Court of Appeal for Ontario

Citation: Boodoo v. Merrick, 2020 ONCA 52 Date: 2020-01-28 Docket: C67204

Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (ad hoc)

Between

Sunil Boodoo and Kelly Romeiro Plaintiffs (Defendants to the Counterclaim) (Appellants)

and

Lawrence Merrick, aka Larry Merrick and Tyler Merrick Defendants (Plaintiffs by Counterclaim) (Respondents)

Counsel: Marc Whiteley and Monty Dhaliwal, for the appellants Sunil Boodoo and Kelly Romeiro Douglas Christie, for the respondent, Lawrence Merrick

Heard and released orally: January 13, 2020

On appeal from the order of Justice J. Trimble of the Superior Court of Justice, dated June 20, 2019.

Reasons for Decision

[1] The issue underlying this appeal came before the motion judge in a somewhat unusual way. Both parties brought motions. Both motions ultimately turned on whether the defendant, Lawrence Merrick, had been prejudiced by the late service of the Statement of Claim. The motion judge treated the two motions separately, finding that the plaintiffs on their motion had failed to show that the defendant was not prejudiced by the late service of the Statement of Claim, and that the defendant on his motion had failed to show that he was prejudiced by the late service of the claim. The two results cannot be reconciled.

[2] With respect, the motion judge should have considered the entirety of the material filed on the motions in light of the legal principles in Chiarelli v. Wiens (2000), 2000 ONCA 3904, 46 O.R. (3d) 780, at para. 12.

[3] On the trial judge's express finding, the defendant failed to show any prejudice flowing from the late service. That finding, apart from the plaintiffs' material, should have led the motion judge to allow the plaintiffs' motion.

[4] Even, however, on the plaintiffs' material, the motion judge should have allowed the plaintiffs' motion. The appellants commenced their action on April 5, 2018. They had no difficulty serving the co-defendant, Tyler Merrick, with a Statement of Claim and, on or about May 23, 2018, he delivered a Statement of Defence and Counterclaim. But the appellants had great difficulty serving the defendant. Tyler Merrick, who is the defendant's son, and his counsel would not assist. The plaintiffs hired a process server who, despite repeated efforts, met with no success. They conducted various searches to locate the defendant and engaged a skip tracing firm that made unsuccessful efforts to locate him, commenting that the defendant appeared to be "slippery" and incredibly "evasive". Finally, the plaintiffs retained a private investigator who managed to serve the defendant on April 7, 2019.

[5] When counsel for the defendant raised that the Statement of Claim had not been served on the defendant within six months after it was issued, as required by r. 14.08 of the Rules of Civil Procedure, counsel for the plaintiffs advised that they had taken reasonable steps to serve him and asserted that the defendant had suffered no prejudice as a result of the delay. He requested details as to how the defendant had suffered or will suffer prejudice from the delay in service. The defendant did not provide any details.

[6] It is clear from the plaintiffs' detailed record of their diligent efforts to serve the defendant that he must have been aware that the plaintiffs had issued a Statement of Claim and were attempting to serve him. It was open to the defendant to take whatever steps he thought advisable to prepare to defend the claim. While, from the pleadings, it is not clear that there would be witnesses other than the parties or that documents would be relevant, the defendant's son, who had been served with the Statement of Defence, was presumably taking steps to ensure that any necessary witnesses or documents were available.

[7] Moreover, the defendant did not respond to the plaintiffs' request that he provide details of the prejudice he asserted he had suffered. As Laskin J.A. wrote, at para. 14, in Chiarelli:

Although the onus is on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show the witnesses and records are still available or that their unavailability will not cause prejudice. It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension, it has at least an evidentiary obligation to provide some details.

[8] In the absence of any details of the prejudice the defendant baldly asserts he would suffer, the plaintiffs readily discharged their onus to prove that extending the time for service would not prejudice the defendant.

[9] In this case, validating the service will advance the just resolution of the dispute between the parties without prejudice or unfairness to any party.

[10] The appeal is allowed, paragraph 2 of the order of the motion judge is set aside, and an order is substituted validating service of the Statement of Claim as of April 7, 2019.

[11] The plaintiffs will be entitled to their costs of the appeal, fixed in the amount of $5,000, inclusive of HST and disbursements. There will be no costs of the motion below and we reject the defendant's request for a stay of the costs pending appeal.

"Alexandra Hoy A.C.J.O."

"Doherty J.A."

"Marrocco A.C.J.S.C. (ad hoc)"