ENDORSEMENT on motion to dismiss for delay

[1] The Defendants move for an Order under Rule 24.01 and Rule 48.14 of the Rules of Civil Procedure dismissing the Plaintiff’s action for delay.

[2] This motion illustrates the tension between two important principles that underpin the civil justice system: the preference for deciding cases on their merits and the need to ensure that litigation progresses in a timely and orderly manner. Courts are understandably reluctant to deprive a party of the opportunity to have its claim adjudicated. At the same time, the administration of justice depends upon litigants advancing their proceedings with reasonable diligence. Where a proceeding has been allowed to languish for an extended period, the court must carefully balance the Plaintiff's interest in a determination on the merits against the Defendant's entitlement to fairness, finality, and freedom from the burden of unresolved litigation.

[3] For the reasons that follow, the Defendants’ motion is granted. The Plaintiff’s action is dismissed.

Background and procedural history

[4] The Plaintiff commenced this action on July 5, 2020, seeking damages arising from a motor vehicle accident that occurred on July 18, 2018. The original lawyer of record was Ram K. Tangri.

[5] The Statement of Defence was filed April 22, 2022.

[6] Examinations for Discovery were scheduled for April 26 – 27, 2023. On April 4, 2023, a law clerk at the Defendant’s office, emailed Mr. Tangri’s office to request the Plaintiff’s Affidavit of Documents (“AOD”) and Schedule “A” documents

[7] On April 4, 2023, a legal assistant at Mr. Tangri’s office responded and advised the file had been transferred to a new lawyer and the Notice of Change of Lawyer (“NOCOL”) would be sent soon.

[8] On April 10, 2023, Mr. Tangri advised that discoveries were to be postponed in light of the new lawyer taking carriage, Iqbal Singh.

[9] Discoveries were canceled. Mr. Singh did not serve a NOCOL.

[10] Defence counsel followed up with Mr. Singh for his NOCOL on May 15, June 13, August 18, and September 14, 2023.

[11] The next request was not until August 12, 2024, after a new lawyer took over carriage for the defence. A phone call was arranged for August 21, 2024. The call was rescheduled to August 23.

[12] On August 23, 2024, defence counsel again wrote to Mr. Singh to advise that no NOCOL had been received and requested that it be filed. Defence counsel followed up to that correspondence on September 4, 11, October 11, October 21, and December 9, 2024, and January 23, 2025.

[13] A NOCOL was served by Mr. Singh on March 4, 2025, with the wrong Plaintiff identified. Defence counsel requested a call on March 4 and April 15, 2025, and requested to schedule Examinations for Discovery. With no response forthcoming, Discoveries were unilaterally scheduled for September 4, 2025.

[14] Defence counsel requested the NOCOL be corrected in correspondence dated April 30 and May 6, 2025. A corrected NOCOL was received on May 7, 2025.

[15] On July 2, 2025, defence counsel again requested the Plaintiff’s Affidavit of Documents and Schedule “A” documents.

[16] On September 3, 2025, at 7:09 p.m., Mr. Singh emailed advising they had wrongly believed the Plaintiff had retained new counsel. They further advised the Plaintiff was unwell and would not be attending discoveries the following day.

[17] Defence counsel unilaterally rescheduled the discoveries for December 1, 2025. After doing so, Mr. Singh suggested the dates be rescheduled to February 19, 2026.

[18] On February 18, 2025, the day before the scheduled discoveries, Mr. Singh advised the Plaintiff had Covid and requested discoveries be rescheduled.

[19] Discoveries were again unilaterally rescheduled, to March 2, 2026.

[20] The Plaintiff did not attend his Examinations for Discovery on March 2, 2026, nor has Mr. Singh responded to the defence since February 18, 2026.

[21] When the motion record was prepared, no Affidavit of Documents had been delivered by the Plaintiff.

[22] When defence counsel attempted to file their motion materials in March 2026, they were advised that no NOCOL had been filed with the Court.

[23] No Trial Record has been filed. No Discoveries have been held. The Affidavit of Documents was delivered to the Defendants on Tuesday of this week (unsworn) and Wednesday (sworn), just yesterday.

A Preliminary Issue re Counsel’s Submissions

[24] The Consolidated Civil Provincial Practice Direction requires counsel to present their complete argument at the hearing and to bring to the Court’s attention all material facts and authorities upon which they rely. Material not identified or relied upon during the hearing may not be considered by the Court (s. 89, 90).

[25] As a practical matter, a litigant cannot meet that obligation where no Affidavit evidence and no factum have been filed in support of the position advanced.

[26] Mr. Singh represents the Plaintiff. He filed no materials for today's motion. Where Mr. Singh referred to facts and aspects of the procedural history, those matters were not contained in any Affidavit or other admissible evidence before the Court. As submissions of counsel are not evidence, I declined to consider those factual assertions.

[27] In his oral submissions, he generally asserted that his office had been taking steps to advance the proceeding. He submitted that his office was "happy to accommodate" the Defendant and was prepared to "expedite" the litigation. He did not take the Court through any examples in the evidence of this. This was mere assertion.

[28] On the record before me, there is no evidence that the Plaintiff or his counsel took any meaningful steps to advance this proceeding. The evidence establishes that Mr. Singh's office required nearly two years to serve a simple Court document that was later found to be incorrect, and two more months to serve a corrected NOCOL, and approximately one further year to file it with the Court. Indeed, there is no documentary evidence before me confirming that the Notice of Change was ever filed. The only evidence to that effect comes from Mr. Singh's oral submission at the motion that it was filed after his purported retainer in March 2026. As will be discussed below, that submission is difficult to reconcile with the evidentiary record.

[29] Far from advancing the proceeding in an expeditious manner, the Plaintiff's conduct demonstrates a prolonged pattern of delay and inaction. The Court is provided with little assurance that the Plaintiff will expedite the litigation as promised.

[30] The Plaintiff’s legal submissions focused primarily on the proposition that a motion to dismiss for delay engages a high threshold. When asked to provide authority for that proposition, he referred to Faris v. Eftimovski, 2013 ONCA 360, but was unable to direct the Court to the passages upon which he sought to rely and did not have a copy of the decision to provide to the Court.

[31] Faris provides a helpful review of the principles applicable to motions to dismiss for delay under Rules 24.01 and 48.14. The Court of Appeal confirmed that relief under Rule 24.01 is governed by a high threshold. Beyond that submission, the Plaintiff failed to engage with the applicable legal test in any substantive way or address how the test should be applied in the circumstances of this case.

[32] Accordingly, I cannot accept any evidence from Mr. Singh, and he did not offer any oral argument of substance on this motion. Therefore, I am left to determine the motion on the basis of the admissible evidence before the Court and my own review of the applicable law.

Which Rule Applies?

[33] The Defendants’ Notice of Motion seeks relief under both Rule 24.01 and Rule 48.14. The onus under Rule 24 lies with the Defendant. The onus under Rule 48 lies with the Plaintiff: Cardillo v. Willowdale Contracting et.al, 2020 ONSC 2193.

[34] The Defendants' submissions were that the Plaintiff's claim should be dismissed on the basis that the delay was intentional and contumelious, as well as inordinate and inexcusable.

[35] I took this to mean that her client was proceeding only under Rule 24.

[36] In my view, Rule 48 is the provision most directly engaged.

[37] The action was commenced on July 5, 2020. Absent appropriate procedural steps, the action was therefore liable to dismissal for delay five years later, over one year ago. I adopt the approach followed by Lemay J., in Cardillo when he found that Rule 48 governed the case because the action would be administratively dismissed imminently. Lemay J. held that if the Court did nothing, the case would be dismissed, and it would not be necessary for the Defendant to bring a motion under Rule 24.

[38] Similarly, this action is now more than six years old. On the record before me, it ought to have been dismissed for delay long ago. While the Plaintiff may have avoided an administrative dismissal under Rule 48.14, that appears to have resulted from an administrative oversight. The Plaintiff ought not to be able to rely on that administrative oversight to alter the burden that otherwise would apply at this stage of the proceeding. The onus ought to be on the Plaintiff to satisfy the Court that the action should not be dismissed for delay under Rule 48.

[39] However, I am mindful that the Court of Appeal in Bolohan v. Hull, 2012 ONCA 121 and Lemay J. in Cardillo, have stated that a Rule 48 hearing involves a two-step process. At first instance, the parties attend for the purpose of setting a timetable. If the Defendant opposes the setting of a timetable and demands the Plaintiff to show cause why the action should not proceed, then the status hearing is conducted on a contested basis, with Affidavit evidence: Koepcke v. Webster, 2012 ONSC 357 (Master), at para. 13.

[40] If I treat this motion as a status hearing under Rule 48, ought the Plaintiff be allowed to return for the second stage of the hearing and bring Affidavit evidence? Principles of procedural fairness would dictate that the Plaintiff be afforded an opportunity to return with affidavit evidence, particularly because of the shift in onus under Rule 48.

[41] On the other hand, a Plaintiff responding to a motion to dismiss for delay under Rule 24 cannot rely on submissions alone. Where delay is challenged, the Plaintiff is expected to adduce evidence explaining the delay and addressing any resulting prejudice. The failure to deliver Affidavit evidence should be fatal regardless of whether the motion proceeds under Rule 48 or Rule 24.

[42] I will treat this as a motion under Rule 24 as it was argued, where the Defendant bears the onus. However, much of my reasoning and findings would apply equally if this were held as a status hearing under Rule 48.

The test under Rule 24

[43] Rule 24.01 permits a Defendant, at any stage of the proceedings, to move to have an action dismissed for delay if the Defendant has not been noted in default:

(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,

[44] In North Toronto Chinese Alliance Church v. Gartner Lee Ltd. (2012 ONCA 251, leave to appeal refused [2012] S.C.C.A. No. 248), the Court of Appeal confirmed that the test for dismissing an action for delay under Rule 24.02 is well established. An action should not be dismissed unless:

a) The default is intentional and contumelious; or

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

[45] The test is disjunctive, and the moving party can succeed under either branch: Cardillo, at para. 33.

[46] The first part of the test refers to those cases where the delay demonstrates a disdain or disrespect for court process. These cases are rare and usually feature many violations of court orders: Langenecker v. Sauvé, 2011 ONCA 803 at para. 6. This case does not fall into that category.

[47] In considering the second branch of this test, 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.

Was there inordinate delay?

[48] An inordinate delay is measured by reference to the length of time from the commencement of the proceeding to the motion to dismiss: Langenecker at para. 8. Courts have found delays between 8 and 11 years, and in one case 7 years, to be inordinate: Cardillo, at para. 39.

[49] The Defendants submit that the 8-year period of time from the date of the accident to the motion to dismiss is inordinate. They state that there is inordinate delay because the action is still in its infancy even four years after the pleadings closed, with no Affidavit of Documents having been delivered by the time the motion was served, and no Examinations for Discovery having taken place.

[50] The two-year limitation period would have expired July 11, 2020, a little over six years ago. In the case of Woodheath Developments Ltd. v. Goldman, 2003 CanLII 46735, the divisional court accepted the Master’s findings that a six-year delay after the expiry of the limitation period was inordinate.

[51] In Metalli Group Inc. et al, v. Altech Environmental Consulting Ltd. et al, 2023 ONSC 1091, Associate Justice Frank held that that the three components of the Rule 24 test are not watertight compartments and that findings on one aspect of the test may inform the analysis of another (at para. 22). In my view, applying that approach, the absence of any explanation for the delay (more on that below) informs my assessment of whether the delay was inordinate.

[52] In setting out a five-year period by which a Registrar is mandated to dismiss the action for delay under Rule 48, the Rules provide a benchmark of what is expected to be an ordinary timeframe between a civil proceeding infancy and the time for setting it down for trial. If the action has not been set down for trial within those five years, the action crosses the line and begins to move into the realm of “inordinate delay” (see Barbiero v. Pollack, 2024 ONCA 904 at para. 22).

[53] In Rodger v. London Hydro Inc., 2023 ONCA 578, the Court of Appeal upheld a Motions Judge’s decision that dismissed an action for delay where more than five years had passed since the commencement of the action.

[54] In the case of Arapakota v. Imex Systems Inc., 2025 ONCA 367 (application for leave to appeal to the Supreme Court of Canada denied), the Court of Appeal upheld a motions Judge’s decision that a five-year delay in an application was inordinate, citing the administrative dismissal process in the Rules.

[55] In Sergovich v. Trinca, 2026 ONSC 1620, the Divisional Court upheld a Motions Judge’s decision dismissing a motion to dismiss for delay. The Motions Judge had concluded that there had been inordinate delay of three years and 10 months, but dismissed the motion due to a finding that the respondent had rebutted the presumption of prejudice.

[56] Although a six-year period of delay in a civil action may fall at the lower end of what may be considered inordinate, the assessment of whether the delay is inordinate must be informed by the complete procedural context. Here, there have been no examinations for discovery, no exchange of documents, the action has not been set down for trial, more than five years have elapsed since the Statement of Claim was commenced, and no steps were taken to advance the proceeding during the year following the expiry of the five-year period contemplated by Rule 48. Viewed in this full procedural context, the delay is properly characterized as inordinate.

Was there inexcusable delay?

[57] An inexcusable delay is one where there is no reasonable explanation (Cardillo, at para. 36).

[58] Mr. Singh provided no evidentiary foundation for any explanation of the delay. During oral submissions, he submitted that he was retained in March 2026. In the same context, he submitted that his office had recently served an Affidavit of Documents and had proposed an expedited timetable.

[59] I reiterate that none of this is in evidence.

[60] Be that as it may, I note that the Affidavit of Documents was only served Tuesday (unsworn) and Wednesday (sworn). Today is Thursday. The proposed timetable was also of recent origin.

[61] I take counsel's reference to his recent retainer, coupled with his submission that recent steps have been taken to advance the proceeding, as an implicit submission that the Plaintiff's past delay should be afforded less weight because the action will now proceed expeditiously under new counsel.

[62] I infer that Mr. Singh was distinguishing his office's involvement from the conduct that preceded it, intending to reassure the Court that the matter would proceed expeditiously going forward.

[63] The difficulty with this assertion is that it is inconsistent with the evidentiary record before the Court. The Defendants' evidence demonstrates that Mr. Singh's office was acting on behalf of the Plaintiff and communicating with defence counsel as early as April 2023. His statement that his office was retained in March 2026 cannot be reconciled with that evidence.

[64] The Court is left to question the purpose of the inaccurate statement. In any event, it was factually incorrect, and I place no weight on it. Nor do I accept it as a basis for inferring that the action will now move forward diligently.

[65] The recent service of an Affidavit of Documents and proposed timetable were plainly reactive measures. They were served only after the Defendant sought dismissal of the action and immediately before the hearing of the motion. Last minute efforts cannot erase years of unexplained delay.

[66] This action was commenced on July 5, 2020. The Registrar ought to have dismissed it for delay in July 2025. The fact that the action remained extant beyond that date provided the Plaintiff with an additional opportunity to take meaningful steps to advance the litigation and avoid dismissal, yet he did nothing to advance his case.

[67] The delay is clearly inexcusable.

Is the delay prejudicial to the Defendants?

[68] In assessing whether a fair trial remains possible, the Court is entitled to consider both the length of the delay and the state of the litigation. Here, the action remains at a very early stage despite having been outstanding for more than six years. Eight years have passed since the date of the accident.

[69] Inordinate delay generates a presumption of prejudice: Ticchiarelli at para. 28. As stated by the Court of Appeal in Langenecker, at para. 11: “[m]emories 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.”

[70] The Defendants argue that the presumption of prejudice has not been rebutted by the Plaintiff. The Defendants also submitted that there is an actual risk of real prejudice in that that many health records are likely to be unavailable due to the passage of time.

[71] The failure of the Plaintiff to lead any evidence to rebut the presumption of prejudice is done “at their peril” (Tanguay v. Brouse, 2010 ONCA 73 at para. 7). In the absence of such evidence, the Plaintiff has failed to meet its onus to rebut the presumption of prejudice.

[72] I am also mindful of the burden imposed on an individual who is drawn into litigation and required to live under the uncertainty that accompanies unresolved legal proceedings. In the case of Saikaley v. Commonwealth Insurance Co. et al., 1978 CanLII 1575 (ON HCJ), Justice Hollingsworth adopted the following passage from Biss v. Lambeth, Southwark & Lewisham Health Authority, [1978] 2 All E.R. 125 at p. 126 as being relevant to the assessment of prejudice:

[73] The prejudice that might be suffered by a defendant as a result of the plaintiff's delay was not to be found solely in the death or disappearance of witnesses, or their fading memories, or in the destruction of records, but might also be found in the difficulty experienced in conducting his affairs with the prospects of an action hanging indefinitely over his head.

[74] I find that the Plaintiff’s failure to adduce evidence rebutting the presumption of prejudice leads to the conclusion that there is a substantial risk that a fair trial is no longer possible.

[75] For the foregoing reasons, I find that the delay was inordinate and inexcusable and that there is a substantial risk that a fair trial will not be possible. Accordingly, I exercise my discretion to dismiss the action for delay.

Costs

[76] The Defendants seek partial indemnity costs of the motion in the amount of $3,500.00 and have filed a Bill of Costs. The Plaintiff submits that this is excessive.

[77] The Defendants have been wholly successful on the motion. I find that $3,500.00 is fair and reasonable for a motion of this nature.

[78] Costs are ordered payable by the Plaintiff to the Defendant within 30 days.

Tokhy v. Horlor et al, 2026 ONSC 4831

Case Summary

ENDORSEMENT on motion to dismiss for delay

Tokhy v. Horlor et al, 2026 ONSC 4831

Case Summary

ENDORSEMENT on motion to dismiss for delay