BARRIE COURT FILE NO.: 11-1270

DATE: 20141223

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Patricia Anne Quinn, Hubert Quinn, Damien Michael Francis Quinn, Sean Joseph Quinn, Rory Emmett Quinn and Angela Joyce, Plaintiffs

AND:

Michael R. Morton, State Farm Mutual Automobile Insurance Company, and State Farm Fire and Casualty Company, Defendants

AND:

State Farm Mutual Automobile Insurance Company, Added by Order Pursuant to Section 258(1) of the Insurance Act, R.S.O. 1990, c.I.8, as amended, Statutory Third Party

BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN

COUNSEL:

A. Chapman, Counsel for the Moving Party (Defendant)

S. Morris, Counsel for the Responding Party (Statutory Third Party in Right of the Plaintiff, State Farm Mutual Automobile Insurance Company)

S. Morris for the Moving Party, State Farm Mutual Automobile Insurance Company (in Right of the Plaintiff, Patricia Anne Quinn)

A. Chapman, Counsel for the Responding Party (Defendant) M.R. Morton

HEARD: October 3, 2014 and by written supplementary submissions from both counsel

ENDORSEMENT

[1] I released an endorsement on November 5, 2014 inviting a factum and further affidavit material from Mr. Morton on the issue whether there is a viable defence or partial defence tom the action. A further affidavit was filed by Mr. Morton and a factum were filed within the time limit. On December 8, 2014, I had my assistant inform counsel for the plaintiff as a subrogated claim by the insurer. I have received a factum and book of authorities from Ms. Morris. She submits that the recent case law in such situations of a plea of guilty followed later by a submission by the defence that the accident happened quite differently from the police investigation, evidence of conviction is given conclusive weight. K.F. v. White 2001 24020 (ON CA), [2001] O.J. No. 847 (CA).

[2] It is not a case of failure to serve. Judgment was given on a contested motion for judgment after a criminal trial. On the motion the prior criminal conviction was given conclusive weight.

[3] I am now satisfied that Mr. Morton has an arguable defence to the amount claimed or a portion thereof. As yet there is no other evidence to corroborate Mr. Morton’s evidence except that his plea of guilty indicated a contrary stance closer to the time of events.

[4] The problem for the insurer now is that the service was not valid at the time of service in 2012. I have reviewed the affidavit of the process server and the rule under which service was said to be valid. The process server swore that he left the copy of the statement of claim at the place of residence “with Ms. Stacey Nash, an adult person residing in the same household as the defendant. Ms. Nash is the common law wife of the defendant”. The plaintiff/insurer’s counsel filed an affidavit of Ms. Nash. Both she and Mr. Morton in his affidavit agree that he had not lived at the address where Ms. Nash was served since January 2011. Therefore they were no longer members of the same household as of February 6, 2012, the date of attempted service.

[5] The problem with the affidavit of the process server is that it fails to complete the information component require by rule 16.03(5). The rule requires that:

• There was an attempt to effect personal service “at a person’s place of residence” and for any reason it could not be effected;

• A copy of the document is to be left in a sealed envelope addressed to the person “at the place of residence”

• The sealed envelope is to be left with anyone who appears to be an adult member of the same household.

[6] Another copy is to be mailed to “the place of residence”. That mailing was done to the same address, 167 Letitia Street, Barrie but not to the “place of residence “of Mr. Morton. By then, he was living with his mother and had been since 2011 at 20 Hadden Crescent, Barrie.

[7] The process server, from the wording of the affidavit, confirmed only that Ms. Nash was the common law wife of the defendant. He neither confirmed that the Letitia Street address was the place of residence of the defendant nor did his affidavit state that he left the document in a sealed envelope addressed to the defendant’s place of residence.

[8] Morton had a reason for not updating his address with the motor vehicles license branch. He did not update his residential address with the ministry because he has had no license since the accident on December 23, 2009, and won’t until January 26, 2016.

[9] In these circumstances, and considering the size of the judgment and the failure by the insurer to try to contact Mr. Morton in the two years from the accident until attempted service of the statement of claim and the four years prior to the settlement of this action, the failure to serve Mr Morton personally and the failure of the process server to verify Mr. Morton’s place of residence raises the problem that I did not fully realize when my first endorsement issued, i.e. that Mr. Morton has never been validly served with the claim or any other document in this action.

[10] It may be that on a motion for judgment, without any corroborating evidence, Mr. Morton may suffer the same fate. But that is for another day and perhaps on more evidence than I have or need for this motion.

[11] In view of this fundamental breach of the civil rules and of natural justice rules requiring a person o have notice of the case against him, and given the size of the judgment (over $1.3 million), and that there is an arguable defence, the defendant’s motion to set aside the noting of pleadings closed is set aside and the defendant Morton is given leave to file a statement of defence within twenty days, deliver his affidavit of documents within 60 days, complete all motions and examinations for discovery within six months, and have the action set down for trial by September 30, 2015 and placed on the trial list for the November 2015 sittings.

[12] As this was a motion for an indulgence, there will be no costs ordered.

HOWDEN J.

Date: December 23, 2014