SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-367284
MOTION HEARD: 2012/07/17

RE: MALIK v TUBONGBANUA

BEFORE: MASTER RONNA M. BROTT

COUNSEL:
William G. Scott, for the Plaintiff
Brian I. Monteiro, for the Defendant

E N D O R S E M E N T

[ 1 ] This is a motion by the plaintiff to set aside the Registrar’s order dismissing the action for delay dated August 8, 2011. As well, the plaintiff seeks orders to extend the time for service to October 7, 2011 and to validate service on the defendant on October 7, 2011.

[ 2 ] The action arises from a single vehicle motor vehicle accident that occurred on December 22, 2008. The plaintiff was a pedestrian standing in a bus shelter when the defendant’s vehicle mounted the curb, struck the bus shelter and in turn struck the plaintiff.

[ 3 ] By correspondence dated January 29, 2007 the plaintiff’s solicitor sent letters to the defendant and to the defendant’s insurer, Traders (now “Aviva”), putting them on notice of the tort claim. As well, the plaintiff’s solicitor sent separate correspondence together with the OCF forms to Aviva with respect to the plaintiff’s claim for accident benefits. The insurer denies receipt of plaintiff’s counsel’s correspondence dated January 29, 2007. The tort adjuster’s notes include an email dated May 11, 2007 from a health care service advisor stating that the insured ‘hit bus shelter hitting at least 2 pedestrians’. On September 22, 2008 Aviva sent correspondence to plaintiff’s counsel inquiring whether he was proceeding with the plaintiff’s claim. Plaintiff’s counsel did not respond.

[ 4 ] The solicitor for the plaintiff issued the Statement of Claim on November 28, 2008. On December 4, 2008 the process server attempted service on the defendant at the address noted on the police report being 4 Forgate Avenue, Scarborough, ON. His Affidavit of Service states that he was advised that “no one by that name resides at that address.” Plaintiff’s counsel then conducted a further Ministry of Transportation (“MTO”) search in an effort to locate the defendant and on January 30, 2009 he sent a copy of the Affidavit of Attempted Service together with the Statement of Claim to Aviva.

[ 5 ] On November 29, 2010 plaintiff’s counsel received a Notice of Action Dismissal. He then brought a motion seeking orders for substituted service on the insurer and an extension of time for service. On January 13, 2011 Master McAfee ordered the time for service was extended to March 31, 2011 but she declined to order substituted service on the insurer. On January 18, 2011 the tort adjuster at Aviva sent correspondence advising plaintiff’s counsel that they had closed their file in May 2009. The Registrar dismissed the action on August 8, 2011. An MTO search dated September 2, 2011 showed the defendant’s address as 4 Forgate Avenue, Scarborough, ON. On October 4, 2011 the plaintiff served Aviva with the within motion.

[ 6 ] In deciding whether or not to set aside a Registrar’s Dismissal Order the Court continues to adopt a contextual approach, choosing to make orders that are ‘just in the circumstances’ of each case. The court will consider and weigh all relevant factors including the four Reid factors. Courts have held that it is not necessary that a plaintiff satisfy all four of the Reid factors in order to succeed on the motion to set aside the dismissal. The courts have also found the prejudice factor to be critical. The four Reid factors are as follows:

Explanation of Litigation Delay

[ 7 ] The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the set down deadline, and must satisfy the court that steps were being taken to advance the litigation toward trial.

[ 8 ] Counsel for the defendant focused his submissions on the plaintiff’s continued failure to attempt to serve the defendant, having “made only one attempt to personally serve him”. The defendant asserts that there is no evidence that the plaintiff made further attempts to locate the plaintiff in order to effect personal service. The defendant downplayed the fact that the insurer had been put on notice and focused on the law stating that an insurance company is not an agent for service on a defendant ( Box v Ergen (1978) 1978 1687 (ON SC) , 20 O.R. (2d) 635 (H.C.) ).

[ 9 ] When the Notice of Dismissal was received and the action was ultimately dismissed, the plaintiff moved without notice, for an order for substituted service of the Statement of Claim on the defendant’s insurer. When the Master refused to grant the Order for substituted service even though the extensions of time for service and to set the action down were granted, the plaintiff took no further steps to locate the defendant. Clearly, the plaintiff failed to take every reasonable step to locate and serve the defendant at that time. After the action was dismissed as abandoned on August 8, 2011 plaintiff’s counsel did conduct a further MTO search dated September 2, 2011 which showed that the defendant’s address was still listed as 4 Forgate Avenue, Scarborough, ON.

[ 10 ] When the plaintiff’s process server first attended at the defendant’s address listed on the MTO search, he was advised that the defendant was not a resident at that address. The defendant’s insurer’s submissions seem to imply that despite the process server’s information, the plaintiff should have continued to return to that address for service either by mail or personally. In my view that is not realistic nor reasonable. It is true that perhaps the plaintiff’s solicitor could have conducted some further investigation into the defendant’s whereabouts with an investigator or could have sought an order for substituted service by way of a notice in the newspaper or on the defendant by mail.

[ 11 ] There is evidence that the plaintiff’s solicitor did send correspondence dated January 29, 2007 to the defendant and the insurer and it was never returned. There is also evidence of some effort made to locate the defendant to move the action forward. As well there is evidence that the plaintiff sought a current address from the defendant insurer which was never responded to. It is reasonable to assume that the insurer had notice of the Statement of Claim either from the insured/defendant or from plaintiff’s counsel. I find the plaintiff’s explanation of the delay to be adequate in the circumstances.

Inadvertence

[ 12 ] The defendant asserts that the plaintiff was given two chances – first, the Rules themselves and second, Master McAfee’s Order which gave him ‘extra’ time. The defendant asserts that the plaintiff simply failed to meet those timelines and failed to show every reasonable step has been taken. It is the defendant’s submission that it was not a matter of inadvertence.

[ 13 ] Plaintiff’s counsel continued to be stymied by his failure to obtain a current or different address for the defendant. The insurer did not provide an address for service. As noted above, he could have renewed the motion for substituted service or sought to dispense with service but he did not do so. It is his evidence that his failure to do so was inadvertent. I accept his evidence.

Motion delay

[ 14 ] Defence counsel concedes that the plaintiff’s motion was brought promptly.

Prejudice

[ 15 ] The defendant is wholly liable for the accident of December 22, 2006. The defendant’s liability insurer received notice of the claim by letter dated January 29, 2007. The defendant’s insurer denies receipt of that correspondence but it is known that they had an open file at least until May 14, 2009 which is the date that they say they closed their file. Clearly the defendant’s insurer had ample opportunity to carry out its investigations including medical assessments.

[ 16 ] In Wellwood v Ontario Provincial Police (2010) 2010 ONCA 386 () , 102 O.R. (3d) 555 (C.A.) the court held that the plaintiff must overcome the presumption of prejudice that follows the passing of a limitation period. In this case, the limitation period expired on December 22, 2008. Wellwood states that “the absence of prior notice is but one factor…to be taken into account when assessing whether the prospects of a fair trial have been compromised”. On the facts of this action, there is evidence of early notice which mitigates against the presumption of prejudice.

SUMMARY

[ 17 ] Taking into account all relevant factors including the four Reid factors, and taking into account that it is not necessary to absolutely satisfy all four Reid factors, I find that the order dismissing the action as abandoned dated August 8, 2011 should be set aside.

[ 18 ] I am satisfied that in light of the lack of prejudice to the defendant, and based on the reasoning of Chiarelli v Wiens 2000 3904 (ON CA) , [2000] O.J. No. 296, the time for service of the Statement of Claim shall be extended to October 8, 2011 and service of the Statement of Claim on October 7, 2011 is hereby validated.

[ 19 ] Within 30 days the parties shall;

(a) Agree on the issue of costs of this motion or within 30 days thereafter, exchange and deliver brief written submissions (1 – 2 pages) and costs outlines.

(b) Consent to a timetable.

[21] The within action shall be set down for trial in accordance with Rule 48, prior to January 31, 2014.

MASTER RONNA M. BROTT

DATE HEARD: July 17, 2012 .