COURT FILE AND PARTIES
COURT FILE NO.: 10-CV-415911
Heard: June 10, 2014
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Beckwith v. Salmon
BEFORE: Master Joan Haberman
COUNSEL:
Nijjar, J. (Student) for the moving party
Nassar, C. for the responding party
REASONS
Master Haberman:
[1] This motion to validate service was heard and dismissed by me on June 5, 2014, with Reasons to follow. The order was sought in view of the statement of claim having been served 2 years and three months after it was issued, well beyond the 6-month period permitted by the Rules for service.
THE LAW
[2] The Rules require that all originating process, including statements of claim, be served personally (Rule 16.01). Once a statement of claim has been issued, a plaintiff has six months within which to serve it (Rule 14.08). That Rule is framed in mandatory terms (shall be served within six months), to emphasize the importance of adhering to this timeline.
[3] There are exceptions to both Rules. Where the evidence demonstrates that a party has been difficult to find, though efforts were made to locate him, or difficult to serve because he has taken steps to make that so, the court will allow substituted service or will validate service affected by other means. In appropriate cases, an extension of the time within which a party must be served will also be granted.
[4] Where a plaintiff manages to serve a defendant with a statement of claim, but does so beyond the 6-month period and by means other than personal service, he can seek both an extension of the time for service as well as validation of service.
[5] An extension of the time to serve will be available where the court is satisfied that granting such an order advances the just resolution of the dispute without prejudice or unfairness to either party (see McGroarty v. Ontex Resources Ltd. (2012), 2012 ONCA 241, 290 OAC 181).
[6] In balancing the concepts of “just resolution” and “no prejudice or unfairness to either party” , the court will generally look at:
▪ the length of delay;
▪ the evidence filed that explains the delay;
▪ whether the evidence regarding delay is sufficient;
▪ the extent to which the defendant, himself, bears some or all of the responsibility for this delay;
▪ whether the applicable limitation period for the action has already expired; and
▪ whether the defendant would suffer prejudice if the motion is granted.
[7] Despite this list of factors, in Chiarelli v. Weins 2000 3904 (ON CA), [2000] OJ No. 296, the Court of Appeal noted that the focus on these motions should be on the rights of the parties, rather than the conduct of counsel, so prejudice takes the lead in terms of importance.
[8] When it is the conduct of counsel, however, that causes unfairness to the opposite party, while the focus remains on prejudice, the conduct of counsel inescapably enters the mix.
[9] Prejudice is the key element, and the onus of demonstrating that the potential defendant will not be prejudiced is on the plaintiff. While there is a presumption of prejudice if the claim has not been served until after the expiry of the limitation period (see Deaville v. Boaegeman, (1984), 1984 1925 (ON CA), 48 OR (2d) 725, it is not a presumption with heft, so therefore one that is easily overcome by evidence.
[10] Although the onus is on the plaintiff to show that the defendant will suffer no prejudice as a result of the delay, the defence will have an evidentiary obligation to provide at least some details regarding the nature and extent of the prejudice they rely on.
[11] It is also clear from the Chiarelli decision that a defendant cannot rely on prejudice when he is the author of his own misfortune. Thus, if there are steps that he reasonably could or ought to have taken, he cannot later complain about having lost the opportunity to do so due to the passage of time. The emphasis here, however, is on the word reasonably, so whether or not it would have been reasonable for a defendant to have taken certain steps before being served with process will therefore depend on the facts of the case.
[12] In Chiarelli, the plaintiff claimed, and the court found, that the defendant insurer, which had been provided with the plaintiff’s medical records and reports on an ongoing basis from early on, could not rely on prejudice as the basis for not having interviewed the investigating officer or having conducted surveillance of the plaintiff prior to service of the claim. That is because the evidence established that the insurer had received from and had paid plaintiff’s counsel for 12 medical reports, so counsel was aware of the nature and extent of the plaintiff’s injuries from the outset. In view of the apparent significance of the injuries sustained by the plaintiff in that case, as demonstrated by these reports, the Court felt that a claim ought to have been anticipated, despite the delay in service.
[13] The Court of Appeal summarized by stating that it would not be appropriate to fix rules or guidelines in advance for motions of this kind, as each case had to be decided on its own facts, focusing on whether the delay caused the prejudice complained of. I note that the action, in that case, was commenced within the limitation period.
[14] Chiarelli, supra. was cited by Bielby, J. in Noori v. Grewal 2011 ONSC 5213, [2011] OJ No. 4190, where he dismissed a motion to extend the time for service though the delay in that matter was less than it had been in Chiarelli. Bielby J. noted that these cases were fact driven, indicating that it was clear that the insurer, in Chiarelli, had had notice of the claim and injury shortly after the accident and had an early opportunity to investigate.
[15] Although he appreciated that the focus of the inquiry had to be on the presence of absence of prejudice, Bielby J. also considered the delay and the rationale provided for it. He concluded that the evidence contained little more than a bald statement about inadvertence and that, while not determinative, there had to be some evidence offered to explain the delay.
[16] In the end, the judge concluded that though a copy of the statement of claim was sent to the insurer 8 months after the claim was issued, so only 2 ½ years after the accident giving rise to the accident, the motion should be dismissed. On receipt of the pleading, the insurer had turned the matter over to counsel, who had sought proof of service. Several attempts by defence counsel to get the plaintiff to deal with the matter went nowhere.
[17] Bielby J. also found that the defendant would suffer prejudice if the extension of the timer for service was granted in several respects. The insurer had already lost the opportunity to obtain a timely vocational assessment of the plaintiff. They also lost the opportunity to conduct timely surveillance. Bielby J. noted that as it was less than 4 years post loss, he was less concerned about witnesses’ recollections here than he might otherwise had been, but he noted that despite the sworn evidence provided by the defendant about prejudice, there was no reference or response to it from the plaintiff. Taking all of these factors together led him to dismiss the request for an extension.
[18] What comes from these cases is that none can simply be applied to the facts before this court. Rather, the general principles they enunciate have to be extracted and applied to the facts of each motion of this kind, on a case by case basis.
[19] Turning to validation of service, that process is governed by Rule 16.08, which requires the moving party to satisfy the court that the document in issue either came to the notice of the party served, or was served in a manner that would have come to his attention had he not attempted to evade service.
[20] As already noted, expiry of the applicable limitation period will create a rebuttable presumption of prejudice. There is no dispute that a two-year limitation period applies to this action. In that it was commenced beyond that time frame, all that could ultimately have saved it, even if this motion had been granted, would have been the plaintiff’s ability to satisfy the court that she only discovered all of the elements of her action beyond the expiry date. She has filed no evidence regarding discoverability, though the defence has filed medical reports which call into question whether such a submission could have been successfully advance. I will return to this in my discussion regarding the limitation period, which follows.
[21] In terms of the substance of the action, in Chiarelli, supra, it was also noted that while the adequacy of the claim as pleaded will generally not be a relevant factor for the court’s consideration on such a motion, it will be relevant where the pleading clearly does not disclose any cause of action and there is no possibility, based on any material filed, that could give the action legal life.
[22] Thus, in this case, it is open for the court to conclude that the application of that doctrine of discoverability would be doomed to fail based on the evidence that has been filed.
EXPIRED LIMITATION PERIOD
[23] The action arises from a motor vehicle accident that occurred on December 5, 2008. The statement of claim, however, was not issued until December 7, 2010 – two days after the expiry of the applicable limitation period.
[24] The plaintiff pleads at paragraph 13 of her claim that she relies on the discoverability rule, adding that she did not learn that her injuries would meet threshold until December 7, 2010. She does not say in her pleading, nor in her evidence, how it was that she reached this conclusion, an important consideration as it appears to have occurred only two days after her former counsel missed this crucial deadline. No medical report is appended or discussion with a physician is referred to support or explain this plea.
[25] Though I am certainly not required to grapple with and resolve the issue of whether or not the plaintiff would have succeeded with her discoverability argument, the expiry of the limitation period raises a rebuttable presumption of prejudice. I am also required to balance equities between the parties in the context of this motion. One would therefore have expected the plaintiff to have devoted some space to the issue, particularly in light of the medical reports filed by the responding party on this motion and the very odd timing for the plaintiff’s discovery that she, did , indeed, have what she needed to meet threshold.
[26] In fact, this theory is put into grave doubt by the medical reports filed by the responding party. In their supplementary record, delivered in February 2014, they included the report of Dr. Shaul, dated April 1, 2010 – thus, created before the claim was issued. He notes that by the time he saw the plaintiff, she had already been diagnosed, in the context of an Independent Psychological Evaluation, conducted by Dr. Lubbers in January 2010, as suffering from an adjustment disorder with depressed mood, which resulted in impairment in affect regulation, sensitivity to pain and motivation.
[27] As Dr. Lubbers had concluded that, notwithstanding the foregoing, the plaintiff could return to work, Dr. Shaul had been retained to state otherwise, and he did so – well before the limitation period expired. He noted that the plaintiff spent a significant amount of time in bed and that she took naps through the day. She described her energy level to him as being very low and she spoke to him about a wave of exhaustion rolling over her and preventing her from keeping her eyes open. She advised him that she had experienced suicidal ideation, cried over every little thing and was very critical of herself. She had also lost interest in others, craved food all the time, and was much less interested in sex. All of this was reported based on an interview that Dr. Shaul conducted with the plaintiff on April 1, 2010 – 8 months before the limitation period expired.
[28] In light of that report, one would have expected the plaintiff to have provided some detail to support the discoverability plea and why, despite these reported symptoms, she did not believe she had the ability to meet threshold within the limitation period.
[29] In terms of the odd timing for the issuance of the claim, the only explanation for it is found at paragraph 12 of Mr. Dran`s first supporting affidavit, where he states:
In order to protect the above noted limitation (sic), the statement of claim was issued on December 7, 2010.
[30] This assertion appears to conflicts with what the pleading states about discoverability. The two-year limitation period had already expired – 2 days earlier. If, as pleaded, the plaintiff formed the view on December 7, 2009, that her injuries now met threshold, then why would Mr. Dran believe that prior counsel issued to protect a limitation period that had already expired? This evidence is incompatible with the pleading.
SERVICE
[31] The Motor Vehicle Accident Report prepared by the investigating officer with the Toronto Police Service indicates that Jason Robert Salmon lived at 202-1340 70 th Ave. W. in Vancouver B.C. at the time of this loss. His date of birth and the plate number of the vehicle he owned and was operating at the time of this loss are also shown on the report, along with the name of his insurer and his policy number. The plaintiff therefor had a considerable amount of information about the defendant and his vehicle to assist her in locating him for the purpose of service. The plate number of the vehicle he was operating would have provided an address for him and Salmon’s birthdate would have allowed her to obtain an MTO search to confirm the address.
[32] There is no evidence, however, to indicate that either search was sought within the critical time frame or for a considerable period thereafter.
Notice
[33] No address confirmation was performed before the claim was issued. Instead a notice letter dated November 9, 2010, appears to have been sent to the defendant at the BC address. There is an indication at the bottom of the letter that it was copied to Wawanesa, his insurer, but I note the letter does not contain the policy number or any indication of where the accident occurred, nor is it clear if the letter was actually sent to Wawanesa and if so, at what address.
[34] A second letter bearing the same date appears to have been sent to Wawanesa directly. It does contain the requisite information so have allowed the insurer to identify the loss and the insured. The letter appears to have emanated from the offices of the plaintiff’s previous counsel so there is no direct evidence to the effect that it was actually sent.
[35] The responding affidavit indicates that neither notice letter was among the materials contained in the Wawanesa adjuster’s file when counsel reviewed it personally and counsel was advised by the adjuster that he received neither letter and that Wawanesa’s first notice of this claim was received from Intact Insurance in January 2013.
[36] This information is contained in the responding party’s first affidavit, dated November 28, 2013. Although the moving party filed supplementary materials in May 2014, this evidence is not addressed. The plaintiff simply persists in relying on a notice letter that does not appear to have been received and may have not been sent.
The defendant’s whereabouts: efforts by first plaintiff’s counsel to locate him
[37] In his responding affidavit, the defendant Salmon states that both he and the plaintiff received a copy of the Motor Vehicle Accident Report from the investigating officer at the scene. He states further:
At the time of this motor vehicle accident. I had moved to 6 Cotteswood Place in Toronto just two weeks before. Given that my move was so recent, I did not have the opportunity to transfer my driver`s licence to Ontario.
My driver`s licence indicated my previous address of 202-1340 70th Ave. W. in Vancouver. I informed my landlord in Vancouver about my move to Toronto and instructed that all mail delivered to me should be forwarded to my current address in Toronto.
As of January 2009, I transferred my driver`s licence to Ontario and updated my address accordingly.
[38] The defendant indicates that, in view of his having moved, he never received the November 2010 notice letter from counsel, such that he did not become aware of this action until he was served with process – on March 20, 2013.
[39] I note the statement of claim was issued by a different firm and that current counsel advises that they only came on record on July 11, 2012. There is no indication, however, that the notice of change served on the other parties and the initial counsel was ever filed with the court – the computerized case history does not refer to it at all.
[40] On December 11, 2010, a process server was asked to serve the defendant at the Vancouver address provided on the Motor Vehicle Accident Report, despite the passage of time and without verification that the address was current. The occupant at that address advised that the defendant was a former tenant and that she had been there close to three years.
[41] Although the file remained in the hands of the first counsel until July 2012, there is no evidence at all regarding what efforts, if any, were taken by them to locate or serve the defendant from December 11, 2010 until new counsel came on record in July 2012, so there is a period of 1 year and seven months that is unaccounted for. This is an astonishing evidentiary gap in the context of this motion. I note that there is no evidence explaining why former counsel did not deliver an affidavit or provide any information that could have been included in these materials.
Efforts made by current counsel to locate and serve the defendant
[42] Plaintiff’s current counsel assumed carriage of this file on July 11, 2012. It does not appear, however, that a file review was conducted at that time. Had the file been reviewed, Salmon’s failure to defend would have been noted and that would have led to the discovery that he had never been served. Presumably that would have left to a motion to extend the time for service at that time, and efforts to locate him would have been initiated. There is no explanation in the materials to explain why none of this transpired at that time.
[43] The only explanation as to why nothing occurred when carriage of the file was assumed is contained in the supporting affidavit of Kiren Dran, who indicates that he is counsel at the firm with carriage of the file. He says nothing, however, about his own involvement with this matter. All he states is as follows:
I am advised and verily believe that due to inadvertence, the law clerk tasked with the plaintiff’s file did not alert the lawyer with carriage of the file of the failed attempt to serve the defendant Jason Salmon, and did not perform the updated searches on the defendant. As a result, the failed attempt was not brought to the attention of the lawyer with carriage of the matter.
[44] This short passage raises the following questions:
By whom was Dran advised:
Who was this law clerk;
Did he ever speak with the former clerk directly?
If not how was he able to conclude that her reasons for doing nothing was the result of inadvertence?
Who was “the lawyer with carriage”?
Why are neither named?
Was does it mean when Dran says the clerk was tasked with the plaintiff’s file?
This is a file that was being assumed mid-action. Did a lawyer review it at any time or was it simply given to a law clerk to process?
[45] Dran continues, and advises that this unnamed, and clearly unsupervised clerk, was “let go” in September 2012.
[46] Dran states that a new clerk, Marcie Vilarinho, was tasked with the plaintiff’s file on October 20, 2012. She apparently reviewed the file in December 2012 – two months later. As a result, it seems the file simply sat for the 3 months between the departure of the former clerk and the new clerk coming on board and eventually reviewing this file. Even after terminating the employment of the former clerk, Mr. Grogna, counsel with carriage we are later told, apparently did not think it important to review this file under his care himself.
[47] As a result of Marcie’s review, it was not discovered until December 2012 that the claim that had expired in June 2011 had never been served on this defendant.
[48] Yet further delay followed. It was not until January 16, 2013 that Marcie retained ACE Locators to find a current address for the defendant. Their report, dated February 12, 2013, is blank where there is space to enter his date of birth. Though this information was available to the clerk from the Motor Vehicle Accident Report, it does not appear to have been passed on. Had it been, it would have facilitated an MTO search.
[49] Although the accident occurred in Toronto, it seems that ACE never thought to look for the defendant in Ontario. They looked for a phone listing under the Vancouver area code and did a property lien search in BC only.
[50] The defendant’s evidence indicates that he changed his address on his licence in January 2009, so had either of the two firms handling this file thought to conduct an MTO search, they would have found a current address for the defendant as far back as then.
[51] When Marcie finally ordered an MTO search on March 18, 2013, she thought to include Salmon’s date of birth but she misspelled his name (Salman instead of Salmon) so once again, he alluded detection, through no fault of his own. At this point, this counsel had had carriage of the file for 8 months and had achieved nothing.
[52] Dran states that on March 19, 2013, Marcie was advised that the defendant had attended traffic court and had indicated at that time that he was living with his parents and working in Ontario. The evidence is silent as to how Marcie learned this, when this hearing took place and why no one was able or thought to access this information earlier. As the accident took place in 2008, the hearing on a Highway Traffic Act charge would have taken place years earlier.
[53] Dran states that on the same date, Grogna, who for some unexplained reason has not provided his own evidence, conducted a Facebook search and located the defendant’s page, noting his place of employment. An address was obtained and ACE was retained once again to serve him at the address at which he has been residing since 2009. Service was effected on March 20, 2013 – almost two years after the time to serve the claim had expired and more than 4 years after the accident giving rise to this action.
[54] The reason given by Dran for the delay in service is as follows:
I am advised and verily believe that the delay in serving the defendant with the statement of claim resulted from the previous clerk’s failure/oversight in not advising counsel with carriage of the matter that the defendant had not been served with the statement of claim and conducting further searches to effect appropriate service. This continued to go unnoticed until the previous clerk was let go and Ms. Vilarinho commenced her employment.
[55] Again, there is no evidence as to the basis for this information or why this situation continued to go unnoticed..
[56] According to Dran, a date for this motion was first requisitioned in January 2013. At that time, the plan had been to seek an extension of the time to serve and an order for substituted service. The motion was scheduled for June 25, 2013.
[57] In the interim, the defendant was located and served with new materials were drafted and served on him. Motion materials, however, were not served until June 10, 2013.
[58] Dran states that the defence sought an adjournment as they planned to oppose the relief sought, and though plaintiff’s counsel did not agree despite the late service, this date was lost as it was not confirmed by them. The motion was therefore marked as withdrawn. Thus a further period of 5 months were wasted, again because of an error by this firm – failure to confirm the motion. It did not help that they waited until June 10 to serve materials for a motion that had been booked 5 months earlier.
[59] The motion did not come back on until December 9, 2013. At that time, plaintiff’s counsel tried to introduce evidence about prejudice without an affidavit, though it had been 11 months since they had first sought a date for this motion. Although submissions had already begun, the master adjourned this motion to allow the plaintiff to file evidence on this point. The matter was then put over to June 5, 2014 – 5 years post loss and 15 months after service had taken place.
DAMAGES, LIABLITY and PREJUDICE
[60] Liability for the accident remains in issue. Responding counsel expresses concern in his affidavit about locating witnesses to the accident at this late date. Concern is also expressed about eroding memories of witnesses and parties. It is already 5 ½ years post-accident. If the order sought had been granted, it would have been 6-7 years before the parties had gotten to discoveries, as long as 8 years before reaching trial.
[61] As of the date of the first responding affidavit – November 28, 2013 – the defence had yet to receive any medical records at all, so though served in March 2013, the defence still had no idea what it was actually dealing with as neither plaintiff’s counsel had thought to provide them with any medical notes or records. They had also neglected to provide any accident benefit, rehabilitation, income/employment records in all of the time that had passed since this loss arose.
[62] The defendant makes the following points regarding prejudice, in the context of their ability to assess damages:
[63] Intervening injuries: The injuries allegedly sustained in this accident are outlined in the Chronic Pain IMA dated May 24, 2011. The report notes that the plaintiff suffered injuries to her breasts; chest; left arm, thigh, calf, buttock, jaw; the left side of head and that she suffered from headaches.
[64] She apparently had x-rays of her pelvis and left hip taken on March 10, 2010 and September 29, 2011 so it is anticipated that she would also be claiming that she sustained a left hip injury as a result of this accident.
[65] All of this has become complicated by the fact that the plaintiff sustained a fall on May 10, 2013, at which time she sustained injuries to her left side, including her left hip and elbow. In view of the overlapping injuries which occurred more than 4 years after this accident, the defence is now precluded from obtaining a defence medical examination to assist the court in assessing what the plaintiff’s situation was before the fall, and sorting out which problems are attributable to which accident.
[66] Depression: in her pleading, the plaintiff alleges that she suffered from depression as a result of this accident. After all this time, the defence says that are now prejudiced in their ability to obtain an effective defence psychiatric/psychological examination to assess the impact of the accident on her at that time.
[67] Claim for loss of earning capacity: In view of the time that has passed since the accident, a timely vocational assessment is no longer available to the defence to assess the plaintiff’s ability to work in some capacity.
[68] Surveillance: The defence has also lost the ability to conduct timely surveillance, particularly problematic now in view of the May 2013 fall. Reports from Dr. Shaul, psychologist, and the Chronic Pain IMA referred to previously were obtained from the plaintiffs in 2010 and 2011 respectively – yet not provided to the insurer until late November 2013. References to the plaintiff’s difficulties with walking, standing, lifting, running and doing physical work could therefore not have been assessed when first identified.
[69] The moving party did not deal with prejudice at all in their first affidavit, thereby leading to the adjournment of this motion in December 2013 to afford them an added opportunity to do so.
[70] In the plaintiff’s supplementary materials, the issue of prejudice is dealt with in a rather perfunctory way. Although the defendant has stated he never received notice of the claim as it was sent to his BC address after he had already moved to Toronto, and though defence counsel states that he reviewed the insurance file and saw no notice, the plaintiff continued to rely on the assertion that notice was given in November 2009.
[71] On that basis, and though no medical or income loss information of any kind was provided to the defence until late November 2013, the plaintiff claims that surveillance could have been undertaken and defence medical examinations arranged beforehand.
PLAINTIFF’S INTENSIONS
[72] Although this motion was first booked back in January 2013 and though it was not confirmed the first time it was up and then adjourned the second time at the plaintiff’s request, there is still no affidavit from the plaintiff attesting to the fact that it was always her intention to proceed with this action.
[73] The only evidence on point in contained in the affidavit of Simon Mariani, an articling student at the firm currently representing the plaintiff that was only delivered in late January 2014. He states:
The plaintiff has continued to meet with our office and express her continued interest to proceed with this litigation
[74] At this point, it is not even clear if the plaintiff was made aware that her rights were in jeopardy. There is no evidence to the effect that anyone ever raised this with her.
ANALYSIS and CONCLUSION
[75] In assessing whether the relief sought should be granted I am bound to determine if granting the order would be a just resolution of the dispute without causing prejudice or unfairness to either party.
[76] There is a total absence of evidence regarding what took place while the file was in the hands of the first firm and no credible explanation as to why the claim was issued beyond the expiry of the applicable limitation period. The evidence about why the claim was issued when it was conflicts with the pleading itself, as regards the issue of discoverability. In view of the presumption of prejudice caused by the expiry of the limitation period, the absence of any evidence that really addresses the issue without conflicting with the claim is problematic.
[77] While there is reference to a notice letter having been sent by previous counsel to the defendant and to his insurer, the defendant had already left BC before the letter was sent and he denies having received it. The insurer does so as well, and their counsel found no record of it in their file.
[78] There is no other evidence about the time frame from the issuance of the claim in December 2010 until the file was transferred to current counsel in July 2012, though it had expired more than a year earlier in June 2011.
[79] The delays in moving forward with service of process after the claim was transferred to current counsel are legion and the evidence to explain this is deficient. Why was the file not reviewed by counsel when it was received? Why did no one notice the claim had never been served, that no defence had been received, that default had not been noted? What were they waiting for?
[80] Much of this appears to be attributed to on a now former clerk. Irrespective of whether she still works at the firm or not, the firm and counsel wit carriage are still responsible for her acts and her failure to act, such that her omissions are those of the firm. It is no answer to point to her as the culprit as though this somehow absolves counsel and the firm them from blame.
[81] While the focus on a motion of this kind must be on the impact to the parties rather than on the conduct of counsel, in this case, the impact is a direct result of that conduct, which is the only evidence offered by way of explanation for the result.
[82] Once the new clerk came on board, there was more delay. It was not until March 2013 – a full 8 months after current counsel took over this file – that someone thought to order an MTO search to locate the defendant. Even then, the results sought was not obtained as the defendant’s name was misspelled in the request letter.
[83] Although current counsel had this file since July 2012, they did not seek a date for a motion to extend the time for service until January 2013, 6 months later. They then failed to serve their materials until June 10, 2013 and neglected to confirm the motion so that the date was lost.
[84] When the matter was finally back in court, they sought yet a further adjournment, in order to address the issue of prejudice, an essential component of this motion that had been completely neglected in their original materials and for almost the full year that followed. The result is that the file was in current counsel’s hands for almost two years before the motion was finally argued.
[85] I therefore find that the delay here is extensive and that it has not been adequately explained. It is ironic that throughout this entire time, the defendant was living where he had been living since the time of the accident and that his driver’s licence registration has reflected that since January 2009.
[86] The delay, on its own, is not enough to defeat this motion. The key element here is prejudice. The question I must answer is whether it would be unfair to put the defence in the position of having to go to trial – has the delay caused irreparable prejudice for which he is not accountable?
[87] In view of the expiry of the limitation period before the claim was even issued, there is a rebuttable presumption. What, if any, has the plaintiff done in this case to rebut that presumption?
[88] The defendant has not been difficult to find – he was always here to be found had anyone bothered to look for him. When they finally did so, counsel with carriage misspelled his name.
[89] The defendant has also done nothing in an effort to evade service. The only attempt to serve him was at an old address in BC. No further attempts were made.
[90] The facts of this case are quite different from those in Chiarelli, supra. In Chiarelli, the court found that there were steps the defence ought reasonably to have taken to protect themselves from prejudice. This was based on their having received not only notice, but 12 medical reports, so they were aware the injuries were serious. They were therefore in a position to assess the potential magnitude of the claim and consider the value of taking steps to protect themselves early on.
[91] In this case, it is not even clear that notice was even sent to the defendant or his insurer, let alone received be either. The defendant had already moved from the address to which notice appears to have been sent while the insurer has no record of having received it.
[92] Even if the notice letter had been sent and received, absent any medical information as to the nature and extent of the injuries suffered, how can the defendant be faulted for not having initiated surveillance and why would the defendant have expected the defence to seek a defence medical assessment? With whom? No area of injury had been identified to allow the defendant to identify what kind of specialist they should retain to assess the plaintiff.
[93] As in Noori, I conclude that the defence would have suffered irreparable prejudice if validation of service had been permitted at this late date. They have lost the opportunity to conduct timely surveillance and a vocational assessment. They have also lost the opportunity to isolate the injuries suffered in this accident as distinct from those suffered in the plaintiff’s fall in May 2013 by way of defence medical examinations.
[94] It is not reasonable to have expected them to have undertaken any of these steps in the absence of any information at all about the plaintiffs’ alleged injuries or losses. Although plaintiff’s counsel was seeking and amassing these reports, they simply sat in their own file and none of these materials were forwarded to the defendant to allow them to assess the value of the claim or the work they should undertake to address it.
[95] At best, the defence received notice and then heard nothing between November 2009 and March 2013. In view of the two year limitation period and the 6 month period within which to serve the claim, they had no reason to do anything in the absence of service of the claim by June 2011.
[96] Notice letters are usually sent before a plaintiff is in a position to assess if they can meet the legislative threshold, as the plaintiff alludes in her own pleading. It is therefore not unusual for insurers to receive a notice that is never followed by an issued statement of claim.
[97] In this case, it is not even clear if notice of the claim was received, or even sent. There is no evidence form counsel with carriage at the relevant time addressing the issue. As a result, the plaintiff’s position regarding prejudice is totally unfounded.
[98] I am also mindful that a considerable period has now passed since this loss occurred and the parties have not yet gone to examinations for discovery. Trying to reconstruct the events that led to the accident so long after the fact will be difficult. When one is looking at a time frame of 6 years, concern about fading memoires is legitimate when liability remains in issue and those memories will have to be relied on.
[99] For all of the above reasons, I conclude that the motion must be dismissed if I am to do justice between the parties.
[100] If counsel are unable to agree as to costs within 30 days, I can be spoken to.
(original signed)
Master Joan M. Haberman
Released: June 13, 2014