Executive Summary: Key Legal and Evidentiary Issues

• The central procedural issue is whether the registrar's dismissal of a civil action, issued on 7 October 2024, should be set aside on the plaintiff's motion.
• Failure to explain nearly six years of litigation inactivity from 2015 to 2021 weighed heavily against the plaintiff's case for reinstatement.
• Three court-ordered timetables were issued over the course of the action, yet the plaintiff failed to comply with the critical set-down deadline of 31 May 2024.
• Inadvertence was accepted as the reason for missing the final set-down date, but the plaintiff could not show a consistent intention to prosecute the action throughout its full history.
• Significant prejudice to the defendant was established, as its key witness, Mr. Pilarski, is no longer able to testify due to the progression of Parkinson's disease.
• Finality of litigation was found to outweigh the plaintiff's interest in having the action heard on its merits, and the motion to set aside the dismissal was denied.

Facts of the case

Hooshfar Rokni Pezeshkian commenced an action against Re/Max Realtron Realty Inc. in 2015, claiming wrongful dismissal and seeking punitive and aggravated damages of $250,000. The punitive damages claim was grounded in allegations that his supervisor, Mr. Pilarski, pressured him to sign a resignation letter, replaced him when he refused, and made disparaging comments about him. The defendant disputed the nature of the working relationship entirely, pleading that the plaintiff was an independent contractor rather than an employee, and pointing to a signed independent contractor agreement as evidence of that status. The action proceeded under the simplified procedure rules, which are designed to minimize costs and delay and to have claims resolved as expeditiously and efficiently as possible.

Contractual and procedural framework

The plaintiff's signed independent contractor agreement was central to the defendant's position on the nature of the working relationship. As the defendant argued, if the matter were purely documentary, that agreement would be determinative. However, the plaintiff intended to argue that the practical realities of the relationship — including the degree of control Mr. Pilarski and the defendant exercised over his schedule — established an employment relationship notwithstanding the written agreement. Beyond this contractual dispute, the procedural history was governed by a series of court-ordered timetables. The first, issued by Myers J. on 6 July 2021, required exchange of affidavits of documents by 31 July 2021, completion of discoveries by 31 August 2021, answers to undertakings by 1 November 2021, any undertakings or refusals motions by 30 November 2021, and the action to be set down for trial by 29 July 2022. A second timetable, amended on consent by Ramsay J. in July 2022, extended these deadlines across the board, with the set-down date pushed to 31 March 2023. A third timetable order, granted by Merritt J. on 19 September 2023, set a final set-down date of 31 May 2024.

Reasoning and analysis

Associate Justice Jolley applied the four-factor test applicable to motions seeking to set aside a registrar's dismissal, as settled in Ferrari v. Sukhram 2025 ONSC 6062 and Hamilton v Svedas Koyanagi Architects Inc. 2010 ONCA 887. The court must consider: whether the plaintiff provided a satisfactory explanation for the delay; whether satisfactory evidence was led to show the plaintiff always intended to prosecute within the prescribed limits but failed through inadvertence; whether the plaintiff moved promptly upon learning of the dismissal; and whether the defendant would suffer significant prejudice at trial as a result of the delay.

On the first factor, the court found the explanation deeply inadequate. The plaintiff focused his submissions entirely on the period from 2021 to 2025, leaving the preceding six years — from the action's commencement in 2015 to 2021 — wholly unaddressed. During that initial period, nothing happened until November 2019, when the plaintiff delivered an affidavit of documents, followed by nearly two more years of silence before the first timetable order was sought. The court drew on the Court of Appeal's reasoning in 1196158 Ontario Inc. v. 6274013 Canada Limited 2012 ONCA 544, where it was held that a timetable order does not absolve prior delay and that the delay to be explained spans the entire life of the action. The court rejected the notion that obtaining timetable orders could serve as a substitute for explaining the years of inactivity that preceded them.

On the second factor, the court accepted that the failure to meet the final set-down date was inadvertent — the plaintiff had been pursuing discovery dates and preparing trial materials — but found this insufficient. No evidence was led to explain why virtually nothing occurred in the first five and a half years of the action, and the court found it impossible to conclude from the record that the plaintiff had always intended to prosecute within the applicable time limits.

The third factor — prompt action upon learning of the dismissal — was conceded in the plaintiff's favour by the defendant. The plaintiff learned of the 7 October 2024 dismissal order in May 2025 when he attempted to file his trial record and moved promptly thereafter.

On the fourth factor, the court found that the defendant had demonstrated real and significant prejudice. Mr. Pilarski, the plaintiff's former supervisor and the defendant's principal witness on the key disputed issues, was diagnosed with Parkinson's disease in 2019, began exhibiting symptoms in July 2021, and by the time of this motion was unable to express himself verbally. The plaintiff's argument that a discovery transcript of Mr. Pilarski could be read in at trial was rejected as factually incorrect — no such transcript existed, as Mr. Pilarski had not been examined for discovery on behalf of the plaintiff. The communications between the plaintiff and Mr. Pilarski were primarily verbal, making it impossible to substitute documentary evidence for his testimony. The court was not satisfied that a fair trial could proceed without Mr. Pilarski's evidence, particularly given that the plaintiff intended to testify about conduct and control that Mr. Pilarski could no longer refute.

Ruling and overall outcome

Having assessed all four factors, Associate Justice Jolley concluded that the principle of finality outweighed the interest in having the action heard on its merits, relying on Ferrari v. Sukhram at paragraph 52. The plaintiff's motion to set aside the registrar's dismissal was dismissed. Re/Max Realtron Realty Inc. was the successful party. The plaintiff was ordered to pay the defendant's partial indemnity costs in the all-inclusive amount of $23,000, covering the entirety of the proceeding including pleadings, productions, discoveries, mediation, the dismissal motion, tax, and disbursements.