The plaintiff contributed to the delay, but the defendants and trial court were mainly responsible
The Ontario Superior Court of Justice restored a long-delayed personal injury case to the trial list after finding that while the plaintiff initially contributed to the delay, the court and defendants were responsible for most subsequent delays.
The dispute in Aghili v. Hafeez, 2025 ONSC 728 stemmed from a 2011 accident involving a motor vehicle and a bicycle. The plaintiff initiated legal proceedings in 2013, and the case proceeded through pleadings, document exchanges, and discoveries by early 2015. A mandatory mediation took place in 2016, resolving the accident benefits claim but leaving the tort claim unresolved. The plaintiff set the case down for trial in December 2017.
However, after receiving a certification form in February 2018, the plaintiff's lawyer failed to act for 14 months, leading the court to strike the case from the trial list in December 2018. Unaware of this, the plaintiff's lawyer attempted to schedule a pretrial conference in 2019. Meanwhile, the defendants' lawyer discovered the case had been struck but did not inform the plaintiff's lawyer. The court also provided the plaintiff's lawyer with inaccurate information, further delaying proceedings.
In June 2021, the defendants' lawyer finally disclosed the case's status. The plaintiff's lawyer promptly moved to restore the case, but delays persisted due to court scheduling issues and inconsistent positions taken by the defendants. In June 2023, five weeks before a scheduled motion hearing, the defendants changed their stance, opposing the plaintiff's motion and filing a motion to dismiss for delay.
The Superior Court determined that while there was a 10-year delay from filing the claim in 2013 to the motion to dismiss in 2023, much of the delay occurred after 2018. The court found that the plaintiff's inaction in 2018 contributed to the initial delay. However, from 2019 onward, the court and the defendants were responsible for most delays, including miscommunications and scheduling inefficiencies.
The defendants argued they suffered prejudice due to the delay, but the court rejected this claim. The court determined that the plaintiff had updated medical and employment records, retained key witnesses, and any lost evidence was mainly due to the defendants' failure to act earlier. Additionally, the defendants' shifting position on the motion to restore weakened their claim of prejudice.
As a result, the court restored the case to the trial list and dismissed the defendants' motion to dismiss for delay. The court noted that while the plaintiff contributed to the initial delay, the defendants' actions exacerbated the situation, warranting cost consequences.
