Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TOBIE LAURIN LÉPINE, DANIELLE LAURIN, SYLVAIN LÉPINE, ALDÉE LAURIN LÉPINE and JEPTHÉ LAURIN LÉPINE Plaintiffs
AND:
MARY FRANCES MARSHALL, Executrix of the Estate of BRUCE MARSHALL Defendant
BEFORE: The Honourable Justice A. Kaufman
COUNSEL: Kristopher Dixon, counsel for the Plaintiffs Stephen Cavanagh, counsel for the Defendant
HEARD: October 30, 2025
ENDORSEMENT
1The plaintiffs move under Rule 48.14(7)1 for a status hearing. The defendant opposes the motion and seeks a dismissal of the action for delay.
The action
2The plaintiff, Tobie Lépine, claims damages for personal injuries arising from an aircraft crash that occurred on June 6, 2015. At the time, Mr. Lépine was a student pilot of the defendant, Dr. Marshall, who owned and operated the aircraft. The remaining plaintiffs advance claims under the Family Law Act.2 On the day of the accident, Mr. Lépine was acting as a crew member.
3Mr. Lépine alleges that he suffered a mild traumatic brain injury, vertebral fractures, and a fractured sternum. He further alleges that the accident resulted in sleep difficulties, partial amnesia, impaired concentration, psychological symptoms, and fatigue.
4Mr. Lépine retained Burns Tucker Lachaine (BTL) on May 17, 2017. Ms. Laurie Tucker had carriage of the file. With the limitation period approaching, the action was commenced by notice of action on June 2, 2017, and the statement of claim was served on June 20, 2017. The action has not progressed beyond the pleadings stage.
Procedural history
5The defendant was initially represented by Mr. Wayne Young. He requested a waiver of defence to allow time to review the matter. Ms. Tucker agreed to extend the deadline for delivery of the defence to August 20, 2017.
6The statement of claim contained an allegation that Mr. Lépine was a flight student. Mr. Young expressed concern that this allegation might jeopardize Dr. Marshall’s insurance coverage. The plaintiff clarified that he was not acting as a student on the flight in question and suggested that Mr. Young consult the insurer.
7Ms. Tucker followed up with Mr. Young on August 29 and September 8, 2017 regarding the overdue defence. The defendant served his statement of defence on September 4, 2018.
8In January 2020, BTL sought to amend the statement of claim to clarify Mr. Lépine’s role on the flight. A draft amended pleading was sent to Mr. Young on January 29, 2020. He did not respond. BTL followed up on April 20, 2020, May 5 and 7, 2021, and June 25, 2021. On May 20, 2022, BTL brought a motion for leave to amend. Mr. Young advised that he was “past retirement age” and was seeking another lawyer to assume the defence.
9In November 2021, Mr. Lépine was charged with several criminal offences and has remained in custody since that time. In March 2024, he was convicted of offences relating to the 3D printing, possession, and storage of firearms and was sentenced to six years’ imprisonment.
10Since his arrest, Mr. Lépine has been held in a series of correctional and detention facilities in Québec, including Gatineau (November to December 2021), Trois‑Rivières (December 2021 to May 2022), Québec City (May to October 2022), Rivière‑des‑Prairies (October 2022), Gatineau (October 2022 to June 2023), Montréal (June 2023 to January 2024), and Gatineau again (January 2024 to the present).
11On June 14, 2022, Mr. Cavanagh assumed carriage of the defence. On July 20, 2022, he requested the plaintiff’s affidavit of documents.
12Dr. Marshall died on September 22, 2022. His widow, as estate trustee, now defends the action.
13On November 15, 2022, Mr. Cavanagh advised that he intended to bring a motion for security for costs after learning that the plaintiff was incarcerated in Quebec and was not resident in Ontario. The court stayed the motion, finding that it would be unjust to order security solely because a plaintiff is “ordinarily resident” outside Ontario when that residence is not voluntary.
14After accounting for the six‑month suspension of time during the COVID‑19 pandemic,3 the action should have been set down for trial by December 2, 2022.
15The motion for leave to amend the statement of claim was scheduled for November 22, 2022. The plaintiff also sought a status hearing. On November 14, 2022, the defendant consented to the amendment. Justice McLean granted leave to amend on November 22, 2022, and directed that a status hearing be scheduled.
16The amended statement of claim was served on May 9, 2023. The plaintiff proposed a timetable under which examinations for discovery would be completed by December 31, 2023, mediation by June 30, 2024, and the action set down for trial by September 30, 2024. The defendant consented. On May 25, 2023, Associate Justice Fortier extended the time to set the action down and ordered the parties to comply with this timetable.
Non-Compliance with Associate Justice Fortier’s Timetable
17Counsel attempted to coordinate dates for examinations for discovery. On September 5, 2023, Mr. Cavanagh confirmed that he and his client were available in January 2024. On October 31, 2023, the plaintiff agreed to proceed on January 24, 2024.
18On December 11, 2023, the plaintiff’s law clerk advised that Ms. Tucker was no longer available on that date and proposed dates in June 2024. The parties selected June 20, 2024.
19On May 22, 2024, Ms. Tucker advised Mr. Cavanagh that she might no longer remain as counsel for the plaintiff.
20On May 23, 2024, Mr. Cavanagh advised that he had been approached to represent another client on June 20, 2024. He noted that he understood the discoveries might not proceed on that date. He wrote that he “had the impression that [the discoveries were] not likely to go ahead but that [Ms. Tucker] could not be definitive yet”. Mr. Cavanagh advised that if Ms. Tucker was going to remain on the file, the discoveries would have to be rescheduled.
21On June 19, 2024, Ms. Tucker requested a further amendment to the timetable before getting off the record and sought the defendant’s consent. That same day, Mr. Cavanagh advised that he would await contact from new plaintiff’s counsel before considering any revision. The defendant ultimately declined to consent to another extension.
22On July 16, 2024, the plaintiff requested a case conference. The Case Management Coordinator advised that an opposed request to extend the time to set the action down requires a motion for a status review.
23The plaintiffs’ Notice of Motion is dated April 29, 2025. Subrule 48.14(5) requires that a motion for a status review be brought before the deadline to set the action down for trial, which in this case was September 30, 2024. The motion was therefore brought seven months late. However, the action was not dismissed by the Registrar.
24The Rules of Civil Procedure contain a gap where the deadline under subrule 48.14(1) has passed but the action has not been administratively dismissed.4 The Rules do not specify a procedure for addressing a pending administrative dismissal after the fifth anniversary of the commencement of the claim. This court has held that a status hearing is the appropriate mechanism in such circumstances, even when the motion is brought or heard after the set‑down deadline.5
Principles applicable to Status Reviews
25Subrule 48.14(1) requires the Registrar to dismiss an action for delay if it has not been set down for trial, or otherwise terminated, within five years of its commencement. Under subrule 48.14(5), a party may bring a motion for a status hearing before that deadline. At a status hearing, the court may dismiss the action for delay under subrule 48.14(7), or, if satisfied that the action should proceed, may impose a timetable for the remaining steps and set a new deadline for setting the action down for trial.
26To avoid dismissal, the plaintiff bears the onus of satisfying a two‑part conjunctive test. The plaintiff must show:
(i) that there is an acceptable explanation for the delay; and
(ii) that if the action is allowed to proceed, the defendant would suffer no non-compensable prejudice because of the plaintiff’s delay.6
27The governing principles for status review motions were summarised in 1682558 Ontario Limited v. Salman:7
The onus is on the plaintiff to demonstrate why the action should not be dismissed for delay. The test requires the plaintiff to demonstrate that there was an acceptable explanation for the delay and establish that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice. (See: Khan v. Sun Life Assurance Co. of Canada, 2011 ONCA 650, and Faris v. Eftimovski, 2013 ONCA 360).
The test is conjunctive, not disjunctive. Even if the plaintiff can provide a satisfactory explanation for the delay, the action will be dismissed if there would be prejudice to the defendant. And if the plaintiff is not able to provide a satisfactory explanation for the delay, it is still open to the court to dismiss the action even if there is no proof of actual prejudice to the defendant. (See: 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544 at para. 33).
The responsibility to move the action along lies chiefly with the plaintiff. (See: Faris, supra, at para. 33) However, the conduct of a defendant is also a factor to be considered in determining whether the action should be dismissed for delay or allowed to proceed. (See: Carioca’s Import & Export Inc. v. Canadian Pacific Railway, 2015 ONCA 592 at para. 53)
The possible dismissal of an action for delay involves a careful balancing between the interests of the parties and society in timely and efficient justice on the one hand and in the resolution of disputes on their merits on the other. (See: Kara v. Arnold, 2014 ONCA 871 at para. 9)
There is little to be gained in debating whether there is a bright line between the “contextual approach” applicable to motions to set aside registrar’s dismissal orders (per Scaini v. Prochinicki, 2007 ONCA 63 at para. 23) and the approach taken in Faris, supra, to status hearings. In considering the reasonableness of any explanation for delay, the status hearing court will almost invariably engage in a weighing of all relevant factors in order to reach a just result. (See: Kara, supra, at para. 13)
It is reasonable to approach the plaintiff’s explanation for the delay in an action on the basis that “the longer the delay, the more cogent the explanation must be”. (See: Kara, supra at para. 17)
Settlement discussions can constitute a reasonable explanation for litigation delay. A party should not be penalized for not pursuing the costly steps of litigation while engaged in the settlement process that was ultimately unsuccessful. (See: Apotex Inc. v. Relle, 2012 ONSC 3291 at paras. 7, 50 and 51)
The prejudice at issue is to the defendant’s ability to defend the action as a result of the plaintiff’s delay, not as a result of the sheer passage of time. (See: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28 and Carioca’s Import & Export Inc., supra at para. 57)
A defendant’s lack of display of any sense of urgency undercuts any claim of actual prejudice. (See: Aguas v. Rivard Estate, 2011 ONCA 494 at para. 19 and H.B. Fuller Co. v. Rogers, 2015 ONCA 173 at para. 42)
28With these principles in mind, I turn to the plaintiff’s explanation for the delay.
Explanation for the Delay
29In his affidavit, the plaintiff states that the action is important to him and that he has always intended to pursue it. Ms. Tucker acknowledges that she was dissatisfied with the pace of the litigation but offers several explanations for the delay.
30The plaintiff attributes a significant portion of the delay to the conduct of the defendant’s former counsel, Mr. Young. He took 14 months to deliver the statement of defence and repeatedly failed to respond to correspondence. When asked to consent to an amendment clarifying the plaintiff’s role on the flight, he did not respond for more than two years, ultimately advising that he was seeking replacement counsel. The plaintiff submits that examinations for discovery could not reasonably proceed until the pleadings were amended.
31The plaintiff also notes that delays arose from the defendant’s efforts to confirm insurance coverage, both while Mr. Young had carriage of the file and after Mr. Cavanagh assumed the defence. The plaintiff submits that these inquiries were reasonable and necessary and benefited both parties.
32The plaintiff further relies on the impact of the COVID‑19 pandemic on BTL’s operations and on Ms. Tucker’s practice. She describes difficulties advancing files during this period due to staffing shortages, delays in scheduling, and challenges in resolving matters. These issues became more pronounced in mid‑2021.
33Ms. Tucker also explains that her mother’s health condition required her to travel frequently between Ottawa and Orillia from July 2020 to September 2021. During this period, she was not able to work at full capacity and could not advance her files as efficiently as she wished.
34In addition, an associate at BTL who had been working on the file took parental leave from September 24, 2018 to August 1, 2019, which increased the workload of the remaining lawyers.
35Finally, the plaintiff relies on his incarceration since 2021 and his frequent transfers between correctional institutions, which created practical challenges in communicating with counsel and advancing the litigation.
36In assessing delay, counsel are not required to justify their conduct of the litigation on a month‑by‑month basis.8 The court must consider the overall conduct of the action rather than engage in a granular, week‑by‑week analysis.9 An explanation need not account for every period of inactivity, though it should address most of the delay.10 Slow progress, even slower than ideal, does not necessarily amount to an inadequate explanation; the standard is reasonableness, not perfection.11
37The court should not become unduly focused on any particular period of unexplained delay but must consider the full context and the overall justice of the case.12 The court’s ultimate task is to balance two competing policies: that civil actions be determined on their merits, and that they proceed in a timely and efficient manner.13
38The progress of this action has been far from ideal. It remains at the pleadings stage, and little meaningful work has been done to advance it toward trial. However, considering the full context, I am satisfied that the plaintiff has met the first part of the test.
39I accept that the conduct of the defendant’s former counsel contributed to the delay. It was reasonable for the plaintiff to grant the requested waiver of defence to permit inquiries regarding insurance coverage, and to allow some time for a response to the proposed amendment. That said, in the face of prolonged silence, the plaintiff should have served an affidavit of documents and a notice of examination. It was not reasonable to wait two years for a response before taking steps to move the action forward. The primary responsibility for advancing the litigation rests with the plaintiff. Nor do I accept that discoveries could not be scheduled until the amendment was made; the amendment was minor, and pursuing discoveries would likely have prompted a response.
40I accept that the plaintiff’s incarceration created communication challenges and impeded the timely exchange of information and documents. Ms. Tucker was required to communicate with the plaintiff indirectly through his sister, which contributed to delay.
41I also accept that the COVID‑19 pandemic caused some disruption to counsel’s practice and to the court system. While pandemic‑related delay is often overstated, a reasonable period of adjustment was required.
42In addition, staffing turnover at BTL and Ms. Tucker’s personal circumstances provide a reasonable explanation for a significant portion of the delay.
43As for the period after September 30, 2024—the extended set‑down date fixed by Associate Justice Fortier—the delay is attributable to difficulties in coordinating dates between counsel and the decision to change lawyers. On cross‑examination, Ms. Tucker declined to answer questions about her potential withdrawal on the basis of privilege, which was appropriate. While the reasons remain unknown, they necessarily relate to a breakdown in the solicitor‑client relationship. I am satisfied that, had Ms. Tucker not indicated she might no longer act, the June 20, 2024 discoveries would have proceeded and the action could have been set down by the deadline.
44Viewed holistically and in context, the overall litigation timeline is sufficiently explained to satisfy the first part of the test. The standard is not perfection, nor must the explanation be compelling or exhaustive. The plaintiff and his counsel faced several challenges, some beyond their control, that reasonably account for the failure to set the action down before the fifth anniversary or the extended deadline. Although the progress of the action has been far from ideal, that is not the governing standard.
Prejudice to the defendant
45Even where a plaintiff provides a reasonable explanation for delay, the court must still determine whether allowing the action to proceed would cause the defendant non‑compensable prejudice.
46The plaintiff submits that this is not a document‑intensive case and that the relevant records have been preserved or remain available. The defendant disputes this and notes that there is no evidence supporting the plaintiff’s assertion.
47The defendant relies primarily on the death of Dr. Marshall on September 24, 2022. I am satisfied that his passing prejudices the defendants’ ability to have a fair trial.
48The aircraft involved was an ultralight with only two occupants: the plaintiff and Dr. Marshall. The plaintiff alleges that Dr. Marshall failed to maintain proper airspeed and that a crosswind caused the aircraft to stall. In response, Dr. Marshall asserted in the statement of defence that an unexpected microburst of wind struck the aircraft, causing the crash.
49Because Dr. Marshall was never examined for discovery, his account of the accident cannot be obtained. Any available records appear to relate only to damages; there is no suggestion of documentary evidence bearing on liability.
50The plaintiff, however, argues that the defendant waived any prejudice resulting from Dr. Marshall’s passing, when he agreed in May 2023 to extend the set‑down deadline to September 30, 2024—eight months after Dr. Marshall’s death. I agree.
51In Stokker v. Storoschuk,14 the parties agreed to a timetable setting out the steps the plaintiff was required to complete to ready the matter for trial. Although the plaintiff completed some steps late, a master reinstated the action on the trial list. The applicable test was the same as on a status review: to provide a reasonable explanation for the delay and to show the absence of non‑compensable prejudice.
52On appeal, a judge set aside the master’s decision after considering the overall delay from the commencement of the action. The Court of Appeal restored the master’s order, holding that the master did not err in focusing on the period following the consent timetable made under r. 48.14(4). It held that where delay has been addressed in a prior court order or by consent, it is the subsequent delay that requires explanation.
53The defendant’s consent in May 2023 to a timetable extending the set‑down deadline to September 30, 2024 informs the prejudice analysis. By that point, Dr. Marshall had already passed away, and any prejudice arising from the loss of his evidence was fully realized. The subsequent delay did not create new prejudice or exacerbate the existing prejudice in any way. The delay after the consent order therefore did not introduce any additional non‑compensable prejudice beyond what already existed.
54The plaintiff’s failure to meet the September 30, 2024 deadline was not attributable solely to his own conduct. By mid‑2024, the parties had already agreed to a discovery date of June 20, 2024, and the action was on track to be set down by the extended deadline. The delay arose only after Ms. Tucker advised that she might no longer remain as counsel, which created uncertainty about representation and made it impractical to proceed with discoveries as scheduled. The resulting postponement was therefore caused, at least in part, by circumstances beyond the plaintiff’s control, including counsel’s potential withdrawal and the need to secure new representation. In these circumstances, the missed deadline cannot fairly be attributed exclusively to the plaintiff.
55The defendant submits that where a plaintiff has been given a “lifeline,” the court may consider the entire history of the action in assessing prejudice and remedy.15 However, in the case relied upon, Justice Myers observed that even if the action had been set down by the consent deadline, “the three possible witnesses would have died in the interim anyway.” He declined to dismiss the action, noting that the failure to meet the further deadline was not entirely attributable to the plaintiff.
56This is an unfortunate case in which neither outcome is entirely satisfactory. Dismissing the action would leave the plaintiff without a remedy for his alleged injuries, despite the court’s finding that he has provided an adequate explanation for the delay. Allowing the action to proceed, however, means the defendant cannot now obtain evidence from Dr. Marshall, which impairs the ability to advance the defence.
57I conclude, however, that the prejudice relied upon by the defendant was already present when the parties consented to the May 2023 timetable. The subsequent delay did not create new prejudice or materially worsen the prejudice that already existed.
Disposition
58The plaintiff’s motion is granted. The time to set this action down for trial is extended to February 3, 2027. If the parties are unable to agree on a timetable, they may contact my office to arrange a case conference.
59The plaintiff has been successful and is entitled to costs. Having reviewed the parties’ costs outlines, I fix costs in the amount of $10,000, payable within 30 days.
Justice A. Kaufman
Date: February 4, 2026
Footnotes
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
- R.S.O. 1990 c. F.3
- Ontario Regulation 73/20 under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9
- Yang v. The Christian World Korea Inc., 2019 ONSC 6131 at para 9 (Associate Judge).
- 34366012 Ontario Inc. v. Boudreau et al., 2022 ONSC 2527 paras 14-15.
- Henderson v. Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387, citing with approval Faris v. Eftimovski, 2013 ONCA 360.
- 1682558 Ontario Limited v. Salman, 2019 ONSC 4120 at para. 5, quoting with approval from Cedrom-SNI Inc. v. Meltwater Holding, 2017 ONSC 3387 (Master).
- A.B. v De Marinis et al, 2025 ONSC 1443, at para. 17, [De Marinis], citing Carioca’s v Canadian Pacific Railway Limited, 2015 ONCA 592, at paras. 45-46 [Carioca’s Import].
- Uzelac v Dufferin Aggregates, a division of CRH Canada Group Inc., 2025 ONSC 896, at para. 22, [Uzelac], aff’d 2025 ONSC 3723. See also Goldman v Pace, 2017 ONSC 1797, at para. 5 [Goldman]; Greenwald v Ridgevale Inc., 2016 ONSC 3031, at para.17 [Greenwald]; Carioca’s Import, at para. 46; Maier v Cedarbuilt Project Management Ltd., 2021 ONSC 2894, at para. 11 [Maier].
- Madore v M.T.C.C. No 1228, 2015 ONSC 4750, at para. 26.
- Maier, at para. 11; Goldman, at para. 5.
- American Environnemental Container v Kennedy, 2022 ONSC 1353 (Div Ct), at para. 36 [American Environnemental].
- H.B. Fuller Company v Rogers (Rogers Law Office), 2015 ONCA 173, at para. 25 [H.B. Fuller].
- 2018 ONCA 2.
- Slota v. Kenora-Rainy River Districts Child and Family Services, 2020 ONSC 8105, at para 37.