Noory. v. Shukour, 2015 ONSC 3040
COURT FILE NO. : CV-12-460686-00A1
MOTION HEARD: 20150512
REASONS RELEASED: 20150512
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
Shees Abarnoosh.
Plaintiff
- and-
Wias Noory
Defendants
- and-
Abdul Bashur Abdul Shukour
Third Party
BEFORE: MASTER D. E. SHORT
COUNSEL:
Michael Kealy Fax: (416) 340 6817
- Agent for the Defendant (moving party)
Michael Knez Fax: (416) 593-7760
- for the Third Party
RELEASED: May 12 2015
Endorsement
[1] Rule 29, dealing with third party claims, reads in part:
29.01 A defendant may commence a third party claim against any person who is not a party to the action and who,
(a) is or may be liable to the defendant for all or part of the plaintiffs claim;
(b) is or may be liable to the defendant for an independent claim for damages or other relief arising out of,
(i) a transaction or occurrence or series of transactions or occurrences involved in the main action, or
(ii) a related transaction or occurrence or series of transactions or occurrences; or
(c) should be bound by the determination of an issue arising between the plaintiff and the defendant.
[2] I am satisfied that a claim against Mr Shukour would fall within these provisions such that in appropriate circumstances a claim could be made. However the third party asserts that the time for serving such a claim has long elapsed. The applicable portion of Rule 29 reads:
29.02 (1) A third party claim (Form 29A) shall be issued within 10 days after the defendant delivers a statement of defence, or at any time before the defendant is noted in default.
Exception, reply
(1.1) A third party claim may be issued within 10 days after the plaintiff delivers a reply in the main action to the defendant's statement of defence.
Exceptions, consent and leave
(1.2) A third party claim may be issued at any time with the plaintiffs consent or with leave, which the court shall grant unless the plaintiff would be prejudiced thereby. [my emphasis]
[3] The portion of rule dealing with service of the third-party claim reads as follows:
(2) a third party claim shall be served on the third party personally or by an alternative to personal service under rule 16.03, together with all the pleadings previously delivered in the main action, or in any counterclaim, cross-claim or third-party or subsequent claim in the main action, within 30 days after the 3rd party claim is issued.
[4] In this matter, counsel for the defendant issued a statement of defence dated December 20, 2012. That pleading was served on February 5, 2013.
[5] On December 28, 2012 (8 days after the statement of defence was issued) a 3rd party claim was issued by the court at. Counsel’s request against Abdul Bashir Abdul Shukour.
[6] The affidavit filed by counsel before me indicates that there are 2 related actions arising out of the same motor vehicle accident. One is referred to as Qul v. Shukour and the other as Shukour v. Noory.
[7] Not surprisingly, global discoveries were scheduled for June 2014 with respect to the 3 matters.
[8] The only affidavit filed on the motion before me notes that in the course of preparing for those discoveries more than a year earlier, a letter was sent to Mr. Shukour’s defence lawyer in the Qul action:
- On January 21, 2013, wrote to counsel in all 3 actions, including Shukour’s defence lawyer in that Qul action, Mr. Betts, about the discoveries and stated:
“As noted above, an action has been commenced against our client, Wias Noory, by Mr. Abarnoosh. We delivered a Third Party Claim naming A Shukour in that action. We have not received a defence to the Third-Party Claim.”
[9] The problem that gives rise to this case is that this Third Party Claim had not in fact been served. My difficulty is that counsel now opposing this motion, having received the January 21, 2013 letter, did not write back to indicate that the Third Party Claim had not been received or to otherwise denied that the defence was required. Now they oppose an order extending the time for service of the third-party claim without filing any affidavit information establishing any potential prejudice flowing from my granting an order extending the time.
[10] The global mediation proceeded on October 7, 2014, and it was at that mediation that Mr. Betts first acknowledged that he had no knowledge of the third-party claim against a car. Counsel reviewed her file and could not locate proof of service of the third-party claim. She therefore concluded on her review of the file that the pleading had not been served due to inadvertence.
[11] To my mind, this is not a case where people have an prejudiced by not being aware of liability issues flowing from the motor vehicle accident opportunities within the 3 actions existed and were exercised, to conduct examinations for discovery. If further examination with respect to the third-party claim is necessary that can take place.
[12] Counsel for the moving party relies upon the Court of Appeal decision in Chiarelli v. Wiens, 46 O.R.(3d) 780. That case dealt with the late service of a statement of claim several years later.
[13] At paragraph 17 of the decision Justice Laskin observed:
“the court should not fix an advance rules or guidelines were an extension should be refused. Each case should be decided on its facts., Focusing on as the motions judge did. In this case, on whether the defence is prejudiced by the delay. Undoubtedly the delay in this case-over 6 years from the expiry date for the serving of the claim was-was significant, much longer than in most, if not all of the decided cases when extension has been granted. However, the motions judge recognized this delay and still found no prejudice…”
[14] While there are no cases apparently dealing with extension of time for third-party claims I see no reason why the same approach is not appropriate. In this case I am satisfied that there was absolutely no demonstrated prejudice to the proposed third party, given the fact that he has had counsel intimately involved in the conducting of the litigation and mediations to date.
[15] In the circumstances, I would have thought this motion ought to have proceeded, on consent. Obviously, those were not the instructions of counsel for the proposed third party. The motion had therefore to be brought and costs incurred.
[16] Counsel for the moving party sought costs of substantial indemnity basis in the circumstances. Nevertheless, in my view they are seeking an indulgence which flows from an error , which caused the problem.
[17] In the circumstances, I think, partial indemnity costs are appropriate and adjusting for proportionality have fixed the amount payable by the respondent within 30 days at $4500.
E.103/DS __________________
Master D.E. Short