Executive Summary: Key Legal and Evidentiary Issues

• Lengthy 11–12 year delay in advancing a straightforward wrongful dismissal and related claims, and whether that delay is inordinate and inexcusable
• Competing positions on whether repeated changes of plaintiff’s counsel and pandemic-affected discovery adequately explain the delay
• Alleged prejudice to the defendants arising from fading memories, lack of contemporaneous notes, and the personal defendant’s Parkinson’s-related cognitive issues
• Significance of prior discoveries and an earlier amendment ruling in showing that all core issues and particulars were already explored on the record
• Tension between the defendants’ desire to dismiss for delay and their own earlier steps to set the matter down for trial
• Appropriate case-management response: dismissal for delay versus restoring the action to the trial list under a strict, peremptory timetable and barring further amendments

Background and facts of the case
Christina (Shu-Shen) Lee commenced a wrongful dismissal action against her former employer, ITW Canada Inc. c/a ITW Construction Products, and a personal defendant, Tim Dunning. Her employment had been terminated in November 2013, and the action was started in November 2014, making the litigation approximately 12 years old by the time of this 2026 decision. The core of the lawsuit is a wrongful dismissal claim arising from a relatively short, one-year period of employment, with no allegation of cause for termination. Around this central employment dispute, the plaintiff pleads a number of additional claims that complicate the action: allegations of discrimination, negligent misrepresentation, a toxic work environment, and intentional infliction of emotional suffering. These issues were present in the original pleading and were explored during the discovery process.
Procedural history and delay
The action was first ready for trial in April 2021 and was placed on the trial list. However, the plaintiff then chose to amend her claim, which led to the matter being struck from the trial list in 2022 while the amendment issue proceeded. The motion to amend, although filed in May 2022, was not heard until March 2024, at which time leave to amend was granted with conditions. The plaintiff explained that the delay in having the amendment heard stemmed from factors including extensive and protracted examinations for discovery, pandemic-related scheduling and logistical issues, motions to compel undertakings and further production, and the lack of availability of her then counsel in late 2021 due to a family tragedy. Throughout the litigation there was a recurring turnover of plaintiff’s counsel. The plaintiff provided explanations for each change and described her efforts to retain new lawyers. Following the 2024 amendment ruling, the case should have been ready again for trial. Instead, the plaintiff advised that she intended to bring a motion to disqualify the defendants’ counsel. She did not take the necessary steps to advance that motion or to move to restore the action to the trial list. As a result, the file stalled.
The case conference and emergence of the delay motion
With the matter at a standstill, the defendants attempted to move the case forward. They sought the plaintiff’s cooperation to complete the joint trial certification form and file materials to obtain a “to-be-spoken-to” attendance for scheduling the trial, but the plaintiff did not cooperate. The defendants then requested a case conference to obtain a timetable for scheduling the trial. At the case conference held on 24 April 2025, the presiding judge declined to set a trial timetable, influenced in part by the fact that plaintiff’s then counsel was moving to remove herself from the record due to disagreements with the plaintiff over the proposed motion to remove defence counsel. In that context, the judge, on his own initiative, identified a motion to dismiss the action for delay as a potential remedy. The endorsement did not direct that such a motion be brought but flagged it as an available option. Following that comment, the defendants promptly served a motion seeking to have the action dismissed for delay, while the plaintiff responded with a cross-motion to restore the case to the trial list.
The legal test for dismissal for delay
The parties accepted that the governing test for dismissal for delay is set out in Langenecker v Sauve 2011 ONCA 803. Under that framework, the defendants, as moving parties, were required first to show that the delay was both inordinate and inexcusable. If that threshold was met, they then needed to demonstrate that the delay created a substantial risk that a fair trial was no longer possible. Associate Justice Jolley applied this two-stage test to the factual record, including the history of amendments, the discovery process, the explanations given for delay, and the prior rulings in the action.
Assessment of inordinate and inexcusable delay
On the first component, the court accepted that the delay in this litigation was inordinate. Despite the action’s complexity being somewhat increased by the discrimination and intentional infliction of emotional suffering claims, the judge emphasized that at its core this was an uncomplicated wrongful dismissal dispute involving a one-year employee and no cause allegation. Taking into account the various amendments (including those predating the 2024 amendment), the court found that it should not have taken 11 years for the matter to be ready for trial. However, the court concluded that the delay, while inordinate, was not inexcusable. The plaintiff’s repeated changes of counsel were explained, as were her efforts to secure new representation. The reasons why her amendment motion, filed in May 2022, was only heard in March 2024 were also described, including the lengthy oral and written examinations for discovery, the effect of the pandemic on those processes, motions about undertakings and document production, and counsel’s family-related unavailability. Importantly, Associate Justice Jolley adopted and endorsed the earlier analysis of Associate Justice McAfee from the May 31, 2024 endorsement on the amendment motion. McAfee A.J. had concluded that the plaintiff provided “adequate explanation for the delay” and that the timeline had been exacerbated by the pandemic and the undertakings process. Those findings were accepted as part of the explanation for the delay and undermined the contention that it was inexcusable.
Prejudice and the possibility of a fair trial
The court then turned to whether the delay had prejudiced the defendants to the point that a fair trial could not be held. The defendants pointed to several sources of alleged prejudice. First, they highlighted the health and potential cognitive issues of Mr. Dunning, who was both a personal defendant and the representative of the corporate defendant. He had been diagnosed with Parkinson’s disease in 2016, and the defendants argued that his memory and ability to testify had deteriorated with time. Second, they contended that the absence of contemporaneous notes and records would impede their ability to respond fully to the plaintiff’s allegations after so many years. The judge rejected these arguments as sufficient to bar a fair trial. With respect to Mr. Dunning, the court noted that his evidence was already preserved in a detailed transcript from the examinations for discovery conducted in September 2019. Any cognitive decline after that date did not erase the evidentiary record already created. Moreover, had the case gone to trial in 2023 or 2024 (had it not been struck from the trial list), many of the same health issues would likely have existed, given the timing of his 2016 diagnosis, so the delay did not uniquely create those challenges. Regarding the lack of notes, the court observed that this was not caused by the plaintiff’s delay. The plaintiff’s termination and the commencement of the action occurred in 2013–2014. If the defendants were concerned about memory fading, they could have created notes or memos, or interviewed key witnesses at the outset, when events were still relatively fresh. The responsibility for not doing so could not be shifted onto the plaintiff’s later procedural decisions.
Role of prior discoveries and amendment ruling
A further important factor was the breadth of discovery and the nature of the 2024 amendments. Both parties had already been examined for discovery on all of the plaintiff’s main allegations, including negligent misrepresentation, discrimination, toxic work environment, and the suggestion that she was terminated for raising a possible fraud risk. Associate Justice McAfee’s endorsement on the amendment motion had held that the new amendments did not introduce genuinely new causes of action. Instead, they were described as further particulars of existing pleadings or as issues emerging from document production. She found that the defendants had already been required to locate and preserve documentation relating to the plaintiff’s employment and dismissal under the then-existing pleadings, and had had an opportunity to interview relevant witnesses. As a condition of granting the amendments, McAfee A.J. also gave the defendants leave to conduct further discovery of the plaintiff on the new particulars, but they elected not to pursue that opportunity. In this motion, Associate Justice Jolley emphasized that the defendants had not produced new evidence of specific prejudice arising since the 2024 amendment decision. In addition, the defendants’ own January 2025 initiative to schedule the case for trial was viewed as inconsistent with any genuine belief that a fair trial had become impossible by reason of delay. Taking all these elements together, the court found that the presumption of prejudice associated with long delay had been rebutted, there was no proven actual prejudice, and there remained a realistic prospect of a fair trial on the merits.
Outcome of the motions, case management orders, and financial consequences
On the motion to dismiss for delay, the court refused to grant the relief sought by the defendants. Although acknowledging that the delay was inordinate, Associate Justice Jolley held that it was adequately explained and that the defendants had not shown that a fair trial could no longer be held. Accordingly, the defendants’ motion to dismiss the action for delay was dismissed. On the plaintiff’s cross-motion, the court granted an order restoring the action to the trial list. At the same time, the judge made clear that the plaintiff could no longer change course without consequence. A firm case-management timetable, set out in Schedule “A,” was imposed on a peremptory basis against the plaintiff, binding whether or not she is represented by counsel. No further amendments to the statement of claim were permitted. The order also provided that, if the plaintiff failed to comply with the timetable, the defendants could bring a motion to strike the action for breach of a court order. As a further condition of restoration to the trial list, and on the plaintiff’s consent, her proposed motion to disqualify the defendants’ counsel was withdrawn with prejudice. On the question of costs, the court did not fix any dollar figure in this decision. Instead, it allowed the parties an opportunity to agree on costs, cautioning the plaintiff that the need for the defendants’ motion had been driven by her late threat to remove defence counsel and her failure to move the case forward. Failing agreement, the court set a schedule for brief written submissions and costs outlines from both sides. Because the reasons do not specify any quantified costs award or any damages or other monetary relief, there is no determinable total amount ordered or granted at this stage, and the only clear result is that the plaintiff is the successful party on these motions but with no fixed monetary award yet recorded.