SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 8691-12

DATE: 2013/10/07

RE: J.H. (Plaintiff)

• and -

Windsor Police Service and Windsor-Essex Children’s Aid Society (Defendants)

BEFORE: Justice H. A. Rady

COUNSEL:
Russell Raikes for the plaintiff

Sheila Handler, for the Defendants

HEARD: October 4, 2013

ENDORSEMENT

Introduction

[1] The plaintiff seeks leave to file a statement of claim and to extend the time for service of a notice of action and the statement of claim.

[2] This action involves a claim for damages caused by the defendants’ alleged failure to conduct a proper investigation and for the wrongful arrest, prosecution and incarceration of the plaintiff.

[3] A notice of action was issued on November 22, 2012, four days short of the expiry of the two year limitation period contained in the Limitations Act 2002. The plaintiff admits that through inadvertence, his lawyer did not file a statement of claim within the time prescribed by the Rules of Civil Procedure.

[4] As an aside, there is a misnomer in the title of proceedings and on consent, it is amended to reflect the correct name of the Windsor Police Services Board. Also on consent, the motion is withdrawn against the Windsor-Essex Children’s Aid Society. I was advised at the opening of court that it is likely that a Notice of Discontinuance will be filed against that defendant.

Facts

[5] The claim alleges that on February 8, 2010, the plaintiff was arrested by members of the Windsor Police Service for charges of sexual abuse against his then ten-year-old daughter. He was held in custody for approximately ten months until his trial was completed on November 26, 2010. He was acquitted of the charges against him.

[6] In support of the motion, the plaintiff has filed an affidavit from his lawyer, Mr. Egan, and one from Mr. Egan’s law clerk. The following information is derived from those affidavits.

[7] The plaintiff wrote to Mr. Egan alerting him to a potential claim by letter dated September 7, 2012. It was considered that the limitation period was probably November 26, 2012, which was the two year anniversary of the plaintiff’s acquittal.

[8] The plaintiff was in custody at the Elgin/Middlesex Detention Centre and elsewhere on other charges and despite efforts to personally meet, Mr. Egan and the plaintiff were unable to do so. It appears that some information was obtained from the plaintiff’s criminal defence lawyer but Mr. Egan deposes that documents necessary to assist in preparing a claim were not available as the potential limitation date approached.

[9] As already noted, the notice of action was issued on November 22, 2012. The 30 day period for filing the statement of claim pursuant to rule 14.03(3) was December 21, 2012.

[10] Mr. Egan’s assistant did not set a reminder for the preparation and filing of the statement of claim. In the meantime, the notice of action was served on the defendants, although not in accordance with the rules.[^1]

[11] On December 11, 2012, an assistant to counsel for the Windsor Police Service contacted Mr. Egan’s assistant who advised that the notice of action was served as a courtesy and that a statement of claim would be served shortly. Other phone calls were also received by Mr. Egan’s office in the meantime; however, Mr. Egan was not advised of those calls.

[12] Mr. Egan and his assistant have deposed that the statement of claim was not filed within the requisite 30 days after the notice of action was filed with the court through their inadvertence.

[13] Mr. Egan became aware that the statement of claim had not yet been issued on March 8, 2013 when he received a letter from counsel for the Windsor Police Service informing him that the statement of claim had not been filed and that they would not be consenting to a late filing.

[14] Mr. Egan acted promptly. He wrote to the defendants on March 12, 2013 advising them of his intention to bring a motion for an order granting leave to file a statement of claim. Motion material was delivered on April 16, 2013.

The Parties’ Positions

[15] The plaintiff submits that the issuance of the notice of action tolled the relevant limitation the period; failure to issue the statement of claim is a mere irregularity occasioned by a solicitor’s inadvertence; and there is no prejudice to the defendant by reason of the delay.

[16] The Windsor Police Service did not concede that the notice of action tolled the limitation period because it wants to preserve its right to plead the limitation period. It submits that the failure to issue the statement of claim was not brought about by simple inadvertence but rather because of studied neglect or a pattern of neglect. There is some criticism of the reason why a notice of action was even issued when a statement of claim could have been prepared and served within the relevant limitation period. However, the focus of the defendants’ submission is on the solicitor’s alleged carelessness and neglect. In Ms. Handler’s submission, “none of this ought to have occurred”. It is difficult to quarrel with that observation.

The Law

[17] Rule 14.03(2) provides that where there is insufficient time to prepare a statement of claim an action may be commenced by issuing a notice of action.

[18] There is authority for the proposition that the notice of action tolls the limitation period. See Rafeek v. Yao (2007), 58 C.P.C. (6th) 97 (Ont. Master). In that case, Master Graham noted that: “[t]he notice of action which is the originating process that commenced the proceeding, was issued within the two year limitation period. As such, the 30 days for the filing of the statement of claim is not a limitation period but rather a time limit under the rules that is subject to the discretion of the court”. I agree with that observation. The failure to comply with the rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity: rule 2.01(1).

[19] Rafeek also stands for the proposition that the test for granting leave to file a statement of claim is the same as for renewing a writ of summons under the former Rules of Practice. That test was articulated by the Ontario Court of Appeal in Nugent v. Cook (1969), 1969 389 (ON CA), 40 O.R. (2d) 110 (C.A.). The court held that one or more of the following criteria would justify the extension of time:

• where the writ has not been renewed through the mere slip or mere inadvertence of the plaintiff’s solicitor;

• where the writ has not been renewed from some other reasonable cause;

• where the defendant’s conduct has lulled the plaintiff into a false sense of security;

• the absence of prejudice to the defendant by reason of the delay.

[20] Mr. Raikes for the plaintiff submits that the first and last criteria are made out in this case. There is no suggestion that the second and third apply.

[21] On the issue of an absence of prejudice, Mr. Raikes points out that had the statement of claim been issued within the 30 day period required by the rules, the plaintiff would have had a full six months from November 22, 2012 in which to serve the notice of action and the statement of claim. Therefore, the defendant would not, in the normal course, have had notice of the claim until as late as May 21, 2013. As already noted, this motion was brought originally in April and notice of the intention to bring the motion given the month prior. Moreover, the defendants had early notice of the claim because, rather unusually, the notice of action was served on them shortly after it was issued.

[22] While I agree with Ms. Handler that this situation ought not to have happened, it unfortunately did. The issue is whether the court is satisfied that it occurred by reason of inadvertence or because of a pattern of neglect or advertent behaviour. I am not certain that even a pattern of neglect would justify the refusal of an order. I was pointed to no authority in support of that proposition. Importantly, however, there is no suggestion that the plaintiff was not interested in pursuing the claim or that he provided instructions to the solicitor not to pursue it. Rather, the uncontradicted explanation by Mr. Egan and his assistant is that because of inadvertence and the clerk’s unfamiliarity with the relevant rule, the appropriate procedure was not followed.

[23] I note that in Nugent, the Court of Appeal overturned the Master who had permitted the renewal of a writ. However, in that case the evidence was a bald assertion of inadvertence. That is not the case here. Here, there is an affidavit from both Mr. Egan and his clerk. There is a delay but certainly not of the magnitude of that in Nugent. There is a complete lack of prejudice for the reasons that I have outlined.

[24] Accordingly, the motion is allowed. Leave is granted for the plaintiff to issue a statement of claim forthwith and the time is extended to serve the notice of action and the statement of claim by November 1st, 2013. The defendant, Windsor Police Services Board is granted leave to plead the limitation period if it chooses.

[25] On the issue of costs, it strikes me that the plaintiff is seeking an indulgence and, in the circumstances, I do not consider that order of costs is warranted. If the parties which to persuade me otherwise, I will receive brief written submissions within 15 days.

“Justice H. A. Rady”

Justice H. A. Rady

Dated: October 7, 2013

[^1]: The rules provide that the notice of action is to be served with the statement of claim.