ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-105572
DATE: 20140324

BETWEEN:

Anna Malatesta, Josephina Malatesta, Lidia Simonetta and Anna Malatesta, the Administrator of The Estate of Justine Simonetta, Deceased

Plaintiffs

– and –

2088675 Ontario Inc., The City of Burlington, Xu Zhang, James McMaster, Yellow Roadway Corporation Inc., Cory Pariselli-Field and Gabriel Uribe-Valez

Defendants

Anthony J. Potestio, for the Plaintiffs

Conor Wyche, for the Defendant, Gabriel Uribe-Valez

HEARD: March 13, 2014

REASONS FOR DECISION

WRIGHT J.:

Introduction

[1] The plaintiffs move for an order pursuant to Rule 16.04 of the Rules of Civil Procedure (the “Rules”) for substitute service of the statement of claim and for an order extending the time for service pursuant to Rule 3.02 of the Rules.

[2] The defendant Gabriel Uribe-Valez opposes the motion and requests that it be dismissed.

[3] The defendant Xu Zhang is not present not represented by counsel on this motion.

Background

[4] I will now review the timelines leading up to this motion as they are critical to my ultimate analysis.

[5] This action arises out of a serious motor vehicle accident that occurred on August 15, 2009 where Justine Simonetta, a pedestrian was killed when attempting to cross a section of the QEW. As I understand it, Justine Simonetta was struck by four motor vehicles while crossing the highway, two of which were driven by the above named defendants.

[6] The statement of claim was issued on August 12, 2011.

[7] The motion that is before the court today was originally returnable on November 8, 2013 and then adjourned at the request of Gabriel Uribe-Valez to today’s date March 13, 2014. It is agreed by all parties the November 8, 2013 is the first time the defendant Gabriel Uribe-Valez became aware of this action.

[8] There was no contact, communication, or correspondence between the plaintiffs and the defendant Gabriel Uribe-Valez until November 8, 2013 when TD Home and Auto Insurance received the plaintiffs’ motion record, some 4 years after the statement of claim was issued.

[9] There has been no contact or communication between the plaintiffs and the defendant Xu Zhang, except for one unsuccessful attempt at service was made on September 27, 2011.

Anaylsis

[10] The leading case for an extension of time for service is Chiarelli v. Weins, 2000 3904 (ON CA), [2000] O.J. No. 296 (C.A.).

[11] In Chiarelli, the Court of Appeal confirmed that the basic consideration on a motion for extension of time for service of the statement of claim is whether granting the extension will advance the just resolution of the dispute without prejudice and unfairness to the parties. The plaintiff has the onus to prove that extending the time for service will not prejudice the defence.

[12] In the case at bar, I find that granting the extension will not advance the just resolution of the dispute without prejudice or unfairness to the parties. I find that granting an extension of time or service of the statement of claim would result in unfairness and prejudice to the defendants, and here is why.

[13] Up until November 8, 2013, some 4 years after the accident, the defendant, Gabriel Uribe-Valez had no knowledge that the plaintiffs were asserting a claim against him. This of course falls well outside of the parameters of Rule 14.08(1) of the Rules that requires that a statement of claim be served within 6 months after it is issued.

[14] The plaintiffs offer almost no explanation for the delay, except that they were unable to locate the defendant Gabriel Uribe-Valez, which is the basis for the motion for substitute service. There was one unsuccessful attempt to serve the defendant on August 31, 2011 at his Burlington address two years after the accident. Following that, there was a driver’s licence/address search on July 30, 2013, almost 4 years after the accident. I am mindful that Gabriel Uribe-Valez has, since the time of the accident, resided at the Burlington address. I find that the defendant could have, if any real effort had been made, been notified, and served with the statement of claim. There seems to have been no effort or steps taken to advance the plaintiffs’ claim for at the very least almost two full years after it was issued. I do not know what they were doing because there is no affidavit evidence filed, nor were there any arguments made orally.

[15] In relation to the defendant, Xu Zhang, there was one unsuccessful attempt at service on September 27, 2011, two years after the accident and no steps taken since to locate the defendant.

[16] Finally I have turned my mind to the issue of prejudice, and to whether this lack of service or untimely service has prejudiced the defendants. I find that it has. And here is why.

[17] The starting point for this analysis is set out by the Court of Appeal in Frohlick v. Pinkerton Canada Ltd. 2008 ONCA 3, [2008] O.J. No. 17 (C.A.), where the court states that the expiry of the limitation period for service gives rise to a presumption of prejudice. The longer the delay, the stronger the presumption of prejudice flowing from it.

[18] This case, however, is not limited to presumption of prejudice. There is a demonstration of real prejudice that flows directly from the delay. Three key witnesses, critical to the defence can now not be located. I find that if the defendant had been given prompt notice they could have located and secured those material witnesses. Although I have not had the benefit of evidence of submissions from Xu Zhang, the only logical inference, given that the action arises from the same circumstance is that he/she would also want to rely on the same witnesses if the matter were to proceed.

[19] I further find that the defendants ability to bring claims against potentially liable non-parties has been comprised and prejudiced. I find this to be a live issue given the circumstances under which the accident took place.

[20] I am also mindful that the onus remains on the plaintiffs to prove the lack of prejudice and rebut allegations of prejudice as put forth by the defendants. A bald statement that there is no prejudice falls short of meeting that onus: Noori v. Grewal, 2011 ONSC 5213.

Disposition

[21] I find that the plaintiffs have not demonstrated due diligence in their attempts to locate and serve the defendants. As such, the motion for substitute service is dismissed.

[22] Further, I find that granting the extension of time for service would result in real prejudice and unfairness to the defendants. As such, that motion is dismissed.

Costs

[23] Gabriel Uribe-Valez is the successful party on this motion. Costs follow the event. I exercise my discretion in fixing cost in the amount of $3,000.00, which I find to be fair, reasonable, and proportional in all of the circumstances. The plaintiffs shall pay costs in the amount of $3,000.00 to Gabriel Uribe-Valez within 90 days.

Justice K.P. Wright

Released: March 24, 2014