Court File and Parties
COURT FILE NO.: CV-12-460513
MOTION HEARD: 20150411
REASONS RELEASED: 20151030
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
RISHIE GURRUCHARRAN
Plaintiff
and
SAFIYA WARSAME, TARUN GENDA, and
UNIFUND ASSURANCE COMPANY and
INTACT INSURANCE COMPANY
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: V. Purewal, Fax: 416-621-7004
- for the Plaintiff
David Campbell Fax: 416-594-9100
- for responding party Warsame
Denise Junkin
- for responding party Intact Insurance Fax: 416-217- 0515
Rohit Sethi
- for responding party Tarun Genda Fax: 416-217-0515
RELEASED: October 30, 2015
Reasons for Decision
Cross-border driving issues
[1] Because of the proximity of the United States to Ontario many Americans cross the border by car and drive upon Ontario’s roads and highways. An issue which is not often considered by Ontario’s drivers is the nature of the insurance coverage held by visitors on their vehicles bearing plates issued by a U.S. state.
[2] Perhaps surprisingly, the minimum amount of coverage mandated, in at least some states, is significantly less than that required by Ontario’s statutes.
[3] This case addresses the appropriate response when such a vehicle is involved in a collision with an Ontario based driver who suffers injuries as a result of the collision.
I. Overview
[4] The plaintiff moves for an extension of the time for service of a statement of claim upon an American resident driver of a vehicle involved in an accident in Ontario. Counsel for the insurer of that defendant opposes.
[5] This action arises as a result of personal injuries suffered by the Plaintiff when he was involved in a motor vehicle accident on August 4, 2010 , involving the vehicle of the Defendants, Safiya Warsame and Tarun Genda.( While it is noted by her insurer that the correct spelling of Warsame’s first name is Safiyo, I will generally refer to her as indicated in the style of cause)
[6] The Statement of Claim was issued on August 3, 2012. Present counsel for the plaintiff filed an affidavit in support of this motion in which he deposed that, at the time of his taking over the file, “Safiya Warsame, had no contact information.” Clearly service on the American resident driver presented challenges.
[7] Counsel deposes in this regard:
“5. On February 13, 2014, we became aware of an address in Columbus, Ohio, for the Defendant, Safiya Warsame. I am advised by my clerk and do verily believe that on June 6, 2014, she asked_ a process server in Ohio, through United States Process Serving, to serve both the Statement of Claim and an amended Notice of Change of Lawyer on the Defendant, Safiya Warsame.…
- I make this affidavit in support of an Order for substituted service on Geico Insurance Company care of Rogers Partners LLP, for an Order to extend the time for service of the Statement of Claim on the Defendant, Safiya Warsame, and for no improper purpose.”
II. Background Facts
[8] This case involves motor vehicle accident that occurred on August 4, 2010, in which Safiyo1 Warsame turned left and was struck by the co-defendant Genda. The plaintiff was a passenger in Genda's Landrover. Warsame cancelled her insurance on August 5, 2010.
[9] The defendant Unifund Assurance Company was the insurer responsible for the plaintiff passenger’s Statutory Accident Benefits coverage.
[10] The Plaintiff’s claim was issued one day before the expiry of the limitation period.
[11] Shortly thereafter, on November 23, 2012, plaintiff's then counsel served a Notice of Change of Lawyers, listing an address for service for the defendant Warsame in Columbus, Ohio. For reasons that are not known, the plaintiff apparently never served Warsame at this address.
[12] By order made by Master Graham on July 22,2013 Intact Insurance (“Intact”) was added as a defendant as they were the provider of uninsured and under-insured coverage to the defendant Genda and his passenger, the plaintiff Gurrucharran.
[13] On February 12, 2014, the defendant Intact Insurance apparently brought the plaintiff’s claim to the attention of GEICO, Warsame's insurer.
[14] GEICO’s appointed counsel asserts in an affidavit filed on this motion that, “This was the first GEICO knew of the plaintiff's claim.” On the motion GEICO contends that the motion to extend time for service should be dismissed as it would be prejudiced because Warsame's whereabouts were unknown, and too much time has passed. GEICO also asserts that the motion for substituted service should be dismissed, because the plaintiff has no evidence that prompt service was impractical or that substituted service will bring the claim to Warsame's attention.
[15] It is further argued that the plaintiff had Warsame's address in November 2012, and there is no evidence that there was an attempt to serve the claim.
[16] They also argued: “Liability for the accident is at issue; Warsame along with other witnesses are missing; there is no evidence as to what the plaintiff has done to preserve evidence.”
III. The GEICO Policy
[17] On January 10, 2009, Mohamud Hersi and Safiyo Warsame apparently originally obtained automobile insurance in Ohio from the Government Employees Insurance Company (“GEICO”). providing coverage for a 2006 Cadillac SRX.
[18] Subsequently, for some unknown reason, on July 6, 2010, those defendants requested GEICO to change their policy to a Michigan automobile policy and on July 7, 2010, GEICO transferred their policy to a Michigan automobile policy.
[19] The very miniscule extent of insurance coverage obtained by the defendant is troubling. Their Michigan policy covered $20,000 in bodily injury for one person injured in a motor vehicle accident, $40,000 in bodily injury limits for all people injured in a motor vehicle accident arising out of a single occurrence, and $10,000 in property damage limits.(sic)
[20] Based on GEICO's records, it appears that on the day after the accident, August 5, 2010, Ms. Warsame called a customer service representative at GEICO to cancel the Michigan automobile policy that had been issued on July 7, 2010.
[21] The affidavit filed before me based on GEICO's records, with my emphasis added, indicates in part:
… on August 7, 2010, Safiyo Warsame called a customer service representative at GEICO and notified the company that she had been involved in an accident on August 4, 2010 while driving the Cadillac SRX in Toronto, Canada.
On October 29, 2010, a GEICO attorney examined Mr. Hersi and Ms. Warsame under oath for the purpose of investigating whether its insured had a valid property damage claim During the examination, Mr. Hersi stated that he had never lived in Michigan Ms Warsame stated that she did not have a cell phone number at which she could be reached, having cancelled her cell phone after the accident.
[22] According to the motor vehicle accident report, the accident happened as she was turning left out of a parking lot on Highway 7.
[23] Almost a year later, on September 25, 2011, Warsame called a GEICO customer service representative to ask about the salvage value of the Cadillac SRX.
[24] GEICO’s evidence is that it has had no contact with either Warsame or Hersi since September 25, 2011, as they ceased being GEICO insureds on August 5, 2010. Ms. Warsame has had no other type of insurance with GEICO since August 5, 2010.
IV. International Co-Operation in Automobile Insurance
[25] I understand that in order to permit vehicles from individual states to come into Ontario, the American insurers are required to agree to provide the province’s minimum quantum of coverage to their insured’s driving in our province.
[26] GEICO was at all material times a signatory to the protected defendant undertaking pursuant to s. 226.1 of Ontario's Insurance Act. GEICO's insured drivers therefore have bodily injury limits of $200,000 for motor vehicle accidents that occur in the Province of Ontario.
[27] However the customer is only “insured” for the policy amounts and I believe the insurer in this case could look to Ms. Warsame for any amounts paid out by it in excess of the $10,000 (U.S.) personal injury coverage that was purchased.
[28] Because it is possible that the GEICO coverage at the amount of the statutory minimum in Ontario may still be inadequate, the plaintiff also elected to make a claim on the underinsured defendant coverage under its policy with Intact.
[29] As a consequence on February 12, 2014, a representative of the defendant Intact contacted GEICO about the lawsuit arising out of the August 4, 2010 motor vehicle accident, naming Warsame as a defendant. Intact supports the plaintiff’s motion.
[30] Apparently this was the first time GEICO received information about a claim being made against its insured, Warsame. Other than the claim by their insureds for damage to the Cadillac, GEICO has no previous record of a claim being issued against their insureds.
V. Looking for Warsame
[31] It seems that present counsel for the plaintiff took over the file at a point in time following the issuance of the statement of claim on August 3, 2012. A notice of change of lawyer was issued by the Grillone firm on November 23, 2012. The factum filed on behalf of Warsame by her insurer (at paragraph 9) indicates that the notice of change lists for her address for service as Apartment 2A, at a specific street address in Columbus, Ohio.
[32] The factum dated March 5, 2015 filed on behalf of the insurer for Ms. Warsame addresses the delay in service asserting:
“…there is no evidence as to what steps the plaintiff took to serve the statement of claim on Warsame after November 23, 2012, before June 2014.”
[33] All the parties seem to agree that Warsame could not physically be found for a number of years. Based on that situation GEICO argues that the plaintiff had not raised sufficient efforts to serve the claim. Counsel for Intact and GEICO seem to of attempted to find the whereabouts of the plaintiff and to have used state-of-the-art technology in their endeavors. They too could not actually find her.
[34] For example, on February 13, 2014, GEICO performed an Accurint search for Warsame for residents of the State of Ohio, using her name and her January 1 birthdate. Accurint is an online product from LexisNexis that allows law enforcement, private investigators, collections agencies, insurance companies, and legal professionals to search for people in the United States. The Accurint search performed on February 13, 2014 for Warsame listed her at the same address in Columbus, Ohio as seen on her Ohio driver's license:. The Accurint search of February 13, 2014 also showed that Warsame's driver's license expired on January 1, 2014.
[35] Over a year later, on February 23, 2015, an Accurint search was done for persons named Safiyo Warsame who are residents of the State of Ohio, and whose birthdate was January 1, 1985. GEICO found the same result as the year before. According to the report, Warsame had not renewed her driver's license since it expired in 2014.
[36] On February 26, 2015, just before this motion was heard, another Accurint search of Warsame was done for all residents of the United States, using her name and her specific birthdate. This search showed only one Safiyo Warsame with the exact date of birth in the United States.and listed her current address the previously identified Columbus, Ohio address.
[37] The co-defendant, Intact Insurance, hired a process server who completed an affidavit of service that suggests that Warsame has moved out of her apartment in Columbus, Ohio. Intact's skip tracer was unable to find her either.
[38] From February 14, 2014 to December 5, 2014, counsel for GEICO regularly requested that plaintiff's counsel provide his position regarding the service issues, as the statement of claim had not been served on Warsame.
[39] Should the inability to find a foreign defendant in such circumstances preclude a plaintiff from continuing his action? Should a more flexible test apply in such circumstances?
VI. The Lost is Found
[40] In addition to modern technology, counsel for GEICO apparently also used the more traditional device of mailed letters. In the weeks prior to the argument of this motion, letters were sent to both parties covered by the GEICO insurance. An attempt was also made by letter dated February 13, 2015 to a person named Warsame located in North Minneapolis.
[41] More importantly, a second letter was sent the same date to the co-defendant Mohamud Hersi in Columbus, Ohio. That letter read in part:
“Dear Mr. Hersi:
Re: Warsame, et al. ats Gurrucharran Date of loss: August 4, 2010
My law firm has been retained by GEICO to represent a person named Safiyo Warsame whom GEICO insured in 2010. The Safiyo Warsame we are looking for was involved in a car accident in Toronto, Canada on August 4, 2010 while driving a 2006 Cadillac SRX. The vehicle had an Ohio license plate, EZD 6905, and was insured by Mohamud Hersi.
If you were the owner of this Cadillac, it is important that you contact us. As the owner of the vehicle, the plaintiffs may sue you. It is equally important that we contact Safiyo Warsame and would appreciate any information you may have.”
[42] While this matter was under reserve I was advised by mail from counsel for GEICO that in fact the defendant had now been located. The address turns out to have been the identical Columbus address identified in 2012 and thereafter by the various subsequent computer searches !
[43] That letter to the court stated:
“This letter is further to our motion before you …. all counsel provided their consent under Rule 1.09(a), allowing me to write you about this.
… the plaintiff brought a motion to extend time for service and for substituted service on a defendant (Safiya Warsame) who lives in Columbus, Ohio. The motion was contested. Two of the co-defendants supported the plaintiff's motion.
On April 27, 2015 at about 4:15 pm, Safiya Warsame called me. She was asked what her current address is, and stated that it is the following:
… Apt. 2A Columbus, Ohio … U.S.A. [abbreviated here for privacy]
Ms. Warsame stated that a letter addressed to the insured owner, Mohamud Hersi, had been brought to her attention. This letter was dated February 13, 2015,
The position of my client remains the same as when the motion was heard.” [my emphasis]
[44] What is the court to do in such circumstances? Now that the defendant is located,in my view many of the arguments raised by GEICO now have significantly less weight.
[45] There were sufficient witnesses in the 2 vehicles who have been located and it seems to me that an Ontario plaintiff injured by a foreign driver ought not to be prejudiced by the difficulties in finding that individual in another country. Particularly where that individual had been examined under oath by their insurer at an early stage following the accident.
[46] It seems to me that the party best able to keep track of Ms Warsame was in fact her former insurer. That insurer was made aware of the accident and apparently dealt with the disposition and salvage of the 2006 Cadillac vehicle following the accident.
[47] I am therefore inclined to permit both the extension of the time for service and the effecting of substituted service upon GEICO at this time. Is such a position in keeping with the applicable case law?
VII. Analysis
Motion to extend time
[48] Rule 14.08 (1) states "Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued. Under Rule 16.01(1) "An originating process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in rule 16.03
[49] The leading case in this area is the decision of the Court of Appeal in Chiarelli v. Wiens, 2000 CanLII 3904 (ON CA), 46 O.R. (3d) 780. On a motion to extend, the focus must be on the prejudice, if any, caused by the delay in the service of the claim and the justice of allowing the extension.
[50] A motion to extend time for service is a request for an indulgence, leaving the matter in the discretion of the judge or master. A plaintiff seeking to extend time for service must address a 5 step test from Chiarelli v. Wiens:
The court should not extend the time for service if to do so would prejudice the defendant;
The plaintiff bears the onus for demonstrating that the defendant would not be prejudiced by the extensions;
The defendant has an evidentiary obligation to provide some details of the prejudice to him or her which would flow from the extension of time for service;
The defendant cannot create prejudice by the failure to do something that he or she could have or ought to have done; and
Prejudice that will defeat an extension of time for service must be caused by the delay."
[51] The court in Malatesta v. 2088675 Ontario Inc. 2014 ONSC 1793. stated:
The starting point for this [prejudice] analysis is set out by the Court of Appeal in Frohlick v. Pinkerton Canada Ltd., where the court states that the expiry of the limitation period for service gives rise to a presumption of prejudice. The longer the delay, the stronger the presumption of prejudice flowing from it.
[52] In balancing prejudice versus just resolution, courts also look to:
• the length of delay;
• the evidence filed that explains the delay;
• whether the evidence regarding the delay is sufficient;
• the extent to which the defendant, himself [ or herself], bears some or all of the responsibility for the delay;
• whether the applicable limitation period for the action has already expired; and
• whether the defendant would suffer prejudice if the motion is granted.
[53] In my view the appropriate analysis focuses more on the rights of parties rather than the conduct of counsel, making prejudice the most important factor. The Court in Khroad v. Hill, 2010 ONSC 945, summarized the factors used to analyze whether prejudice against a defendant exists:
In determining whether prejudice will result if the time for service of the statement of claim is extended the Court must consider whether:
(a) material witnesses have disappeared or died;
(b) relevant documents have been preserved;
(c) the delay is so significant such that it can reasonably be assumed that memories of witnesses have faded; and
(d) any new facts are being alleged.
[54] Counsel for GEICO argued that three of the Khroad factors demonstrate prejudice in this case. Much of the strength of their position that material witnesses have disappeared or could be dead was lost upon their insured being located.
[55] Similarly there is less force to the argument that flowed from the fact that the plaintiff's claim is for $2 million in damages. It was submitted that since Warsame only has coverage up to $200,000, if she could not be found, she would not be involved nor in a position to defend herself against any uninsured portion of a judgment obtained in excess of the statutory minimum, “since no one knows where she is.”. But now they apparently do.
Substituted Service
[56] In Laframboise v. Woodward, 2002 CanLII 49471 (ON SC), 59 O.R. (3d) 338; [2002] O.J. No. 1590, J.W. Quinn J.
addressed issues related to the availability of substituted service. In particular he observed, "Motions of this nature are not to be treated casually by counsel or the court."
[57] Rule 16.04(1) sets out the test for substituted service:
16.04 WHERE ORDER MAY BE MADE- (1) Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personal or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service. "
[58] I have -italicized what Justice Quinn identified as the three most important words in this rule being:”impractical”, “prompt” and “may”.
[59] Impractical means “unable to be carried out or done”. Of course, “unable” must be read in conjunction with “prompt”
[60] Accordingly, in a motion of this nature, there is an obligation upon counsel to show that he or she is unable to carry out prompt personal service. Substituted service is not intended to spare a plaintiff the inconvenience of or expense of personal service, if the latter can be effected. Mere difficulty in serving a defendant personally is not enough. Rule 16.04(1) does not provide an automatic right to an order for substituted service whenever there is some delay, expense, inconvenience or difficulty in locating a party.
[61] His Honour notes "The inability to serve a party personally is proved by showing that all reasonable steps have been taken to locate and to personally serve him or her."
[62] I am now satisfied that at least most reasonable steps (if not more) have been taken in endeavouring to find and serve the defendant Warsame. Why she could not be found having regard to the efforts made ought not to prevent a genuine claim from proceeding.
[63] Her own counsel has now been contacted by her.
[64] Why she was not found at the address that was identified three years ago is still puzzling. Nevertheless she now is in contact with the counsel provided for her by her insurer. The action is finally in a position to move off “Square One”.
[65] Effecting actual service in the U.S. appears now to be surplusage in the circumstances of this case. I have no doubt that substituted service upon her Toronto counsel will have a more than reasonable possibility of bringing action to attention of this defendant. Unless Ms. Warsame is actually personally served, I am authorizing alternative service in accord with the court’s guidance in Laframbroise. Thus, I am deeming as a condition of this order that counsel for the plaintiff has given an undertaking that the plaintiff will not move to strike out defence if the insurer is unable to produce defendant for discovery .
VIII. Developing Case Law
[66] In Khan v. Sunlife, 2011 ONCA 650, the Court of Appeal confirmed that at a Status Hearing the plaintiff must demonstrate to the Court’s satisfaction that:
i. He has an acceptable explanation for the litigation delay; and
ii. If the action is allowed to proceed the defendants will not suffer non-compensable prejudice.
[67] Here the action against Warsame would effectively be at an end and in the same position as if dismissed for missing other time limits. As a consequence I have considered cases having similar results for a plaintiff.
[68] The type or category of evidence from the plaintiff that will satisfy the first element is evidence that unexpected or unusual contingencies have made it impossible for the plaintiff to comply with the timing provisions in the Rules of Civil Procedure.
[69] Here the plaintiff is not responsible in any way for causing the delay in issue.
[70] Having regard to the history and context of this case, the plaintiff submits that the court has been provided with an acceptable explanation for the delay.”
[71] In considering any effective dismissal of a case arising from delay, the Court will balance two competing values: (i) the need to enforce the Rules in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general” and (ii) the interest of society and the parties in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.” While the courts will not take a mechanical or formalistic approach to the application of timelines it has been observed in a similar situation that “rule 48.14 was designed to have some teeth”. [see Kara v. Arnold, 2014 ONCA 871 at para. 10,]
[72] I recognize the guidance approved by our Court of Appeal over five years ago in Riggitano v. The Standard Life Assurance Company, 2009 CanLII 23892 at para. 45; aff’d 2010 ONCA 70:
“If the common submission, as made here, to the effect that a dismissal would be unfair to the plaintiff is permitted to always trump the provision in the rules contemplating a reasonably timely procedure for the disposition of actions, then the rule would be effectively gutted.”
[73] However this remains a court of equity and a contextual approach needs to be taken for each unique fact situation.
[74] In concluding their argument that the within action should be allowed to proceed. Plaintiff’s counsel submits there is no evidence of non-compensable prejudice to the defendants in the case at hand. Two of the other defendants support that position.
[75] I find that position persuasive. I am supported in this conclusion by the guidance concerning the balancing of the interests of the parties in 1196158 Ontario Inc. v. 6274013 Canada Ltd.(Supra. )There the Ontario Court of Appeal outlined the correct approach:
[19] Time lines prescribed by the Rules of Civil Procedure or imposed by judicial orders should be complied with. Failure to enforce rules and orders undermines public confidence in the capacity of the justice system to process disputes fairly and efficiently. On the other hand, procedural rules are the servants of justice not its master. We must allow some latitude for unexpected and unusual contingencies that make it difficult or impossible for a party to comply. We should strive to avoid a purely formalistic and mechanical application of time lines that would penalize parties for technical non-compliance and frustrate the fundamental goal of resolving disputes on their merits.
[76] In assessing the parties’ arguments I also reflected on these portions of the Court of Appeal’s recent decision in Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592:
“Prejudice
49 The issue of prejudice is a factual question. The plaintiff bears the onus of demonstrating that the defendant would suffer no non-compensable prejudice if the action were allowed to proceed. The mere passage of time cannot be an insurmountable hurdle in determining prejudice, otherwise timelines would become inflexible and explanations futile.
50 A defendant is not required to offer evidence of actual prejudice. However, the court is entitled to consider the conduct of the defendant in light of its assertions of prejudice. As Weiler J.A. noted in Fuller, it is an error for a judge considering dismissal for delay to fail to consider the respondent's conduct in relation to the question of prejudice: at para. 39.”
[77] I have added my emphasis to a number of extracts from Justice van Rensburg’s recent observations in Carioca’s,:
“Delay
51 The motion judge's analysis focussed mechanically on whether blame could be attributed to the appellant at each stage of the litigation. Once he found delay, he failed to go on to weigh the evidence and evaluate whether the explanation provided was reasonable. Had he done so, he would have taken into account important factors such as the circumstances in which the action came to be struck from the trial list and the fact that the case was now ready for trial.
52 Applying too exacting a standard for restoring an action which has been struck from the trial list may well hinder the objective of an efficient justice system, as parties and counsel would argue over keeping matters on the trial list for fear that, once struck, they might never be restored. Fighting highly contested motions over cases being struck and restored to the trial list is not an effective use of scarce judicial and legal resources. Ontario courts are actively discouraging a "motions culture" among counsel, and the Supreme Court of Canada has called for a "shift in culture", citing the need for a process that is proportionate, timely and affordable: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 28.
53 While this court has stated frequently that the plaintiff bears the primary responsibility for moving a case forward, it has also acknowledged that the conduct of a defendant is a factor, especially where a plaintiff encounters some resistance when trying to move the action along: 1196158 Ontario Inc., at para. 29. The suggestion that it is normal and acceptable for a defendant, if not to actively delay, to simply wait for the plaintiff to make the next move, may be based on a conventional view of litigation strategy. The objectives of timely and efficient access to justice, and effective use of court resources require all parties to play their part in moving actions forward, and for counsel to act in a way that facilitates rather than frustrates access to justice: Hryniak, at para. 32. For these reasons, although the burden of proof on the motion is on the plaintiff, the conduct of all parties in relation to the litigation is relevant in determining whether to restore an action to the trial list.”
54 The motion judge's approach here focussed almost exclusively on the appellant's conduct, and did not consider the overall dynamics of the litigation. This resulted in an imbalanced view …..”
55 …. Procedural rules cannot be mechanically applied but have to be interpreted in a contextual manner that pays heed to all relevant circumstances and consequences.
[78] Based upon my understanding of the history of this case I find the Plaintiff’s explanation for the delay in this case “acceptable”.
[79] Justice van Rensburg clarified as well the analysis necessary in considering the issue of prejudice that might be suffered by a party:
“Prejudice
57 The second part of the test involves a consideration of prejudice to the respondent if the action were allowed to proceed. The prejudice at issue is to the respondent's ability to defend the action as a result of the appellant's delay, not as a result of the sheer passage of time: MDM Plastics Ltd. v. Vincor International Inc., 2015 ONCA 28, at paras. 25 and 33. This portion of the analysis does require some apportionment of responsibility for the delay.
59 The motion judge was required to consider the evidence in deciding the prejudice issue: Fuller, at paras. 38-39. In this case, the action was ready for trial, oral discoveries had been completed relatively soon after the events in question, transcripts were available (unlike in Nissar), and the documents authored by the missing witness were available. The record of the litigation did not indicate any serious concern on the respondent's part about the delay. Its consent to the previous motion to restore the action to the trial list, and its passivity in "to be spoken to" court when the court struck the action of its own motion, both suggest that no non-compensable prejudice would result from the action being restored to the trial list: MDM Plastics, at paras. 34-36 and 39; Fuller, at para. 42.
IX. Conclusion
[80] At some point this the sins of the counsel in file management must regrettably prejudice the position of a Plaintiff and as a consequence an action may prematurely ended.
[81] This is not such a case. There are many issues that need to be addressed and the most appropriate means appears to me is to allow the action to continue.
[82] I continue to be guided by the proportionality rule:
General Principle
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[83] I am satisfied that in this unique fact situation a fair trial of the plaintiff’s claims remains possible and the case is capable of being resolved on the merits.
X. Disposition
[84] For the reasons outlined, I am satisfied that this action should proceed and I am therefore simply allowing the plaintiff’s motion at this time.
[85] In particular I am extending the time for service of the Plaintiff’s claim on the defendant Warsame for a period of 90 days.
[86] As well I am providing that service may be effected by service of the Statement of Claim upon Counsel for her insurer GEICO.
[87] The plaintiff’s counsel ought to have tried harder to effect service and the result might well have been different if the opposing counsel had not located the missing defendant. Such a situation in my view justifies my directing: “No Order as to Costs”.
R.120/DS __________________
Master D.E. Short