SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-410801
MOTION HEARD: APRIL 4, 2013

RE: Sahil Kamboj

v.

Jabir Sidhu

BEFORE: MASTER R.A. MUIR

COUNSEL:
William G. Scott, counsel for the lawyer for the plaintiff
Alan L. Rachlin, for the proposed defendant Gary Ouellette

REASONS FOR DECISION

[1] The plaintiff brings this motion pursuant to Rule 37.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) for an order setting aside the order of the registrar dated May 17, 2011, dismissing this action as abandoned. This action was dismissed by the registrar due to the failure on the part of the plaintiff to comply with the requirements of Rule 48.15. An action may be dismissed by the registrar under Rule 48.15 if no defence has been filed within 180 days after the proceeding was commenced.

[2] The plaintiff also seeks an order extending the time for service of the statement of claim and an order substituting the proposed defendant Gary Ouellette (“Ouellette”) in place of the defendant Jabir Sidhu (“Sidhu”).

[3] The proposed defendant opposes the granting of the relief requested on this motion.

NATURE AND PROGRESS OF THE ACTION

[4] The plaintiff was involved in a motor vehicle accident on September 23, 2008 in the City of Brampton. It appears that his vehicle was struck from behind by a vehicle operated by Ouellette.

[5] The plaintiff was involved in a second motor vehicle accident on April 5, 2009. This time the other vehicle involved was owned and operated by Sidhu.

[6] On April 8, 2009, the plaintiff retained the paralegal firm of Lofranco Scarola Wentzel Legal Services (“Lofranco Paralegal”). At the time, Lofranco Paralegal was operated by the law firm of Lofranco Chagpar Corriero Personal Injury Lawyers (“Lofranco Law”). The plaintiff’s retainer of Lofranco Paralegal was limited to pursuing a claim for statutory accident benefits arising from the September 23, 2008 accident. On January 21, 2010, Lofranco Paralegal specifically advised the plaintiff in writing that they would not be pursuing a tort claim on his behalf and reminded the plaintiff that he must commence any such tort claim within two years of the date of the accident.

[7] It appears, however, that the plaintiff did nothing to initiate a tort claim. Despite the fact that the plaintiff had not retained Lofranco Paralegal or Lofranco Law to advance such a claim, Rachelle Villanueva, a lawyer employed by Lofranco Law at the time, decided to prepare a claim on the plaintiff’s behalf. It would appear that Lofranco Law was concerned about the expiry of the applicable limitation period. The claim was issued on September 20, 2010 under the plaintiff’s name. There is no reference to Lofranco Law anywhere in the statement of claim.

[8] The statement of claim as drafted seeks damages in the amount of $1,000,000.00. It claims that, as a result of the September 2008 accident, the plaintiff suffered serious and permanent physical and psychological impairment.

[9] Unfortunately, the claim named Sidhu as the defendant. Sidhu had nothing to do with the September 2008 accident. Sidhu was the driver involved in the plaintiff’s second accident in April 2009. Ouellette was the other driver involved in the September 2008 accident. It was Ouellette who should have been named as the defendant in this action.

[10] The statement of claim was not served on the named defendant or on Ouellette. No notice letters were sent to Ouellette or his insurer.

[11] Ms. Villanueva’s evidence is that she did not put the claim out for service because she was waiting for instructions from the plaintiff with respect to proceeding with the action. However, her evidence on cross-examination was that she never advised the plaintiff that she had commenced the action in his name and never sent him a copy of the statement of claim. I find it difficult to understand how she could have expected to receive instructions when the plaintiff knew nothing of the claim.

[12] In any event, Ms. Villanueva left Lofranco Law in December 2010. After her departure, the plaintiff’s file was apparently taken over by Alexander Voudouris, another lawyer employed by Lofranco Law. It appears that Mr. Voudouris met with the plaintiff in February 2011 at which time the plaintiff signed a Contingency Fee Retainer Agreement (the “Retainer Agreement”). The Retainer Agreement was dated February 28, 2011 and covered all potential claims the plaintiff may have had with respect to the September 2008 accident, including the claims made in this action.

[13] However, at no time after the Retainer Agreement was signed, did Mr. Voudouris serve a notice of appointment of lawyer. As far as the court record was concerned, the plaintiff continued to be self-represented. In addition, there is no evidence that Mr. Voudouris carried out any significant review of the file at that time. He certainly took no steps to attempt to serve the statement of claim despite the fact that the deadline for service was March 21, 2011.

[14] In fact, it appears that nothing was done to advance this action in any fashion. On March 22, 2011, the court issued a notice pursuant to Rule 48.15 warning the plaintiff that this action would be dismissed within 45 days if nothing was done to advance the claim or to otherwise comply with the Rule. On May 17, 2011, the registrar issued an order dismissing this action as abandoned.

[15] Of course, the notice and order would not have gone to Lofranco Law as it was the plaintiff’s name that appeared on the statement of claim and no notice of appointment of lawyer had been filed by Lofranco Law. The plaintiff denies that he received either the notice or the order. I note, however, that the address for the plaintiff on the statement of claim does not appear to have been his current address as of the date the statement of claim was issued.

[16] The evidence shows that Mr. Voudouris was on medical leave in July and August of 2011. No specifics of this medical leave are provided in the evidence. In fact, there is no direct evidence at all from Mr. Voudouris. All of the evidence concerning Mr. Voudouris’ handling of this file comes from Ms. Villanueva on an information and belief basis. Her evidence, as received from Mr. Voudouris, is that he assumed responsibility for a large number of files when he joined Lofranco Law in January 2011 and that it took some time for him to review all of the files that were assigned to him. Mr. Voudouris’ medical leave apparently contributed to the delay in reviewing this file. It was not until January 2012 that Mr. Voudouris discovered that the statement of claim had never been served. It appears that the other problems with this claim were discovered at that time as well. At that point, Mr. Voudouris and Ms. Villanueva reported this matter to their insurer. It then took another six months before notice of this motion was served on Ouellette’s insurer.

APPLICABLE LAW AND ANALYSIS

Setting Aside a Dismissal Order

[17] The law relating to motions for an order setting aside an administrative dismissal order is summarized in my decision in 744142 Ontario Ltd. v. Ticknor Estate, 2012 ONSC 1640 (Master).[^1] At paragraph 32 of that decision I set out the applicable principles as follows:[^2]

32. In the last five years, the law relating to setting aside registrar’s dismissal orders has been the subject of seven decisions of the Court of Appeal for Ontario. Although each of those decisions brings a slightly different approach to the decision making process, the general approach first set out by the Court of Appeal in Scaini has been followed consistently. The principles that emerge from those decisions can be summarized as follows:

● the court must consider and weigh all relevant factors, including the four Reid factors which are likely to be of central importance in most cases;

● the Reid factors, as cited by the Court of Appeal in Giant Tiger, are as follows:

(1) Explanation of the Litigation Delay: The plaintiff must adequately explain the delay in the progress of the litigation from the institution of the action until the deadline for setting the action down for trial as set out in the status notice. She must satisfy the court that steps were being taken to advance the litigation toward trial, or if such steps were not taken to explain why.... If either the solicitor or the client made a deliberate decision not to advance the litigation toward trial then the motion to set aside the dismissal will fail.

(2) Inadvertence in Missing the Deadline: The plaintiff or her solicitor must lead satisfactory evidence to explain that they always intended to set the action down within the time limit set out in the status notice, or request a status hearing, but failed to do so through inadvertence. In other words the penultimate dismissal order was made as a result of inadvertence.

(3) The Motion is Brought Promptly: The plaintiff must demonstrate that she moved forthwith to set aside the dismissal order as soon as the order came to her attention.

(4) No Prejudice to the Defendant: The plaintiff must convince the court that the defendants have not demonstrated any significant prejudice in presenting their case at trial as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action;

● a plaintiff need not satisfy all four of the Reid factors but rather a contextual approach is required;

● the key point is that the court is to consider and weigh all relevant factors to determine the order that is just in the circumstances of each particular case;

● all factors are important but prejudice is the key consideration;

● prejudice to a defendant may be presumed, particularly if a lengthy period of time has passed since the order was made or a limitation period has expired, in which case the plaintiff must lead evidence to rebut the presumption;

● once a plaintiff has rebutted the presumption of prejudice, the onus shifts to the defendant to establish actual prejudice;

● prejudice to a defendant is not prejudice inherent in facing an action in the first place but prejudice in reviving the action after it has been dismissed as a result of the plaintiff’s delay or as a result of steps taken following the dismissal of the action;

● the party who commences the litigation bears the primary responsibility under the Rules for the progress of the action;

● in weighing the relevant factors, the court should not ordinarily engage in speculation concerning the rights of action a plaintiff may have against his or her lawyer but it may be a factor in certain circumstances, particularly where a lawyer’s conduct has been deliberate. The primary focus should be on the rights of the litigants and not with the conduct of their counsel.

[Footnotes Omitted]

[18] I am also mindful of the observations of the Court of Appeal in its decision in Hamilton (City). At paragraphs 20-22 of that decision Justice Laskin notes as follows:

20 Two principles of our civil justice system and our Rules of Civil Procedure come into play. The first, reflected in rule 1.04(1), is that civil actions should be decided on their merits. As the motion judge said at para. 31 of his reasons: "the court's bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds."

21 The second principle, reflected in the various time limits mandated by our rules, and indeed, as noted by the motion judge, in the provision for a status notice and hearing, is that civil actions should be resolved within a reasonable timeframe. In Marché, at para. 25, my colleague Sharpe J.A. wrote about the strong public interest in promoting the timely resolution of disputes. Both the litigants and the public have an interest in timely justice. Their confidence in the administration of our civil justice system depends on it.

22 On motions to set aside an order dismissing an action for delay, invariably there is tension between these two principles.

[19] I also note that the Court of Appeal has recently emphasized the principle that these motions involve an exercise of the court’s discretion. The court must weigh all relevant considerations to determine the result that is just in the circumstances. See Habib v. Mucaj, 2012 ONCA 880 at paragraph 6.

[20] Finally, it should be emphasized that the general preference in our system of civil justice is for disputes to be decided on their merits. See MDM Plastics Ltd. v. Vincor International Inc., 2013 ONSC 710 (S.C.J.) at paragraphs 24 and 28.

[21] These are the factors and principles I have considered and applied in determining the issues on this element of the plaintiff’s motion. My analysis leads me to the conclusion that it is not in the interest of justice that the dismissal order of the registrar be set aside.

Motion Brought Promptly

[22] Rule 37.14(1) requires that motions of this nature be brought by way of a notice of motion served forthwith after the order in question comes to the attention of the person affected. The applicable authorities also require these motions to be brought promptly. In my view, the plaintiff has not done so. The only explanation offered for the six month delay in serving notice of this motion is that the lawyers involved had to report this matter to their insurer. No specifics are provided.

[23] Motions of this nature are time sensitive. They must be served forthwith. The lawyers involved and their insurer are fully aware of this requirement. There is no evidence from the plaintiff or his lawyers of any difficulty in assembling the necessary evidence or that problems were encountered when booking this motion. I note that the requisition form used to initially book this motion is dated May 31, 2012. No explanation has been provided as to why it took five months to simply requisition a date for the hearing of this motion. Finally, there is no suggestion that the plaintiff delayed bringing this motion because he was attempting to obtain the consent of the defendant.

[24] In my view, the plaintiff has not satisfied this element of the Reid test.

Litigation Delay

[25] The plaintiff has failed to provide a satisfactory explanation for the delay encountered with this action. In my view, it is important to note that, other than issuing a statement of claim, absolutely nothing was done to advance this action until this motion was brought more than 20 months after the claim was started. This is not a situation where a plaintiff has made at least some effort to move ahead with his claim. This claim is notable for the complete absence of any of the steps usually required to move an action forward.

[26] The plaintiff has put forward three suggested explanations for this. First, Ms. Villanueva states that she did not arrange for prompt service of the statement of claim because she was waiting for instructions from the plaintiff. She does not explain how she expected the plaintiff to provide those instructions when he did not even know the claim existed and Ms. Villanueva had not sent him a copy of the statement of claim or asked for instructions. This is not a satisfactory explanation.

[27] Second, Mr. Voudouris, through Ms. Villanueva, states that part of the reason he did nothing to advance the claim was because of the large volume of files he inherited when he joined Lofranco Law. While this may amount to a satisfactory explanation for short periods of delay, it does not justify the delay of almost one year between February 2011 and January 2012. In my view, it is not acceptable to ignore an active litigation file for such a long period of time, especially when the responsible lawyer did not have carriage of the matter from the outset. If Mr. Voudouris was unable to handle the volume of files under his care, Lofranco Law should have assigned or hired other lawyers to assist him. Lofranco Law is not a one lawyer firm. It currently has 10 lawyers. In my view, this is not a satisfactory explanation for the delay.

[28] Third, the plaintiff argues that Mr. Voudouris’ absence from his firm in July and August of 2011 for medical reasons partly explains the delay. Of course, this evidence does not explain why nothing was done to advance this claim during the other 10 months of 2011. As I indicated above, no specifics of this medical leave are provided in the evidence. There is no evidence of whether Mr. Voudouris’ health issues may have affected his ability to manage his practice when he was at work in 2011. In any event, if Mr. Voudouris’ health issues were impacting his ability to handle the files under his supervision, then Lofranco Law should have taken steps to assign other lawyers to handle the matters. This is not a satisfactory explanation for the delay.

[29] For these reasons, I am not satisfied that the plaintiff has met this element of the Reid test.

Inadvertence

[30] In my view, the plaintiff has also failed to meet this aspect of the Reid test. I am simply unable to determine from the evidence when the plaintiff actually learned of the existence of this action. The evidence of the plaintiff on his cross-examination is contradictory and unclear.[^3] It is not clear to me that he was even aware that this tort action had been started on his behalf before it was dismissed by the registrar in May 2011. I am also not prepared to infer from a standard form fill in the blank retainer agreement that the plaintiff always intended to pursue this action. It is also insufficient, in these circumstances, for the plaintiff to simply provide a bald statement that he always intended to proceed with this action as he has done in his affidavit affirmed June 12, 2012. I note that the plaintiff took no steps to initiate this claim on his own despite being warned by Lofranco Paralegal about the applicable limitation period. This would seem to contradict the plaintiff’s statement in his June 12, 2012 affidavit. The onus is on the plaintiff to establish inadvertence. In my view, he has not done so.

[31] I have therefore concluded that the plaintiff has also failed to meet this element of the Reid test.

Prejudice

[32] I am also not satisfied that the plaintiff has met the onus placed upon him to rebut the presumption of prejudice. Where a limitation period has passed, as it has here, a presumption of prejudice arises and the onus rests with the plaintiff to rebut that presumption. The strength of this presumptive prejudice increases with the passage of time. See Wellwood at paragraph 60.

[33] A plaintiff can overcome the presumption of prejudice by leading evidence that all relevant documents have been preserved, that key witnesses are available or that certain aspects of the claim are not in issue. See Wellwood at paragraph 62. I have concluded that the plaintiff has not done so.

[34] In my view, the presumption of prejudice, on the facts of this action, is particularly strong. Ouellette knew nothing of this action until nearly four years after the accident took place. It is true that there appears to be some evidence that Ouellette’s insurer knew about the accident shortly after it happened. The plaintiff’s insurer appears to have sent a third party report to Ouellette’s insurer following the accident but there is no evidence that Ouellette’s insurer was ever advised that a claim of this nature would be forthcoming. The third party report simply refers to the plaintiff complaining of pain and being shaken up by the accident.

[35] It does appear that most of the plaintiff’s medical evidence has been preserved. However, I note that the proposed defendant’s counsel was not allowed ask a number of questions on his cross-examination of the plaintiff regarding the plaintiff’s damages claim.[^4] In my view, those questions were relevant in the context of this motion. Some basic information about the nature and extent of the plaintiff’s damages would have assisted the court in determining whether the documents that have been preserved are sufficient to rebut the presumption of prejudice. In addition, there is no evidence that any of the liability witnesses are available to give evidence (other than the parties themselves). I acknowledge the plaintiff’s submission that liability may not be an issue in this action. However, I also note that no admission of liability has been made by the proposed defendant and fairness requires that he not be prejudiced in his ability to properly defend that aspect of the claim as well.

[36] As with the other elements of the Reid test, the onus lies with the plaintiff to rebut the presumption of prejudice. I am not satisfied, on balance, that the plaintiff has met his obligation in this regard. He has therefore not satisfied this element of the Reid test.

Conclusion on the Motion to Set Aside the Dismissal Order

[37] When deciding motions of this nature, the court is to adopt a contextual approach in which it weighs all relevant considerations to determine the result that is just in the circumstances. The court must, of course, balance the strong public and private interest in promoting the timely resolution of disputes with the entitlement of a plaintiff to have his claim decided on its merits. I accept that the preference in our system of civil justice is for the determination of disputes on their merits. However, at some point a defendant’s right to a speedy resolution, along with the principle of finality, must trump the court’s bias in favour of a determination of a claim on the merits. In my view, this is one of those situations.

[38] The plaintiff has failed to meet any of the applicable factors. It took six months for this motion to be served. It took five months for the plaintiff to book a date for the motion. Absolutely nothing was done by the plaintiff or his lawyers to advance this claim. The deadlines and other requirements set out in the Rules for the service of the statement of claim and in Rule 48.15 were simply ignored or forgotten about. A claim was issued in the plaintiff’s name without the plaintiff’s knowledge or instructions and a copy was never sent to him. The wrong person was named as the defendant. Finally, and most importantly, the plaintiff has failed to rebut the presumption of prejudice to the proposed defendant that has arisen as a result of the expiry of the limitation period and the plaintiff’s delay in pursuing this action.

[39] For these reasons, I have concluded that it is just in the circumstances of this action that the dismissal order of the registrar not be set aside.

MOTION TO AMEND - MISNOMER

[40] In view of my conclusions above, it is not strictly necessary that I deal with the plaintiff’s requested relief to amend the statement of claim to substitute the proposed defendant Ouellette in place of Sidhu. However, if it were necessary for me to rule on the motion to amend the statement of claim, I would deny that relief as well.

[41] The limitation period for bringing this action has expired. Section 21 of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Limitations Act 2002”) precludes the adding of a party in such circumstances. See Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469 at paragraphs 16 and 25. However, the Court of Appeal has held that the common law doctrine of misnomer has been preserved despite the enactment of the Limitations Act 2002. See Spirito Estate v. Trillium Health Centre, 2008 ONCA 762 at paragraph 17.

[42] Misnomer requires a finding that the intended party, while not specifically or correctly named, is otherwise identifiable from the pleading. All of the case law presented to the court on this motion is consistent in identifying the necessity for such a requirement. If the intended party is not identifiable from the pleading, misnomer has no application and instead it becomes an attempt to add a new party. See Spirito at paragraphs 10 and 11. The test, as adopted in Ontario in Dukoff v. Toronto General Hospital (1986), 1986 2648 (ON SC), 54 O.R. (2d) 58 (H.C.J.), is set out in Davies v. Elsby Brothers, Ltd., [1960] 3 All E.R. 672 (C.A.) at page 676:

The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong”. Then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries”, then it seems to me that one is getting beyond the realm of misnomer.

[43] In my view, Ouellette is not readily identifiable from the pleading when read as a whole. Obviously, he would know that he was involved in an accident on September 23, 2008 at the intersection described in the statement of claim. However, it is not so obvious that he would know or remember the name of the injured person in the vehicle he collided with and who is now the plaintiff advancing this claim. It is not inconceivable that there could be two accidents at the same busy urban intersection on the same day. The statement of claim does not describe Ouellette’s vehicle. It simply states that the defendant was the “operator of a motor vehicle bearing an Ontario license plate”. This is not a situation where Ouellette’s name was incomplete or misspelled. The name of the defendant in this action is very different from Ouellette’s name.

[44] In my view, this is not a situation of misnomer. In all of the circumstances of the case and looking at the statement of claim as a whole, it is my view that Ouellette would be more likely to say “I cannot tell whether they mean me or not and I shall have to make further inquiries”. The plaintiff’s proposed amendments are beyond the realm of misnomer. In my view, the plaintiff is seeking to add a new party after the expiry of the applicable limitation period. Such an amendment is not permissible.

ORDER

[45] The plaintiff’s motion is therefore dismissed. If the parties are unable to agree on the issue of costs, they may make brief submissions in writing by no later than May 21, 2013.

Master R.A. Muir

DATE: April 26, 2013

[^1]: Although most of the applicable authorities deal with orders dismissing actions for delay, the same considerations apply to a motion for an order setting aside an order dismissing an action as abandoned. See Vaccaro v. Unifund, 2011 ONSC 5318 at paragraph 34.

[^2]: The applicable principles are derived from seven decisions of the Court of Appeal for Ontario released over the last several years: Scaini v. Prochnicki, 2007 ONCA 63; Marché D’Alimentation Denis Thériault Lteé v. Giant Tiger Stores Ltd., 2007 ONCA 695; Finlay v. Van Paassen, 2010 ONCA 204; Wellwood v. Ontario (Provincial Police), 2010 ONCA 386; Hamilton (City) v. Svedas Koyanagi Architects Inc., 2010 ONCA 887; Machacek v. Ontario Cycling Assn., 2011 ONCA 410; Aguas v. Rivard Estate, 2011 ONCA 494.

[^3]: See pages 18-20 of the transcript from the plaintiff’s cross-examination.

[^4]: See pages 22-24 of the transcript from the plaintiff’s cross-examination.