Executive Summary: Key Legal and Evidentiary Issues

• Complex multi-party construction litigation involving delay in setting the action down for trial and a registrar’s potential dismissal under Rule 48.14.
• Adequacy of the plaintiffs’ explanation for litigation delay, centered on health issues, family responsibilities, and logistical challenges in scheduling mediation.
• Assessment of whether the death of DeMarco Construction’s principal witness created non-compensable prejudice sufficient to justify dismissal for delay.
• Use of discovery transcripts and extensive project documentation to mitigate evidentiary prejudice arising from the witness’s death.
• Application of the two-part conjunctive test under Rule 48.14(7), balancing timely proceedings against the policy of deciding cases on their merits.
• Costs consequences of the status motion, with partial indemnity costs awarded to the successful plaintiffs.

Background and nature of the dispute
This case arises from a complex construction dispute in Ontario involving residential plaintiffs James and Shelley Ann Helmer and a large group of construction and design-related defendants. The litigation stems from alleged deficiencies and delays on a construction project in which numerous trades, contractors, and consultants were involved. The defendants include an architectural firm (GRC Architects Inc.), engineering and related professional firms (Goodkey, Weedmark & Associates Limited), the general contractor DeMarco Construction Limited, as well as multiple subcontractors and trade companies such as masonry, wall systems, mechanical, plumbing, gas, electrical, glass, and window/door suppliers. Over time, not all originally named defendants remained active in the proceeding. Some defendants were discontinued early in the action, one defendant (Ralco Masonry & Construction Ltd.) became bankrupt and subject to an automatic stay, other corporate defendants ceased operations or became insolvent, and one defendant (Waltex Wall Systems Inc.) was noted in default, while attempts to serve another (Khalid Issa dba Waltex Wall Systems Inc.) were unsuccessful. The case therefore proceeded as a multi-party construction action with a reduced but still significant number of active defendants.

Procedural framework and the status hearing motion
The motion before the Superior Court of Justice did not address the merits of the construction defect and delay claims but focused instead on whether the action should be dismissed for delay under Rule 48.14 of the Ontario Rules of Civil Procedure. Rule 48.14(1) mandates that the registrar dismiss an action for delay if it is not set down for trial, or otherwise terminated, within five years of its commencement. Rule 48.14(5) allows a party to bring a motion for a status hearing before that five-year deadline is reached. At a status hearing, the court may either dismiss the action for delay under Rule 48.14(7) or, if satisfied that the case should proceed, impose a timetable and set a new deadline to have the action set down for trial.
Under Rule 48.14(7), the plaintiffs bear the onus of satisfying a two-part conjunctive test. They must demonstrate both that there is an acceptable explanation for the delay, and that the defendant will not suffer non-compensable prejudice if the action is allowed to continue. The court referred to leading appellate authority, including Faris v. Eftimovski, Southwestern Sales Corporation Limited v. Spurr Bros. Ltd., and 1116227 Ontario Ltd. v. Telus Communication Company, as well as a recent synthesis in Lépine v. Bruce Marshall, to confirm this test and its application. The Helmers, as plaintiffs and moving parties, brought the motion under Rule 48.14(5) seeking a status hearing and an extension of the deadline to set the action down for trial.

Positions of the parties on delay and prejudice
Only one defendant, DeMarco Construction Limited, opposed the plaintiffs’ request for an extension of time. The other active defendants consented to the relief sought by the Helmers. The plaintiffs’ position was that, viewed in context and as a whole, their conduct in the litigation was reasonable and that there was a sufficient explanation for periods of delay, in particular the time taken to answer undertakings and to coordinate mediation. They also maintained that DeMarco Construction would suffer no non-compensable prejudice if the matter continued toward trial.
DeMarco Construction advanced a much different view. It argued that the delay in progressing the action was significant, inordinate, and inexcusable, and that the plaintiffs had not provided a reasonable or adequately supported explanation. Importantly, DeMarco Construction asserted that it had suffered substantial and irreparable prejudice because its principal and only witness with direct knowledge of the project, Tom DeMarco, had died. According to DeMarco Construction, his death severely impaired its ability to investigate, respond to, and defend the claims, thereby justifying dismissal for delay. DeMarco also relied on case law such as Green v. Green and DK Manufacturing Group Ltd. v. MDF Mechanical Limited to criticize the sufficiency of the plaintiffs’ evidentiary explanation for delay.

Chronology of the litigation and explanation for delay
Justice Rees examined the chronology from commencement to the motion date in order to assess whether the delay was inordinate and, if so, whether a reasonable explanation existed. A Notice of Action was issued on September 11, 2020, and the plaintiffs filed their Statement of Claim on October 9, 2020. In November 2020, the plaintiffs discontinued the action against several defendants, narrowing the field. In September 2020, one masonry defendant filed a notice of bankruptcy, resulting in a stay as against that party. The parties exchanged affidavits of documents in due course.
Examinations for discovery were initially scheduled to run from late October to early November 2022. Those timelines shifted. Discoveries of Mr. DeMarco and the representative of one plumbing defendant took place in September 2023, and the examinations of the remaining parties proceeded in April 2023. In December 2023, counsel for a masonry defendant advised that the company was insolvent and would no longer participate. By mid-December 2023, the parties had scheduled a mediation for July 15, 2024. That mediation date ultimately had to be rescheduled because the plaintiffs had not completed their outstanding undertakings by May 2024.
The court identified the principal period of delay as the plaintiffs’ lateness in answering undertakings arising from discoveries. The plaintiffs did not deliver their answers to undertakings until March 18, 2025, and they anticipated serving expert reports under Rule 53.03 thereafter. They canvassed further mediation dates for the summer of 2025; however, due to the number of parties and counsel, the earliest mutually available date was February 2026. The deadline to set the action down for trial was September 14, 2025, and Mr. DeMarco passed away on August 20, 2025, only weeks before this deadline. Against that timeline, the court assessed whether the litigation had truly stagnated or, instead, had continued to move forward, albeit more slowly than ideal.
The plaintiffs’ central explanation focused on the personal and health circumstances of Ms. Helmer, which affected the pace at which undertakings could be answered and materials gathered. She deposed that she suffered from fatigue, chronic pain, and migraines and that she had been diagnosed with genetic and chronic health conditions. She had been on long-term disability since the birth of their third child, and her medical and caregiving needs imposed additional burdens on Mr. Helmer. The plaintiffs argued that these realities, combined with the scheduling complexities of a multi-party construction case, accounted for the slower progress.

Court’s assessment of the explanation for delay
Justice Rees accepted that there was an adequate and reasonable explanation for the delay. The court emphasized that in a Rule 48.14 analysis, it should not become overly fixated on any single period of inactivity but must examine the full context and the overall justice of the case. The policy objectives of deciding civil cases on their merits and promoting efficient, timely resolution must be balanced, not applied mechanistically. Referring to Lépine, the court reiterated that “slow progress, even slower than ideal, does not necessarily amount to an inadequate explanation; the standard is reasonableness, not perfection.”
Although more than two years passed while the plaintiffs’ undertakings remained outstanding, the court was satisfied that Ms. Helmer’s health challenges and family situation, in a case of this complexity, provided an acceptable explanation. Justice Rees distinguished the decision in Green, where a plaintiff’s claim of depression and anxiety was found insufficient to justify more than four years of inactivity; in that case, there were scant particulars and little evidence of any steps taken during the delay. Here, by contrast, the litigation was never completely at a standstill: the parties exchanged productions, attended discoveries, and actively worked to schedule mediation, even though the failure to complete undertakings contributed to postponement.
DeMarco Construction argued that the lack of documentary exhibits supporting Ms. Helmer’s health assertions undermined her credibility, relying on DK Manufacturing for the principle that affidavit statements should be supported where possible. Justice Rees rejected the inference that her evidence was unreliable solely because it was not accompanied by medical records. DeMarco had not cross-examined her on her affidavit and had not offered contrary evidence. On this record, the judge accepted her sworn explanation for the delay and found that the first branch of the Rule 48.14 test—an acceptable explanation—was met.

Analysis of prejudice arising from the key witness’s death
On the second branch of the test—non-compensable prejudice—DeMarco Construction argued that the death of its principal witness, Tom DeMarco, created serious and irreparable prejudice to its defence. The court acknowledged that his loss did prejudice DeMarco Construction “to a certain extent,” as he was the primary individual with direct knowledge of the project. However, the central question was whether that prejudice was attributable to the plaintiffs’ delay and whether it rose to the level of non-compensable prejudice that would justify dismissing the action.
Justice Rees concluded that the prejudice arising from Mr. DeMarco’s passing was not caused by the plaintiffs’ delay. Mr. DeMarco died approximately three weeks before the deadline for setting the matter down for trial. Even if the plaintiffs had strictly complied with the deadline, he still would have passed away before the case could reasonably have proceeded to trial, given the inherent scheduling and pre-trial steps involved. In other words, his death was not a consequence of the time taken to get the action trial-ready; it would have affected the case regardless.
The court further held that whatever prejudice DeMarco Construction faced was “attenuated.” First, Mr. DeMarco’s discovery evidence had already been recorded, and Rule 31.11(6)(a) allows a party, with leave of the trial judge, to read into evidence all or part of the discovery transcript of a witness who has died. Second, there was extensive documentary production from the construction project, including schedules, meeting minutes, and records of work done and not done. These documents provide a robust evidentiary record for both sides. The availability of discovery transcripts and project documentation thus mitigated the impact of Mr. DeMarco’s absence at trial and weighed against finding non-compensable prejudice sufficient to dismiss the claim.

Expert evidence and fairness to the defence
As a fallback position, DeMarco Construction asked the court, if it allowed the action to proceed, to prohibit the plaintiffs from serving any expert reports or calling expert evidence at trial. It argued that without Mr. DeMarco’s input, it would be unfairly disadvantaged in instructing experts to respond to the plaintiffs’ opinions, particularly on issues of delay and project performance.
The plaintiffs explained that they anticipated two broad categories of expert evidence. One category concerned design deficiencies, which did not directly implicate DeMarco Construction’s role. The other related to construction delays, which did involve DeMarco. The plaintiffs submitted that delay opinions would be driven primarily by the contemporaneous project records—such as schedules, meeting minutes, and logs of work performed—rather than by Mr. DeMarco’s personal recollections. They also noted that DeMarco Construction had access to the same underlying documents and could instruct its own experts on that basis.
Justice Rees accepted this reasoning and declined to impose the requested restriction on expert evidence. There was no suggestion that the construction project was poorly documented or that key records were missing. In those circumstances, and given that discovery evidence of the deceased witness remained available for potential use at trial, barring the plaintiffs’ experts would be a disproportionate response and would undermine the goal of deciding the case on its merits.

Outcome, timetable, and monetary consequences
Weighing all relevant factors, Justice Rees held that the plaintiffs had met both parts of the Rule 48.14(7) test. There was an acceptable explanation for the delay, and any prejudice to DeMarco Construction from Mr. DeMarco’s death was not attributable to the plaintiffs’ conduct and was mitigated by the available transcripts and documentation. Accordingly, the court granted the plaintiffs’ motion and extended the timetable for the action. Mandatory mediation was ordered to be completed by August 31, 2026 (subject to variation by mutual consent of the parties), and the deadline to set the action down for trial was extended to September 15, 2026.
On costs, the plaintiffs sought $6,948.05 on a partial indemnity basis, while DeMarco Construction, had it succeeded, would have requested $7,859.51. As the successful parties on the motion, the plaintiffs were entitled to their costs. After reviewing the costs outlines, Justice Rees fixed costs in favor of the plaintiffs in the amount of $6,500, all-inclusive. There was no adjudication of damages on the underlying construction claims at this stage; the only monetary award in this decision is the $6,500 in partial indemnity costs ordered in favour of James and Shelley Ann Helmer as the successful parties on the status motion.