Executive Summary: Key Legal and Evidentiary Issues

• Significant delay in the prosecution of the action due to the plaintiff’s repeated failure to produce relevant documents and fulfill undertakings.

• The plaintiff did not provide an acceptable or adequate explanation for the prolonged delay, with no direct evidence from the plaintiff himself regarding his intentions to pursue the case.

• The defendants were not responsible for the delay and made reasonable accommodations, including agreeing to timetables and being willing to proceed with discovery and mediation under certain conditions.

• The court found a presumption of prejudice to the defendants due to the lengthy delay, missing documents, faded memories, and unavailable evidence.

• The plaintiff failed to demonstrate that the defendants would not suffer non-compensable prejudice if the action proceeded.

• The motion to extend the time to set the action down for trial was dismissed, resulting in the dismissal of the entire action for delay.

Background and facts of the case

Richard Kalovski initiated a lawsuit against the City of Toronto and Canadian Pacific Railway Company (CPR) following an incident on November 28, 2016, in which he alleged he was struck on the head by a falling piece of concrete while walking under a bridge on Scarlett Road in Toronto. The bridge was owned by CPR and the sidewalk by the City. Kalovski claimed $2,000,000 in damages for serious injuries. The defendants responded with statements of defence and crossclaims in May 2017.

The litigation was marked by persistent delays, primarily due to the plaintiff’s failure to produce relevant documents and fulfill undertakings necessary for the discovery process. Although the defendants served their affidavits of documents in late 2017 and early 2018, the plaintiff only provided limited, unsworn documentation. Scheduled examinations for discovery were repeatedly adjourned due to deficiencies in the plaintiff’s productions. When the plaintiff was eventually examined, further documentary issues emerged, especially concerning his business income loss claim, resulting in more adjournments and a growing list of outstanding undertakings.

Despite the plaintiff retaining new counsel in January 2021, progress remained slow. The plaintiff’s counsel made intermittent efforts to obtain and produce documents, but these were often incomplete or delayed. At one point, the plaintiff delivered a box containing approximately 4,000 disorganized documents, but failed to assist his counsel in organizing or identifying them, leaving the undertakings largely unsatisfied. The defendants, meanwhile, continued to accommodate the plaintiff by agreeing to attend examinations and consenting to timetables, but the plaintiff’s non-compliance persisted.

Legal framework and analysis

The court considered the motion under Rule 48.14 of the Ontario Rules of Civil Procedure, which requires actions to be set down for trial within five years or risk administrative dismissal. At a status hearing, the plaintiff bears the burden of showing cause why the action should not be dismissed for delay, specifically by providing an acceptable explanation for the delay and demonstrating that the defendants would not suffer non-compensable prejudice if the action proceeded.

The court found that the plaintiff failed to provide an acceptable explanation for the delay. There was no direct evidence from the plaintiff regarding his intentions, and the affidavit from his current counsel did not adequately account for the years of inactivity or the plaintiff’s lack of cooperation. The explanation offered was essentially a summary of counsel’s unsuccessful efforts to obtain compliance from the plaintiff, rather than any substantive reason for the delay.

Furthermore, the court found that the plaintiff failed to establish that the defendants would not suffer non-compensable prejudice. The protracted delay raised a presumption of prejudice, given the likelihood of faded memories, unavailable witnesses, and missing documents. The plaintiff’s inability to confirm the availability of key evidence, including business records and the piece of concrete allegedly involved in the incident, further supported the inference of prejudice.

Policy considerations and court’s reasoning

The court acknowledged the tension between the public interest in timely justice and the preference for resolving disputes on their merits. However, it emphasized that the plaintiff, as the party who initiated the proceedings, bore primary responsibility for moving the action forward. The defendants had not contributed to the delay and had, in fact, shown willingness to cooperate within reasonable limits.

The court also rejected the plaintiff’s argument that any delay was attributable to solicitor inadvertence, noting the absence of evidence to support this claim and finding that the overall record pointed to the plaintiff’s own lack of diligence and cooperation.

Outcome and disposition

After weighing all relevant factors, the court concluded that the plaintiff had not shown cause to extend the time to set the action down for trial. The motion was dismissed, and the action itself was dismissed for delay. The court left the issue of costs to be determined by further written submissions if the parties could not agree. The successful parties in this outcome were the City of Toronto and Canadian Pacific Railway Company. No specific monetary award was granted, as the dismissal was procedural and related to delay, not the merits of the underlying claim. If any costs are to be awarded, the amount will be determined in subsequent submissions, as the decision did not specify a figure.