COURT FILE NO.: CV- 15-4471 DATE: 20180626 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Rajini Lyman and Tyronne Lyman Plaintiffs

AND:

Kin Long Chui and Chui Ming Chan Defendants

BEFORE: Ricchetti, J.

COUNSEL: D. Savoie for the Plaintiffs M. Hatzikonstadinou for the Defendant Kin Long Chui

HEARD: June 21, 2018

Endorsement

The Motion

[1] This is a motion for the validation of service of the Statement of Claim on the remaining Defendant, Kin Long Chui.

The Background

[2] The Plaintiff, Rajini Lyman (Ms. Lyman) was involved in a motor vehicle accident on October 1, 2013. Ms. Lyman suffered injuries as a result of the accident. Tyronne Lyman advances an FLA claim.

[3] The Defendant, Kin Long Chui (Ms. Chui) was the driver of the other vehicle involved in the accident. Ms. Chui Ming Chan (Ms. Chan) is the owner of the vehicle.

[4] TD Insurance is the insurer of the Defendants, Ms. Chui and Ms. Chan.

[5] On October 4, 2013, TD Insurance wrote to Ms. Lyman advising they had been notified of the accident and that Ms. Lyman may have suffered an injury. TD Insurance advised they were investigating the matter.

[6] On November 11, 2013, the Plaintiffs' counsel wrote to the Ms. Chui advising they had been retained regarding a "possible" claim.

[7] On December 13, 2013, TD Insurance advised that a policy was in force for Ms. Chan. TD Insurance, while not committing to coverage, requested a long list of information and documentation regarding the possible claim.

[8] Until August 5, 2015, nothing occurred regarding the Plaintiffs' claim. TD Insurance had not been provided the information/documentation requested.

[9] As a result, on August 5, 2015, TD Insurance's adjuster again wrote requesting the information/documentation they had sought a year and a half earlier. The Plaintiffs' counsel, by email, responded by agreeing to provide the information/documentation requested.

[10] On October 1, 2015, the Statement of Claim was issued. The Plaintiffs' counsel had still not provided the information/documentation requested by TD Insurance or its adjusters.

[11] Again, as nothing had been provided by the Plaintiffs' counsel, in December 2015, TD Insurance renewed its request for the information/documentation.

[12] The Plaintiffs pursued their accident benefits claims. TD Insurance was not involved in these claims. There is no evidence that TD Insurance was aware these claims were being pursued.

[13] In July 2017, three and one half years after the accident, the Plaintiffs' counsel discovered that it (or its process server) had not served the Statement of Claim. No motion was brought to extend the time for service of the Statement of Claim.

[14] On July 24, 2017 the Plaintiffs' counsel sent the Statement of Claim to be served on the Defendants.

[15] It is unclear what if any efforts were made to serve the Statement of Claim prior to August 12, 2017. However, on August 12, 2017, nearly 4 years after the accident, the process server went to 109 Highglen Avenue, Markham, Ontario and left a copy of the Statement of Claim with "Dave Dong" an adult member at that address. A copy was also mailed to that same address. The address 109 Highglen Avenue, Markham is the address for Ms. Chui on the police report of October 1, 2013.

[16] After service, the Plaintiffs' counsel did nothing to follow up on the service of the Statement of Claim. There was no request for a Statement of Defence. There was no motion to validate the late service of the Statement of Claim. Nothing.

[17] Five months later, on January 10, 2018, the Plaintiffs' counsel wrote to TD Insurance and enclosed a courtesy copy of the Statement of Claim.

[18] In January 2018, TD Insurance contacted the Plaintiffs' counsel to discuss the matter. A message was left with Plaintiff's counsel. No response was received from Plaintiffs' counsel.

[19] After a few months, there was a further follow up request by TD Insurance with Plaintiffs' counsel to discuss the matter. On March 6, 2018, the Plaintiffs' counsel advised TD Insurance it was bringing this motion.

[20] On March 14, 2018, the Plaintiffs discontinued the action against Ms. Chan.

[21] On March 14, 2018, the Plaintiffs' counsel brought this motion seeking to validate the service of the Statement of Claim on Ms. Chui on August 12, 2017.

[22] The Defendant alleges prejudice, including their inability to investigate the accident, impact on witnesses, preservation of evidence, lack of a contemporaneous Defence medical, and lack of complete medical records. The Defendants also rely on the fact the accident occurred 4 1/2 years ago to infer prejudice as to the complete recollection of the parties and witnesses to the motor vehicle accident.

[23] The Plaintiffs respond that they have much of the information/documentation sought by TD Insurance and that the Plaintiffs and Ms. Chui remain available to testify at trial.

The Law

[24] The Plaintiffs have the onus of showing that extending the time for service of the Statement of Claim will not result in prejudice to the defendants.

[25] In assessing what prejudice may exist, it must also be determined whether any prejudice is causally connected with the delay in service of the statement of claim. See Chudzik v. Fehr, [2006] O.J. No. 4 at para. 17.

[26] In Chiarelli v. Wiens, (2000), 46 O.R. (3d) 780, the Court of Appeal examined the principles to be applied on a motion to extend time for service of a statement of claim. The principles included:

(a) Prejudice is the key issue on the motion to extend time for service of the statement of claim. The court should not extend the time for service if to do so would prejudice the defendant. The plaintiff has the onus of showing that extending time for service will not prejudice the defendant;

(b) If the defence is claiming that it will be prejudiced by an extension, it has, at least, an evidentiary obligation to provide some details; the plaintiff cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice;

(c) The defendant cannot create prejudice by failing to do something that it reasonably could have or ought to have done;

(d) Prejudice that will defeat a request for an extension of time for service must be caused by the delay;

(e) The court should not fix in advance rules or guidelines as to when an extension should be refused. Each case should be decided on its own facts with the focus on determining whether the defendant is prejudice by the delay.

[27] In determining whether prejudice will result, the Court will consider all relevant circumstances to the issue of delay and prejudice. See Eade (Litigation Guardian of) v. Browne Estate, [2005] O.J. No. 1753.

[28] In Deaville v. Boegemean, (1984), 480 O.R. (2d) 725 the Court of Appeal ruled that the expiration of a limitation period creates a presumption, however slight in some cases, of prejudice to the defendants.

[29] Further, in Chiarelli, Laskin J.A. adopted the guiding principle set forth by Lacourciere J.A. in Laurin v. Foldesi, (1970), 23 O.R. (2d) 321(Ont. C.A.).

The basic consideration … is whether the [extension of time for service] will advance the just resolution of the dispute, without prejudice or unfairness to the parties.

Analysis

Lack of Explanations by the Plaintiffs

[30] Motions to extend the time to serve a Statement of Claim must be brought reasonably quickly after the deficiency has come to the attention of counsel. The Rules are designed to promote the just determination of disputes on the merits in a timely manner. To simply ignore the timeframes in the Rules and do nothing for long periods of time after the non-compliance comes to counsel's attention, does nothing to promote the administration of justice or the fair and just determination of disputes.

[31] There is good reason why limitation periods exist and why claims, which have not been set down within 5 years of the issuance of the Statement of Claim, are automatically dismissed.

[32] The Plaintiffs requests this court make a discretionary order. The failure to explain lengthy delays in bringing the motion, is a factor which works against the Plaintiffs in the exercise of this court's discretion. That does not mean the court is assessing blame on counsel. It is the lack of a complete record explaining the delays which works against the court's exercise of its discretion in favour of the Plaintiffs. Such failures include:

a) The Plaintiffs fail to explain why they did not send a copy of the Statement of Claim to TD Insurance after it was issued in October 2015. It was clear to the Plaintiffs' counsel that TD Insurance was the insurer and wanted information/documentation to deal with the possible claim. Yet, the Plaintiff's waited until January 2018 before providing TD Insurance with a copy of the Statement of Claim;

b) The Plaintiffs fail to explain why the lengthy delay from November 2015 (when they say the Statement of Claim was initially sent out for service) and July 2017 (when they realized it had not been served). Clearly, no Statement of Defence had been served and the Plaintiffs had done nothing to move the action along during this period of delay;

c) The Plaintiffs fail to explain why no motion was brought to extend time to serve the Statement of Claim when it became known to them in July 2017 that the Statement of Claim had not been served;

d) The Plaintiff's fail to explain why it took from July 2017 (when they knew they needed an order extending the time for service of the Statement of Claim) until March 2018 to bring the motion. Rule 14.08 is mandatory in that it stipulates a statement of claim shall be served within six months after it is issued. In order to give meaning to the Rule, the court needs some explanation as to why its mandatory provisions could not be or were not met; and

e) The Plaintiffs fail to explain why the information/documentation requested by TD Insurance on numerous occasions since 2013 has not been provided to date. This lack of disclosure for 4 1/2 years makes it difficult, if not impossible, for TD Insurance to articulate, with precision, areas of prejudice despite the fact the law imposes an "evidentiary burden" on TD Insurance to demonstrate prejudice arising from the delay.

The Alleged Prejudice

[33] The Defendants allege the following as prejudice caused by or arising from the delay:

a) Inability to Investigate. The Plaintiff's point to the TD Insurance letter of October 4, 2013 to demonstrate that TD Insurance could have and was investigating the matter. I do not accept this. What was TD Insurance to investigate? It did not know the extent of injuries, damages or other details of the Plaintiff's claim that would allow a meaningful investigation. TD Insurance attempted to investigate this matter by obtaining the information/documentation requested from the Plaintiff's counsel. Plaintiff's counsel chose to ignore TD Insurance's initial request. When the requests were renewed in 2015 and 2017, again Plaintiff's counsel chose to ignore those requests. Aside from the Plaintiff's assertion that it has much of the information/documentation requested by TD Insurance in this motion materials, such information/documentation has not been provided to TD Insurance to date;

b) Location of Potential Witnesses. This is speculative. It is not known if there are any other witnesses or whether such witnesses would or could have been located in the middle of 2016 (2 year limitation plus 6 months for service);

c) Contemporaneous Statements and Preserving Of Evidence. TD Insurance states that it has lost the ability to take relatively contemporaneous statements and preserve any evidence it needed. I find favour with this argument to some extent. This concern is consistent with TD Insurance's request for the information/documentation regarding the claim as soon as it became aware of the potential claim and its repeated requests over the years. TD Insurance's actions underscores the importance of such evidence to TD Insurance and its assessment of the Plaintiff's potential claim, even before the Statement of Claim had been issued. However, it is to be remembered that there was no obligation on the Plaintiffs to serve the Statement of Claim until early 2016 - but that still leaves a two year delay from the latest date the Statement of Claim should have been served by the Plaintiffs and the information/documentation produced to TD Insurance;

d) Inability to Conduct Early Surveillance. I accept this as prejudice. More than 4 1/2 years has elapsed since the accident. The Statement of Claim asserts a variety of injuries sustained by the Plaintiff including her permanent inability to work, perform daily chores and activities and inability to participate in recreational, social, household and athletic activities. The ability to conduct surveillance to assess the accuracy of these claims have now been severely compromised. The Plaintiff suggests that surveillance could have been conducted in 2013 or subsequently. The difficulty with this submission is that until the scope, magnitude and type of the claim materializes (which would have been apparent had Plaintiffs delivered the requested information/documentation), it would be difficult for TD Insurance to decide whether surveillance was or was not appropriate, necessary or cost effective;

e) Inability to Obtain a Timely Defence Vocational/Medical Assessment. Again, there is merit to this claim of prejudice. Any Defence assessments will now be severely prejudiced as the assessors will not have reasonably contemporaneous assessments to the time of the accident. The Plaintiff claims that she is permanently not able to work. While the Defence is not entitled to a contemporaneous assessment (since the Plaintiffs have two years to issue the Statement of Claim and a further 6 months to serve it), it is significant that "assessments" were requested by TD Insurance in December 2013. The request was repeated over the next 4 years. Nothing was forthcoming from the Plaintiffs. Clearly, TD Insurance's request for this type of information/documentation immediately upon being advised of the claim supports its position that this is important for it to have this information as early as possible;

f) OHIP Summary. OHIP summaries only go back 7 years. OHIP summaries shed light on the Plaintiffs prior medical condition. The Plaintiff states it has OHIP summaries going back to January 1, 2010, three years before the accident. This limits the Defendant's ability to review a longer pre-accident health history by 4 years; and

g) Diminished Recollection. Like the contemporaneous statement issues, there is merit to this submission of prejudice. Memories fade over time, particularly details, which may become important at a later date. It will still be some time before this matter can be set down for trial. Once it is set down for trial, it may take several years for a trial to be scheduled. The delay will be significant.

[34] I reject the Plaintiffs’ submission that TD Insurance failure to take any steps was a "tactical decision". TD Insurance requested the information/documentation immediately after it became aware of the claim. That doesn't suggest a tactical decision by TD Insurance to do nothing. The facts suggest that TD Insurance sought to move this claim along and it was the Plaintiff's failure to take any steps, which might be considered a "tactical decision" or wilful delay.

[35] The Plaintiffs suggest that TD Insurance could have taken, in 2013, the steps it now suggests prejudice it. The difficulty with this submission is that without the information/documentation requested and without the scope, nature and details of the claim the Plaintiffs were advancing, there were no information available to TD Insurance as to whether, what or how such a possible claim should be investigated.

Conclusion

[36] Given the repeated steps by TD Insurance to obtain information/documentation regarding the claim (which was ignored by the Plaintiffs for years), the lack of explanation for the significant delays and the cumulative effect of the actual and inferred prejudice to TD Insurance set out above, I am not persuaded that, in these circumstances, the Plaintiffs have discharged the onus on them to show no prejudice to the Defendant.

[37] The motion is dismissed.

Costs

[38] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[39] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[40] There shall be no reply submissions without leave.

Ricchetti, J.

Date: June 26, 2018