Superior Court of Justice - Ontario
RE: Rosemary Beach v. David Zigelstein and Jay Leider and Lloyd Beach;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Rosemary Beach, self-represented; Antonios T. Antoniou for Jay Leider; Jeffrey Kulka for David Zigelstein;
HEARD: October 30, 2025.
REASONS FOR DECISION
1The plaintiff, Rosemary Beach, seeks an order setting aside the order dismissing this action issued by the Registrar on August 2, 2024 pursuant to Rule 48.14. The defendants, David Zigelstein and Jay Leider, oppose this motion. The defendant, Lloyd Beach, the spouse of Rosemary Beach, did not appear.
Background
2Ms. Beach filed her own affidavit. Messrs. Zigelstein and Leider filed their own affidavits as well. Mr. Leider also filed affidavits sworn by Rocco D’Andrea (a realt estate appraiser), Corrado Settembre (another real estate appraiser), Lou Shulman (Ms. Beach’s initial lawyer) and Tony Stagliano (a renovation contractor) The following background facts were gleaned from the evidence.
3Rosemary and Lloyd Beach were spouses and joint owners of a residential property municipally known as 162 Golfview Avenue, Toronto (“the Property”). Mr. Zigelstein is a private lender and Mr. Leider is a lawyer who worked for Mr. Zigelstein.
4In February, 2012 the Beaches were in default of a loan they had from Toronto Dominion Bank secured by a first mortgage on the Property. To make up the default, in March, 2012 they obtained a $105,000 loan from Mr. Zigelstein with interest at 15.75% per annum secured by a second mortgage. At the time, they had a lawyer, Lou Shulman.
5The Beaches defaulted on the Zigelstein loan on April 16, 2012. Mr. Zigelstein commenced mortgage enforcement proceedings. He served a notice of sale and a statement of claim seeking payment of the debt and possession. The Beaches did not defend, and Mr. Zigelstein obtained default judgment on June 6, 2012.
6On July 18, 2012 Ms. Beach obtained from the court a short delay in possession. In September, 2012 Mr. Zigelstein got possession of the Property and made improvements to facilitate the sale. The Beaches were given a brief opportunity to sell the Property. They did not succeed. Mr. Zigelstein sold the Property on April 19, 2013 for an amount that left no equity for the Beaches after the first and second mortgages were accounted for.
7On March 31, 2015 Ms. Beach, acting on her own, commenced this action against Messrs. Leider and Zigelstein. She included Lloyd Beach as a defendant without making allegations against him. As against Messrs. Leider and Zigelstein Ms. Beach claimed $250,000 in damages for negligence and conspiracy resulting in the loss of the equity. On October 23, 2015 Mr. Leider defended. On October 27, 2015 Mr. Zigelstein defended.
8On November 3, 2015 Mr. Beach defended. He indicated that he did not support Ms. Beach’s action, that Mr. Zigelstein acted properly at all times, that Mr. Leider was the lawyer for Mr. Zigelstein at all times, and that neither Messrs. Zigelstein nor Leider conspired to deny the Beaches the equity in the Property. These are admissions of record that have not been withdrawn.
9Mr. Leider brought a motion for summary judgment claiming there was no cause of action against him. On June 24, 2016 the motion was scheduled by Civil Practice Court to be heard on September 15, 2016 with a timetable for motion steps. Ms. Beach served several affidavits sworn by her. Some of these were late. She said she discovered further evidence of the alleged conspiracy between Messrs. Leider and Zigelstein from a family law action wherein one Heidi Speigel sued Mr. Zigelstein. There was a consent adjournment of the motion. A lawyer appeared for Ms. Beach - Ian Klaiman. A new return date was not agreed to.
10While the motion was pending, the parties agreed to proceed with productions and discovery and pleadings amendments. It appears that on March 7, 2018 Ms. Beach served an amended statement of claim adding more details of the allegations of conspiracy and fraud against Messrs. Leider and Zigelstein. The pleading continued to show Ms. Beach as having carriage of the matter.
11There was production. In July, 2018 the parties scheduled examinations for discovery to take place on November 6, 2018. However, on October 23, 2018 Mr. Klaiman wrote a letter indicating that, due to “a conflict,” he could no longer act for Ms. Beach. The discoveries were cancelled.
12The removal order took time. On July 19, 2019 Mr. Klaiman obtained the order removing him as Ms. Beach’s lawyer of record. Ms. Beach appeared and unsuccessfully opposed the motion. In the order she was given an usual 90 days to obtain a lawyer or serve a notice of intention to act in person. The standard order gives 30 days. The order was served by regular mail on Ms. Beach on July 22, 2019. Ms. Beach never hired a lawyer or served the notice.
13In her affidavit on this motion, Ms. Beach said that at this time she expanded her professional practice of corporate and marketing communications to include consultation work for the mining industry. She said this consumed much of her time.
14In her affidavit Ms. Beach said it took four months to get the file from Mr. Klaiman. She said that in March, 2020 she began looking for a lawyer. She said she approached several lawyers but none agreed to take on her case on a contingency retainer. These efforts, she said, were also frustrated by the pandemic, but she did not elaborate that assertion.
15Ms. Beach also said that in March, 2020 her elderly mother became hospitalized and passed away on April 3, 2020. She said that there were issues with her mother’s estate. She said that she litigated with her brother about the estate and hired lawyer, Phil Healey, in this regard. She said she also retained Mr Healey for this action; but there was no evidence Mr. Healey served a notice of appointment or did anything in this regard. Ms. Beach said that, due to his health, Mr. Healey was replaced in October, 2020 by lawyer, Jonathan Schreider. The estate issues were resolved by settlement in November, 2020 and her mother’s cottage was sold by the end of January, 2021.
16Ms. Beach said that in May, 2021 she had a law firm look at her case, which took four months. The firm was not hired. She said that her professional obligations continued to occupy her time as she was forced by the pandemic to find clients.
17In 2023 Ms. Beach said she communicated with Mr. Beach, now her former spouse, about “further evidence” to support her case. She said Mr. Beach was occupied at that time with his own career challenges. She said she finally secured what she called a “witness statement” from Mr. Beach in August, 2024. She produced a statement purporting to be from Mr. Beach that contradicted his pleading, but the statement was not signed by Mr. Beach.
18On August 2, 2024 the Registrar dismissed this action for delay under Rule 48.14. Ms. Beach received the order on August 29, 2024. She said that her professional obligations again occupied her time. She did not take immediate steps.
19On November 20, 2024 Ms. Beach emailed Messrs. Antoniou, Cantor and Beach a letter purporting to explain the delay and asking for consent to the reinstatement of the action. On November 21, 2024 Mr. Antoniou emailed advising that Mr. Leider refused to consent.
20On November 21, 2024 Mr. Cantor emailed advising that he did not have instructions to act for Mr. Zigelstein. On November 25, 2024 Ms. Beach responded to Mr. Cantor stating that she “spoke to counsel” and that Mr. Cantor, as lawyer of record for Mr. Zigelstein, was required to respond to the motion. On November 25, 2024, Mr. Cantor responded by email advising that Minden Gross LLP remained the lawyer of record for Mr. Zigelstein, but that he, Mr. Cantor, was no longer at that firm. On November 25, 2024 Mr. Antoniou emailed Ms. Beach advising her that if she intended to bring a set aside motion, she should do so promptly.
21Mr. Kulka was appointed as new counsel for Mr. Zigelstein in April, 2025. On April 1, 2025 Ms. Beach arranged this motion as a short motion. After an exchange with Mr. Antoniou, Ms. Beach scheduled this motion instead as a long motion. That resulted in the assignment of the motion to me. I held a motion case conference on July 29, 2025 at which time I scheduled this motion to be argued on October 30, 2025.
Governing test
22Rule 48.14(10) of the Rules of Civil Procedure specifies that a Registrar’s dismissal order may be set aside under Rule 37.14. Rule 37.14(1) specifies that the set aside motion must be brought “forthwith” after the order comes to the plaintiff’s attention.
23The court’s jurisdiction on such a motion is discretionary. The factors to be considered by the court are well established; see Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 as affirmed by the Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63 at paragraph 12:
a) the plaintiff must provide a satisfactory explanation for the litigation delay;
b) the plaintiff must provide satisfactory evidence that he or she always intended to prosecute the action within the time limit set by the rules and failed to do so only due to inadvertence;
c) the plaintiff must show that he or she moved promptly to set aside the order after learning about it; and
d) the plaintiff must convince the court that the defendants will not suffer significant prejudice in presenting their cases at trial as a result of the plaintiff’s delays.
24These factors are disjunctive. They must also be considered and weighed contextually. There are two underlying principles to be weighed: (a) civil actions must be decided on their merit; and (b) civil actions should be resolved in a timely and efficient manner to maintain public confidence in the administration of justice. Generally, courts favour determining cases on their merits; see H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173 at paragraph 25 and Chekhovtsova v. Mutschler et al., 2025 ONSC 4077 at paragraph 36.
25There are other considerations. Parties must “put their best foot forward.” Bald assertions, such as bald assertions of illness or financial strain, are insufficient explanations of litigation delay; see Beshay v. Labib, 2024 ONCA 186 at paragraph 20. The party who initiates the claim has the burden of moving the proceeding to its final resolution; consequences of dilatory regard to litigation pace therefore fall on the plaintiff, absent evidence of “resistance” by the defendants; see Barbiero v. Pollack, 2024 ONCA 904 at paragraph 6. Inordinate delay can on its own constitute sufficient evidence of prejudice for a dismissal order, and not just a rebuttable presumption of prejudice; see Barbiero, supra, paragraph 15.
26Mostly importantly, when faced with a self-represented plaintiff, a defendant has the right to expect that his or her liability will be determined by the same rules of evidence and substantive law that apply when a plaintiff is represented by counsel; see Girao v. Cunningham, 2020 ONCA 260, at paragraph 151. A self-represented party must learn the relevant legal rules and procedures.
Explanation for the litigation delay
27There were two lulls in the litigation of this action prior to 2019 that were either not explained or were superficially explained by Ms. Beach. There was the 8 months between the close of pleadings in November, 2015 and the commencement of Mr. Leider’s summary judgment motion in June, 2016. The defendants did not complain about this delay. I will not put significance on it. I nevertheless note that Ms. Beach did not explain why nothing happened during this time.
28There was the more significant lull of 17 months between the adjournment of the motion for summary judgment in September, 2016 and Ms. Beach’s delivery of an amended statement of claim in March, 2018 leading to the scheduling of discoveries in July, 2018. In her affidavit, Ms. Beach indicated that during this time she was awaiting production from the defendants and was receiving advice and analysis from her lawyer, Mr. Klaiman. Again, the defendants do not complain about this lull. They say in their affidavits that during this time the parties had discussions that led to a course of action (ie. production and discovery) while the Leider motion for summary judgment was pending. They also say that the parties exchanged affidavits of documents and productions. I will, therefore, not put significance on this lull for the purpose of this motion.
29It is undisputed that this motion revolves around what happened in the five years after Mr. Klaiman was removed as lawyer of record for Ms. Beach by Master Brott (as she then was) on July 19, 2019 until the dismissal order of August 2, 2024. I reiterate the key events:
The Brott removal order dated July 19, 2019 gave Ms. Beach 90 days (not the usual 30 days) either to retain a lawyer or serve a notice of intention to act in person. She did neither. In argument, Ms. Beach said she “misread” the removal order and did not understand the warning it contained. While Master Brott printed much of that order in her own hand, I find that it is legible and understandable.
In her affidavit, Ms. Beach then said she focused on other matters. She said she expanded her professional practice of corporate and marketing communications to begin consulting work in the mining industry, which was new to her. She described this as “a huge professional undertaking” that consumed a considerable amount of her time.
In her affidavit, Ms. Beach said she looked for lawyers during this time. She said she talked with lawyers (such as Jeff Larry of Palaire Roland and Lisa Korn and Dylan Arguson of Dickenson Wright) but that they were all reluctant to take her case because of other commitments or Ms. Beach’s desire to have a contingency fee arrangement. She gave no corroboration for these statements. She said it took four months to get the file from Mr. Klaiman but gave no corroboration of this statement. In short, these were bald statements.
In her affidavit, Ms. Beach said that 2020 was largely consumed with the death of her mother in April, 2020 and ten months of estate litigation with her brother. This litigation ended in January, 2021 with a settlement. She produced the minutes of settlement. She said she retained Phil Healey also to deal with this case, but there was no corroboration of that statement and no evidence that Mr. Healey did anything in this regard.
The only activity Ms. Beach describes for the period after May, 2021 was her effort to get Mr. Beach to produce a “witness statement” that contradicted his statement of defence. She said she finally succeeded in getting that witness statement from Mr. Beach in August, 2024, the same month she received the Registrar’s dismissal order. Ms. Beach contains a copy of a document called, “Witness Statement of Lloyd Charles Beach Regarding Efforts to Redeem Zigelstein 2nd Mortgage.” This document is unsigned.
During this time, Ms. Beach did not communicate with the defendants.
In argument, Ms. Beach said that she was not aware of Rule 48.14, that neither Mr. Klaiman nor any of the lawyers she spoke to told her about that rule, and that she “would have done something” had she known about the rule.
30This is a period of almost five years when nothing happened in this litigation. In Barbiero, supra, paragraph 22, the Court of Appeal stated that the five years specified by Rule 48.14(1)1 provides the proper benchmark for when an action moves into the realm of inordinate delay. This action is over 10 years old. The above-noted delay from July, 2019 to August, 2024 is itself over five years. I find that this is undoubtedly inordinate delay.
31I find Ms. Beach’s explanations for this inordinate delay unacceptable. Firstly, I find her claim of not understanding the removal order, lacking in credibility. Ms. Beach is an educated and intelligent person, and the removal order, while handwritten, is easily read and clear. She just simply did not comply with the order. In her affidavit, Ms. Beach said she approached several lawyers, and they all refused to take her case. She said she hired Phil Healey for this case. These were all bald, uncorroborated statements. There was also no evidence Mr. Healey did anything on this case. As indicated below, I find that the real reason for this non-compliance was the priority Ms. Beach gave to other events in her life.
32Secondly, while I accept Ms. Beach’s claim of ignorance of the applicable rules, this ignorance does not provide an acceptable explanation. As a self-represented party, Ms. Beach is expected to educate herself on the applicable rules, certainly in this case the rules pertaining to the delay of an action, as this action was by July, 2019 over four years old and had not even started examinations for discovery.
33Thirdly, and most importantly, Ms. Beach’s assertion that she “would have done something” had she known about Rule 48.14, in my view, reveals the real reason for her lack of activity during this time. She consciously gave other events in her life priority over this case, events such as her estate litigation and her consulting career. She believed she could do this and come back to this case when it suited her. These other events in her life no doubt kept Ms. Beach busy. But there is no evidence that they impeded her ability to prosecute this action. It was just a matter of prioritization. As the plaintiff, Ms. Beach had an obligation to prosecute this action with alacrity, particularly as this case has no counterclaim and involves serious allegations by her of fraud and conspiracy. She failed to do so.
34I do not blame Messrs. Leider and Zigelstein for this delay. They state in their affidavits that, given Ms. Beach’s non-compliance with the removal order and complete lack of activity and communication, they concluded that Ms. Beach had abandoned the action and did nothing to advance the action. I understand this conclusion.
35I, therefore, find that Ms. Beach has not adequately explained her inordinate delay of this action.
Intention to prosecute the action
36In her affidavit Ms. Beach claims “it was always my intention to pursue this litigation,” and the failure to set the action down for trial or get a timetable was due to her “inadvertence.”
37I do not accept this assertion. These are bald statements that are not supported by the evidence. As stated above, the evidence satisfies me that Ms. Beach chose not to comply with the removal order and chose not to advance this action. She gave her career and other events in her life priority over this case with the view that she could return to this case when it suited her. That is hardly inadvertence.
38I, therefore, find that Ms. Beach has not proven that it was always her intention to pursue this litigation and that she failed to do so through inadvertence.
Bringing the motion
39There was delay in the commencement of this motion. Ms. Beach said in her affidavit that she became aware of the Registrar’s dismissal order on August 29, 2024. She said she was again taken up with work on her consultancy career at that time. On November 17, 2024, almost three months later, Ms. Beach finally found the time to write Messrs. Antoniou and Cantor asking for consent to reinstate the action along with a timetable. In short, this was another instance when Ms. Beach gave priority to the other events in her life over this case – an unacceptable explanation.
40The response from Mr. Antoniou on November 21, 2024 was swift – no consent from Mr. Leider. On November 25, 2024 Mr. Antoniou emailed Ms. Beach strongly advising her to bring this motion without delay. But that did not happen for five months, namely not until April, 2025.
41Ms. Beach’s explanation for this further delay is that she was waiting for Mr. Zigelstein’s new lawyer to go on the record, which only happened in April, 2025. This explanation is not credible. In her November 25, 2024 email to Mr. Cantor, Ms. Beach confirmed that she had consulted a lawyer and believed that Mr. Cantor remained Mr. Zigelstein’s lawyer of record for the purpose of responding to the motion, as Mr. Cantor had not brought a removal motion. Mr. Cantor emailed back the same day stating clearly that his old firm, Minden Gross LLP, remained Mr. Zigelstein’s lawyer of record, but that he had switched firms.
42Why Ms. Beach did not schedule this motion at that point by engaging with Minden Gross LLP and Mr. Antoniou given Mr. Antoniou’s stark warning of the same day, November 25, 2024, not to delay, is beyond me. Minden Gross LLP would have had to quickly find a lawyer for Mr. Zigelstein inside or outside the firm or bring a removal motion. This would have accelerated the process of getting Mr. Zigelstein’s new lawyer. Instead, Ms. Beach sat back and allowed this process to linger. In short, I do not find Ms. Beach’s explanation for this delay acceptable either.
43I, therefore, find that Ms. Beach delayed in bringing this motion and does not have a satisfactory explanation for doing so.
Prejudice
44The combined times of the inordinate delay in the action and the delay in bringing the motion is three months short of six years. Ms. Beach has the onus to prove that this delay did not prejudice the ability of the defendants to defend this action.
45Ms. Beach asserts that this delay did not prejudice the ability of the defendants to defend this action as the case revolves around the “financial records” which she asserted were produced long ago while the Leider motion for summary judgment was pending.
46I do not accept this argument. Firstly, Ms. Beach produced neither the affidavits of documents nor any of the documents that apparently have been produced. Therefore, I cannot assess the merits of this position.
47Secondly, and most importantly, Ms. Beach’s pleading shows me that this case involves more than just financial records. In her amended statement of claim Ms. Beach makes serious allegations of misrepresentation, fraud and conspiracy. For instance, she alleges that Mr. Leider issued mortgage discharge statements that were intentionally misleading and artificially inflated. She alleges that the renovations and repairs were unnecessary and unreasonable. She alleges that Mr. Leider held himself out as the lawyer for the Beaches and that he contrived to keep the property off the market for personal gain. She alleges that Mr. Zigelstein worked exclusively with Mr. Leider and relied on Mr. Leider. She alleges that Messrs. Leider and Zigelstein engaged in civil conspiracy to extract the equity in the property. Evidence of these allegations will focus on correspondence, construction records and other non-financial records. Most importantly, the evidence of the alleged fraud and conspiracy will probably involve unwritten communication and agreements as it often does with fraud and conspiracy. Witnesses will be asked to remember these events. It is accepted by the courts that memories fade with inordinate delay; see Langenecker v. Sauvé, 2011 ONCA 803 at paragraph 11.
48Ms. Beach blames Messrs. Leider and Zigelstein for not taking any steps in the litigation and asserts that this undermines their claim that they are prejudiced by Ms. Beach’s delay. I disagree. I reiterate that these defendants were justified in not taking steps given Ms. Beach’s continuing breach of the removal order and her complete lack of action and communication with the Messrs. Leider and Zigelstein. Furthermore, as I stated earlier, Ms. Beach had the obligation to prosecute this action with alacrity, particularly as this case has no counterclaim and involves serious allegations by her of fraud and conspiracy. She failed to do so. Messrs. Leider and Zigelstein had good reason to conclude, as they did, that Ms. Beach had abandoned this action.
49Messrs. Leider and Zigelstein provided concrete evidence of the faded memories of important witnesses in their cases. Mr. Leider’s motion record contains an affidavit sworn by Rocco D’Andrea, a real estate appraiser who appraised the Property for Mr. Zigelstein on September 18, 2012. He swears that he no longer has a file on this appraisal and has no memory of it. There is an affidavit sworn by Corrado Settembre, another real estate appraiser who appraised the Property for Mr. Zigelstein on October 12, 2012. He also swears that he no longer has a file on this appraisal and has no memory of it. There is an affidavit sworn by Lou Shulman, the lawyer who advised Ms. Beach during the original Zigelstein loan and mortgage. He swears he no longer has a file on this matter and has no recollection of it. There is an affidavit sworn by Tony Stagliano, the contractor who did renovation work on the Property for Mr. Zigelstein. He swears, after reviewing the invoices his company rendered to Mr. Zigelstein, he does not recall this work and no longer has a file on it. Messrs. Leider and Zigelstein themselves swear in their affidavits that they are not young men, that, given the volume of their work, they have limited recollection of the relevant events as they happened 13 years ago, and that their access to relevant banking records is limited given the banks’ document retention policies. Ms. Beach did not cross-examine on these affidavits. I, therefore, accept this evidence. Messrs. Leider and Zigelstein will, therefore, have real difficulty defending this action due to this memory loss.
50I, therefore, find that Ms. Beach has failed to prove that Messrs. Leider and Zigelstein are not prejudiced in their defences by Ms. Beach’s delays.
Context
51Ms. Beach argued that I should exercise my discretion in her favour given the merit of her underlying case. She presented evidence in her affidavit of alleged accounting irregularities and unfair treatment in the Zigelstein mortgage enforcement process leading to, what she asserts was, her unjust loss of the equity in the Property.
52This issue concerns the context in which this motion is brought. I do not accept Ms. Beach’s argument. Firstly, Ms. Beach’s accounting and other allegations have not been tested; there has not even been a discovery at this point. Secondly, Ms. Beach provided no evidence justifying her allegations of fraud and conspiracy. This is a serious deficit given the inflammatory and damaging nature of these allegations, particularly for a lawyer like Mr. Leider who relies on his reputation for business. Thirdly, and most importantly, Lloyd Beach, Ms. Beach’s ex-spouse and the co-mortgagor, in his statement of defence over 10 years ago when this action started (and only three years after the mortgage enforcement events) totally contradicts Ms. Beach’s allegations. He supports Messrs. Leider and Zigelstein. Mr. Beach’s pleading remains unamended. Ms. Beach claims last year she got Lloyd Beach to change his view; but the Lloyd Beach “witness statement” Ms. Beach filed is not signed and Mr. Beach swore no affidavit in this motion. Mr. Beach’s admissions stand.
53As a result, I find that the merit of Ms. Beach’s case does not justify reinstating this action. In fact, given Mr. Beach’s pleading, I find that there is good reason to bring this action to an end.
Conclusion and Costs
54For all these reasons I dismiss this motion.
55There is then the issue of costs. I gave the parties until October 31, 2025 to serve, file and upload costs outlines. Messrs. Leider and Zigelstein served and filed bills of costs for this entire action (including this motion) plus written submissions on costs. Ms. Beach filed nothing.
56Messrs. Leider and Zigelstein submit that, in the event this motion is dismissed, they want their costs of this entire action. Mr. Leider wants $36,158.41 in substantial indemnity costs or $26,516.17 in partial indemnity costs. Mr. Zigelstein relies upon a provision of the mortgage and claims full indemnity costs of $57,906.29. In the alternative, Mr. Zigelstein claims $39,227.60 in partial indemnity costs.
57Given the size of these claims, it is important that the parties attempt to resolve the issue of costs. If they fail to do so, I order that Messrs. Leider and Zigelstein serve and file written submissions on costs of no more than three pages on or before February 10, 2026, that Ms. Beach serve and file responding written submissions on costs of no more than five pages on or before February 20, 2026, and that Messrs. Leider and Zigelstein serve and file reply written submissions on costs of no more than one page on or before February 25, 2026.
DATE: January 29, 2026
ASSOCIATE JUSTICE C. WIEBE