Executive Summary: Key Legal and Evidentiary Issues

• Robert Kroll moved to set aside a registrar's dismissal order after his action against Daniel Naiman was dismissed for delay under Rule 48.14 of the Rules of Civil Procedure.

• Four factors governed the analysis: explanation for the delay, inadvertence in missing the deadline, promptness of the motion, and absence of prejudice to the defendant.
• Both parties agreed that Kroll brought the motion promptly, but disputed the remaining three factors.
• Personal and family health difficulties from 2020 to 2025, including Kroll's stroke in January 2025, were accepted by the court as an explanation for the delay.
• Inadvertence was not fully established, as the evidence showed only sporadic engagement with the litigation rather than a consistent intent to prosecute within the prescribed time limits.
• No prejudice to Naiman was found, as Kroll preserved all relevant documents and Naiman's submissions on lost documents were unsupported by sworn evidence.

Facts of the case

In or about May 2018, Robert Kroll allegedly loaned $118,300 to Daniel Naiman for a down payment on a property purchase. Kroll also claims to have paid approximately $35,000 in renovation bills for the same property. When Naiman allegedly failed to repay these amounts, Kroll filed a Statement of Claim on March 10, 2020, seeking $153,000 plus interest. Naiman served a pro tem Statement of Defence on May 22, 2020. The case, however, saw little active advancement in the years that followed. On September 8, 2025, the registrar issued an Order Dismissing Action for Delay under Rule 48.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, because the action had not been set down for trial by the fifth anniversary of its commencement. Kroll then brought a motion to set aside the dismissal and reinstate the action to the active list, which Naiman opposed.

Procedural rules at issue

The central procedural provision was Rule 48.14(1), which requires the registrar to dismiss an action for delay where it has not been set down for trial or terminated within five years of commencement. Once that deadline passes, the action moves into the realm of "inordinate" delay, as noted in Barbiero v. Pollack, 2024 ONCA 904. To set aside such a dismissal, a plaintiff must satisfy the four-factor test from Reid v. Dow Corning Corp., as adopted by the Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63: (a) an explanation for the litigation delay; (b) inadvertence in missing the deadline; (c) promptness of the motion; and (d) no prejudice to the defendant. The court also noted that a contextual approach is preferred over a rigid application of the test, and that the weight of authority from the Court of Appeal has leaned toward the policy that civil actions should be decided on their merits (H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173).

Reasoning and analysis

Associate Justice Mak accepted Kroll's explanation for the delay. The court acknowledged that Kroll's parents experienced health issues from 2020 to 2024, requiring his involvement in their daily lives, and that Kroll himself suffered a stroke in January 2025 requiring hospitalization and speech therapy from February to April 2025. While Naiman's motion record contained social media posts purportedly showing Kroll attending 29 recreational, social, and professional events and 10 out-of-country vacations between the issuance of the Statement of Claim and the motion, Kroll swore a reply affidavit denying these characterizations and explaining that many photos were old pictures taken long before they were posted, and that most posts related to necessary work events, historical photos taken during the family health crisis, or short local trips for mental health. The court accepted these explanations, noting that Naiman did not himself swear an affidavit for the motion.

On the question of inadvertence, the court found that the evidence did not establish that Kroll always intended to prosecute the action within the prescribed time limits but simply failed through oversight. Instead, the evidence pointed to sporadic engagement: Kroll periodically contacted his former counsel, Dheeraj Bhatia, including meetings in December 2021, September 2022, and February 2024, but on at least one occasion did not respond to a retainer request, and there was a lengthy gap during which Naiman received no communication from Kroll's side from July 10, 2020 until October 17, 2025.

On prejudice, the court found none. Kroll presented preserved evidence including copies of cheques and a confirmation of transfer supporting his loan claim, as well as email correspondence between the parties from February 13 and 14, 2020 regarding his demand for repayment. Naiman's counsel's affidavit did not address whether the delay caused prejudice to Naiman, and Naiman's factum submission that he had lost documents in several moves was unsupported by any sworn affidavit, rendering it a bald and unsupported assertion.

Ruling and overall outcome

Having weighed all relevant factors, Associate Justice Mak set aside the registrar's dismissal order. The court held that while Kroll was primarily responsible for the delay, the absence of prejudice to Naiman justified reinstating the action, consistent with the court's preference for matters to be decided on their merits. The court also ordered a timetable peremptory on Kroll, variable only by court order or the parties' consent, with a case conference available before the Associate Justice if the parties could not agree on the timetable within 30 days. Kroll was the successful party on the motion. As to costs, the court made no costs order, finding it fair and reasonable given that Kroll was seeking an indulgence from the court and it was reasonable for Naiman to oppose the motion — though the court left open the possibility of a costs award in Naiman's favor if he had served any qualifying offers to settle, to be submitted within 20 days. No monetary damages or award was granted or ordered at this stage of the proceedings.