COURT FILE NO.: 14-CV- 514162

Heard: September 11, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ananthamyl v. Szabo and A La Carte Kitchen Inc.

BEFORE: Master Joan Haberman

COUNSEL: Martin, B. for the moving party

Chaudhry, F. for the responding parties

ENDORSEMENT

Master Haberman:

[1] The plaintiffs’ motion to extend the time to file the statement of claim and extend the time for service was heard and granted on September 11, 2015, with reasons to follow.

[2] The action was started by notice of action, issued on October 15, 2014. Pursuant to Rule 14.03(3), where an action is commenced in that way, the plaintiff is required to file their statement of claim within 30 days of issuance of the notice of action. The plaintiff therefore had until November 14, 2014 to file the statement of claim.

[3] Pursuant to Rule 14.08, the notice of action, along with the filed statement of claim, must then be served within 6 months of issuance of the notice of action. Thus, the two documents had to be served together by mid-April, 2015. The plaintiff in this action has failed to take both of these required steps.

[4] They rely on Rule 2.01, which reads:

A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

a) May grant all necessary amendments or other relief, on such terms as are just, to secure the determination of the real matters in dispute.

[5] In my view, Rule 2.01 does not apply here. This is not a case about whether anything done or not done renders a step or a document a nullity or an irregularity. The rule that does apply is Rule 3.02(1), which allows the court, to abridge or extend any time prescribed by these rules or a court order on terms that are just. Though this rule is among those referred to in the notice of motion, it appears nowhere in the plaintiffs’ factum. Nonetheless, it is a Rule I must consider when assessing the merits of the motion.

THE EVIDENCE

[6] The only evidence supporting this motion was filed by Jeremie Benchitrit, plaintiffs’ counsel. He says very little in all of 3 ½ pages and what he does say is vague in the extreme.

[7] It appears the action stems from a motor vehicle accident that occurred on October 18, 2012. The plaintiff, Nithiyananthavel Ananthamyl, was the owner and operator of one of the involved vehicles and the plaintiff, Chandravathany Nithiyananthavel, was a passenger in that car. Both plaintiffs claim for personal injuries they say they sustained in the accident.

[8] The presumptive limitation period for this action expired on October 18, 2014.

NOTICE and FOLLOW-UP

[9] On May 12, 2014, Benchitrit wrote to the defendant, Stephen Szabo and to his insurer, Intact Insurance, advising that an action was going to be started against Szabo as a result of this accident.

[10] The following day, Intact acknowledged receipt of the notice letter. They also pointed out that it was not in compliance with s. 258.3 of the Insurance Act of Ontario, and that as a result, they were reserving their rights to contest the legitimacy of the action, costs and pre-judgment interest.

[11] Laura Harris, writing on behalf of Intact, confirmed that Szabo was, indeed, their insured and they advised that his limits were $1 million. They then set out a list of items they wished to see, relying on the same section of the Act.

[12] Benchitrit never responded to this letter; never corrected his notice to ensure compliance with the Act and failed to provide even one of the 6 categories of documents sought by the insurer.

[13] He then waited until October 14, 2014 to contact Ms. Harris to confirm Szabo’s plate number and the model of his car.

NOTICE of ACTION

[14] The following day, October 15, 2014, Benchitrit issued the Notice of Action.

[15] While it is unclear when Benchitrit was retained, he had the file by May 12, 2014 at the latest, so he had at least 7 months before the expiry of the presumptive limitation period to get the information he needed to issue a statement of claim. There is no evidence from him explaining why he waited until October 14, 2014, to contact Intact to confirm details about their insured’s vehicle if, indeed, those details were needed.

[16] It is also unclear why Benchitrit was not in a position to issue a statement of claim at that point and why he used to a Notice of Action, instead, to protect the limitation period. The identities of the players were known, there is no evidence to indicate that the injuries were not yet known at least in a general way and no other reason was provided for waiting until so late in the day to craft what is most often a boiler-plate form of pleading.

[17] Having bought himself an additional thirty days, it appears Benchitrit was still not prepared to file and serve a statement of claim at the end of that time frame. Again, he provides no explanation. Instead, Benchitrit simply speaks of the 30-day extension he obtained from Ms. Harris with respect to what he refers to as the deadline to “issue” (sic) the statement of claim.

[18] It appears Benchitrit was not even aware what was required of him. Having issued a Notice of Action, he could not then issue a statement of claim in the same action. All he had to do was file a statement of claim within 30 days. Ms. Harris apparently agreed to extend this deadline for a further 30 days, so Benchatrit then had until mid-December 2014 to file the claim.

[19] Ms. Harris agreed to this by e-mail of November 18, 2014, so after the statement of claim was already due. This agreement, reached by phone, is referred to in that e-mail, but Benchitrit fails to explain, yet again, in his affidavit why this extension was required.

FAILURE to FILE the STATEMENT of CLAIM

[20] Throughout his affidavit, Benchitrit speaks of having to “issue” the claim. This is troubling. Having missed the deadline, the court should be able to expect that counsel would, at least, review the relevant rules before swearing evidence to put before the court. The words “issue” and “file” are terms of art and each has a distinct meaning. They are not interchangeable.

[21] All Benchitrit has to say about this further omission is found at his paragraph 14:

Through in advertence, I failed to issue (sic) the statement of claim.

[22] There is no explanation at all as to why this occurred. Was the deadline put into a tickler system? Does he keep the tickler system or does his staff? If the latter, was he notified of the deadline? Was this item retrieved and then he lost track of it? Was he expecting someone else to deal with this?

[23] The court is provided with no factual context for how this happened. When an explanation for a delay or missed deadline is called for, explaining it in this fashion can never be viewed as satisfactory, as it amounts to nothing more than saying “I didn’t miss it intentionally.”

[24] Having somehow missed the deadline, Benchitrit had two opportunities to remedy the problem as Intact took an active role in trying to move this action forward. Ms. Harris wrote to Benchitrit twice after the expiry of these deadlines. In her first e-mail of January 15, 2015, she asked about the status of the matter. Having received no response, Ms. Harris wrote again on February 2, 2015, this time to advise that having had no response, she had closed her file. Even this did not prompt a response.

[25] All Benchitrit has to say about this is found at his paragraph 17:

Both of these e-mails were opened by my assistant, but I did not review them at the time they were received by my office.

[26] The assistant is not named. There is no explanation as to why she would have opened e-mails addressed personally to Benchitrit – was this their normal practice or was it particular to how he was handling this file? Benchitrit does not say if the assistant:

o forwarded the e-mails to him electronically;

o used an “urgent” heading if she forwarded them electronically;

o instead, printed them out for him;

o did anything to draw his attention to the missed deadline and the trouble brewing.

[27] Benchitrit also fails to explain why he failed to review these e-mails when they were received. It is not clear if he even got them in some form at that time; if he was in the office; or if he was instructed by the plaintiffs to take no further steps for the time being.

[28] When evidence that is presented to the court is so vague, the court is forced to draw inference, in order to fill in the blanks. There is no affirmative statement anywhere in this affidavit to the effect that the plaintiffs had instructed Benchitrit to proceed or that this is what they wished to happen. I therefore cannot rule out that there was something else going on behind the scenes that led to this situation. The question, at the end of the day, however, is whether any of this matters.

DISCOVERY of the MISSED DEADLINE

[29] It was not until June 17, 2015 that Benchitrit discovered his omissions. All he says about how he made this discovery so late in the day is found at his paragraph 18, where he says he discovered it when I reviewed my file list and emails. Benchitrit says nothing about why he had not reviewed e-mails sent to him in January and February 2015 until June of that year, and why he was doing so at that time.

[30] It is also not clear why he was reviewing his file list and emails at that time. Did he do this at regular intervals? How often? When was the first review since January?

[31] Benchitrit goes on to say he then drafted a statement of claim on June 30, 2015, and without first filing it with the court, he says he served it on A La Carte on July 7, 2015. According to the affidavit of service, the claim was served with the notice of action and this notice of motion. A similar package was served on the defendant, Szabo, on July 20, 2015.

PREJUDICE

[32] Benchitrit advises that the insurer was aware of the action since May 2014. He fails to explain, however, that he neglected to respond to their request for documents made at that time. He also neglects to explain here why he failed to respond to Ms. Harris’ two e-mails.

[33] He then states that the AB file was handled by Matrix Legal Services and that he believes they have preserved their file – but he does not explain the basis for his views.

[34] Aside from using the phrase “no prejudice to the defendants” as a heading, he does not even make that assertion in the body of the test.

[35] There is no responding record from Intact, so no evidence from them regarding whether or not they believe they would suffer prejudice if this matter were to proceed.

THE LAW, ANALYSIS and CONCLUSION

[36] Although there is a string of cases explaining what is required by way of explanation for delay in the context of a motion brought in the context of Rule 48 deadlines, the approach seems quite different here. Though some explanation for the delay is required, the cases dealing with this issue suggest the burden is a far lighter one and that the focus of the analysis is prejudice.

[37] In Rafeek v. Yao 58 CPC (6th) 97, Master Graham considered this issue at length. He, too, was dealing with a statement of claim not filed within the requisite 30 days of issuance of the notice of action and, in that matter, as here, the limitation period expired before the statement of claim was served.

[38] The master’s review of the relevant case law led him to conclude that there was no obligation on the plaintiff to explain the delay. Instead, a plaintiff will be granted leave to file a statement of claim beyond the 30 days if he can demonstrate that doing so will not cause prejudice to the defendant.

[39] The master noted that the defendant and his insurer had received early notice of the claim, and that they therefore had ample opportunity to investigate. He weighed that against the lack of compelling of evidence of prejudice from the defendant.

[40] He also discussed the submission regarding presumed prejudice where the limitation period expires between issuance of the notice of action and service of the statement of claim. In his view, one which I share, the action has been started on time once the notice of action has been issued. I expand on his reasons to note that a notice of action is generally used where a party is missing some salient fact to enable them to issue a statement of claim very near the expiry of a limitation period.

[41] As a result, the limitation period will have expired in most of these cases before the statement of claim has been served. It is the notice of action that saves the day. It makes no sense to apply the presumption of prejudice in these cases as doing so effectively impedes a plaintiff’s ability to use a notice of action to extend the limitation period and renders it little utility.

[42] In his reasons, the master relied on the decision of Fleury J. in Saieva v. Schmidtt, (1990) 45 CPC (2d) 48, where his Honour discussed a passage from the Court of Appeal’s decision in Deaville v. Boegeman (1984), 48 OR (2d) 725. When discussing the presumption of prejudice created by the passing of a limitation period, that court stated:

It may be that mere recitation of the facts and the history of the case makes it clear that there is no prejudice to the defendant and it can be inferred that he knew, within the limitation period, of the case and the nature of the claims now being made against him.

[43] In other words, it will not always be necessary for the plaintiff to positively assert and then show that the defendant would suffer no prejudice. This conclusion may be plain and obvious from the factual matrix of the case.

[44] In Saieva, no defence evidence of specific prejudice was tendered, as is the case here. Fleury J. found that, although the plaintiff did not act as he should have in pressing the claim, they had given prompt notice of it. He found that the failure to provide supporting medical documents was not relevant. Master Graham pointed out is this was no longer the case in view of s. 258.3(1) of the Insurance Act, but he quickly added that the sanction for failure to comply involved costs, only.

[45] In the end, Fleury J. held that there was no basis for a finding that the defendants would be prejudiced in presenting a defence and on that basis, he allowed the motion.

[46] Looking at the facts here, though notice of the claim was not what could be considered “prompt”, it was given in May 2014, so five months before the expiry of the limitation period. Again, although Benchtrit did not help his cause by providing the insurer with any of the various documents in their response, they did indicate in their response that they would be initiating an investigation.

[47] The insurer was informed of the names of the parties involved, as well as the date and location of the accident. They had enough information to be able to confirm coverage and policy limits, and they did so. This is a standard motor vehicle accident-related claim, so the investigation is clear cut and fairly pro forma in nature.

[48] While having further information about the injuries and possible loss of income claims might have been helpful, the insurers had what they needed to conduct their liability investigation and, in view of the very short delay here, there is no cause for concern that evidence necessary to defence regarding the damages aspects of the claims would have been compromised.

[49] There is no actual evidence of prejudice and, when looking at the time frame, the statement of claim, which ought to have been served mid-April 2015, was served in mid-June 2015, about two months later.

[50] In my view, this is a case where I am able to infer a lack of prejudice to the defendant from a mere recitation of the facts.

[51] Although I am far from impressed with how this claim was handled by plaintiff’s counsel or by the evidence he filed for this motion, at the end of the day, the case turns on prejudice, as there does not appear to be a basis to presume the defendant’s ability to defend this action will be impeded by this brief delay, the motion is granted.

[52] Having said that, the plaintiff is being granted an indulgence of the court. Further, in view of the very poor record before the court and the complete lack of response from Benchitrit to three letters/e-mails from the insurer, it was not inappropriate for them to have resisted this motion.

[53] As a result, I order costs payable to the defendants, fixed at $1899.12, within 30 days.

Master Joan M. Haberman

Released: September 22, 2015