COURT FILE NO.: 13-CV-491395
Heard: August 6, 2014, December 5, 2014, March 26, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Van Nguyen v. Hart et al
BEFORE: Master Joan Haberman
COUNSEL: Stoiko, M. for moving party
ENDORSEMENT
Master Haberman :
[1] This motion to extend the time to serve the statement of claim on the defendant, Hart and to either grant an order to allow substituted service on him via his insurer, State Farm, or to dispense with service, first came before me on August 6, 2014. After two further attendances on December 5, 2014 and March 26, 2015 I remain unable to grant the relief sought on the basis of the materials filed. Having given the plaintiff three opportunities to get a proper record before the court in order to establish entitlement to this relief, I am still not satisfied on the evidence. The motion is therefore dismissed.
THE IMPORTANCE OF THESE MOTIONS
[2] Motions seeking this double-barreled relief (extend time to serve and allow substituted service or dispense with service) are often treated by counsel in a perfunctory way. They make one or two attempts to serve, often at an address listed in a motor vehicle accident report that is at least two- years old so, in many cases, no longer current. They show up in court with a motion to extend the time to serve, having only begun their search after their initial but late-in-the-day efforts to serve have failed. There are often large evidentiary gaps between the issuance of the claim and the first effort to serve, and between the failed attempt to serve and any effort to locate the defendant before or after. They “tell” instead of show, relating that “many efforts to locate” were made, but they append copies of none of the actual searches undertaken and fail to explain what was and when they were done or what the results were.
[3] This flimsy evidence is then used to bolster a request to permit an extension of time to serve the claim and substituted service. Though evidence of only minimal efforts to serve is filed, it is assumed that will suffice. Similarly, minimal effort to locate is tendered and expected to be persuasive. Though the address at which counsel seeks to affect substituted service is not well-supported by evidence, or at times, actually shown by the evidence to be a stale address, again, counsel assume that will do.
[4] Counsel is then surprised when the relief they seek is not granted. I see this approach regularly in my court and in “in writing” motions. As a result, I repeatedly teach a mini-course in civil procedure in each of these cases, pointing out all of the deficiencies in the evidence and giving counsel an opportunity to return, with supplementary evidence. Sometimes, this process happens twice. Usually, by the second or third attendance, counsel finally understands the test for each part of the relief sought, so is able to cobble together affidavit evidence to address them.
[5] All of this is incredibly time-consuming. What is listed as a 10-minute motion stretches to 30-45 minutes by the time I have endorsed the record. When the matter returns with new material, the older materials and my endorsement from the first attendance must be reviewed along with the new materials to ensure that the concerns I raised have been addressed and that no new ones have emerged from the new material. Again, this takes far longer than the 10-minutes booked for the motion.
[6] Some counsel question why we go to such lengths to ensure that they present a sound basis justifying an extension request as well as solid evidence supporting the address at which they propose to serve. They have marked the motion as unopposed, as often, no one other than the court knows what they are trying to do, and they don’t understand why care about ensuring that what they propose is appropriate.
[7] Counsel regularly hand up affidavits saying that the defendant, with whom they have had no contact at all, will not be prejudiced when it is clear they have no way of knowing this. They seem to think that the issue of prejudice is best addressed by focusing on the prejudice their client will suffer if the court says “no.”
[8] My response is generally as follows: every time I sign my name to a piece of paper that says “order” at the top, I am cognizant of the fact that I am affecting someone’s rights and obligations. I therefore never do this casually, without ensuring that what I am doing is appropriate in each case. I do read their evidence and I do read it carefully.
[9] I also tell them that there is generally a two-year limitation period and a 6-month timeframe within which to serve for a reason, and that reason is finality for defendants. While limitation periods can only be extended within the parameters of the governing statute, counsel can always bring motion to extend the time for service, but they often fail to appreciate that they must do so on proper evidence so as not to defeat the purpose of this time-limited approach to starting a civil action.
[10] I also explain that, while we never apply the Rules in a rigid way, when we are called upon to exercise discretion, we have to consider the rights of all parties, not simply their client’s position, and that if they miss deadlines and have no acceptable justification for this default to offer the court, the Rules regarding the time frame for service must be applied. If we granted extensions in all cases where they are sought, there Rules would serve no purpose.
[11] When an extension of time to serve is sought, it is therefore critical for the moving party to explain in detail why they were unable to effect service within the 6- month time frame provided by the Rules. Large gaps with no activity directed at locating and serving during that short window are therefore problematic.
[12] Similarly, when leave to affect substituted service is the order a plaintiff is after, he must explain why he believes the address he proposed for service is a current and valid one. Our entire legal system is based on the concept of “notice.” We begin each motion with a “notice” of motion, which drives this point home. Thus, any address that counsel manages to get his hands on will not necessarily do for service.
THE LAW
[13] There are legal tests that apply in both instances. They are, in large part, ignored by many counsel. With respect to extending the time for service, the Ontario Court of Appeal provided guidance in Chiarelli v. Weins 2000 CanLII 3904, when it quoted from an earlier decision:
As Lacourciere said in Laurin v. Foldesi (1979). 23 OR (2d) 331 (CA): “The basic consideration…is whether the [extension of time for service] will advance the just resolution of the dispute, without prejudice or unfairness to the parties.” And, the plaintiff has the onus to prove that extending the time for service will not prejudice the defendant.
[14] For the most part, the law in this area appears to have been decided in the context of cases where the whereabouts of the defendant is known, where he has actually been served with the notice of motion and where he/counsel show up to oppose these motions.
[15] It was, therefore, in the context of an opposed motion that Master Graham held, in Benyon v. Fotopoulos, 2007 CanLII 36074, that while the plaintiff had the onus of showing that the defendant would suffer no prejudice, they would have limited knowledge of the defendant’s circumstances, so there was in fact, an evidentiary burden on a defendant claiming prejudice to provide particulars of it.
[16] Obviously, this approach cannot apply where the plaintiff is not able to establish that motion has been brought on actual notice to the defendant. Generally, the best mode to establish that is to serve him personally – service by mail without support that the address used is a current one will not do.
[17] If the court is not satisfied that the defendant actually had notice or that there is, at least, a reasonable possibility that he did, the court has an obligation to scrutinize the record and to exercise discretion on the basis of the evidence filed by the plaintiff.
[18] Rule 3.02, pursuant to which these motions are generally brought, states that the court may extend the prescribed time, such that the exercise of some discretion is called for. When exercising discretion the court must be fair to all parties, not just do what plaintiff’s counsel asks in order to meet the best interests of their client.
[19] While prejudice is the overriding consideration, there must still be an acceptable explanation for the delay in serving within the 6-month time frame. To simply ignore the quality of the explanation is to ignore the Rules that establish these time frames and to effectively rubber stamp all such requests. That is not consistent with the court exercising its discretion.
[20] The courts have also discussed motions for substituted service. In Chambers v. Muslim, 2007 CarswellOnt 6438, Master Dash dealt with a motion to set aside an order of another master, which allowed substituted service on an insurer. Master Dash held that such a motion should have been brought on notice to that insurer, unless there was evidence that they have already been advised and did not oppose this step. He then examined the general test for substituted service starting with Rule 16.01(1), which states:
Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or of any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interests of justice, may dispense with service.
[21] This provision has been interpreted by case law to mean that the onus is on the plaintiff to show, on proper evidence, that the method they propose for substituted service will have “some likelihood” or a “reasonable possibility” of bringing the proceeding to the defendant’s attention.
[22] This test is an important one as it brings an air of reality to the process. Unless the court is satisfied that there is a reasonable possibility that notice of a proceeding will reach a defendant when an order permitting substituted service as sought is signed, the point of the entire exercise is lost. The court should never pay lip service to these Rules and sign these orders, without any real expectation that they will achieve what is expected: to give a defendant notice of a proceeding. There is no basis to claim that our legal system is predicated on notice to defendants if we stray from it regularly and without justification. Ignoring rather than applying the Rules leads to a Kafka novel.
[23] In Chambers, Master Dash found that the original order should not have been made as the plaintiff had failed to demonstrate that they had taken all reasonable steps …to locate the defendant. That was the starting point. He then went on to discuss whether service via the insurer was appropriate in this case.
[24] He concluded:
In my view, if the plaintiff has made all reasonable efforts to locate and serve the defendant without success, it would be appropriate to order substituted service on the liability insurer, provided that such service was in addition to some other method of service. The second method of service would include mailing to the defendant’s last known address, if there is a reasonable possibility of the mailed copy coming to the defendant’s attention, or by publication in two editions of a newspaper in the locality where the defendants is known to reside or in in a nationally circulated newspaper if there is evidence the defendant resides in Canada. If the defendant’s whereabouts are totally unknown, the appropriate disposition is to dispense with service of the statement of claim and to forward a “courtesy” copy to the insurer. If the motion is served and the insurer fails to respond, the order would be made only where there is some evidence that the insurer provided liability coverage to the defendant on the date of the accident. This could be as simple as the insurer acknowledging in a letter that they insured the defendant on the material date.
[25] On the basis of the foregoing principles, service on the insured through their insurer was set aside and as his whereabouts were unknown, service was dispensed with.
[26] The Chambers case involved an action for solicitor’s negligence and I accept that the principles outlined by the master generally represent a sound approach to these issues.
[27] In a standard motor vehicle case, however, it is particularly important for the court to be quite certain, based on the evidence, that the whereabouts of a defendant are unknown before service is dispensed with. In such cases, the insurer will likely seek to add itself as a statutory third party to the action (as was done in this action) or they will deny coverage outright if they cannot locate the insured to obtain his cooperation in defending the claim.
[28] An insured is expected to keep his address current with both the Ministry of Transportation and his auto insurer, but if his policy expired and was not renewed after the accident, or where his licence is under suspension, it would not be reasonable to expect that he will alert his insurer or the ministry to a new address. Many defendants do not understand that it is in their own interest to take these steps as they may fail to recognize that they have ongoing business with the insurer, who may need to find them if they are sued during the life of the policy.
[29] As a result, it is quite possible that dispensing with service will still leave a plaintiff without a remedy after having spent time and funds on a law suit, or put a defendant in jeopardy, where the efforts made to find him were inadequate. That is why the court must give pause before signing these orders – this is certainly not a rubber stamp situation, as many counsel seem to believe.
WHAT HAPPENED HERE
[30] The case now before the court was started by statement of claim, issued on October 24, 2013, so the time for service expired on April 24, 2014. The action arises from a motor vehicle accident that occurred on November 11, 2011.
[31] There were three attendances before the court and three records were ultimately filed. In each of the records, the deponent Ms. Cao jumped around in her evidence. She asserts facts that lead to one conclusion, then others later on which suggest something very different. The asserted facts are not arranged chronologically so trying to follow the story line was far from straightforward, perhaps intentionally so.
August 6, 2014
[32] The first attendance was on August 6, 2014. While that record was not among the materials before me last day or in my possession now (it appears counsel neglected to praecipe it), I do have the Case History to refer to, which contains my endorsement of that day. That provides some assistance in reconstructing what I did and did not have before me in evidence that day.
[33] My detailed endorsement from the initial attendance in August 2014 indicates that there were 6 areas of the motion record that caused me concern. Among them were these four:
I needed an explanation for the 5-month gap between issuance if the claim in October 2013 and March 2014, when the affidavit of attempted service was received from the process server shortly before the 6-month service window for service closed;
the evidence indicated that the plaintiff’s firm had written to the defendant, Hart, at the Brett Ave. address, though their own evidence indicated it was no longer current;
none of the actual searches undertaken to locate Hart referred to in 4 paragraphs of the affidavit were appended so I was unable to review and assess the results; and
no MVA licence search was appended to show the status of Hart’s licence. If a licence is under suspension, and the address provided for the defendant on the licence search is the same as that at which service was tried and failed, service at that address does not have “some likelihood” or a “reasonable possibility” of bringing the matter to the defendant’s attention. It is therefore important to know the status of the licence.
[34] My endorsement also made it clear that unless all aspects of this order have been properly addressed in an affidavit properly served and filed, the motion will be dismissed next day. I note that the claim had already expired by the time this matter appeared on a court list.
[35] On the same date, the firm received a letter from counsel for State Farm, indicating they were moving to have themselves added as a statutory third party to the action. Clearly, service on Hart through them would not have been appropriate in light of this – rather than acknowledging coverage, they were effectively taking a position adverse in interest to Hart’s. State Farm’s motion to that effect was served on September 16, 2014.
December 5, 2014
[36] The motion was adjourned to my list for December 5, 2014, and instead of filing supplementary materials as my endorsement directed, a new record was filed in November. The plaintiff continued to seek service on Hart through his purported insurer, State Farm, though it was clear by this time that they were taking an off-cover position.
[37] Yen Cao, a law clerk at the law firm, swore the evidence relied on here, too. Although Cao does not say when her firm was retained, she does include in the record letters sent by her firm between May 30, 2013, and September 11, 2014. From this, I infer that counsel was retained no later than May 30, 2013, so there was ample time to confirm Hart’s address before the claim was issused.
[38] Cao claims that a variety of request letters were sent regarding the damage aspect of the claim on May 30, 2013 and copies of these are appended, but it is clear that at that time, no one appears to have thought about putting the defendant on notice.
[39] There is no evidence to indicate that any effort was made before issuing the claim to verify that Hart still resided at the address he listed, almost two years earlier, on the self-reporting collision report: 9 Brett Ave., North York.
[40] In fact, no notice letters were sent to Hart or his presumed insurer, State Farm, until October 11, 2013, and the letter to Hart was sent to the Brett Ave. address. This was only a few days before the claim was issued. There is no evidence as to why these letters were not sent earlier.
[41] While Cao’s affidavit indicates that that Ms. Brar of the office instructed the process server to serve the claim on October 22, 2013, the claim was not issued until October 24. A review of the note containing these instructions actually says that the process server was to first issue the claim and to then serve it. No instructions at all were provided regarding service aside from this.
[42] It is understood by plaintiff’s counsel that, under the Rules, a claim must be served within 6 months of issuance. This is not a long period of time. This short widow for service can be particularly problematic when notice letter is mailed close to the issuance of the claim, as it leaves insufficient time for the letter to be returned if the defendant moved after the accident. This, in turn, leaves little or no opportunity to conduct searches to locate the defendant to try to serve him again if the notice letter is returned.
[43] In the context of the Rule and the facts here, Cao states the following at paragraph 6 of her affidavit:
I am further advised by Ms. Brar, and do verily believe that when there is no sense of urgency, our Process Server is in the habit of keeping Affidavits of Service for several months, and then delivering them to our office in a batch along with other Affidavits of Service corresponding to other civil actions. Such Affidavits of Service would correspond with other actions for which our office has been retained by the plaintiff.
[44] Cao adds that she was advised by Brar that the process server was not advised of any immediate urgency in this case. This is confirmed by the lack of instruction on the note to him.
[45] This evidence is located in the first portion of Cao’s affidavit, and it in paragraph 11 she makes it clear that the office did not receive the affidavits of service (for this action) until March 2014, presumably because her office does not see these things as urgent and her process server would rather provide their work in batches rather than one by one, as completed.
[46] The natural assumption the court is supposed to draw from this evidence is that, until they received the affidavit of attempted service, the firm was not aware that the claim had not been served on Hart. There is no suggestion, in this part of the affidavit, that despite not having received the affidavit of attempted service from the process server, the firm had been told or otherwise knew that service had not been affected at an earlier date. This is the evidence they rely on to explain their failure to try to locate and serve Hart between October 2013 and March 2014.
[47] Cao goes on to then explain that on March 19, 2014, so soon after receiving the affidavit of attempted service and likely in response to it, the firm ordered a licence search for Hart.
[48] To begin with, this evidence is hearsay. As it was Brar who actually instructed the process server and who appears to be informing Cao throughout about this issue, it is not clear – and it should be- why the court does not have Brar’s evidence.
[49] Further, what the process server’s regular habit was is of no relevance on these facts, as, in Hart’s case, there was no affidavit of service to provide - only an affidavit of attempted service, something that had to be dealt with quickly. The affidavit of attempted service indicated that the male occupant of the Brett Ave. address advised that he had been living there for about two years and that he believed Hart may have been a prior owner, as mail continued to arrive for him from time to time.
[50] Finally, it turns out that when the firm received the affidavit of attempted service may be a red herring, as mater in this affidavit, Cao suggests that they were actually told far earlier than March 2014 that Hart had not been served. I will return to that when I discuss the third affidavit.
[51] Cao states that the licence search undertaken for Hart in March 2014 produced the same Brett Ave. address. However, no MTO licence search was attached as an exhibit to her evidence. Instead, the exhibit relied on to support this evidence is a report from Cyberbahn based on the search they performed, with no reference to the status of the licence.
[52] The firm relied on the Cyberbahn report as the basis for their belief that the Brett Ave. address remained current despite what the process server had been told when he had attempted to serve Hart at this address earlier. They therefore wrote to Hart again at the same address and to State Farm on March 21, 2014, enclosing a copy of the notice of motion with respect to this matter. There is no reference to a response or lack of one from either Hart or State Farm.
[53] All defendants were served with the motion record on July 18, 2014. The plaintiff again used the Brett Ave. address for Hart, though the information contained within it conflicts with the affidavit of attempted service. Although Cao appears to suggest that the firm believed that the Brett address was a good one for service of the notice of motion, no attempt was made to serve Hart with the statement of claim at this address there after the first attempt failed. This is not explained.
[54] Cao’s evidence then quickly goes off the rails. Despite sending a letter to Hart at the Brett Ave. address and purportedly serving him with these materials at that address, in paragraph 18 of her affidavit, Cao states that Hart was served at this address through inadvertence as the clerk who did the work, Ms. Ouyang, overlooked the fact that he had moved from that address. Again this is hearsay and again, there is no evidence explaining why this clerk did not provide her own affidavit.
[55] What is clear is that when Cao swore this affidavit in November 2014, she was already aware that the Brett Ave. address was not a good address for service, yet it was used repeatedly. The fact that Cao, Brar and this clerk all seemed to have hands on this file may account for the confusion. One hand clearly did not seem to know what the other had already tried.
[56] Cao goes on in her affidavit to state that on November 15, 2014, the process server tried to serve Hart at 343 Elmwood Drive W., Boulton. Despite the very detailed endorsement I had already provided following the August attendance, and though this second record was meant to address the deficiencies I identified at that time, that address is simply thrown in here, with no indication as to how or when the firm obtained it, at least, not until paragraph 41, several pages later.
[57] Cao travels back in time and claims that Mr. Gupta, a student at the firm, spoke with a State Farm claims representative on July 8, 2014 and learned about a further possible address for Hart on Elmwood Drive. When service was attempted at this address in November 2014, the process server was advised by the female resident that Hart was the former owner and that he had moved out only a few months earlier, in August 2014.
[58] Thus, this address was obtained before Hart had move, while Hart still lived at the Elmwood address, but, for some reason not disclosed in the evidence, service at this address was not attempted for at least a month. Had the firm undertaken real and proper efforts to locate Hart after the first unsuccessful attempt to serve him, there is no reason to believe they would not have found him. At the Elmwood Drive address.
[59] Hearsay evidence is again relied on as the basis of an assertion that the plaintiff always intended to proceed with the action. There is no evidence from him directly.
[60] After relating all of the above, Cao chooses this point in her evidence to discuss the general practice in the firm, stating that the when our process server advises that one of the defendants could not be served (our practice) is to immediately make further efforts to locate the defendant, so further service efforts can be made.
[61] Standard practice is not material to the issue before the court- what was done in this instance is. Cao does not say standard practice was adhered to in this case and her earlier evidence about only getting the affidavit of attempted service from the process server in March 2014 suggests that standard practice was not adhered to here. There is no evidence as to when the firm was told about the failed attempt to serve in October 2013, and no evidence about search efforts made by the process server thereafter. This evidence, such as it is, effectively leads to a dead end.
[62] Cao adds that it is standard procedure in our office to diarize ten days to two weeks in advance of the deadline of service. This procedure permits us time to perform additional searches to locate an address for any unserved defendants, and subsequently make efforts to locate them. Through inadvertence, the dates were not recorded by the responsible (unamed) clerk at our office. Our office was thus unable to perform additional searches prior to the deadline.
[63] It is unclear how Cao expects the court to deal with this evidence about standard practice, in light of what she had said earlier about not getting the affidavit of attempted service back until March 2014. Either the firm knew, before March 2014, that Hart had not been served or they didn’t. On this evidence, this very basic issue remains unresolved in the evidence and left to the court to infer.
[64] In view of the fact that the Cyberbahn search was not conducted until March 19, 2014, it seems that the firm either did not know, or they were told and then overlooked the fact that the claim had not been served. This is not something the court should have to guess at.
[65] The term “inadvertence” is then used three times here. However, as the Cyberbahn search was performed on March 19, 2014, which clearly means the plaintiff were already undertaking search efforts for Hart at that point, it remains unclear why nothing further was done at that time. There was still over a month left for further searches, whether or not the deadline had been diarized. All counsel or when of the many clerks who appear to have worked on this file had to do was look at the statement of claim and count 6 months to know when it would expire.
[66] It is also unclear who this unnamed clerk was – was she one of the two Cao has already referred to, herself or yet a fourth clerk? Why has Cao named the others but not her?
[67] In terms of prejudice, all Cao says is that there won’t be any to any of the defendants if the relief is granted but that there would be to her client if it isn’t. No further information as to why there would be no prejudice to the defendant is set out. There is neither a reference to the ongoing availability of witnesses nor an assertion that all necessary medical and loss of income documents have been obtained and retained.
[68] Despite the fact that State Farm had indicating that they were moving to add themselves as a statutory third party to the action, the plaintiff still sought to serve Hart through that insurer in the second hearing, relying on the fact that the insurer already has counsel for their off-cover position.
[69] Although various social media and Canada 411 were apparently reviewed in further efforts to locate Hart, these all date from July 2014, four months after, March 2014 by which time the firm was aware that a locate mission had to be undertaken. They are also not documented. At no time was anyone retained to do a more in depth locate of this defendant. It seems Hart may have owned the properties at both Brett Ave. and Elmwood Drive, yet no title sub-searches have been undertaken. If he owned Elmwood Drive until August 2014, a new address may well appear on court filed documents related to the sale of the property. Further, there would be address changes filed with utility providers for those properties. There are still many places to look before deeming Hart “unservable.”
[70] On the basis of the above evidence, I was not prepared to allow the extension, service on as insurer taking an off-cover position, or to dispense with service.
[71] My endorsement of that day again went into detail about ongoing concerns raised last day but not yet addressed, as well as new concerns. I listed a total of 7 issues, starting with the fact that, instead of a supplementary affidavit having been filed, an entirely new record was filed that incorporated what had been filed previously, which meant my notes were no longer available to expedite my reading.
[72] Among the concerns I pointed out following the second attendance in December 2014 were the following:
Why does Cao say service was not urgent, when the period prescribed by the Rule is only 6 months;
If the process server does not return affidavits of service for months, isn’t he instructed to alert counsel when service fails so steps can be taken immediately to initiate a “locate”;
Again, no MTO search was provided to substantiate the Brett Ave. address;
According to paragraph 42 of the Cao affidavit counsel actually obtained the Elmwood address on July 8, 2014. This is buried near the end of the affidavit. There is no explanation why no attempt was made to serve at that address until November 25, 2014;
“general practice” discussed at paragraph 26 conflicts with the evidence at paragraph 6 so it is not clear when the firm knew that Hart was not served at the Brett Ave. address;
Why are they pursuing service through State Farm when the latter is taking an off-cover position?
[73] I adjourned the motion sine die at that time, yet again for further and better evidence. Counsel again failed to praecipe the file so had to file a duplicate of the record used at this hearing.
March 26, 2015
[74] The matter finally came back before me on March 26, 2015, this time with a supplementary affidavit. The same relief was requested, including leave to serve Hart through State Farm, though it was acknowledged that they had taken an off-cover position by then. Cao quotes from State Farm’s motion record to be added as a statutory third party, claiming that said they would not be prejudiced in doing so. I have no idea what that has to do with any of this but the order allowing the insurer to participate in that capacity was made on January 2, 2015.
[75] As the insurer is not confirming that they provided coverage to Hart as at the date of loss, as per Chambers, a case provided to the court by plaintiff’s counsel, service on Hart through them would not be an appropriate order for substituted service.
[76] Although this is a supplementary affidavit, once again, Cao repeats what she has already said twice before. For the first time, Cao refers to an unnamed “responsible clerk” who did not turn her mind to performing further searches as she was focused on the motion to extend time to serve, which the Cao says they believed they should bring before the expiry of the deadline – which they, in fact, failed to do.
[77] It seems the clerk also failed to consider that they could have served Hart out of time if they thought they knew where he was, and then sought to extend the time to serve and to validate service. There is no evidence explaining why this was not done.
[78] Cao effectively repeats what she has already said, but then goes on to explain that no MTO licence search could be provided as she was told by Karen de Guzman at Cyberbahn that they were unable to provide the actual MTO searches due to confidentiality. She also refers to obtaining the same information from Mr. Stoiko, counsel who appeared before me, based on is conversation with “MTO” on February 5, 2015, hence double-hearsay.
[79] That does not explain how it is that other counsel frequently include an MTO search in the record they put before the court on motions seeking substituted service. If a report only is filed instead, it usually includes reference to the status of the defendant’s licence. If not, the order is not granted.
[80] Cao notes that the July 8, 2014 searches that had not been documented were repeated on November 13, 2014 by an articling student and this time, he retained screen shots of his work. Again, Cao relies on hearsay, indicating that the student believes it was the same as what he saw in July. I am uncertain how the student was able to pin point the day he performed this work without having retained any of the results.
[81] I have reviewed the searches undertaken and none limit the search to Ontario or even to Canada. The Google search refers to a Dale Hart, but nothing from that site was been included to allow me to conclude that this does not refer to this defendant. The Facebook search is also problematic as the names it generated are all Asian names and bear no relationship at all to Brandon, Dale or Hart. In fact, it appears the student provided a search for the plaintiff’s name, Van Nguyen, which was cut and pasted onto the defendant’s search name. This is troubling.
[82] The Canada 411 search was conducted for Toronto, Ontario though the last address the plaintiff had for this defendant was in Bolton and the reverse address search was for the Brett Ave. address, which preceded the Elmwood Drive, Bolton address, so already known to be stale.
[83] As for conducting a reverse address search for Elmwood Drive, it is unclear why the plaintiff waited until November 2014 before undertaking this search and why they tried to serve Hart there 2 days after obtaining results that suggested he was no longer at that address.
[84] In terms of why Hart was not served when the plaintiff knew he had moved from Brett Ave. to Elmwood Drive (information they obtained on July 8, 2014 and which could have obtained earlier), Cao’s evidence is that as the claim had already expired by then so instead they brought their motion to extend the time to serve. Yet, they did eventually try to serve him at that address on November 15, 2014, though they had yet to obtain an extension. This is not explained.
[85] What is of particular concern is the alleged inability to address my concerns as a result of inability to read my handwriting. My handwriting has long been a problem for me, and hence, for counsel so for at least the last 12 years, my various assistants, when asked by counsel for assistance reading my endorsements, instruct them as I have requested: they are told to send in a transcription of as much as they can make out, in a large font, leaving large enough spaces for me to write in the rest.
[86] I type longer endorsement and reasons but I cannot possibly type all endorsements as we hear far too many motions to make that a viable approach. All of the masters share only one secretary, and she cannot possibly type everything for all of us. Typing endorsements is not part of the work assigned to our assistants by the Ministry and, in any event, those staff members are all shared. This is the best I can do and it is how I have been working for many years without any problem.
[87] When Cao suggests they were simply told they could not get a transcription of the endorsement, they have left out an important part of their discussion with my assistant. I see from that they have appended as an exhibit that, in any event, they did manage to get the crux of what I had written, so this is a poor justification for having failed to meet the mark.
[88] In this third affidavit, there is, again, evidence that conflicts with what was stated in two earlier affidavits. Cao had said earlier that the general practice is for the process server to tell them when they are unable to locate a defendant so they can undertake further search efforts. If that is the case, how is Cao’s evidence explained at paragraph 55, where she now says:
If the affidavits of service (or attempted service) for this action were not returned to our office within 10 days of the deadline for service, we would have requested that our process server return them to us, on an urgent basis.
[89] The earlier evidence is again contradicted at paragraph 58, where Cao now denies that the process server is instructed to immediately report failed attempts to serve.
[90] Although this is the firm’s third affidavit, it is here, for the first time, that Cao states that the affidavit of attempted service on Hart in October 2013 was returned to the firm on March 17, 2014, instead of simply saying “March 2014”. How did they suddenly get the date?
[91] Although Cao acknowledges that State Farm has added itself as a statutory third party to the action, she states that as they have already appointed an adjuster, they are aware of the present claim and can easily assign counsel. This displays a total lack of understanding of what it means when an insurer adds itself as a third party to an action.
[92] In view of all of the foregoing, I am not prepared to extend the time for service of the statement of claim. The evidence of what was done to serve or locate Hart is vague, amounts to hearsay on important questions, and these three affidavits contain conflicting information within and among themselves.
[93] Had I allowed the extension, I would not have been prepared to grant leave to serve through State Farm, in view of their current status. I would also have refused to dispense with service as I have identified searches that could and should have been undertaken. Those that were done were done too late, not done properly and are incomplete.
[94] After three court attendances and three chances to put a proper record before the court, I believe I have given the plaintiff ample opportunity to provide a compelling position and, in my view, this they have failed to do. The motion is therefore dismissed.
Master Joan M. Haberman
Released: April 10, 2015