SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-13-3766-00
DATE: 2015 09 21
RE: Fang Ou Yang v. Graham Ossi Vartiamaki
BEFORE: Bloom, J.
COUNSEL:
Y. Jabbour, Counsel for the Plaintiff
N. Ajram, Counsel for the Defendant
HEARD: September 18, 2015
E N D O R S E M E N T
I INTRODUCTION
[1] The Plaintiff moves for an order extending the time to serve the Statement of Claim and alternatively for an order validating nunc pro tunc the service of the Statement of Claim on the Defendant.
II FACTS
[2] On or about September 19, 2011 the Plaintiff was the owner and operator of a motor vehicle which was involved in a collision with the motor vehicle owned and operated by the Defendant in the City of Toronto.
[3] On or about November 29, 2011 the Plaintiff through her lawyers served the Defendant and his automobile insurer with a third party notice letter setting out the Plaintiff’s intention to commence an action against the Defendant for damages resulting from the collision.
[4] On or about December 1, 2011, the Defendant’s insurer, Motors Insurance, wrote to counsel for the Plaintiff confirming receipt of the notice and making requests for productions. On or about February 29, 2012 Motors again wrote to the Plaintiff’s counsel requesting productions and advising that a new claims adjuster had been assigned to the file.
[5] A Statement of Claim was issued by the Plaintiff against the Defendant on August 29, 2013.
[6] On December 14, 2014 a process server attempted unsuccessfully to serve the Defendant personally at 118 Patricia Avenue, North York. Later the same day the process server left a copy of the Statement of Claim at the same address with Mary-Lou Vartiamaki, an adult member of the Defendant’s household. The next day the process server by ordinary mail sent a copy of the Statement of Claim to the Defendant at the same address. Earlier efforts had been made to serve the Defendant with the Statement of Claim.
[7] In May of 2015 correspondence took place between counsel for the Plaintiff and Motors regarding the issue of the validity of service of the Statement of Claim.
[8] The Plaintiff by her motion seeks an order extending the time for service of the Statement of Claim under Rule 3.02 or alternatively an order validating nunc pro tunc the service of the Statement of Claim on December 14, 2014 pursuant to Rule 16.08.
III APPLICABLE LEGAL PRINCIPLES
[9] In Chiarelli v. Wiens, 2000 3904 (ON CA) Laskin J.A. for the Ontario Court of Appeal stated the following in relation to a motion for an extension of the time to serve a Statement of Claim:
[14] I make three observations in response to the Divisional Court's finding. First, the passages from the reasons of the motions judge have to be considered in their context. The motions judge was obviously unimpressed, as am I, with the defence's assertion of prejudice. The only allegation of prejudice in the material filed by the defence on the motion is the following very general statement in the affidavit of State Farm's claims adjuster:
It is my belief that the defence of this action has been seriously prejudiced due to the passage of time and the strong possibility that pre-accident and post-accident records and witnesses may not be available or that their recollections may not be accurate.
Although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice. 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.
[15] Second, the defence cannot create prejudice by its failure to do something that it reasonably could have or ought to have done. For example, the defence cannot complain about the lost opportunity to interview the police officer or to conduct surveillance on Ms. Chiarelli or to obtain the no-fault insurer's file. If, as the defence now maintains, it is contesting liability, then it should have interviewed the police officer at the time and cannot blame its failure to do so on the plaintiffs' delay. Similarly, the defence knew in 1989 that Ms. Chiarelli's injury was serious and if surveillance on her was appropriate, that surveillance should have been undertaken at the time. The defence also had all the particulars of the file maintained by Ms. Chiarelli's no-fault insurer and could have requested it at any time.
[16] Third, prejudice that will defeat an extension of time for service must be caused by the delay. Prejudice to the defence that exists whether or not service is delayed ordinarily is not relevant on a motion to extend the time for service. In this case the defence complains that the police officer's notes have been destroyed. However, they were destroyed within two years of the accident under a local police policy. Thus, the notes would have been unavailable to the defence even if the statement of claim had been served on time.
[10] The Ontario Court of Appeal in McGroaty v. CIBC Mellon Trust Company 2012 ONCA 241 affirmed that in considering an extension of time for service of a Statement of Claim the prejudice which is relevant is the prejudice arising from the delay in serving the Statement of Claim as opposed to the prejudice caused by the passage of time since the arising of the cause of action.
IV APPLICATION OF THE PRINCIPLES TO THE CASE AT BAR
[11] In my view the case at bar is properly viewed as one to which the above principles regarding the granting of an extension of time to serve a Statement of Claim must apply, as opposed to a case to which the principles governing Rule 16.08 should apply.
[12] Applying the principles set out in the Chiarelli case I find that the Plaintiff has discharged its onus to demonstrate that the Defendant will not be prejudiced by an extension of time to serve the Statement of Claim. The Defendant’s insurer was on notice as a result of the Plaintiff’s counsel’s third party notice letter, within two months of the accident, of the claim and the intended action. It could have taken steps to investigate the accident and conduct applicable surveillance, if necessary, on the Plaintiff’s physical condition. If it took no such steps, it cannot have thereby created prejudice. It has provided no evidence of prejudice; rather it has invited speculation about potential difficulties in investigating the accident and the Plaintiff’s pre-accident medical condition.
[13] The case at bar is quite different from Kalantsis v. Cameron 2008 CarswellOnt 7531, a decision of Justice Bielby of this court which is relied upon by the Defendant. In that case in which the Court denied an extension of the time for service of a Statement of Claim, before the Defendant’s insurer knew of the claim relevant police records, which could have disclosed the whereabouts of witnesses, had been purged.
[14] I, therefore, grant an order extending the time for service of the Statement of Claim for 21 days from the release of these reasons.
V. COSTS
[15] I heard oral argument from counsel on the costs issue at the same time as the merits of the motion were argued. In my view the success achieved by the Plaintiff on this motion justifies a costs order in her favour. I, therefore, order costs of $ 4,753.60 payable by the Defendant to the Plaintiff within 30 days of the release of these reasons.
Bloom, J.
DATE: September 21, 2015
COURT FILE NO.: CV-13-3766-00
DATE: 2015 09 21
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Fang Ou Yang v. Graham Ossi Vartiamaki
BEFORE: Bloom, J.
COUNSEL: Y. Jabbour, Counsel for the Plaintiff
N. Ajram, Counsel for the Defendant
ENDORSEMENT
Bloom, J.
DATE: September 21, 2015