SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-55924 & 12-55925
DATE: September 3rd. 2013

RE: Andrew Dupuis, Plaintiff

AND:

W.O. Stinson & Son Limited et. al., Defendants

RE: ANDREW DUPUIS, Plaintiff

A N D:

PILLAR TO POST et. al. , Defendants

BEFORE: MASTER MACLEOD

APPEARANCES:

Lynn Lawson, for the Plaintiff, moving party

Lisa Langevin, for the Defendant W.O. Stinson

John Clermont (with leave) for the Defendant 1634881 Ontario Inc.

HEARD: September 3rd, 2013

ENDORSEMENT

[1] These reasons deal with identical motions in two related actions. The plaintiff requests an order which would have the effect of backdating the formal date of commencement of these proceedings by one week. The originating processes were issued by the Registrar on November 7th, 2012 but the limitation period expired on November 1st.

[2] As set out in more detail below, the plaintiff’s lawyer attempted to issue the originating process on November 1st but due to an error concerning the correct procedure the court refused the documents. Immediately on learning of this the solicitor caused the process to be issued correctly but a week had gone by and the limitation period had expired. The court is asked to cure this problem by treating it as an irregularity and making an order nunc pro tunc deeming the actions to have commenced on the proper day.

[3] The motion brings competing principles into stark opposition. On the one hand is the principle that cases should be decided on their merits rather than on technical compliance with procedural rules. On the other hand is the harsh reality of limitation periods which are designed to ensure that disputes are brought forward in a timely manner or forever put to rest. The mandate to cure technical irregularities in order to do substantive justice and the principle that rights that are not enforced in a timely manner will be lost are both important components of our civil justice system.

[4] Counsel could not refer me to any current decision on point written in this court since the enactment of the current Limitations Act. It therefore appeared necessary to give written reasons and I reserved to do so.

[5] For the reasons that follow I have determined that the relief should be granted and a nunc pro tunc order is appropriate.

Background

[6] The actions themselves arise from a major oil spill which took place in the plaintiff’s home located in the Township of Alfred-Plantagenet. The unproven facts on which the claim is based are these. The purchase of the home closed on September 24th, 2010 following a satisfactory home inspection conducted by the defendant numbered company. The home contained an interior oil tank which the plaintiff had filled by the defendant Stinson. Approximately one month later when the plaintiff was absent from the home the tank or associated oil delivery system failed and permitted almost 700 litres of oil to flow into the basement. This resulted in oil contamination of the home, the property and adjoining lands. The leak was discovered by the plaintiff on November 1st, 2010.

[7] It is common ground that on this scenario the latest date that an action could be commenced was November 1st, 2012. On the previous day the solicitor for the plaintiff sent a notice of action in one action and a statement of claim in the other to the court house in Ottawa by overnight courier together with the appropriate payment for issuing originating processes. The materials arrived in the office of the Registrar early in the morning on November 1st. Attached to the letter was a note indicating that the limitation period would expire that day and requesting a phone call to confirm that the actions had been commenced.

[8] The originating processes were not issued and the solicitor did not receive a phone call. Instead the Registrar mailed the documents back to the lawyer with a copy of Rule 4.05 (1). That rule of course states that a document may be issued by the court on personal attendance in the court office by the party seeking to issue it or by someone on the party’s behalf. An originating process is only issued once the Registrar has dated it, signed it, sealed it with the court seal and assigned it a court file number. (Rule 14.07 (1)).

[9] It would have been a simple matter for the Registrar to phone, e-mail or fax counsel for the plaintiff to advise that the claims had not been issued and it would have been a courtesy to do so. It is clear however that there was no technical or legal obligation on the court staff to extend such a courtesy and the plaintiff does not suggest that the Registrar was in error.

[10] This was plainly and simply an error by counsel. Firstly it was imprudent to wait until the last day of the limitation period to issue the claims. Secondly the lawyer should have known that a statement of claim cannot be issued by courier and it is necessary to either attend in person or to send a clerk or process server. Thirdly, there was no reason to commence the action in Ottawa. Rule 13.1.01 (2) permits most actions to be commenced in any court office in Ontario so the action could readily have been commenced in Toronto. Indeed, the plaintiff’s property is not located in Ottawa but in the Township of Alfred-Plantagenet which is located in the United Counties of Prescott and Russell and the court for those counties is in L’Orignal. Accordingly, while some of the defendants are located in Ottawa and there is nothing wrong with bringing the action here, it was never necessary to do so and certainly unnecessary in the face of the limitation period.

[11] As soon as counsel became aware of the problem she took immediate steps to rectify it. The originating processes were issued in Ottawa by personal attendance on November 7th, 2012 and a motion was brought before me on November 19th, 2012. That motion was brought without notice on the basis that the time for serving the statement of claim had not yet expired and none of the defendants had yet been served. It was however my view that the defendants should be put on notice and allowed to make submissions. Accordingly the motion was not argued until all parties were served and a date convenient to all counsel could be arranged. The motion came on for hearing on September 3rd, 2013. It was opposed by one of the defendants in each of the actions.

Analysis

[12] The overarching purpose of the Rules of Civil Procedure is to provide a framework for the just resolution of civil disputes on their merits as efficiently as possible. Rule 1.04 sets out the general interpretive mandate. In furtherance of that objective Rule 2.01 clearly stipulates that a failure to comply with the rules is an irregularity and does not render the step a nullity. Subrule 2.01 (1) (a) then authorizes the court to grant amendments or other relief as necessary to secure the just determination of “the real matters in dispute”. The rules in other words are not ends in themselves and generally speaking court proceedings are to be determined on their merits and not defeated for technical non compliance with procedure.

[13] The court has broad remedial jurisdiction to cure procedural errors. This includes the power to backdate the effective date of an order in certain circumstances and to deem an irregular step to comply with the rules. The fundamental question is always whether or not it is just to do so. Notwithstanding the general power to overlook or correct technical errors, it is not always appropriate to grant such relief and there are competing principles.

[14] The most pertinent principle here is the principle of timeliness and finality which is expressed in the Limitations Act, 2002. The Act of course forecloses a right of action by a plaintiff unless the action is commenced before “the second anniversary of the day on which the claim was discovered”. This was a reduction of the previous limitation period of six years and reflects a legislative intention that potential defendants be free and clear of potential claims unless potential plaintiffs move expeditiously to assert those claims. Even if the action is commenced on time of course the rules themselves contain provisions to dismiss actions that are not actively pursued. Both the legislature and the Rules Committee thus recognize the competing principle that failure to enforce rights in a timely fashion should ultimately extinguish those rights. Moreover it is not always the case that non compliance with procedural requirements should be condoned or forgiven even in the absence of prejudice or delay. There is no doubt that wanton or reckless disregard of the rules can result in loss of substantive rights.

[15] In Joseph v. Paramount Canada’s Wonderland 2008 ONCA 469 the Court of Appeal has affirmed that the Limitations Act, 2002 is intended to “balance the right of claimants to sue with the right of defendants to have some certainty and finality in managing their affairs.” The Act means what it says and it has abolished the power of the court at common law to allow addition of parties or new causes of action after the expiry of the limitation period based on the doctrine of “special circumstances”. In any event as discussed in paragraph 28 of Joseph special circumstances permitted amendment of an existing action. The courts in Ontario have never had the power to “allow an action to be commenced after the expiry of a limitation period” special circumstances or not.

[16] The first question then is whether granting the requested order is simply correcting an irregularity or whether it is in reality allowing an action to be commenced after the expiry of the limitation period. I suppose this is a somewhat circular argument. If the order is granted deeming the action commenced on November 1st when the originating process arrived at the court office then by definition the action was commenced in time (subject of course to any other limitation defences that might have been pleaded had the process been issued on November 1st). If it is not granted then the actions are out of time and the plaintiff will have to pursue a negligence claim against his lawyer.

[17] There is in reality no prejudice to the defendants if the relief is granted other than the windfall benefit of being able to capitalize on the error made by the plaintiff’s counsel. This is because compliance with the Limitations Act, 2002 simply requires that the action be started by the second anniversary of the date when the cause of action was discovered. Pursuant to Rule 14.08 (1) a plaintiff then has up to six months to serve the statement of claim and even that time can be extended. Thus in the ordinary course an action commenced on November 1st, 2012 might not have been served until well after this motion was brought.

[18] The statement of claim and the appropriate fee were delivered to the court office in time. The irregularity was the failure to attend personally to ensure the process was issued. I can discern no policy reason for personal attendance which exists for the benefit of the defendant. The need for personal attendance may well be justified on the basis that courts administration should not be expected to assume the responsibility of ensuring that documents simply delivered or left at the court house get to the right office and are issued on the right day. I do not quarrel with that. I note that there is a rule providing for processes to be issued electronically (e-filing) but currently the Ministry of the Attorney General has not designated software for that purpose so the e-filing subrules are not in affect. For the foreseeable future it is necessary to have someone attend at the counter in order to issue an originating process.

[19] In Tummillo v. Prouty et al. (1990) 42 C.P.C. (2d) 308 (Ont. Dist. Ct.) the court granted an order similar to that requested here. In that case there was evidence of a local practice in Kenora in which originating documents could be left at the counter and would be issued by the Registrar. While there was no such practice in Ottawa and counsel had no reason to believe that there was, Tummillo does deal with the difference between a nunc pro tunc order to prevent a nullity and an order extending the limitation period. Kozak, D.C.J. relied on Shannon v. Topp 1986 2946 (SK KB), [1986] 3 W.W.R. 83 (Sask. Q.B.) where the registrar in Saskatchewan had failed to issue a statement of claim because the lawyer had forgotten to inscribe his address as required by the rules. Similar to the case at bar the Registrar in Saskatchewan had mailed the originating process back to counsel and by that time the limitation period had expired. Neither of these decisions are binding and of course both predate the current limitations statute in Ontario but they are helpful in clarifying that correcting an irregular step taken in time is not the same thing as extending the limitation period.

[20] In Joseph, supra (which is binding) the lawyer had intended to issue the claim but due to an error by an assistant in the office the claim was not taken to the court office. Joseph is distinguishable because in that case the originating process did not reach the court office in time but remained in the lawyer’s office. There was no irregularity to cure and as addressed above, the Court of Appeal held that special circumstances were not available to assist the plaintiff.

[21] The case at bar lies somewhere between these two. Unlike Tummillo or Shannon there was no local practice permitting a statement of claim to be delivered to the court house and no reason to presume that the Registrar would take care of it. On the other hand the document was in the Registrar’s office on the correct date with the correct fee and it should have been clear to the Registrar that counsel was expecting it would either be issued or someone would call counsel. I cannot find that the Registrar was technically in error in not accepting that responsibility and in enforcing the rule but to simply mail it back knowing that the limitation period would have expired by the time counsel knew about it was to say the least callous. Had counsel been notified of the problem there is every reason to believe the defect could have been cured by having an agent attend at the counter. In that regard the situation is very similar to what occurred in Saskatchewan in the Shannon case.

[22] Counsel for the defendant argues that this is a clear case of negligence on the part of plaintiff’s counsel and proposes that if the mistake is that of counsel and not of the court administration the proper approach is to refuse relief and allow the plaintiff to pursue a claim against his law firm. I was referred to the decision of the Court of Appeal in Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited 2007 ONCA 695 which upheld a decision of Master Beaudoin (as he then was). That was a case dealing with setting aside of a Registrar’s dismissal order. Master Beaudoin had found that there was no inadvertence in the delay which led up to the dismissal. On the one hand there had been an “intentional and stubborn refusal to proceed with the action” and on the other there had been what amounted to solicitor’s negligence. In upholding Master Beaudoin and overturning the Divisional Court, the Court of Appeal took notice of the probability that the plaintiff had a remedy against his lawyer. (see paragraph 28 – 29).

[23] Giant Tiger is not of much assistance in this case. For one thing it deals with setting aside a dismissal order and the four part test under that rule. More importantly it is set in the context of an action in which the defendant “properly believed that this action and a claim for nearly three million in damages had been dismissed nearly six years ago” thus engaging the finality principle (para. 18) and “excusing a delay of this magnitude and gravity risks undermining public confidence in the administration of justice”. (para. 32) Moreover the Court of Appeal affirmed the continuing authority of Chiarelli v. Wiens (2000) 2000 3904 (ON CA), 46 O.R. (3d) 780 (C.A.) to the effect that the law will not ordinarily allow a client to suffer the irrevocable loss of a right to proceed by reason of the inadvertence of his or her solicitor. (para. 28)

[24] In Scaini v. Prochniki (2007) 2007 ONCA 63, 85 O.R. (3d) 179 (C.A.) the Court of Appeal also dealt with the so called Reid tests for setting aside a registrar’s dismissal order and in that case upheld Master Beaudoin’s order setting aside the dismissal. There too the solicitor had clearly been at fault but there was no prejudice to the defendant in granting the order which had been sought promptly. Though I recognize that the limitation period had not expired in Scaini it is clear that simply because there is a remedy against a lawyer is insufficient reason to deny relief to the plaintiff. Indeed, in yet another decision dealing with dismissal orders, Finlay v. Van Passen 2010 ONCA 204, the Court of Appeal has stated that “the court should be concerned primarily with the rights of the litigants, not with the conduct of their counsel” (para. 32) and “speculation about whether a party has a lawsuit against its own lawyer, or the potential success of that lawsuit, should not inform the court’s analysis of whether the registrar’s dismissal order should be set aside”. (para. 31) See also Habib v. Mucaj 2012 ONCA 880 in which the court reiterates this principal and distinguishes Giant Tiger as a case in which the conduct was found to be deliberate. (@ para. 7).

[25] In my view the evidence supports a finding that there was a good faith effort to issue the process on the correct day. The Registrar refused to issue the document because of technical non compliance with the rule requiring attendance in person but the originating process and the correct fee were in the Registrar’s office on the day in question. The Registrar elected to return the document and the cheque by mail rather than contacting counsel. Though the fault was that of counsel and not of the court, this is an irregularity which can be cured by a corrective order. Under the circumstances the plaintiff should not be put out of court and the defendant granted a windfall that it could not have known about or relied upon.

Conclusion and Order

[26] In conclusion, for the reasons given above, there will be an order nunc pro tunc deeming the actions to have been properly commenced on November 1st, 2012 and requiring amendment of the court record to reflect this.

[27] As all parties now have copies of the pleadings by virtue of being served with the motion record those parties who were served will be deemed to have been served with the statement of claim. The parties are to seek agreement on a timetable for delivery of defences, documentary production and discovery.

[28] The Registrar is not to dismiss the actions under Rule 48.15 unless otherwise ordered. The time under Rule 48.14 will run from the date of this order but this is without prejudice to the right of any of the parties to seek a subsequent extension on proper grounds.

[29] The plaintiff quite properly indicated he would not be seeking costs and there will accordingly be no costs of the motions.

Master MacLeod