Solicitor’s widow claims fair trial may be impossible due to delay in action
In a solicitor’s negligence action against a now deceased lawyer, the Ontario Divisional Court upheld the rejection of his estate’s motion to dismiss based on the delay of a former client who had repeatedly sought the cancellation of discovery examinations.
In March 2017, the respondent in Sergovich v. Trinca, 2026 ONSC 1620, brought an action alleging that a lawyer negligently handled numerous personal injury matters that happened between 1996 and 2003.
In January 2018, the lawyer delivered a statement of defence. Denying the allegations, he expressed that he would seek to dismiss the action based on an expired limitation period.
The court scheduled discoveries in August 2018, April 2019, and January 2020. The respondent’s counsel obtained a cancellation each time. In December 2019, the respondent submitted his affidavit of documents.
On Jan. 29, 2021, the lawyer unexpectedly passed away. The court stayed the solicitor’s negligence action. The court had no transcript of his evidence, as no discovery examinations had pushed through before his death.
On Sept. 1, 2021, the court served an order to continue the action against the lawyer’s estate. As executor of his estate, his widow became involved in the proceedings.
In February 2021, the respondent advised that he would limit his action to claims arising from the lawyer’s handling of two motor vehicle accidents in May and August 1996.
On Feb. 4, 2022, the appellant estate moved to dismiss the action based on inordinate and inexcusable delay, which allegedly created a substantial risk that a fair trial of the issues would be impossible.
The executor, on the estate’s behalf, cited r. 24.01 of the Rules of Civil Procedure, RRO 1990, Reg 194, and the court’s inherent jurisdiction to dismiss matters for delay.
Though he did not seek leave to amend, the respondent filed an amended statement of claim. Thus, a motion judge assessed the statement of claim as of the time of the motion to dismiss.
On Aug. 1, 2023, the judge dismissed the motion. He acknowledged that there was an inordinate and inexcusable delay. However, he determined that the delay did not cause a substantial risk that a fair trial would be impossible.
On May 31, 2024, the judge ordered the estate to pay the respondent’s costs of $46,929.37. The executor appealed the Aug. 1, 2023 substantive decision, while the respondent requested leave to cross-appeal the May 31, 2024 cost ruling.
The Ontario Divisional Court dismissed the appeal and cross-appeal. Regarding the appeal, the court ruled that the motion judge applied the right test and made no error in his factual findings or factual assessment.
The court rejected the executor’s argument that the judge committed a legal error by reasoning that the estate had an obligation to waive solicitor-client privilege over the contents of its lawyers’ file to show that the loss of the lawyer’s viva voce evidence created a substantial risk to a fair trial.
The court held that the executor misunderstood the judge’s findings. The court explained that the judge did not find an obligation to waive solicitor-client privilege. Instead, the judge found that the refusal to waive it deprived the court of evidence establishing that the lawyer’s testimony would have significantly affected the result.
The court also determined that the judge made no palpable or overriding errors by:
The court did not consider the weight the court would have given to the lawyer’s testimony a crucial factor that would not have altered the motion’s outcome.
The court noted that the judge, upon considering both presumed and actual prejudice, decided that the respondent had rebutted the presumption of prejudice and that there was no evidence in the record to prove actual prejudice.
The court pointed out that the judge clearly stated that the court could later address whether a fair trial would be possible if an amended statement of claim added causes of action in the future.
Regarding the cross-appeal, the court concluded that the May 31, 2024 cost decision was not plainly wrong and included no error in principle. The court found the cost award reasonable and proportionate in the circumstances.
