Court of Appeal for Ontario

Date: 2019-09-30 Docket: C66583

Judges: Sharpe, Hourigan and Jamal JJ.A.

Between

Fiori Pagliuso Plaintiff (Appellant)

and

Primerica Financial Services Ltd., Primerica Life Insurance Company of Canada, PFSL Investments Canada Ltd., Primerica Client Services Inc., Joseph "Joe" Muro (discontinued), Giuseppe "Joe" Mozzone (discontinued), Claudia Mozzone (discontinued), Steve Battiston (discontinued), Patrizia Battiston (discontinued), Julian Serena (discontinued), and Franco Greco (discontinued) Defendants (Respondents)

Counsel

Daniel Yudashkin, for the appellant

Caitlin R. Sainsbury and Maureen Doherty, for the respondents

Heard and Released

Heard and released orally: September 30, 2019

On appeal from the order and endorsement of Justice Douglas K. Gray of the Superior Court of Justice, dated January 16, 2019.

Reasons for Decision

[1] In our view, the motion judge did not err in refusing to extend the time for the appellant to serve the statement of claim. The motion judge found that the appellant was aware of the facts giving rise to the claim in December 2012. The appellant issued the statement of claim in March 2015. The rules required him to serve the statement of claim within six months of its issuance. The respondent was not served or given any notice of the claim. The appellant made a deliberate decision not to serve the statement of claim for three years when this motion for extension was brought.

[2] We do not agree that the motion judge erred by taking into consideration the fact that the appellant intentionally did not serve the statement of claim. Conduct of that nature is a relevant factor on a motion to extend a statement of claim: see McGroarty v. CIBC Mellon Trust Company, 2012 ONCA 241 at para. 14: "a tactical decision to delay service beyond the timeframe allowed for service by the rules will certainly redound against a party who subsequently seeks an extension of time".

[3] In any event, we do not agree that the motion judge failed to consider prejudice or the overall equities of the case. The motion judge found that the respondent was entitled to rely on the presumptive prejudice arising from the expiry of the limitation period. The respondent argues that the limitation period expired even before the statement of claim was issued. It certainly had expired before this motion was brought. The motion judge also found that the defendant had shown actual prejudice given the length of delay that occurred. We see no basis to interfere with that finding.

[4] Nor do we see any basis upon which to interfere with the costs award made by the motion judge.

[5] Accordingly, the appeal is dismissed. Costs in favour of the respondent fixed at $17,000, inclusive of disbursements and applicable taxes.

"Robert J. Sharpe J.A." "C.W. Hourigan J.A." "M. Jamal J.A."