An Ontario Superior Court judge has refused to revive a lawsuit valued at nearly $200,000, which stemmed from a failed $1M sale in a 2017 real estate transaction1. The decision, released on October 28, 2025, confirmed a previous administrative order that dismissed the case for excessive delay. The ruling ends a legal action that had been pending for over six years, highlighting the court’s unwillingness to permit cases to languish without a satisfactory explanation.
The underlying dispute began on March 28, 2017, when Paolina Ferrari agreed to sell a property to Dave Sukhram for a purchase price of $1,000,000. At the time, Ms. Ferrari’s son, Frank Ferrari, was acting on her behalf under a power of attorney. Mr. Sukhram provided a deposit of $20,000, which was held by the brokerage Re/Max Platinum Limited. The plaintiff’s claim alleged that Mr. Sukhram breached the agreement by failing to close the transaction on the required date. The property was subsequently sold to another party for $850,000, representing a $150,000 loss for the seller.
On June 15, 2018, a statement of claim was issued to recover these losses. By this time, Paolina Ferrari had passed away, and the action was commenced by her son, Frank Ferrari, in his capacity as the estate trustee. The lawsuit sought $192,241.69 in damages from Mr. Sukhram. The claim also named Mr. Sukhram’s real estate representatives, Re/Max Ultimate Realty Inc. and Daniela De Medeiros, as defendants, alleging “gross negligence” and “misleading representations.” The lawsuit further sought the release of the $20,000 deposit being held by Re/Max Platinum.
The defendants Re/Max Ultimate and Ms. De Medeiros responded promptly to the lawsuit, serving their Statement of Defence and Crossclaim on August 14, 2018, and delivering their affidavit of documents just one week later. However, the plaintiff immediately encountered difficulty with the primary defendant, Mr. Sukhram. The estate spent just over a year attempting to serve him with the legal documents. This initial delay culminated on May 9, 2019, when the plaintiff obtained a court order for substituted service, permitting them to serve Mr. Sukhram’s former lawyer instead. This was completed on July 3, 2019.
Following this step, the lawsuit entered a period of prolonged inactivity. For nearly four and a half years, from July 2019 until early 2024, the plaintiff took no significant steps to advance the action. During this gap, internal issues arose within the plaintiff’s estate. Mr. Ferrari was removed as estate trustee as a result of separate estate litigation. Ms. Ferrari’s daughter, Lina Delellis, was appointed as the new estate trustee and took over management of the lawsuit. This change also led to a change in legal counsel. On August 7, 2020, Harrison Pensa LLP was appointed as the lawyer for the plaintiff. Just over a year later, on August 26, 2021, another notice was filed, re-appointing the original counsel, Mr. Di Monte, to the case.
Even after Mr. Di Monte returned to the file in August 2021, the case remained dormant for another two and a half years. The next step in the litigation did not occur until February 22, 2024, when the plaintiff finally noted Mr. Sukhram in default for his failure to file a defence. Shortly after, on March 6, 2024, Ms. Delellis assigned the cause of action, or the right to continue the lawsuit, back to her brother, Frank Ferrari.
While the plaintiff was taking these intermittent steps, the case had crossed a critical threshold. Court rules mandate that actions be set down for trial within five years of commencement. This case was now over six years old. On October 10, 2024, the Court Registrar issued an order administratively dismissing the entire action for delay. This order was served on the Re/Max defendants’ counsel and on Harrison Pensa, the plaintiff’s former lawyers, but not on Mr. Di Monte, the active counsel.
Unaware that the case had been dismissed, the plaintiff’s lawyer served a motion record on December 3, 2024, seeking to amend the case title to name Frank Ferrari as the plaintiff and requesting a default judgment against Mr. Sukhram. It was not until January 24, 2025, that the plaintiff’s lawyer received the Registrar’s dismissal order from his process server. That same day, he amended his motion to include a request to set aside the dismissal and revive the action. This was the motion that came before Justice S. Mathai for a decision.
To determine whether to set aside the dismissal, the court applied a four-part legal test known as the Reid factors. This test required the judge to consider: first, whether the plaintiff provided a satisfactory explanation for the entire litigation delay; second, whether the plaintiff always intended to prosecute the action but failed to do so through inadvertence; third, whether the plaintiff moved immediately to set aside the dismissal once they learned of it; and fourth, whether the defendants would suffer significant prejudice if the case were restored.
On the first factor, Justice Mathai found the plaintiff’s explanation for the delay to be wholly unsatisfactory. He analyzed the full six-year period from June 2018 to October 2024. He acknowledged the initial year-long delay in serving Mr. Sukhram but called it only a “partial explanation,” as the plaintiff could have proceeded against the Re/Max defendants during that time. The plaintiff argued the subsequent delay from July 2019 to August 2021 was due to the estate litigation that removed Mr. Ferrari as trustee. However, Justice Mathai noted there was “no evidence before me that explains why the estate litigation prohibited any litigation steps from being taken.” No affidavits were filed from Ms. Delellis or the Harrison Pensa law firm to explain this gap.
The judge was equally unconvinced by the explanation for the delay from August 2021 to February 2024, which the plaintiff attributed to negotiations over the assignment of the claim back to Mr. Ferrari. Again, the judge found a lack of evidence, stating, “the plaintiff has not filed any evidence to explain why Ms. Delellis did not pursue this action” during that time. In total, the judge found “no satisfactory explanation for the remaining delay” of over five years. He concluded that this first factor “strongly favours dismissing the Plaintiff’s motion.”
The plaintiff also failed on the second factor. Justice Mathai found no evidence that the plaintiff “always intended to prosecute this action” and failed only through “inadvertence.” He pointed out that the five-year deadline had already expired by more than a year before the Registrar’s dismissal. The only reason the case had not been dismissed earlier was the suspension of administrative dismissals during the pandemic.
The plaintiff did succeed on the third factor. Justice Mathai accepted that the plaintiff’s lawyer, Mr. Di Monte, was not properly served with the dismissal order and did not learn of it until January 24, 2025. Because the lawyer “moved immediately” by amending his motion that very same day, this factor favoured setting aside the dismissal.
The fourth factor, prejudice to the defendants, was decisive. The judge first determined that the Re/Max defendants had not suffered any “actual prejudice” to their ability to defend the case. Ms. De Medeiros was still available to provide evidence, and Mr. Sukhram’s unavailability was a problem that “crystallized well before the Registrar issued the dismissal order.” However, the judge explained that the analysis does not stop at actual prejudice. The court must also consider the “principle of finality” and the defendants’ reliance on it.
Justice Mathai found that the lengthy, unexplained delay was “inordinate.” He reasoned that given this “inordinate delay,” the Re/Max defendants “would have reasonably relied upon the lengthy periods of inactivity as demonstrating the plaintiff’s intention to allow the action to, ‘die on the vine.'” He found that this principle of finality, and the public interest in the timely resolution of disputes, outweighed the plaintiff’s interest in having the case heard on its merits.
Ultimately, with three of the four factors weighing against the plaintiff, Justice Mathai concluded that the dismissal order should not be set aside. He stated, “Key to my ruling is the fact that there is no satisfactory explanation for most of the litigation delay and no evidence establishing that the plaintiff missed the five-year deadline because of inadvertence… The Ontario civil justice system cannot tolerate inordinate delay without adequate explanation.” The plaintiff’s motion was dismissed, bringing the lawsuit to a final end. The plaintiff was ordered to pay $2,500 in costs to the Re/Max defendants.
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