Citation: JOHN RAPHAEL McMAHON, EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF DOUGLAS SARGENT MONTGOMERY, DECEASED v. MONTGOMERY, 2026 ONSC 4552
ENDORSEMENT OF CIVIL MOTION
SHORT TITLE OF PROCEEDINGS: JOHN RAPHAEL McMAHON, EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF DOUGLAS SARGENT MONTGOMERY, DECEASED v. MONTGOMERY
BEFORE: Associate Justice Perron
HEARD ON: April 2, 2026
COUNSEL:
Chantal Beaupré for the plaintiff/defendant by counterclaim
Carly Stewart for the defendant/plaintiff by counterclaim
RELIEF REQUESTED: An Order setting aside the Order of the registrar dismissing this action for delay dated June 20, 2025.
ENDORSEMENT
Overview
This is a motion by the plaintiff brought pursuant to Rule 37.14 of the Rules of Civil Procedure seeking to set aside the registrar’s order of June 20, 2025 dismissing the action for delay.
The underlying action arises from alleges loans advanced by Douglas Sargeant Montgomery to his daughter, Joan Montgomery (the defendant). The loans are alleged to have been advanced between 1981 and 2012 for a total amount in excess of 1.8 million dollars.
Mr. Montgomery passed away in March 2019. The action is being advanced by Mr. Montgomery’s estate trustee.
The claim was issued on November 4, 2019. Pleadings closed in September 2021. No other steps in the litigation were completed thereafter.
The plaintiff’s position is that any delays in this matter are primarily explained due to issues with the defendant’s capacity and the defendant’s failure to take the necessary steps to assess capacity or appoint a litigation guardian.
The defendant’s position is that the failure to progress the litigation beyond the pleadings stage lies at the feet of the plaintiff, and that the plaintiff willfully failed to take steps to advance the action without a satisfactory explanation and without meeting his burden to establish that the defendant would not be unfairly prejudiced by the delay.
For reasons that will be explained below, I am satisfied that the registrar’s dismissal order should be set aside and that the action should be restored.
The Legal Framework
The applicable legal test is not in dispute.
Rule 48.14 provides that the registrar shall dismiss an action for delay if it is not set down for trial within five years.
Rule 37.14 provides that a party that is affected by an order of a registrar may move to set aside the order and the court may set aside the order on such terms as are just.
With respect to dismissal orders for delay, the court will consider the four Reid criteria: a) the explanation for the delay; b) whether the delay is attributable to inadvertence; c) promptness in bring the motion to set aside the dismissal; and, d) the absence of any prejudice to the defendant1.
It is well established that a plaintiff is not required to satisfy all four Reid factors. The court must adopt a contextual approach and weigh all of the relevant factors to determine the order that is just in the circumstances of the case.2
The Plaintiff’s Explanation for the Delay is Reasonable
The plaintiff’s explanation for the delay must be “reasonable and cogent” or “sensible and persuasive” and the court will consider the overall delay and the effect of the explanations as a whole.3
The court will not engage in a granular, week-by-week analysis4. However, the longer the delay, the more cogent the explanation must be5. Ultimately, the court must balance “two competing policies: that civil actions be determined on their merits, and that they proceed in a timely and efficient manner”6.
The claim was commenced in November 2019 which means that the five year deadline to set the action down for trial was on or about May 2025 taking into account the approximate six-month suspension arising from the covid pandemic. The registrar dismissed the action for delay on June 20, 2025.
The chronology of events is not in dispute therefore I need not reproduce it here. I have addressed the events from the key periods below.
From November 2019 to the close of pleadings in September 2021, there were numerous issues that arose including the need to bring a motion for substituted service of the claim upon the defendant, allegations that the plaintiff and his then-counsel were in a conflict of interest and requests to amend pleadings.
At the request of the plaintiff, a first case conference was held on August 3, 2021. A timetable was ordered to deal with the delivery of amended pleadings, the exchange of documents, discoveries and mediation. The timetable provided that mediation would be completed by April 29, 2022.
When considering the above issues, I am satisfied that up to the close of pleadings in September 2021, the plaintiff has provided an entirely satisfactory explanation for the slow progress of the litigation.
I am also satisfied, and agree with the plaintiff, that from October 2021 to April 2024, the delays in advancing the litigation primarily arose from issues with the defendant’s capacity:
a. Starting in October 2021, the defendant’s counsel advised he could no longer receive instructions and would seek the appointment of a litigation guardian;
b. Five additional case conferences took place during this timeframe, all at the request of the plaintiff, to deal with the defendant’s capacity assessment and subsequent refusal to the capacity assessment. This refusal required motions to compel the defendant’s capacity assessment and to appoint a litigation guardian. The motions were discussed at the case conferences;
c. After several delays and requests for indulgences by the defendant in bringing the motion(s), it was ultimately the plaintiff – in June 2023 -- that brought the motion seeking a capacity assessment and the appoint of a litigation guardian for the defendant;
d. Notwithstanding that the defendant’s counsel was having difficulty getting instructions, the defendant then brought a motion in August 2023 seeking an order compelling the plaintiff to pass his accounts. At one of the case conferences, in September 2023, it was ordered that the motion to appoint a litigation guardian and to pass accounts be heard together. The passing of accounts motion was never heard because it was found to be premature and/or was dismissed;
e. In September 2023, an assessor found that the defendant lacked capacity to instruct counsel;
f. In October 2023, the defendant brought a motion seeking a declaration that she was a party under disability and to appoint the PGT. That motion was duplicative of the plaintiff’s earlier motion; and,
g. In April 2024, the defendant was declared to be a party under disability and the PGT was appointed as litigation guardian.
The plaintiff’s explanations are not without hiccups during this period. The plaintiff’s former counsel was uncooperative at times and made statements to the effect that the plaintiff was under no obligation to assist the defendant and that the plaintiff was under no obligation to move the case forward. The latter assertion is obviously not correct and directly contradicts a plaintiff’s well-established obligation to move their action forward7. That said, I do not agree with the defendant that the comments by the plaintiff’s counsel in this case should be interpreted as a willful or deliberate failure to progress the action.
At a case conference in April 2022, the Court found that the plaintiff “may move forward” with the litigation pending the motion to assess the defendant’s capacity or appoint a litigation guardian. The Court also noted that the timelines set out in the Rules would prevail in the absence of a further court order or the consent of the parties. That said, from a practical perspective, I agree with the plaintiff that it was not in a position to meaningfully advance the litigation until the defendant’s capacity issues were addressed. Although the plaintiff could have delivered his affidavit of documents, how in the circumstances could he proceed with examinations for discovery or mediation?
I also note that the estate trustee – who is a lawyer – did not file an affidavit in support of the motion. The plaintiff’s evidence was introduced by two affidavits from one of his current solicitors, Andre Lister. Although Mr. McMahon’s evidence was admitted by hearsay evidence in Mr. Lister’s affidavit – and this hearsay evidence constitutes the vast majority of Mr. Lister’s evidence – it would have been far preferable to have an affidavit directly by Mr. McMahon who is, for all intents and purposes, the plaintiff in this matter. Such evidence might have confirmed the plaintiff’s intention to proceed with the litigation. That piece of direct evidence is missing; however, I can infer from the plaintiff’s explanation and the chronology of events of this case that he always intended to proceed with the action.
Although the plaintiff’s explanation for the delay is not perfect, that is not the standard to be met. In addition, it would not be appropriate to focus on specific periods of time which ignore the holistic approach I am required to take on this motion.
Furthermore, in this case, a holistic review of the plaintiff’s explanation must take into account the defendant’s delays and/or stalling tactics in addressing her own capacity including the defendant’s attempt to thwart the plaintiff’s motion seeking to appoint the PGT as her litigation guardian by diverting focus to her request for the plaintiff to pass accounts8. I note that the defendant’s only response as to the effect of any such delays by her on this motion was that it is not the defendant’s obligation to move an action forward.
After the PGT’s appointment, the PGT required time to appoint counsel and counsel needed time to receive and then review the file. The plaintiff also provided the PGT with a binder of documents in February 2025 followed by an informal accounting in May 2025 further to a request for same by the PGT’s counsel.
The registrar’s order was issued on the heels of a letter from the PGT’s counsel asking questions about the plaintiff’s informal accounting.
I am also satisfied with the plaintiff’s explanation of delay from April 2024 to June 2025.
The Failure to Set the Action Down for Trial was Not Due to Inadvertence
There is absolutely no evidence to support that the failure to set the action down for trial was due to inadvertence. The affidavits filed by Mr. Lister do not even speak to the missed set down deadline or to what the exact set down date was.
I am therefore not prepared to infer that the delay is explained by inadvertence. There is simply no evidence to support such a conclusion.
That said, the absence of inadvertence is not fatal to the motion. As set out above, the plaintiff need not meet all four Reid factors.
The Motion was Brought Promptly
- After attempts to confirm the defendant’s position on the motion to set aside the dismissal, and whether the defendant would consent to such relief, the plaintiff moved quickly to bring this motion. The plaintiff has therefore satisfied this criteria. I also note that the defendant does not take a position on this factor.
There is No Prejudice to the Defendant if the Action is Allowed to Proceed
The plaintiff bears the onus of establishing that the defendant would suffer no prejudice to her ability to defend the action as a result of the plaintiff’s delay. The principle of finality must also be assessed at this stage which would include, for example, any reliance by the defendant on the dismissal order.9
Prejudice may be presumed from the passage of time10. In recent decisions, the Court of Appeal has also made it clear that a culture shift is required to change “the entrenched culture of indifference to delay” and that if an action is not set down for trial by the five-year mark, the delay begins to move into the realm of inordinate.11 That said, a defendant’s lack of display of any sense of urgency undercuts any claim of actual prejudice.12
Although the five-year deadline was missed, the action was barely over the five year mark when it was dismissed. Notwithstanding the required culture shift, I cannot ignore that the defendant’s capacity issues played a significant role in delaying the progress of the action. I therefore do not find that the delay in this case is inordinate.
To rebut the presumption, the plaintiff relies on the fact that pleadings are complete and that all relevant documents have been preserved. No affidavits of documents have yet been exchanged but the plaintiff relies on his production of relevant documents to the PGT in February 2025. The plaintiff also relies on the fact that the absence of any available declarations/testimony by the deceased predates the commencement of the action and therefore cannot constitute prejudice to the defendant arising from the delay. In the same vein, the plaintiff points to the fact that the defendant’s capacity issues arose in 2021 which was relatively early in the litigation.
The defendant’s position on delay is that the plaintiff has not met his onus. The defendant reslies on the historical nature of the alleged loans and the overall passage of time to support that her ability to defend herself has been impacted by the delay.
The defendant also speculates that there may be additional documents that have not been produced in the litigation, but this is not evidence of actual prejudice. In her factum, the defendant also alleges that she is prejudiced by the absence of any distributions from her father’s estate until the action concludes, but there is no evidence to support this assertion or how the absence of any distribution actually prejudices her.
In the overall circumstances of this case, I am satisfied that the plaintiff has met his burden and established that the defendant is not prejudiced by the delay. This is an action to enforce loans which appears to be based on documentary evidence. Any issue with viva voce evidence not being available at trial does not arise from delays in progressing the action. From the commencement of the action, the historical nature of the indebtedness and circumstances leading to same had crystallized. The defendant’s plea that the action is statute barred will be considered at trial and that the defendant has not produced any evidence of actual prejudice to advancing this defence.
In addition, this is also a case where the defendant’s lack of any display of urgency undercuts her claim of any prejudice. Although the defendant attempted to move along the administration of the estate, she did so without her capacity issues having been addressed. There is no suggestion that she was concerned with the pace of the action. There was also no sense of urgency raised by the PGT or their counsel after their appointment. Moreover, as I have already found, the defendant’s capacity issues contributed to the delays.
I agree with the plaintiff that the principle of finality is not material in this case. The plaintiff signaled his intention to set aside the order promptly and the PGT had just sent another letter asking for clarifications. Communications between the parties were ongoing. There is no indication that the defendant thought that the dismissal order had brought an end to the dispute.
I am therefore satisfied that the plaintiff has met his burden to establish that there is no prejudice arising to the defendant from the delay. Now that the defendant’s capacity issues have been addressed by the PGT being appointed as litigation guardian, the parties find themselves in essentially the same position as they were at the commencement of the action, or at least as of close of pleadings in 2021. Any challenges that the defendant may face at trial is not as a result of the delay.
In all of the circumstances this case, as set out in my findings above, it is in the interest of justice to permit the action to be restored so that it can be tried on its merits.
Conclusion
The plaintiff’s motion is granted. The registrar’s dismissal order is hereby set aside and the action is restored.
The parties should endeavour to agree to a timetable that would see all outstanding steps in the litigation be completed, and the matter set down for trial, within the next 12 months. If the parties cannot agree to a timetable within 30 days, they must request a case conference before an associate judge to settle the timetable order.
If the parties cannot agree on the disposition of costs of this motion, they may provide me with their costs outline, any offers to settle and short, written submissions not to exceed three pages double-spaced as follows: the plaintiff shall deliver their materials within the next 45 days and the defendant shall deliver any responding materials within 30 days thereafter.
Date: July 28, 2026
Justice Perron*
*this matter was heard by me in my capacity as an Associate Judge
Footnotes
- Reid v Dow Corning Corp., 2001 CarswellOnt 2213 (ON SC).
- Scaini v. Prochnicki, 2007 ONCA 63 at paras 23-25; Habib v Mucaj, 2012 ONCA 880 at paras 5-6.
- Ticchiarelli v Ticchiarelli, 2017 ONCA 1 at para 16.
- Lépine et al v Bruce Marshall, 2026 ONSC 531 at para 36.
- Kara v Arnold, 2014 ONCA 871 at para 17.
- Lépine at para 37.
- 1196158 Ontario Inc. v 6274013 Canada Limited, 2012 ONCA 544 at paras 28-30; see also Bellefeuille v Tamarack Developments Corporation (Tamarack Homes), 2026 ONCA 170 at para 6.
- Ibid.
- Prescott v Barbon, 2018 ONCA 504 at para 36.
- H.B. Fuller Company v Rogers (Rogers Law Office), 2015 ONCA 173 at para 38.
- Bellefeuille v Tamarack Developments Corporation (Tamarack Homes), 2026 ONCA 170 at paras 6-8 referencing Barbiero v Pollack, 2024 ONCA 904.
- Lépine et al v Bruce Marshall, 2026 ONSC 531 at para 27.