COURT FILE NO.: CV-17-00004718-0000 DATE: 2023 06 13
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Hoomradge Maharaj also known as Himraj Maharaj Plaintiff AND: Vinodkumar Prajapati, Niravkumar Prajapati, John Doe, Trend Financial Corporation, Michael Tamondong and Waylan Troy Greaves Defendants
BEFORE: RSJ Ricchetti
COUNSEL: D. Bagambiire, for the Plaintiff G. Bodnaryk for the Defendant, Waylan Troy Greaves M. Wancho for the Defendants Trend Financial Corporation and Michael Tamondong
HEARD: June 5, 2023
ENDORSEMENT
The Motion
[1] This is a motion by the Plaintiff to extend the time for the service of the Statement of Claim on the Defendants.
The Background Facts
[2] The claim arises from a motor vehicle accident that occurred on November 15, 2015.
[3] The Plaintiff alleges that a vehicle recklessly pulled out in front of him, causing him to suddenly apply the brakes (Subject Vehicle). The Subject Vehicle was not involved in any accident and drove away. The Plaintiff states that, while the Subject Vehicle drove away, he “memorized” the license plate of the vehicle. Subsequently, the Plaintiff discovered that the Subject Vehicle was registered to the Prajapati Defendants as owners. However, the Defendant, John Doe, is a place holder, in case the Subject Vehicle was owned by someone else.
[4] After the Plaintiff applied his brakes, he was rear ended by a vehicle driven by Michael Tamondong, owned by Trend Financial Corporation (Trend Vehicle).
[5] Another vehicle, owned and driven by Waylan Troy Greaves (Greaves Vehicle), rear ended the Trend Vehicle.
[6] The Plaintiff retained counsel in November 2015.
[7] The Plaintiff sent the broker and the insurer of the Trend Defendants with a Notice of Intention to Sue on April 10, 2017. A similar notice was sent to the Greaves Defendant.
[8] A copy of the Motor Vehicle Accident was sent to the Trend Defendants in April 2017. The Subject Vehicle is not mentioned in the accident report.
[9] In or about May 2017, the insurers for the Trend Defendants and the Greaves Defendant (who are insured by different insurers) requested documentation and information under s. 258 of the Insurance Act.
[10] Limited information was sent to the Trend Defendant’s insurer.
[11] Nothing was or has been sent to the Greaves Defendant insurer, to date except a copy of the Statement of Claim.
[12] The Plaintiff commenced this action on October 31, 2017.
[13] In early 2019, the Greaves insurer, involved in a related action involving the Trend and Greaves vehicles (which action is not before this court) raised the issue of this proceeding and nothing having occurred in this action. Noteworthy, this other related action was commenced in 2017, was served on the parties, and has proceeded through discoveries. Many of the parties (and insurers) are the same parties to this action.
[14] In April 2019, the Plaintiff’s counsel blamed the delay in prosecuting this action on a former associate and advised he would be bringing a motion to extend the time for service. Counsel for the Greaves Defendant advised Plaintiff’s counsel he would NOT consent to the motion and that the materials should be prepared and served. This motion was not forthcoming until 2023 when this motion was brought.
[15] Despite follow up by the Trend Defendant’s insurer in 2020 and 2021, the Plaintiff took no steps to serve the Statement of Claim on any Defendant, nor bring the motion to extend time for service nor attempt to move this action forward in any way.
[16] On May 15, 2022, Plaintiff’s counsel wrote to the Greave’s insurer to advise the motion to extend time was coming.
[17] Nothing was forthcoming.
[18] In January 2023, counsel for the Greaves Defendant requested a formal Notice of Discontinuance. It was only after that time that the Plaintiff decided to bring this motion.
[19] To date, no attempts have been made to serve the Trend Defendants nor the Greaves Defendant.
The Procedural Background
[20] After a case conference on February 28, 2023 setting a timetable for this motion, this motion was brought on March 15, 2023.
[21] The Plaintiff’s materials include one affidavit (and a reply affidavit) from Yanique Hinds, a junior law clerk who only starting working at the Plaintiff’s counsel’s firm in November 2021.
[22] Ms. Hinds had no personal knowledge of the circumstances of this proceeding, what happened, when, why or any of the relevant circumstances to this motion.
[23] Ms. Hinds admitted that the affidavit was prepared by Plaintiff’s counsel.
[24] No reason was given why neither the Plaintiff nor the Plaintiff’s counsel provided a more personal and direct knowledge affidavit. There is no reason given why the allegedly negligent associate did not provide a more knowledgeable affidavit.
[25] This failure to provide some first-hand knowledge leaves a particularly serious gap as to whether the Plaintiff always had an intention to proceed with this action nor personal knowledge of why the Statement of Claim was not served in time or why a motion was not brought in 2019, 2020, 2021 or 2022.
[26] There is also another problem with Ms. Hinds affidavits. To be fair to Ms. Hinds, she admitted the affidavit was prepared by Plaintiff’s counsel essentially for her signature. However, the moving affidavit was wrong in several major respects: that an affidavit of documents had been delivered (she admitted at the examination that this was wrong); that there had been communication between Plaintiff’s counsel and the insurers/their counsel throughout (which was not accurate); and that the insurer had in 2019 advised it was “not taking a position” on the anticipated motion to extend time for delivery of the Statement of Claim (when in fact counsel has advised they would oppose such a motion).
[27] One last surprising event. Having brought the motion and described the Subject Vehicle as the principal cause of the accidents and having described the delay as the inability to locate the Prajapatis (because their importance to the claim), the Plaintiff, on May 26, 2023 discontinued the action against the Prajapatis.
[28] There can be no doubt that the Prajapatis are necessary and proper parties to the Plaintiff’s claim and to any cross claims and claims for contribution and indemnity.
The Position of the Plaintiff
[29] The Plaintiff does not allege that the failure to serve the Statement of Claim was due to a “slip or mere inadvertence” but relies solely on the ground there is “no objective evidence that the Defendants will suffer prejudice by reason of the delay”.
[30] In submissions, the Plaintiff did attempt to explain the admitted unacceptable delay on the following reasons:
a) The inability to locate the Prajapatis; b) The failure of an associate in his office to deal with the file; and c) Covid-19.
The Law
[31] The applicable law is not in dispute.
[32] A motion for extension of the time within which to serve a Statement of Claim, is governed by Rules 3.02(1), 3.02 (2), and 14.08(1) of the Rules of Civil Procedure.
[33] Rules 3.02(1) and 3.02(2) provide as follows:
3.02 (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.
(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.
[34] Rules 14.08(1) provides as follows:
14.08 (1) Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued.
[35] A Court of law will consider the relevant circumstances on a Motion for extension of time including:
The circumstances in which such an order will be granted would include one or more of the following:
[1] where the writ has not been renewed through the mere slip or mere inadvertence of the plaintiffs solicitor;
[2] where the writ has not been renewed for some other reasonable cause, the rule itself employing the words 'if for any sufficient reason any defendant has not been served';
[3] the circumstance that the defendant's conduct has lulled the plaintiff into a false sense of security or in some other way has led the plaintiff reasonably to forego the service of the writ;
[4] the absence of prejudice to the defendant by reason of the delay.
Nugent v. Crook, (1969), 40 O.R. (2d) 110, (C.A.) at page 3.
[36] While in Nugent, the Court of Appeal considered the Motion under the former Rule 8 of the Rules, since then Courts have consistently stated that the test for extending the time under the current Rules is the same as the test for renewing a writ of summons under the former rules.
[37] I do not accept the submission that the success of this motion turns on whether prejudice is shown. Prejudice, while a significant factor, is not the only factor that must be considered by the court. All relevant factors must be considered and weighed. See Chiarelli v. Weins at para. 17.
[38] While there were submissions on which party had the obligation to establish prejudice, it matters not in this case, as I am satisfied that there is actual and presumed prejudice shown in these circumstances.
The Analysis
[39] The delay in this case is extreme. The limitation period has long ago expired.
[40] What makes the delay even more significant is that the Plaintiff knew in 2019 that the motion to extend time for service of the Statement of Claim needed to be brought and would be opposed. Yet, the Plaintiff did nothing for four years.
[41] Then again in 2022, the Plaintiff knew that the motion to extend time for service of the Statement of Claim needed to be brought and would be opposed. Yet, another year with the Plaintiff doing nothing.
[42] The Plaintiff points to the fact it provided a Notice of Intention to Sue and later a copy of the claim to the broker. Simply providing a Notice of Intention to Sue does little if anything to permit the Defendants to fully and properly investigate the facts and claim.
[43] The fact that the Plaintiff’s medical records have never been sent to the Defendants underscores their inability to fully and properly investigate the liability and damages aspect of the claim that arose 7 ½ years ago.
[44] The Plaintiff acknowledges this was not a “slip” or “inadvertence” situation. Nor could the Plaintiff have suggested that as the Plaintiff’s counsel has admittedly known of the failure to serve the Statement of Claim since April 2019.
[45] The submissions that the Plaintiff’s counsel was busy, had a few staff (and difficulty hiring more staff) and that some staff were “not competent”, are NOT valid excuses. The ultimate responsibility is that of counsel responsible for the file. If counsel could not properly prosecute the action and deal with the file, counsel had a responsibility to ensure new counsel was appointed or retained who could properly deal with the file or at a minimum, get off the record and advise the client to retain new counsel.
[46] The submission that the medical evidence has been preserved, even if true, is not a complete answer to the loss of evidence. OHIP records only go back 7 years. The Defendants, have never seen any medical documentation, would now have to go back and investigate the medical issues with doctors. Are any retired? Do their detailed records exist? Do they have any recollection? A timely and complete investigation cannot occur now. And to make matters worse, the Defendants asked for this information in 2017 and it was not provided by the Plaintiff. AND it is admitted it has still not been provided.
[47] The Plaintiff’s explanations for the delay have no merit.
a) The Plaintiff alleges that it could not locate the Prajapatis. There are several problems with this. It is approximately 7 years after the counsel was retained. And what steps were taken? During the examination of Ms. Hinds, it was admitted that the only efforts to locate the Prajapatis was a license plate search in October 2017 – nothing else! And if the Prajapatis were so important, according to the Statement of Claim and the motion materials, the action is now discontinued against the Prajapatis. b) Blaming an associate is never a good reason for a delay. The principal has the final responsibility. This is particularly so in this case when the allegedly negligent associate left the Plaintiff’s counsel’s employ in January 2019 AND that Plaintiff’s counsel was personally aware of the alleged negligence in April 2019 AND Plaintiff’s counsel did nothing for 4 ½ years. c) Blaming Covid-19 is not reasonable in this case. There was considerable time from early 2019 until Covid-19 became a problem in March 2020 to have brought the motion. Regular motions have been scheduled and heard continuously since July 2020. Further, what of the last year or two when court proceedings have become closer to “normal operations” (i.e. regular motions in Brampton have continued to be heard on Tuesdays, Thursdays and Fridays). This is not a reasonable explanation for the delay.
[48] As for prejudice, I am satisfied it is made out in these circumstances:
a) The accident occurred in 2015 – 7 ½ years ago. Its not clear if the Prajapatis (or whoever was driving their vehicle) even know about the consequences of the driver’s alleged negligence (i.e. the subsequent accident after the turn onto the roadway). Even if the Prajapatis could now be located, their recollection of who was driving and what happened on that specific night at that specific time is highly problematic. Diminished memories over all these years is a serious problem particularly in these circumstances. Prejudice can easily be presumed in these circumstances. This prejudices the cross claims of the Trend and Greaves defendants. b) The Trend and Greaves Defendants will now require leave to commence third party claims against the Prajapatis. Given the allegations by the Plaintiff, there would be joint and several liability of the Prajapatis for the accident. The task of locating the Prajapatis has seriously been compromised given the long delay. The task of a full and complete investigation becomes difficult, if not impossible. Are witnesses available and where are they? Are records available? Should leave be granted? c) The Plaintiff is now 77 years old. He allegedly suffered a brain injury almost 8 years ago. What will his recollection be like now (almost 8 years after the accident) or in a few years when this matter goes to trial. d) Can a defence medical at this time be meaningful in light of the passage of time and the alleged medical issues of brain injury (i.e. causation issues).
[49] I am satisfied that a full, proper, fair and just determination cannot take place and the fault lies entirely that of the Plaintiff.
[50] Considering all the relevant circumstances, this motion is dismissed.
The Conclusion
[51] The Plaintiff’s motion is dismissed.
[52] The Defendants may deliver written submissions on costs, limited to 3 pages of submissions, plus any attached Offers and authorities. This must be done within 2 weeks.
[53] The Plaintiff may deliver responding written submissions on costs, limited to 3 pages of submissions, plus any attached Offers and authorities. This must be done within 2 weeks after receipt of the Defendant’s cost submission.
[54] There will be no reply submissions.
RSJ Ricchetti Released: June 13, 2023
COURT FILE NO.: CV-17-00004718-0000 DATE: 2023 06 13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Hoomradge MAHARAJ also known as Himraj MAHARAJ Applicant - and – Vinodkumar PRAJAPATI, Niravkumar PRAJAPATI, John DOE, TREND FINANCIAL CORPORATION, Michael TAMONDONG, and Waylan Troy GREAVES Respondents ENDORSEMENT RSJ Ricchetti Released: June 13, 2023