Court File and Parties

Court File No.: 472/08

Released: 20090521

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Maxwell Amardi and Elizabeth Amardi, Plaintiffs (Appellants)

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Terrazzo, Tile & Marble Trade School Inc., Defendant (Respondent on Appeal)

Before: Swinton J.

Counsel: Brian A. Pickard for the Plaintiffs (Appellants)

Stuart Wright, for the Defendant (Respondent on Appeal)

Heard at Toronto: May 14, 2009

ENDORSEMENT

[1] The appellants, plaintiffs in a personal injury action, appeal from the order of Master Dash dated August 14, 2008 refusing to set aside a Registrar’s order dismissing their action.

[2] The appellants brought a motion for fresh evidence at the outset of this appeal, which was dismissed for reasons endorsed on the motion record.

[3] The main argument of the appellants is that the Registrar did not have jurisdiction to dismiss the action, and therefore, the order of the Master must be set aside. The Master’s reasons do not deal with the jurisdictional argument.

[4] This case arises as a result of a Status Notice sent by the Registrar on August 1, 2007. That notice was sent to Jeremy Robert Solomon at a post office box in Thornhill. Subsequently, on November 14, 2007, the Registrar dismissed the action. The Dismissal Notice was also sent by the Court to Mr. Solomon’s Thornhill business mailing address, according to the affidavit evidence of Henry Goldentuler.

[5] In his affidavit, Mr. Goldentuler stated that his firm is the solicitor of record for the plaintiff. While this action was commenced when the appellants were represented by Sokoloff & Associates, a Notice of Change of Solicitors was served on May 29, 2007 appointing Goldentuler & Associates as the present solicitor of record for the appellants. Their address is on Finch Avenue in Toronto. Mr. Goldentuler deposed that Mr. Solomon was the solicitor with carriage of the file, both at Sokoloffs and at Goldentulers.

[6] Rule 48.14(1) of the Rules of Civil Procedure deals with Status Notices, providing:

Where an action in which a statement of defence has been filed has not been placed on the trial list or terminated by any means within two years after the filing of a statement of defence, the Registrar shall serve on the parties a Status Notice (Form 48C) that the action will be dismissed for delay unless it is set down for trial or terminated within ninety days after service of the notice.

[7] Rule 16.01(4)(a) permits service of a document that is not required to be served personally or by an alternative to personal service on a party’s solicitor if he or she has a solicitor of record. Rule 16.05(1)(a) and (b) provide for service on a solicitor of record by mailing a copy to the lawyer’s office or leaving a copy with a lawyer or employee in the lawyer’s office.

[8] In this case, the Status Notice was not sent to the solicitor of record for the appellants, although it is apparent from correspondence in the record that Mr. Solomon was aware of the Dismissal Notice, since a letter under his name, signed by an assistant, was sent December 6, 2007 requesting the respondent’s consent to set aside the dismissal order.

[9] Rule 48.14(1) makes it clear that the Status Notice is to be served on the parties. Here, it should have been served on the Goldentuler firm as solicitor of record in order that necessary steps could be taken, including notice to the appellants, as required by rule 48.14(2). According to the evidence, neither the Status Notice nor the Dismissal Notice was mailed to the office of the solicitor of record.

[10] In my view, the Registrar’s failure to serve the solicitor of record with the Status Notice deprived the Registrar of jurisdiction to order the dismissal of the action. As Master Linton stated in Xu v. Olde Yorke Esplanade Limited, operating as Novotel Toronto Centre (endorsement August 7, 2008);

Because a Registrar’s order can be so serious it is essential that the Registrar strictly satisfy the conditions permitted him or her for an administrative order to issue. One requirement is how a Notice is served. There was a solicitor of record who was the person to be served. Instead the Notice was sent to the party which should not have been done. Therefore the Registrar’s order must be set aside.

See, also, Laine v. Darden Restaurants, [2003] O.J. No. 517 (S.C.J.) at para. 24; Reid v. Dow Corning Corp. (2002), 48 C.P.C. (5th) 9 (Div. Ct.) at para. 27.

[11] The appellants submitted in oral argument that the jurisdictional argument was made to the Master but not addressed in his reasons, while the respondent submits that no such argument was made.

[12] In any event, the order of the Registrar was made without authority because of the improper service, and therefore, it should have been set aside. A Master cannot derive jurisdiction to uphold a dismissal order made by the Registrar where the Registrar failed to comply with the requirements for service in rule 48.14 before exercising jurisdiction to dismiss the action. Therefore, the appeal from the decision of the Master is allowed and the order of the Registrar dismissing the action is set aside.

[13] Given my determination on the jurisdictional issue, I need not address the argument that the Master erred in dismissing the action because of his alleged failure to use a proper contextual approach (see Matton v. Yarlasky, 2006 CarswellOnt 2821 (S.C.J.) at para. 5).

[14] In my view, there should be no costs of the appeal. The error here was that of the Registrar. However, the respondent should have costs of the motion for fresh evidence, on which it succeeded. Costs of that motion are fixed in the amount of $1,500.00, payable by the appellants in 30 days.

Swinton J.

Released: May , 2009