CITATION: Matton v. Yarlasky, 2007 ONCA 134

DATE: 20070227

DOCKET: C45348

COURT OF APPEAL FOR ONTARIO

RE:

LARRY MATTON (Plaintiff/Appellant) – and – PAUL YARLASKY, BARBARA SHAW (nee HARTWICK), ROBIN LEE CHESTER IRWIN, THE COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE, TERRI REGIMBAL, JOHN BENSON, RONALD DAVIDSON, and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as represented by THE MINISTRY OF THE ATTORNEY GENERAL (Defendants /Respondents)

BEFORE:

MCMURTRY C.J.O., GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Ameena Sultan

for the appellant

Paul Yarlasky appearing in‑person, respondent

Jim Smith for the respondents

HEARD & ENDORSED:

February 23, 2007

On appeal from the judgment of Justice Patricia C. Hennessy of the Superior Court of Justice dated March 30, 2006.

A P P E A L B O O K E N D O R S E M E N T

[1] This is an appeal from an order dismissing a motion to validate the service of a statement of claim which was originally sent to the respondent, Mr. Yarlasky, by regular mail with a receipt. The receipt was not returned. No personal service was effected and no order for substitutional service was obtained.

[2] On the record before the court, we are satisfied that the statement of claim came to Mr. Yarlasky’s notice.

[3] As Rule 16.08(a) requires a determination of that matter, it would have been preferable had the motion judge made clear that she averted to the rule when deciding the motion. Having said that, even assuming as we do that the statement of claim came to Mr. Yarlasky’s notice, pursuant to Rule 16.08(a) the motion judge had a discretion as to whether to validate service.

[4] In our view, she exercised that discretion when she dismissed the motion and we see no basis on which to interfere with the exercise of her discretion. Almost ten years passed since the events in question and, in the circumstances of this malicious prosecution case, it is significant that Mr. Yarlasky was a private citizen, not a member of the public service. Accordingly, the appeal is dismissed. Mr. Yarlasky sought no costs and no costs order was made.