SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Erwin Oechslin and Doris Oechslin v. Alex Hua;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: C. Michael J. Kealy for Erwin Oechslin and Doris Oechslin;
Spencer Bass for Alex Hua;
HEARD: July 16, 2026.
REASONS FOR DECISION
[1] The plaintiffs, Erwin and Doris Oechslin, bring this motion for a status hearing that does not dismiss this action and that instead sets a timetable for the remaining steps in this action. The defendant, Alex Hua, opposes this motion and wants the action dismissed with costs.
a) Background
[2] The Oechslins served and filed an affidavit sworn by their original lawyer, L. Poliacik, and an affidavit sworn by Dr. Erwin Oechslin. Mr. Hua served and filed an affidavit he swore. Dr. Oechslin and Mr. Hua were cross-examined on their affidavits and transcripts were filed. The following background facts were gleaned from the evidence.
[3] The Oechslins owned a residential property municipally at 215 Lord Seaton Road, Toronto. On March 28, 2018 they entered into an agreement of purchase and sale with Alex Hua whereby Mr. Hua agreed to buy the property for $3.18 million with the closing being on June 28, 2018 and with Mr. Hua to deliver a deposit of $150,000 to the Oechslins’ realtor, Harvey Kalles Real Estate Brokerage (“Kalles”), within 24 hours of acceptance. Mr. Hua did not deliver the deposit and did not close. The Oechslins got bridge financing, re-marketed the property and sold it on June 28, 2018 for $3.1 million with the sale closing on September 27, 2018.
[4] The Oechslin’s hired a lawyer, Lubomir Poliacik, and on May 13, 2019 had a statement of claim issued wherein they sued Mr. Hua for breach of contract with the claimed damages being the unpaid deposit and the differential in purchase prices plus carrying costs. On July 23, 2019 Mr. Hua delivered a statement of defence and counterclaim. Mr. Hua alleged that the realtors for the Oechslins acted also for him, that these agents made misrepresentations to him about the advisability of deleting the conditional-on-financing clause and the home inspection clause, and that he wrongly agreed to these deletions as result as he was not able to get financing. Mr. Hua counterclaimed for a rescission of the agreement of purchase and sale. On July 24, 2019 Mr. Hua commenced a third party claim against the realtors, Mark Aliassa and Kalles, claiming contribution and indemnity for the Oechslins’ claim against Mr. Hua. On August 23, 2019 the third parties defended the third party claim denying these allegations. The Oechslins delivered a reply and defence to counterclaim on November 15, 2019. Pleadings were closed.
[5] With the assistance of Mr. Poliacik, the Oechslins prepared and swore an affidavit of documents on October 10, 2019. It contained 28 documents. Mr. Poliacik served it the next day, October 11, 2019, with a covering letter that asked for the Hua affidavit of documents. There was no response.
[6] On November 5, 2019 Mr. Poliacik sent another letter to counsel for Mr. Hua, Emily Quail of the Stockwoods LLP firm, asking again as to when the Hua affidavit of documents would be served. He also proposed dates in December, 2019 for the discovery of the defendant. On November 8, 2019 Ms. Quail emailed asking for a telephone call with Mr. Poliacik. That telephone call happened on November 12, 2019 and there was discussion of a mediation. After a month, Mr. Poliacik followed this up with an email on December 19, 2019 asking whether the parties should schedule a mediation or discoveries.
[7] On January 8, 2020 Ms. Quail emailed with proposed mediation dates. Mr. Poliacik responded by email on January 8, 2020 advising as to which dates were acceptable to his clients. Then on February 4, 2020 Ms. Quail emailed advising that the third party did not want a mediation but that the defendant wanted to talk settlement. There were then emails between the lawyers in February and March, 2020 about settlement.
[8] Mr. Poliacik then said that the Covid-19 pandemic intervened. He said that he tried to meet with the Oechslins in March, 2020 to get instructions on settlement, but that this became impossible due to the pandemic. He said he then simply waited for instructions from his clients, knowing how busy Dr. Oechslin was due to the pandemic.
[9] Dr. Oechslin said in his affidavit that, as between the two plaintiffs, he was the manager of this litigation. However, he said that, due to the pandemic and family issues, the plaintiffs were not able to give priority to this action from March, 2020 to the spring of 2022.
[10] Dr. Oechslin is a physician and at the time was the Director of the Adult Congenital Heart Disease Program at the University Health Network. He said in his affidavit that the pandemic forced him to assume additional duties, such as making policy decisions to keep himself, his team and his patients safe. Treating patients was much more complicated and took longer. There was a greater volume of patients. He said this was all stressful and consumed much of his time.
[11] In September, 2020, Mrs. Oechslin contracted an infection that required her to be quarantined for over a month.
[12] In March, 2021 Dr. Oechslin stepped down from his position as Director but he said he continued to be extremely busy helping his successor adjust to the position and mentor him, and working as a full-time staff physician and member of the Echocardiography Lab given the backlog of patients and the new waves of Covid-19 cases.
[13] In addition, Dr. Oechslin stated that in 2021 and 2022 the Oechslins traveled many times to Switzerland to care for and help with his ailing father and disabled sister. He said that in 2022 he himself experienced prostate health issues that resulted in an operation in September, 2022.
[14] In May, 2022 Dr. Oechslin said he was finally able to turn his mind back to this case. He contacted Mr. Poliacik. On June 3, 2022 Mr. Poliacik sent a letter to Messrs. Van Niejenhis and Bass, the new lawyers at the Stockwoods LLP firm representing the defendant. The letter enclosed an offer to settle, asked to schedule discoveries if the offer was not accepted, and asked for the defendant’s affidavit of documents. There was no response.
[15] On April 5, 2023 Mr. Poliacik sent another letter. In this letter he noted that he had not received a response to his June 3, 2022 letter. He suggested dates for discovery and against asked for Mr. Hua’s affidavit of documents. On April 13, 2023 Mr. Bass emailed Mr. Poliacik confirming that the April 5, 2023 letter was received and that the Hua lawyers would confer with Mr. Hua and get back to Mr. Poliacik in a couple of weeks. There was no further response.
[16] In November, 2023 Mr. Poliacik advised the plaintiffs that he would be retiring in 2024. In January, 2024 he introduced them to a new lawyer, Alexander Wilkes. Dr. Oechslin said that in the winter and spring of 2024 he travelled much to Europe for meetings of international medical and scientific committees and to visit his ailing father, whose health deteriorated. His father suffered a stroke in October, 2023 and passed away in April 2024.
[17] In June, 2024 Messrs. Wilkes and Poliacik followed up with the plaintiffs. They retained Mr. Wilkes in September, 2024. On November 8, 2024 Mr. Wilkes commenced this motion for a status hearing. The motion was originally made returnable December 16, 2024.
[18] The motion was adjourned several times by the Status Hearing Assignment Court. Finally, after an unsuccessful mediation, on November 25, 2025 the motion was ordered to be heard as a long motion. I was assigned the long motion on December 23, 2025. I convened a motion case conference that took place on January 5, 2026. At that time, I set a schedule for the motion that had the argument taking place on May 26, 2026. Due to my health issues, in mid-March, 2026 I rescheduled the motion argument date to July 16, 2026.
b) Governing test
[19] Rule 48.14 specifies that, unless the court orders otherwise, the registrar shall dismiss an action for delay if it has not been set down for trial by the fifth anniversary of the commencement of the action, subject to the parties filing a consent timetable or bringing a motion for a status hearing prior to that deadline. It is undisputed that the Rule 48.14 set-down deadlines were suspended between March 16, 2020 and September 14, 2020. That means that the set-down deadline for this action was November 11, 2024. The plaintiffs commenced this motion prior to the deadline.
[20] As stated by the Court of Appeal in Henderson v. Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387 in paragraph 6, in a status hearing motion the plaintiff has the onus to prove that there is an acceptable explanation for the delay, and that, if the action is allowed to proceed, the defendant would suffer no non-compensable prejudice because of the plaintiff’s delay.
[21] As stated in paragraph 5 of the decision of Associate Justice Brown in Martellacci v. Pitney Bowes of Canada Ltd., 2024 ONSC 320, there are several principles to be considered in applying the test:
The onus is on the plaintiff to meet the test.
The test is conjunctive not disjunctive, which means that the motion will fail if the plaintiff fails to prove both elements.
The responsibility to move the action along lies chiefly with the plaintiff, although the defendant’s conduct is also a factor to be considered.
The court must balance the interests of the parties and society in timely and efficient justice against the resolution of the dispute on its merits.
In assessing the reasonableness of the explanation for the delay the court must use a “contextual approach” and weigh all relevant factors to reach a just result, such as the intention to prosecute the action and the speed at which the motion was brought.
Generally, the longer the delay, the more cogent the explanation must be.
Settlement discussions are a reasonable explanation for delay.
The prejudice at issue is the ability of the defendant to defend the action as a result of the plaintiff’s delay, not as a result of the sheer passage of time.
The defendant’s lack of display of urgency undercuts any claim of actual prejudice.
c) Acceptable explanation for the delay
[22] The defendant’s primary focus was on the issue of whether the plaintiffs have proven an acceptable explanation for the delay.
c.1) March, 2020 to June, 2022
[23] In closing argument, counsel made it clear that there were only two periods of delay in issue. The first was from March, 2020 to May, 2022. This was the single longest period of delay. March, 2020 marked the end of the discussion between the plaintiffs and the defendant about settlement and the beginning of the pandemic. June 3, 2022 was the date of the next letter from Mr. Poliacik to the defendant’s lawyers enclosing an offer to settle and asking for a discovery schedule and the defendant’s affidavit of documents.
[24] I find the plaintiff’s explanation for this delay acceptable. Remember, the explanation does not have to be perfect or even good, just acceptable or passable; see Martellacci, supra, paragraph 6.
[25] The primary explanation revolved around the pandemic. Dr. Oechslin, the one in charge of giving instructions for the plaintiffs, stated that his time during this period was consumed by the pandemic. This was not, in my view, the standard pandemic-delay explanation the courts have now often seen from non-medical parties and grown skeptical of. Dr. Oechslin’s evidence is that he was a highly placed, front-line medical worker whose time was consumed by the pandemic. Up to March, 2021 he was the Director of the Adult Congenital Heart Disease Program at the University Health Network. In this position during the pandemic Dr. Oechslin said he was in charge of making policy decisions to keep himself, his team and patients safe. Then in March, 2021 he stepped down from his position but his work as a full-time staff physician remained intense during this period given the patient backlog and ongoing waves of new Covid patients. I take judicial notice of the constant and intense pressure frontline medical personnel, such as Dr. Oecshlin, faced during this time and find this an acceptable explanation for the delay.
[26] This is also the reason I do not criticize Mr. Poliacik for his decision not to contact the plaintiffs during this period. He said he knew how busy Dr. Oechslin, the instructing plaintiff, was and waited for the plaintiffs to contact him. I agree with Mr. Bass that Mr. Poliack’s conduct was not “inadvertence;” a lawyer’s inadvertence in causing delay is an acceptable explanation for the delay; see Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, at paragraph 28. On the contrary, Mr. Poliacik made a conscious choice here. But it was a choice that, in my view, is not fatal to this motion. This delay period was well within the five-year period mandated by Rule 48.14 and therefore did not prejudice the plaintiffs in that regard. Dr. Oechslin stated in his affidavit the plaintiffs always intended to proceed with this action and they relied on Mr. Poliacik to move the case forward. I accept that statement as the evidence supports it. That means that Mr. Poliacik’s decision not to take further steps to move this action forward during this period was indeed an important one, but one that I find is understandable and justifiable given the pandemic pressures on Dr. Oechslin.
[27] The other explanation of the plaintiffs for this delay bolstered my conclusion here. There were several family issues. Dr. Oechslin had to travel several times to Switzerland to care for his ailing father and disabled sister. Mrs. Oechslin dealt with an infection in September, 2020. Dr. Oechslin himself dealt with a prostate issue in 2022.
[28] The defendant’s primary position here concerns Mrs. Oechslin. There was no affidavit from Mrs. Oechslin. The defendant pointed out that in cross-examination Dr. Oechslin admitted that Mrs. Oechslin shared the responsibility of moving this case forward, that she had a part-time job as a medical professional, that she corresponded with Mr. Poliacik, that during this period he “delegated” to Mrs. Oechslin the task of contacting Mr. Poliacik and inquiring from him as to why this case was not moving forward, that Mrs. Oechslin was “the main communicator” with Mr. Poliacik during this time, and that he learned from his wife that Mr. Poliacik told her that there was a “communication problem with the Defendant’s lawyers,” that “we are fine” and that “we are within the time window.”
[29] The defendant argues that these admissions show a huge gap in the plaintiff’s explanation of this delay period, namely an absence of evidence from Mrs. Oechslin as to why she did not take steps in this time period to advance the action. The defendant also argues that these admissions amount to a change of position by Dr. Oechslin, namely an admission by him that the plaintiffs did in fact delay the action without justification and that the plaintiffs’ delay was due to the inaction and misrepresentations of their lawyer. At minimum, the defendant argues that this change of position undermines Dr. Oechslin’s credibility concerning his stated justification for the delay.
[30] I do not accept these arguments. While it would have been preferable to have evidence from Mrs. Oechslin, Dr. Oechslin’s admissions do not alter the core of the plaintiffs’ explanation, namely that Dr. Oechslin was by agreement of the plaintiffs the one who instructed counsel, that Dr. Oechslin was exceedingly busy due to the pandemic and family matters, and that Mr. Poliacik decided not to contact the plaintiffs or move the action forward due to the pressures on Dr. Oechslin caused by the pandemic. Indeed, it appears Mr. Poliacik informed Mrs. Oechslin that the plaintiffs should not worry as they were within their “time window” under Rule 48.14, an assurance that was accurate. There is nothing in Mr. Poliacik’s affidavit to support Dr. Oechslin’s further statement about a “communication problem” Mr. Poliacik had with the defendant’s lawyer. This appears to be a misstatement by Dr. Oechslin given his other statements on this issue.
[31] I make a final comment here. It concerns the conduct of the defendant. As stated above, the conduct of the defendant is a factor to be considered when determining whether there is an acceptable explanation for the delay. The defendant’s inaction is usually considered relevant to the issue of prejudice; see Arumugasamy v. Subaschandiran, 2026 ONCA 102, paragraph 21. But the Court of Appeal stated in Carioca's Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 in paragraph 53 that “the objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice.” The Court went on to say that the conduct of all parties is relevant.
[32] I go a step further in this case. Applying a contextual approach here requires that I look at the dynamic of the underlying action. I find that this is a case where the plaintiffs’ case appears to be straightforward and reliant on documents. The subject agreement of purchase and sale is in writing and signed. The defendant’s failure to pay the deposit and close are undisputed. On damages, the plaintiffs must prove their bridge financing and the reasonableness of their resale - not huge steps.
[33] On the other hand, it is the defendant who raises all the complex issues. These issues relate to Mr. Hua’s relationship with the third parties, their conduct and his, and the alleged misrepresentations of the third parties. These are the issues that will probably involve unrecorded memory of critical events. The courts have recognized that memories fade with time; see Langenecker v. Sauvé, 2011 ONCA 803 at paragraph 11. Having raised these issues, the defendant has the onus to prove them.
[34] In short, I view this case as one where the defendant is essentially the de facto plaintiff with the primary onus to prove the contentious issues. As a result, there was, in my view, more of a positive duty on this defendant than on most to move this case forward through a timely discovery plan, production, discovery and trial, not just a duty to avoid impeding the plaintiff as is usually the case. The fact the defendant, by his own admission, did nothing during this time, therefore, leads me to conclude that he was a major contributor to the delay in this period.
[35] I, therefore, find that the plaintiffs have acceptably explained the delay in this period.
c.2) January, 2024 to September, 2024
[36] The second period of delay in issue runs from January, 2024, when Mr. Poliacik introduced the plaintiffs to the new lawyer, Alexander Wilkes, to September 3, 2024, when Mr. Wilkes was retained.
[37] The evidence shows that Mr. Poliacik informed the plaintiffs of his retirement in November, 2023 and introduced the plaintiffs to Mr. Wilkes in January, 2024 suggesting that the plaintiffs set up a videoconference with the two lawyers. That videoconference did not happen. In June, 2024 Messrs. Wilkes and Poliacik sent a follow-up email. Again, nothing happened. Indeed, nothing happened until September, 2024 when the plaintiffs finally retained Mr. Wilkes. Mr. Wilkes served a notice of change of lawyers on September 3, 2024. He then brought this motion on November 8, 2024 knowing how close the Rule 48.14 deadline was.
[38] The plaintiffs explanation for this 8-month lapse was that Dr. Oechslin was preoccupied with several trips to Europe for meetings of international medical and scientific committees and to deal with his ailing father in Switzerland. The father suffered a stroke in October, 2023 and his health steadily declined. He died in April, 2024. The fact of these trips was not challenged. I, therefore, accept this explanation, but only for the first 4 months of this period to which this explanation applies.
[39] There was, however, no satisfactory explanation for the 4-month delay during the summer. In cross-examination, Dr. Oechslin’s evidence varied wildly. He said at one point that “nothing is happening” and “everything slows down” in July and August, 2024. He then said that the plaintiffs retained Mr. Wilkes in June, 2024 and that it took time for Mr. Wilkes to familiarize himself with this case thereby inferring that this caused the delay. This conflicted with Dr. Oechslin’s affidavit which stated that Mr. Wilkes was retained only in September, 2024.
[40] This unsatisfactory explanation for the 4-month delay from May, 2024 to September, 2024 does not, in my view, undermine the overall veracity of the plaintiffs’ delay explanation and particularly their position that they always intended to proceed with this action. This is only a short period. Also, the defendant’s continuing gross inactivity counterbalances any concern created by this short unexplained plaintiffs’ delay. Shockingly, Mr. Hua admitted in cross-examination not contacting his lawyers to arrange discoveries and not collecting documents.
[41] I, therefore, find that the unsatisfactory explanation for the plaintiffs’ delay from May, 2024 to September, 2024 does not justify denying this motion. I find the plaintiffs’ overall explanation for the delay acceptable.
d) Prejudice
[42] This issue was not seriously contested by the defendant. That does not surprise me. The defendant’s sole position is that, after eight years out from the aborted sale in 2018, there is now a presumption of prejudice in favour of the defendant, a presumption that arises from the inevitable fading memories of witnesses, the loss of witnesses and the lack of available documents; see Langenecker, supra, at paragraph 11.
[43] I am satisfied that any such presumption has been adequately rebutted. Concerning witnesses, Mr. Hua identified himself, his wife and his son as his witnesses, and confirmed that they are all alive and available. The plaintiffs are available; but, as I stated above, their case appears to be document-driven in any event.
[44] Concerning lack of available documents, this is an issue the defendant raised, but he admitted in cross-examination taking no steps between February, 2020 and October, 2025 to collect documents. He said he sent two emails to his bank, one in February, 2020 and another over 5 ½ years later in October, 2025, seeking documents. In response to the latter correspondence, the bank advised Mr. Hua that the documents had been destroyed in accordance with the bank’s policy of holding onto documents for no more than 120 days. Mr. Hua’s shocking lack of effort in collecting documents was all done in the face of receiving the plaintiffs’ affidavit of documents on October 11, 2019 and letters from the plaintiffs’ lawyer on October 11, 2019, November 5, 2019, June 3, 2022 and April 5, 2023 demanding Mr. Hua’s affidavit of documents. I conclude from this that any lack of relevant documents Mr. Hua may suffer are the result of his own inaction and not any delay in this action by the plaintiffs.
[45] Concerning fading memories, as I stated earlier, this is an issue that should concern Mr. Hua much more than the plaintiffs. The defendant has raised, and has the onus to prove, the issues on which memories and fading memories will turn. The evidence shows that Mr. Hua took no steps to move the action and third party claim to timely production and discoveries. He provided no evidence of any efforts he made to memorialize the testimony of witnesses, including his own testimony, in a timely way. Again, any prejudice to Mr. Hua due to fading memories of witnesses is the result of his own inaction.
[46] I, therefore, find that the defendant will not suffer non-compensable prejudice due to the plaintiffs’ delay in the litigation of this action. Any prejudice he may suffer will be self-created.
e) Conclusion
[47] Stepping back to consider the overall justice concerning this motion. I find that the plaintiffs have provided an acceptable explanation for the delay periods in issue and have shown that any prejudice resulting from the delay to the defendant is self-created. The delays were not long and the contentious issues requiring unrecorded memory were raised by the defendant. He should have moved this action forward and did not. For all these reasons, I grant the motion and do not dismiss this action.
[48] Concerning costs, the plaintiffs served and filed a costs outline for this motion showing the amount of $9,695.40 in partial indemnity costs. The defendant served and filed a costs outline for this motion showing $63,466.62 in partial indemnity costs. The defendant also served and filed a costs outline for the costs of the entire action showing the amount of $86,287.68 in partial indemnity costs, which costs outline would be relevant only if the defendant succeeded. The defendant did not succeed and, therefore, that second costs outline is irrelevant.
[49] Due to the great disparity between the two motion costs outlines, I have decided to bring the issue of costs of this motion to an expeditious conclusion. Costs should follow the event. The plaintiffs were successful and deserve costs. I grant the plaintiff its claim for partial indemnity costs of this motion in the amount of $9,695.40 and order that that be paid in thirty (30) days from today. The reason is that, given the great disparity in the amounts shown in the two motion costs outlines, this amount is well within what the defendant could reasonably expect to pay for costs in the event of a loss. The quantum of this claim is also reasonable.
[50] Rule 48.14(7)(b)(ii) requires that, if the status hearing motion is granted, the court may set a timetable for interlocutory steps to get the case ready for trial. I herewith order that the parties confer immediately in this regard and provide me with their joint suggestion as to a timetable order on or before August 14, 2026. Should that not happen, I will convene a case conference to deal with the issue.
DATE: August 11, 2026 _____________________________
ASSOCIATE JUSTICE C. WIEBE