Ruling says plaintiff failed to do what his lawyer needed to move action forward
In a claim seeking to hold a city and a railway company liable for injuries due to falling concrete, the Ontario Superior Court did not attribute the litigation delay to solicitor inadvertence, given the plaintiff’s overall inaction and non-cooperation.
In Kalovski v. City of Toronto, 2025 ONSC 6073, the plaintiff alleged that he was walking beneath a bridge on Scarlett Road in Toronto on Nov. 28, 2016, when a falling piece of concrete hit his head and led to serious injuries.
On Feb. 15, 2017, the plaintiff requested $2 million in damages through a statement of claim against defendants Canadian Pacific Railway, which owned the bridge, and Toronto City, which owned the sidewalk.
According to a June 27, 2024 email from the plaintiff’s counsel, the plaintiff and his accountant were preparing a box of about 4,000 documents concerning the plaintiff’s business income loss claim and outstanding undertakings.
The plaintiff’s counsel, who was out of the office with an injury, advised that the firm needed four to six weeks to review, organize, and deliver the documents.
On July 2, 2024, the railway’s counsel advised that he expected to have received the documents by then, as per the timetable.
However, the railway’s counsel never got the documents. He sent emails to the plaintiff’s counsel from October to December 2024 and received only an automatic response stating that the previous lawyer had left the firm.
Last Jan. 12, a lawyer at the firm representing the plaintiff requested a copy of the undertakings chart. In an email, the lawyer asked colleagues at his firm to handle the undertakings. The email noted that two associates who had previously worked on the file had completely ignored it.
The plaintiff filed a motion for a status hearing to extend the time to set down the action for trial.
The defendants attributed the delay in the proceedings to the plaintiff himself. The plaintiff’s counsel advised that the plaintiff was not using his cognitive impairments, allegedly caused by the incident, as an excuse for the delay.
The parties appeared before the Superior Court judge on Mar. 20. The judge adjourned the motion to June 20, then rescheduled it to July 24.
The Ontario Superior Court of Justice denied the motion to extend the set-down date and dismissed the action for delay. In reaching this outcome, the court balanced the relevant considerations, including:
First, the court ruled that the plaintiff failed to offer an acceptable explanation for the delay.
The court found that the over-eight-year-old action underwent lengthy overall delay and delay periods due to the plaintiff’s failure to produce relevant documents and fulfill his outstanding undertakings on time or at all.
The court pointed out that the plaintiff failed to provide direct evidence explaining the delay or indicating his intention to pursue the action.
The court noted that an affidavit from the plaintiff’s current lawyer failed to explain the delay before Jan. 28, 2021, when the plaintiff hired his present counsel. The court said this almost four-year period included delays in producing documents and scheduling the plaintiff’s first examination.
The court identified numerous issues with the plaintiff’s attempt to attribute the delay to solicitor inadvertence. The court said the evidence did not demonstrate that counsel caused any delay, failed to respond, or did anything that delayed the proceeding.
The plaintiff’s counsel attributed some delay in producing documents to his first counsel. The court held that the affidavit from the plaintiff’s current lawyer did not support this argument and instead showed that the plaintiff’s first counsel could not move the action forward because the plaintiff and his accountant failed to cooperate or respond on time.
The court noted that the only evidence of solicitor delay was the email stating that the associates had ignored the file. The court determined that this evidence did not establish that counsel inadvertence caused the delay, given the plaintiff’s overall failure to act or cooperate.
Second, the court held that the plaintiff failed to show that extending the set-down date and allowing the action to proceed would not result in non-compensable prejudice to the defendants. The court said a presumption of prejudice applied in this case.
The court explained that, over the eight-year delay, memories had faded, some documents had become unavailable, and the parties had yet to produce other documents. The court noted that the plaintiff could have provided evidence confirming the availability of witnesses and documents.
