Ruling acknowledges defendant’s death impacts ability to have fair trial
In a claim for damages for personal injuries arising from an aircraft accident, the Ontario Superior Court granted the plaintiff’s motion for a status hearing and extended the time to set down an action for trial to Feb. 3.
In Lépine et al v. Bruce Marshall, 2026 ONSC 531, the defendant owned and operated an ultralight aircraft. On June 6, 2015, the aircraft crashed while the plaintiff was the defendant’s student pilot and a crew member. The parties were the only two occupants.
In May 2017, the plaintiff retained a personal injury law firm, with Ms. Tucker having carriage of the file. The plaintiff filed a notice of action on June 2, 2017, and served the statement of claim on June 20, 2017.
The plaintiff alleged that the defendant failed to maintain proper airspeed and that a crosswind made the aircraft stall. He claimed that he had a mild traumatic brain injury, vertebral fractures, a fractured sternum, sleep difficulties, partial amnesia, impaired concentration, fatigue, and psychological symptoms due to the accident.
In a statement of defence, the defendant countered that an unexpected microburst of wind struck the aircraft and caused the crash. He passed away on Sept. 24, 2022.
In March 2024, the court convicted the plaintiff of offences relating to the 3D printing, possession, and storage of firearms and sentenced him to six years of imprisonment. He remained in custody.
The plaintiffs moved for a status hearing under r. 48.14(7)[1] of the Rules of Civil Procedure, RRO 1990, Reg 194. The executrix of the defendant’s estate opposed the motion and sought a dismissal of the action for delay.
The Ontario Superior Court of Justice acknowledged that the action had far from ideal progress, involved little meaningful effort for proceeding toward trial, and remained at the pleadings stage.
However, given the context, the court ruled that the plaintiff met the first part of the test to avoid dismissal of an action for delay. Specifically, the court saw an acceptable explanation for the delay in the overall litigation timeline.
The court held that the plaintiff and his counsel faced numerous challenges, some beyond their control, that reasonably explained the failure to set down the action before the fifth anniversary of the claim’s commencement or the extended deadline.
The court accepted that the plaintiff reasonably granted the requested waiver of defence to permit insurance coverage inquiries and provide some time for a response to a proposed amendment.
According to the court, as the party primarily responsible for advancing the litigation, the plaintiff:
The court determined that the plaintiff’s incarceration contributed to the delay, led to communication difficulties, prevented the timely exchange of documents and information, and required Ms. Tucker to communicate with the plaintiff through his sister.
The court added that the COVID‑19 pandemic also contributed to the delay by disrupting counsel’s practice and the court system to a certain extent.
The court attributed some delay to staffing turnover at the plaintiff’s law firm and to Ms. Tucker’s personal circumstances, including her potential withdrawal. According to the court, if not for the possible withdrawal, the discoveries and the setting down of the action would have proceeded before the deadline.
The court said the conduct of the defendant’s former counsel also contributed to the delay. For the period after Sept. 30, 2024, the extended date for setting down the action, the court attributed the delay to challenges in coordinating dates and the choice to change the defendant’s former counsel.
Regarding prejudice, the second part of the test to avoid dismissal of an action for delay, the Superior Court ruled that the defendant’s passing prejudiced the ability of the defence to have a fair trial.
The court noted that the defendant never underwent an examination for discovery or provided his account of the accident. The court added that the available records apparently addressed only damages, not liability.
The court determined that:
The court held that the prejudice to the defence already existed when the parties consented to the May 2023 timetable and that the subsequent delay did not result in new prejudice or materially worsen the existing prejudice.
In light of the plaintiff’s success, the court awarded him $10,000 in costs.
