An Ontario court has dismissed a $2 million lawsuit filed by a man who claimed he was struck by falling concrete from a Toronto bridge, ruling that the case must be dismissed due to excessive and unexplained delays by the plaintiff1. The decision, released on October 28, 2025, by Associate Justice McGraw of the Superior Court of Justice, concluded an eight-year legal battle that was plagued by persistent failures to produce necessary documents and answer questions.
The case began with an incident on November 28, 2016. The plaintiff, Richard Kalovski, alleged that he sustained serious injuries when a piece of concrete fell and struck him in the head as he walked on a sidewalk underneath a bridge on Scarlett Road in Toronto. The bridge itself is owned by the Canadian Pacific Railway Company (CPR), while the sidewalk is owned by the City of Toronto. Mr. Kalovski commenced his action by filing a Statement of Claim on February 15, 2017, seeking $2 million in damages from both the City and CPR. The defendants responded by delivering their Statements of Defence and Crossclaims in May 2017.
Problems with the progression of the lawsuit emerged early. The City and CPR provided their affidavits of documents, which list all relevant materials, in December 2017 and April 2018, respectively. The plaintiff, however, served only a limited, unsworn affidavit of documents. Examinations for discovery, where parties question each other under oath, were first scheduled for March 2018 but were adjourned at the City’s request. They were rescheduled for July 2019, but counsel for both defendants advised the plaintiff’s lawyer that they would not proceed without proper document production. In response to these production issues, the plaintiff consented to adjourn the examinations again.
Mr. Kalovski attended his first examination on September 24, 2019. This session was also adjourned on consent after more document production issues were identified, particularly concerning the plaintiff’s claim for business income loss. The examination revealed that further efforts were required, and the plaintiff gave 22 undertakings, which are binding promises to provide specific answers or documents. The defendants’ examinations were cancelled. Following this, the plaintiff delivered only limited medical records in January 2020.
The plaintiff retained his current legal counsel on January 28, 2021. Limited medical records were produced in March 2021, but no further significant steps were taken in the action for nearly a year. On February 9, 2022, the plaintiff’s new counsel contacted the defendants to ask what documents they had already received. CPR’s counsel replied the same day, and the plaintiff served a Trial Record two days later, on February 11, 2022, despite the outstanding issues. Correspondence continued regarding the missing documents, and in October 2022, the plaintiff’s counsel produced 2015 tax records for his business, advising that the plaintiff was having difficulty locating his records. Updated affidavits of documents were served in May and June 2023.
A continued examination for discovery of Mr. Kalovski finally took place on September 18, 2023. This session revealed even more production problems. The plaintiff advised that there were “45 piles” of documents related to his business income loss claim at his office that he had not produced. This examination resulted in the plaintiff giving 88 additional undertakings. By March 7, 2024, the plaintiff had produced only two documents, which partially satisfied two of the undertakings.
By this point, the action was more than seven years old and at risk of being administratively dismissed by the court registrar for delay under Rule 48.14 of the Rules of Civil Procedure. This rule mandates that an action must be set down for trial within five years of its commencement. On March 26, 2024, the plaintiff’s counsel wrote to CPR’s counsel inquiring if CPR would consent to a new timetable to avoid dismissal. On May 15, 2024, the parties consented to a schedule: answers to undertakings were to be delivered by July 1, 2024; mediation was to be completed by December 1, 2024; and the action was to be set down for trial by January 15, 2025. On the same day, the plaintiff served a Notice of Motion for a status hearing, the very motion that led to the case’s dismissal.
The plaintiff failed to meet the new timetable. On June 27, 2024, the plaintiff’s counsel advised that Mr. Kalovski had compiled a box with approximately 4,000 documents for his income loss claim and undertakings. Counsel, who was out of the office with an injury, requested four to six weeks to review and deliver them. The documents were not delivered. CPR’s counsel sent emails in October, November, and December 2024 but received no response other than an automatic reply indicating the previous lawyer had left the firm. On January 12, 2025, a new lawyer from the plaintiff’s firm, Harry Steinmetz, requested the undertakings chart and included an internal email indicating the file had been “completely ignored” by the two previous associates who worked on it.
Despite the missed deadlines, the plaintiff’s law clerk attempted to schedule a mediation in January 2025. CPR’s counsel advised that they would only mediate if the plaintiff first complied with the consent timetable and provided the outstanding answers to undertakings. The plaintiff’s motion for a status hearing was ultimately heard by Associate Justice McGraw on July 24, 2025.
At the status hearing, the plaintiff had the burden to show cause why the action should not be dismissed for delay. The court applied a two-part test: the plaintiff must provide an acceptable explanation for the delay, and must also demonstrate that the defendants would not suffer non-compensable or actual prejudice if the case were allowed to proceed.
Associate Justice McGraw found that the plaintiff failed the first part of the test. The court concluded that Mr. Kalovski had not provided an acceptable explanation for the delay. The action was over eight years old, and the primary reason for the delay was the plaintiff’s failure to produce relevant documents and answer undertakings. The court noted that the plaintiff himself provided no direct evidence or affidavit explaining the delay or stating his intention to pursue the action.
The affidavit from the plaintiff’s lawyer, Mr. Steinmetz, did not provide an adequate explanation. Instead, the court found it demonstrated that the law firm had made ongoing efforts to get the documents from the plaintiff, but the plaintiff himself had delayed and failed to assist. The affidavit detailed that the 4,000-page box of documents received in June 2024 was “disorganized and contained numerous separate documents with no clear indication of what was what”. Mr. Steinmetz stated that sorting the box took significant time because “Mr. Kalovski has not provided any assistance in identifying what documents are what in the box while still claiming that any outstanding Undertakings are in the box.” As of the motion hearing, 16 of the 19 undertakings from the 2019 examination and 69 of the 85 undertakings from the 2023 examination remained outstanding.
The court rejected the plaintiff’s submission that the delay could be blamed on solicitor inadvertence. Associate Justice McGraw found that the evidence supported the conclusion that the delay was attributable to the plaintiff himself, who failed to do what his counsel required to move the action forward. The court also noted that the defendants had not contributed to the delay and had, in fact, given multiple accommodations, including consenting to a timetable seven years into the action, which the plaintiff then failed to follow.
The court also found that the plaintiff failed the second part of the test, concluding that he had not established that the defendants would not suffer non-compensable prejudice. The court noted that in a long delay, prejudice is presumed as memories fade and witnesses become unavailable. The plaintiff provided no evidence to rebut this presumption.
More importantly, the court found evidence of actual prejudice. The plaintiff’s accountant had advised that records related to 26 of the undertakings were now unavailable because the bookkeeper only keeps relevant records for seven years. Associate Justice McGraw stated this was “actual prejudice arising from the Plaintiff’s delay as they likely could have been preserved had the Plaintiff requested them sooner.” The court also noted the uncertainty regarding the 4,000 disorganized documents, stating that “neither the Plaintiff nor his counsel know if the documents in the box are responsive to the outstanding undertakings or what might be missing.” Finally, the court noted that the plaintiff had advised he was unable to locate the very piece of concrete that he claimed fell on him.
Having concluded that the plaintiff provided no acceptable explanation for the eight-year delay, had not demonstrated an intention to pursue the action, and that the defendants would suffer actual prejudice if the case continued, Associate Justice McGraw determined that the only just outcome was dismissal. The plaintiff’s motion to extend the time to set the action down for trial was dismissed, and the $2 million action was dismissed for delay.
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