Court File and Parties

Citation: Green v. Ratnasingam, 2016 ONSC 2546 Divisional Court File No.: 605/15 Date: 2016-04-28 Superior Court of Justice – Ontario Divisional Court

Re: Theodore Joseph Green, Appellant And: Yohanathan Ratnasingam, Respondent

Before: L. A. Pattillo J.

Counsel: Faranaz Siganporia, for the Appellant Respondent - Unrepresented

Heard: April 14, 2016

Endorsement

[1] This is an appeal by the Plaintiff, Theodore Joseph Green (the “Plaintiff”), from the Order of Master Pope dated July 22, 2015 (the “Order”), wherein the Master dismissed the Plaintiff’s motion for orders setting aside the Registrar’s order dated January 23, 2014, dismissing the action as abandoned, extending the time for service of the statement of claim and for substituted service of the statement of claim upon Allstate Insurance Company (“Allstate”).

[2] Allstate took no position on the relief sought on the motion before the Master and has advised this court by letter dated February 12, 2016 that it does not oppose the appeal and does not intend to appear or make submissions on the appeal.

[3] The Order is a final order. Appeals from a final order of a master are to a single judge of the Divisional Court pursuant to s. 19(1)(c) and s. 21(2)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] The standard of review is correctness on an error of law, palpable and overriding error for an error of fact, and correctness or palpable and overriding error for a question of mixed fact and law, depending on whether there is an extricable legal principle: Wellwood v. Ontario (Provincial Police), 2010 ONCA 386 at para. 28.

Background

[5] The Plaintiff’s claim arises out of a motor vehicle accident on June 5, 2011. The statement of claim was issued by the Plaintiff’s solicitors’ firm (the “Firm”) on May 31, 2013.

[6] On December 2, 2013, the Firm received notice dated November 28, 2013 from the court advising that, because 180 days had passed since the statement of claim had been issued and no defence had been filed, the action had not been disposed of by a final order or judgment and the action had not been set down for trial, the Plaintiffs action would be dismissed as abandoned pursuant to r. 45.15(1) unless within 45 days from the date of service a defence was filed, the action was dealt with by final order or judgment or it was set down for trial.

[7] In late January, 2014, the Firm received the Local Registrar’s order dated January 23, 2014 dismissing the Plaintiff’s action as abandoned pursuant to r. 45.15(1) (the “Dismissal Order”).

The Motion

[8] By notice of motion dated July 10, 2015, the Plaintiff brought a motion for an order to set aside the Dismissal Order; extending the time for service of the statement of claim and for substituted service of the statement of claim on Allstate.

[9] In support of the motion the Plaintiff provided the affidavit of Peuly Rahman, a law clerk in the Firm, sworn July 10, 2015. Ms. Rahman’s knowledge of the matters in issue arises from her review of the Firm’s file. She noted:

• On or about July 7, 2011, the Firm contacted a process server and requested they conduct an MTO search on the defendant and provided the information it had on the defendant.
• On September 20, 2011, the Firm wrote Allstate advising that they represented the Plaintiff gave the details of the accident and asked for the defendant’s current address. No answer was received from Allstate.
• On May 31, 2013, the Firm instructed the process server to file and serve the statement of claim on the defendant “if an address was found for him”.
• On or about June 3, 2013, the Firm instructed the process server to conduct an MTO search on the defendant to serve the statement of claim.
• On July 19, 2013, the process server advised the Firm they were awaiting a response from MTO.
• On January 23, 2014 the Firm received the Registrar’s order dismissing the Plaintiff’s action as abandoned.
• On December 15, 2014 and again on January 12, 2015, a law student at the Firm contacted Allstate concerning its position on the Plaintiff bringing a motion to reinstate the action.
• On February 12, 2015, the Firm received a letter from Allstate advising they would take no position on a motion to reinstate the action.

[10] Paragraph 17 of Ms. Rahman’s affidavit states: “The Plaintiff has diligently pursued this claim against the Defendant throughout. The Defendant has not suffered any prejudices as a result of the dismissal of this action.”

[11] On the return of the motion, the Plaintiff also filed the affidavit of Gilbert Gentile, the principal of the process server the Firm used, which set out attempts to locate an address for the defendant between May 21 and 28, 2015. It referred to searches and advanced searches to locate an address. Apart from indicating that some of the searches were done on social media, there was no indication of what was searched. Further, the searches were said to either find multiple results, none of which were successful or no results. There was no detail about the unsuccessful results. Finally, the affidavit did not contain any reference to the earlier MTO searches requested by the Firm in July 2011 and June 2013.

The Master’s Decision

[12] In dismissing the motion, the Master noted that prior to the action being dismissed on January 23, 2014, the Plaintiff took only two steps to locate and serve the defendant: two MTO searches, the last one more than two years before the motion; the results of the MTO searches were not in evidence; the Plaintiff took no other steps such as skip trace or a Canada 411 search to locate the defendant which would be expected in the circumstances; the Plaintiff brought no motion to extend the time to serve the defendant or for substituted service; the motion was brought 16 months after the Dismissal Order and there was no explanation for the delay or indication of further attempts to locate the defendant; the limitation period expired more than two years before the motion; the affidavit of the process server filed on the motion was “vague, lacking in details of what searches were done, what the results were and what attempts were made to support the statement that ‘none were successful’”.

[13] The Master concluded that the Plaintiff had failed to take all reasonable steps to locate and serve the defendant and further had not satisfied the test to set aside the Dismissal Order, particularly given the failure to explain the delay in serving the defendant and in moving to set it aside.

Issues

[14] The Plaintiff submits that the Master erred in her factual determinations and in her application of the test to set aside an administrative order as set out in Reid v. Dow Corning Corp., [2011] O.J. No. 2365.

Factual Errors

[15] The alleged factual errors are:

• Finding the Appellant waited 16 months to bring the motion when it was 11 months.
• Finding the Appellant only took two steps to try and locate the defendant when it was “approximately five reasonable attempts.”
• Finding the affidavit of Mr. Gentile was vague and lacked details of the search results.
• Finding that the Appellant failed to explain the delay.

[16] Given the motion material before the Master, I do not consider the Master made any palpable and overriding factual errors. Her factual findings are fully supported by the evidence.

[17] The Dismissal Order was received by the Firm in late January, 2014. The motion to set it aside was commenced by notice of motion dated July 10, 2015. By my calculation, that’s slightly more than 16 months.

[18] The Appellant calculates the 11 month time period from the end of January 2014 to when the Firm first contacted Allstate to see if they would oppose the motion. Rule 37.14(1) requires that the notice of motion be served “forthwith” after the order comes to the person’s attention and names the first available hearing date.

[19] The Master stated that the Plaintiff took only two steps to locate and serve the defendant prior to the Dismissal Order. That statement is correct. The evidence is that there were only two attempts to obtain a MTO search, in July 2011 and in June 2013. The Master also referred to the attempt to obtain the defendant’s address from Allstate without response from Allstate or follow-up by the Firm.

[20] It is not clear how the Plaintiff calculates the “five reasonable attempts” to locate the defendant. To the extent that he is including the searches allegedly done by Mr. Gentiles’ firm in May 2015, after the motion was commenced, the Master addressed them and effectively concluded that Mr. Gentiles’ affidavit was of no assistance.

[21] As noted, Mr. Gentile’s affidavit contained no details of the searches done in May 2015. Nor did it contain any information about the results of the searches requested by the Firm in July 2011 or June 2013. I agree with the Master’s finding that the affidavit of Mr. Gentile is vague and of no assistance to the issues on the motion.

[22] Finally, the affidavit material before the Master contains no explanation for the delay. The Appellant submits that counsel advised the Master at the motion that it was due to inadvertence of counsel. Counsel’s submissions are not evidence. The Master made no error in concluding that there was no explanation for the delay.

[23] Accordingly, the Master made no palpable and overriding error concerning her factual findings.

The Reid Test

[24] Reid sets out four factors required to set aside an administrative order:

1. An explanation of the delay;
2. An intention at all times to set the action down;
3. The motion is brought promptly; and
4. Whether there is any prejudice to the defendant.

[25] In adopting the Reid factors, the Court of Appeal has stated that they are not to be applied in a mechanical or formalistic fashion. Rather, they are to be looked at in a contextual manner. The court must consider and weigh all relevant factors to determine the order that is just in the circumstances of the particular case: Scaini v. Prochnicki (2007), 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.) at paras. 23 and 24.

[26] The Plaintiff submits that the Master erred in failing to deal with the factors in Reid and particularly not considering them in a contextual manner.

[27] In my view, although the Master didn’t refer to Reid or set out the factors directly, she clearly addressed them in her reasons. She found there was no explanation for the delay or why the motion was not brought promptly after the Dismissal Order. The absence of explanation of why no motion was brought to extend the time for service once notice of intention to dismiss was received, the failure to promptly move to set aside the Dismissal Order and the time periods involved all support the inference that there was no intention on the part of the Plaintiff to proceed with the action, let alone set it down.

[28] Although the Master did not directly refer to the prejudice to the defendant, she did note that the limitation period had expired more than two years prior to the motion. That fact alone establishes prejudice to the defendant.

[29] In my view, in the circumstances of this case where the defendant is not present, the onus rests on the Plaintiff to establish that there is no prejudice to the defendant, particularly where the limitation period has long since expired. The only evidence in that regard was from the law clerk, based on her review of the file. Even then, she stated that the defendant had suffered no prejudice from the dismissal of the action. The issue, however, is the prejudice to the defendant if the action is continued. At the very least there needs to be some evidence before the court that the evidence concerning both liability and damages has been preserved and is accessible to both parties. There was no such indication in the Plaintiff’s motion material.

[30] The Plaintiff further submits that the Master failed to consider the Reid factors in a contextual manner. In particular they submit that one of the factors that should have been considered was the fact that r. 45.15 was revoked later in 2014.

[31] While I doubt that submission was made to the Master at the motion, I agree that it is one of the factors that should be considered in determining a just order. In the circumstances here, however, it is not a factor which assists the Plaintiff. Even in the absence of r. 48.15, the Plaintiff’s action had expired by the date of the Dismissal Order.

[32] In the absence of service, the statement of claim expired in December 2013, six months after it was issued. In order to obtain an extension of the time to serve (r. 16.04), the plaintiff must show that he has taken all reasonable steps to locate the defendant. As the Master found, the Plaintiff’s evidence did not establish that. Nor does the evidence establish a reasonable possibility that service on Allstate would ensure the claim will come to the attention of the defendant. Apart from being the defendant’s insurer at the time of the accident, there is no evidence of what, if any relationship the defendant currently has with Allstate.

[33] As a result, the Master did not err in not dealing with the revocation of r. 48.15 in her reasons.

[34] For the above reasons, therefore, and based on the evidence before her, in my view the Master made no error of law in dismissing the motion. In all of the circumstances, the Master was correct in not setting aside the Dismissal Order and extending the time for service of the statement of claim.

[35] Appeal dismissed.

L. A. Pattillo J.

Date of Release: April 28, 2016