plaintiffs in the sum of $6,500, inclusive of disbursements and HST, is fair, reasonable, and proportionate in the circumstances. Accordingly, the Defendants shall pay the Plaintiffs their costs of the motion, fixed in the amount of $6,500.00, within 30 days.
Associate Justice Fortier
Date: May 21st, 2026