SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-CV-495651
MOTION HEARD: March 17, 2015

Re: Sanghyun Nam

Plaintiff

v.

Hyung Ju Kim, Best Star I Inc c.ob. as
Shout Karaoke Bar and Junghee Choi

Defendants

BEFORE: Master Thomas Hawkins

APPEARANCES:
Payam Ezzatian for moving plaintiff
F (416) 649-0001

Matthew Miller for responding defendants
Best Star I Inc. c.o.b. as
Shout Karaoke Bar and Junghee Choi
F (416) 360-0146

No one for responding defendant Hyung Ju Kim

REASONS FOR DECISION

Nature of Motion

[1] In this action for damages for assault and other civil wrongs, the plaintiff moves for an order validating service of the amended statement of claim on the three defendants. An order validating service of the amended statement of claim is necessary in part because the defendant Hyung Ju Kim (“Kim”) was never personally served with the amended statement of claim, and in part because the defendants Best Star I Inc. (“Best Star”) and Junghee Choi (“Choi”) were personally served with the amended statement of claim after the six month time period for service of a statement of claim had expired.

[2] The six month time period for service of a statement of claim is laid down in subrule 14.08(1). That subrule provides as follows.

Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued.

[3] Subrules 3.01(1) and (2) are also relevant. These subrules provide as follows.

(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.

(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.

[4] Subrule (3) has no application to the present motion.

Underlying Facts

[5] The local court registrar issued the original statement of claim on December 30, 2013. Under subrule 14.08(1) the time for service of that original statement of claim expired on June 30, 2014.

[6] For reasons that were not disclosed to me, the lawyer who first had carriage of this action (whom I will call lawyer S.J.) did not have the statement of claim served on any of the defendants. On March 31, 2014 lawyer S.J. rather abruptly left the law firm representing the plaintiff.

[7] Responsibility for the prosecution of this action then passed to a second lawyer at the same law firm, whom I will call lawyer T.P. Lawyer T.P. reviewed the plaintiff’s file and discovered that the statement of claim had not been served on any of the defendants. Lawyer T.P. also reviewed the statement of claim which lawyer S.J. had drafted and felt that it was deficient. Lawyer T.P. then redrafted the statement of claim and had the local registrar amend the statement of claim on July 31, 2014. Since the amendments to the original statement of claim did not involve the addition substitution or deletion of any party and pleadings in this action had not then closed, lawyer T.P. was able to have the original statement of claim amended by the local registrar on the authority of rule 26.02(a) without leave of the court.

[8] Rule 26.02(a) provides as follows.

A party may amend the parties’ pleading,

(a) without leave, before the close of pleadings if the amendment does not include or necessitate the addition deletion or substitution of a party to the action …

[9] Subrule 26.04(1) directs that an amended pleading be served “forthwith”. Amending a statement of claim does not have the effect of extending the time for service of the amended statement of claim for a further six months.

[10] Without first seeking from this court an extension of the June 30, 2014 deadline for service of the amended statement of claim, lawyer T.P. attempted to have the three defendants served with that pleading. He met with some success.

[11] Best Star was served with the amended statement of claim on August 13, 2014. This was about six weeks after the deadline for service had expired.

[12] Choi was served with the amended statement of claim on November 5, 2014. This was about five months after the deadline for service had expired.

[13] Kim has never been personally served with the amended statement of claim. On August 13, 2014 a process server attempted to serve Kim with the amended statement of claim at 33 Empress Avenue suite 2202 in Toronto. He had the building security guard call suite 2202. The person who answered the call told the security guard that on one by the name of Hyung Ju Kim lived there.

[14] In December 2013 lawyer S.J. had retained a firm of private investigators to locate Kim. This firm reported to lawyer S.J. that Kim likely lived with his parents at the Empress Avenue address I have just mentioned.

[15] After the unsuccessful attempt to serve Kim personally with the amended statement of claim at the Empress Avenue address, Mr. Ezzatian served Kim on November 24, 2014 by regular mail addressed to Kim at the Empress Avenue address. Mr. Ezzatian’s affidavit of service states that he served Kim with the statement of claim, not the amended statement of claim. This reference to the statement of claim may be an error.

[16] If this was an error, it was of no consequence for the following reason. On the same day Kim was served by mail at the Empress Avenue address with the motion record for this motion. The motion record contains both the original statement of claim and the amended statement of claim.

[17] Be that as it may, this service was irregular because the plaintiff’s lawyers did not first obtain an order for substitutional service of the amended statement of claim on Kim by mail.

[18] Lawyer T.P. then brought a motion for an order validating service of the statement of claim on the three defendants and for other relief. This reference in the notice of motion to the statement of claim and not the amended statement of claim is definitely an error because the supporting affidavit of Michael Lee, a law student in the office of the plaintiff’s lawyers, makes repeated references to the amended statement of claim when describing events after July 31, 2014.

Motion Before Master Graham

[19] The motion came before Master Graham on December 10, 2014. Mr. Ezzatian had served the motion record on Kim and Best Star by mail addressed to them at their last known addresses. Choi does not appear to have been served with the motion record at all. Choi is the president, secretary and a director of Best Star. The motion record doubtless came to her attention when it was mailed to Best Star.

[20] No one appeared in opposition to the motion. However, Mr. Ezzatian informed Master Graham that both Best Star and Choi had retained defense counsel who wished to have an adjournment of the motion so that he could oppose the motion.

[21] Master Graham adjourned the motion in part to accommodate defence counsel’s request and in part because he felt that the information in the private investigator’s report (which was an exhibit to the Lee affidavit supporting the motion) as to Kim’s whereabouts was not a sufficient basis on which to order substitutional service on Kim. The report stated that it was based on “preliminary research”, Master Graham noted. Master Graham directed Mr. Ezzatian to provide “better evidence”.

Motion Before Me

[22] The motion came before me on March 17, 2015. The motion materials then included a supplementary affidavit from Michael Lee. This affidavit was supplementary to his affidavit in the motion record before Master Graham.

[23] I heard this motion on March 17, 2015. Counsel for Best Star and Choi opposed the motion but did not file any materials. No one appeared for Kim.

[24] Much of the supplementary Lee affidavit deals with more current information on the whereabouts of Kim. Several different sources place his residence at the Empress Avenue address previously mentioned.

[25] Kim was criminally charged with assaulting the plaintiff. He pleaded guilty and was convicted. Materials in the possession of the crown place Kim at the Empress Avenue address.

[26] The plaintiff’s lawyers obtained Kim’s driver’s license number from records of Kim’s criminal proceedings and conducted a Ministry of Transportation search on February 18, 2015. This revealed the same Empress Avenue address for Kim.

[27] All in all, I am satisfied that the correct and current residence address for Kim is the Empress Avenue address.

[28] In Chiarelli v. Weins, 2000 3904 (ON CA), [2000] O.J. No 296 Laskin J.A. delivered the decision of the Court of Appeal for Ontario in an appeal from a decision of the Divisional Court dismissing a motion for an order extending the time for service of a statement of claim. The time extension sought was about six years.

[29] Laskin J.A. said (at paragraphs 9 and 10) that the key issue on a motion to extend the time for service of the statement of claim was prejudice and that “the court should be concerned mainly with the rights of litigants not with the conduct of counsel”.

[30] At paragraph 12 Laskin J.A. said

“It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details. The defence did not do that in this case.”

[31] Defence counsel on this motion was doubtless aware of Chiarelli before this motion was argued because on December 10, 2014 Master Graham directed Mr. Ezzatian to serve the decision on defence counsel. Mr. Ezzatian had this done on March 6, 2015.

[32] Despite this, counsel for Best Star and Choi did not file any material in response to this motion. He simply relied upon the presumption of prejudice that arises because by the time this motion was argued, the applicable limitation period had expired. I cannot believe that any defendant who has suffered actual prejudice through a plaintiff’s delay would not disclose that actual prejudice and simply rely upon presumed prejudice. I cannot believe that defence counsel before me, aware of Chiarelli, and of what Laskin J.A. referred to as an evidentiary obligation to provide some details of actual prejudice, would decline to provide such details unless there were no details to provide because neither Best Star nor Choi has suffered any actual prejudice.

[33] In Chiarelli the plaintiff sought and was granted an extension in the time for service of about six years. Here the time extension sought in order to validate service of the amended statement of claim is much shorter.

[34] In the case of Best Star and Choi the time extension sought is about six weeks. Best Star and Choi (as an officer and director of Best Star) have been aware of the amended statement of claim since mid-August of 2014 when Best Star was served with the amended statement of claim. Choi was personally served with the amended statement of claim on November 5, 2014, about five months after the deadline for service. On the evidence before me, neither Best Star nor Choi has suffered any actual prejudice as a result of the delay in serving them.

[35] Kim has been aware of the amended statement of claim since late November 2014 when the motion record containing the amended statement of claim was served on him by mail addressed to him at his Empress Avenue residence. He did not appear before Master Graham on December 10, 2014. Had he done so, he would have been aware that the motion was adjourned to March 17, 2015. Had he wished to find out what happened to this motion he could done a number of things. He could have contacted lawyer T.P. (whose name and phone number are on the motion record) and asked him what happened to this motion on December 10, 2014. He could have had the court file searched for this motion record. Master Graham’s endorsement on the motion record states in part that this motion was adjourned to March 17, 2015.

[36] As I have said, Kim did not appear before me on March 17, 2015. He did not appear before Master Graham on December 10, 2014. There is no evidence before me that Kim has suffered any actual prejudice as a result of the five month delay in serving him with the amended statement of claim. He did not oppose this motion. I find it significant that he pleaded guilty to assaulting the plaintiff.

Disposition of Motion

[37] For all these reasons an order will issue validating service of the amended statement of claim on

(a) on Best Star and Choi as of August 13, 2014, and

(b) validating service of the amended statement of claim by mail on Kim as of November 30, 2014, and extending the time for service accordingly.

[38] Time for delivery of the statements of defence of the three defendants is extended to 30 days from the date or dates of service on them of the formal order disposing of this motion.

[39] The plaintiff has also asked that the registrar be directed not to dismiss this action as abandoned. This relief is not necessary because owing to the repeal of rule 48.15 as of January 1, 2015, the registrar is no longer dismissing actions as abandoned. Rule 48.15 was the rule which before 2015, gave the registrar authority to dismiss actions as abandoned.

Costs

[40] In disposing of this motion in the way I have, I have granted the plaintiff an indulgence. In my view, once it was clear to Best Star and Choi that they had not suffered any prejudice, as was the case, they should not have opposed this motion. Kim did not oppose this motion. In these circumstances, the appropriate order as to costs is an order that there be no costs of this motion. So ordered.

(original signed)

Date: August _11, 2015
Master Thomas Hawkins