COURT OF APPEAL FOR ONTARIO

DATE: 20211008 DOCKET: C68867

Hourigan, Huscroft and Coroza JJ.A.

BETWEEN

Sameh Sbihat Plaintiff/Appellant

and

Loay Abu Nasar, Darshan Singh Toor, Carmel Transport International Ltd. and AJM Toor Group Inc. Defendants/Respondents

Counsel: Todd J. McCarthy and Richard J. Campbell, for the appellant David Zuber and Allison Pressé, for the respondents

Heard: October 6, 2021 by videoconference

On appeal from the order of Justice Mandhane of the Superior Court of Justice, dated November 10, 2020.

REASONS FOR DECISION

Introduction

[1] This action arose out of a motor vehicle accident that occurred on April 28, 2016. The statement of claim was issued on April 23, 2018. The defendants Darshan Singh Toor and Carmel Transport International Ltd. were served with the statement of claim in January or February 2020 – approximately 16 months after the six-month deadline prescribed by r. 14.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendant AJM Toor Group Inc. was never served.

[2] The appellant moved to validate service and extend the time for service. In his affidavit filed on the motion, the appellant’s former counsel explained that the non-service was caused by inadvertence and the failure of his staff to follow instructions. The motion was not opposed by the respondent Nasar. However, it was opposed by the remaining respondents (the “Toor Respondents”).

[3] The motion was initially scheduled for October 2020, but the appellant’s former counsel could not proceed on that date for medical reasons. The Toor Respondents consented to an adjournment on the understanding that the motion would be argued on the record already filed with the court. The appellant’s former counsel agreed to this undertaking in writing. Despite that agreement, the appellant’s former counsel served and filed a supplementary affidavit six days before the motion was to be argued.

[4] The motion was ultimately heard on November 10, 2020. The motion judge had to consider two issues: (1) whether to admit the appellant’s supplementary affidavit, and (2) whether to validate service and grant the extension of time for service.

[5] The motion judge refused to consider the appellant’s supplementary affidavit because the appellant had previously consented not to file additional materials. Accordingly, she held that it was improper for the appellant to attempt to resile from that agreement.

[6] Ultimately, the motion judge dismissed the motion. She found that the court should not extend the time for service where to do so would prejudice the respondents, and the onus was on the appellant to show that there was no prejudice. According to the motion judge, the appellant had provided an insufficient explanation for the delay and had adduced no evidence of a lack of prejudice beyond a bald assertion that the respondents would suffer no prejudice. The motion judge further found that the Toor Respondents would suffer actual prejudice in their ability to conduct investigations, preserve evidence, and obtain timely medical assessments.

Issues

[7] The appellant makes two submissions on this appeal. First, he argues that this court should admit fresh evidence. Second, he submits that the motion judge erred in refusing to validate service and extend the time for service.

Analysis

(i) Fresh Evidence

[8] Although the appellant brings a motion for leave to file fresh evidence, it is a misnomer to label the proposed evidence as fresh because it was filed on the motion. It consists of two affidavits. The first was sworn by the appellant’s former counsel and includes court filings in a related action arising from the same motor vehicle accident, along with correspondence between the appellant’s former counsel and the insurer for the Toor Respondents. The motion judge rejected this affidavit. The second affidavit is sworn by a clerk in the Toor Respondents’ counsel’s office. It attaches correspondence memorializing the agreement between counsel that no further material would be filed following the adjournment.

[9] The jurisprudence regarding the filing of fresh evidence is of no assistance, given that the evidence was clearly available on the return of the motion. The operative question is whether the motion judge erred in rejecting this evidence. In our view, she did not. On the record before her, it was clear that the parties had reached an agreement that no further material would be filed. The motion judge was correct in holding the parties to that agreement.

(ii) Extension of Time for Service

[10] In considering this ground of appeal, we accept the submission of counsel for the appellant that we may have regard to the pleadings filed in the companion action. These pleadings establish that the insurer for the Toor Respondents was made aware of the accident and was in a position to investigate issues of liability and damages regarding the plaintiff in that action. The insurer’s knowledge of the accident is further confirmed by its receipt of the Motor Vehicle Accident Report, which was filed in the material before the motion judge. Further, that report also gave the insurer constructive notice of the appellant’s claim because he was listed as an involved person.

[11] In our view, the motion judge erred in her analysis of whether to validate service and extend the time for service in two respects.

[12] First, the motion judge made a palpable and overriding error of fact in finding that there was not a sufficient explanation for the delay in service. The unchallenged evidence filed on the motion made clear that the delay was attributable to the former counsel’s inadvertence.

[13] Second, in her prejudice analysis, the motion judge failed to consider that the insurer for the Toor Respondents had notice of the accident and the fact that the appellant was an involved person. This evidence was sufficient to meet the appellant’s onus of establishing that the Toor Respondents would suffer no prejudice if the order sought were granted. In those circumstances, the onus shifted to the Toor Respondents to demonstrate why they would suffer prejudice despite their knowledge of the accident and the appellant’s involvement.

[14] On the evidence before us, there is nothing to suggest that the Toor Respondents have been hindered in any way in investigating the nature and extent of the appellant’s injuries. Plainly, they have had an opportunity to consider liability issues in the related action.

[15] When these errors are corrected, it is evident that the appellant has met the test to validate service and extend the time for service of the statement of claim.

Disposition

[16] For the foregoing reasons, the motion to admit fresh evidence is dismissed, and the appeal is allowed. The order of the motion judge is set aside. In its place, an order shall issue validating the late service of the statement of claim. The deadline for serving the statement of claim on any defendants who have not been served is extended to thirty days from the date of this endorsement. As a term of this order pre-judgment interest shall not begin to run until February 7, 2020. Regarding costs, in accordance with the agreement of counsel, we award the appellant $5,500 for the costs of the motion below and $7,500 for the costs of the appeal. Both amounts are all-inclusive.

“C.W. Hourigan J.A.”

“Grant Huscroft J.A.”

“S. Coroza J.A.”