Court File and Parties
CITATION: SINGH v. ATHERTON, 2016 ONSC 2090
COURT FILE NO.: C-266-08
DATE: 2016-03-24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AMARJIT SINGH, Plaintiff
AND:
JEFFERY ATHERTON (A.K.A. JEFFERY APHERTON), Defendant
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL: William G. Scott, for the Plaintiff
Brian J. Smith, for the Defendant
HEARD: March 23, 2016
ENDORSEMENT
[1] This action arises out of a motor vehicle accident which occurred on March 22, 2006 in the City of Hamilton. A Notice of Action was issued on March 18, 2008 and the Statement of Claim was filed on April 10, 2008.
[2] In the Statement of Claim the plaintiff claims special damages in the amount of $150,000, damages for incurred and prospective income loss in the amount of $450,000, damages for loss of competitive advantage in the amount of $100,000 and general damages in the amount of $150,000.
[3] Counsel for the plaintiff made numerous attempts to serve the defendant with the Notice of Action and Statement of Claim commencing on April 14, 2008 and finally effected personal service on January 8, 2012, after expiry of the time under the rules for doing so.
[4] The following is a timeline of the steps taken to date in the proceeding:
i. April 14, 2008 - first attempt of service, plaintiff’s counsel sent Jeffery Atherton a service letter and acknowledgment of receipt card.
ii. April 14, 2008 - courtesy copies of the Notice of Action and Statement of Claim were mailed to Jeffery Atherton’s insurer, Kingsway General Insurance Company (“Kingsway”).
iii. Sept 12, 2008 - second attempt of service, plaintiff’s counsel sent Jeffery Atherton a a further service letter and acknowledgment of receipt card
iv. Sept. 12, 2008 - further courtesy copies of the Notice of Action and Statement of Claim were received by Jeffery Atherton’s insurer, Kingsway
v. Sept. 17, 2008 - third attempt of service. Attempted service of claim on Jeffery Atherton personally.
vi. Sept. 18, 2008 - date for service of claim required under the Rules.
vii. Sept. 24, 2008 - Kingsway sent a letter to plaintiff’s counsel advising the policy was valid, and requesting authorization to obtain a statement and production of records.
viii. Nov 6, 2008 - the independent adjuster retained by Kingsway, Metro Claims Services Inc. wrote plaintiff’s counsel requesting an opportunity to meet with the plaintiff.
ix. Dec 9, 2008 - the plaintiff was interviewed by an adjuster employed by Metro Claims.
x. Feb 4, 2009 - Kingsway sent a letter to plaintiff’s counsel requesting medical productions.
xi. July 28, 2009 - service of claim on Jeffery Atherton was attempted for the fourth time.
xii. July 30, 2009 - service of Claim on Jeffery Atherton was attempted for the fifth time.
xiii. Sept. 1, 2009 - plaintiff’s counsel wrote various third parties requesting documentation in support of the claim for damages.
xiv. Jan. 4, 2011 - sixth attempted Service of Claim on Jeffery Atherton.
xv. Jan. 8, 2012 Notice of Action and Statement Claim served on Jeffery Atherton (after expiry of time for service under the Rules, being Sept. 18, 2008) pursuant to subrule 16.03(5) by leaving sealed copy of Statement of Claim with an adult person of the same household and mailing a copy to the defendant at the same address.
xvi. Nov. 27, 2012 - counsel appointed by Kingsway to represent Mr. Atherton in this action advised plaintiff’s counsel that Kingsway was taking the position that the claim had not been properly served, and that he looked forward to receiving motion materials re: the validation of service.
xvii. March 20, 2013 - counsel for the defendant again advised plaintiff’s counsel that Kingsway was taking the position that the Claim had not been properly served, and that the defendant would be opposing any motion to validate service and set aside the administrative dismissal.
xviii. July 5, 2013 - plaintiff’s counsel provided counsel for the defendant an orthopaedic assessment report.
xix. Jan 23, 2014 - plaintiff’s counsel provided counsel for the Defendant copies of two further orthopaedic examination reports.
xx. June 20, 2014 - plaintiff’s counsel provided counsel for the defendant copies of the plaintiff’s accident benefits file.
xxi. June 29, 2014 - plaintiff’s counsel provided counsel for the defendant copies of the plaintiff’s family physician records.
xxii. May 8, 2014 - plaintiff’s counsel provided counsel for the Defendant a copy of the plaintiff’s decoded OHIP summary and clinical notes of the Hamilton Health Sciences Chedoke Site Hospital.
xxiii. Aug. 20, 2014 - plaintiff’s counsel wrote to various third parties requesting documentation.
xxiv. June 1, 2015 - counsel representing the plaintiff on this motion served the Motion Record.
[5] In its letter dated March 20, 2013, previous counsel for the defendant took the position that the action had been administratively dismissed. The defendant now takes the position that the action was deemed, on January 1, 2012, to have been dismissed under rule 48.15(6), para. 2 (revoked effective January 1, 2015 by O. Reg. 170/14, s. 10), which read as follows:
Transition
(6) In the case of an action commenced before January 1, 2010, other than an action governed by Rule 76 or 77, the following rules apply, unless the court orders otherwise:
If a step is taken in the action on or after January 1, 2010 and before January 1, 2012, subrule (1) applies as if the action started on the date on which the step was taken.
If no step is taken in the action on or after January 1, 2010 and before January 1, 2012, the action is deemed on January 1, 2012 to be dismissed as abandoned on that date, unless the plaintiff is under a disability.
An action deemed to be dismissed under paragraph 2 may be set aside under rule 37.14 and, for the purpose, the deemed dismissal shall be treated as if it were an order of the registrar.
[6] The parties agree that no Status Notice was issued by the registrar, no Notice of Dismissal was issued by the registrar and there is no indication in the Court file that the action has been dismissed.
[7] The plaintiff has brought a motion for an order setting aside the dismissal order, extending the time for service of the Statement of Claim, validating service upon the defendant effective January 8, 2012, in the alternative for an order for substitutional service upon the defendant by service upon his insurer Kingsway, and in the further alternative, an order dispensing with service of the Statement of Claim upon the defendant.
Was the Action Deemed to have been Dismissed?
[8] In my view, the first issue to be determined is whether the action was deemed to have been dismissed on January 1, 2012 pursuant to the subrule 48.15(6) para. 2 (now revoked).
[9] The effect of subrule 48.15(6) para. 2 was to require a party, in respect of an action commenced prior to January 1, 2010, to take a “step” between January 1, 2010 and December 31, 2011, failing which the action would be deemed on January 1, 2012 to have been dismissed as abandoned, unless the plaintiff is under a disability. Pursuant to the preamble in subrule 48.15(6), para. 2 it was stated not to apply if “the court orders otherwise”.
[10] Para. 3 provided that an action deemed to be dismissed under para. 2 may be set aside under rule 37.14, and, for that purpose, the deemed dismissal shall be treated as if it were an order of the registrar. Para. 3, pursuant to the preamble in subrule 48.15(6), it also stated not to apply if “the court orders otherwise.”
[11] The term “step” is not defined in the subrule. Moreover, neither counsel could point to any decided case in which the term was interpreted or defined for the purpose of subrule 48.15(6).
[12] In the case of Raymond v. Adrema Ltd. 1962 225 (ON SC), [1963] 1 O.R. 305 (Ont. S.C.) Wells, J. stated at para. 6, in reference to what is meant by “steps in a proceeding”:
it would seem to me that all the matters which have been so treated are matters in the general procedure of the action which advance it from the beginning of the action to trial and are developments in the course of putting the action in such a condition that it can be dealt with by the Court.
[13] From this I would conclude that an expansive definition should be applied to the term “step”. It must only comprise something, in the general procedure of the action, that is intended by the party taking the “step” to advance the action from its commencement to trial.
[14] In this case the only thing that happened in the action between January 1, 2010 and December 31, 2011 was an attempt by the plaintiff on January 4, 2011 to serve the Notice of Action and Statement of Claim on the defendant.
[15] An affidavit of attempted service was sworn by a process server Rob Gignac deposing that on January 4, 2011 he attended at the address set out in the affidavit to attempt to serve the defendant with the Notice of Action and Statement of Claim, that he spoke with the defendant’s father who advised him that the defendant did not reside at that address and that he did not know where the defendant lived. He deposed further that, as per the client’s instructions, he placed the documents into a sealed envelope, addressed to the defendant, and left the envelope on the front porch of the home. He approached his vehicle and an unidentified male ran out of the house towards his vehicle. He deposed that the male attempted to place the envelope under his windshield wipers, however was unsuccessful and the envelope fell to the ground.
[16] In my view the attempt by the plaintiff to serve the defendant with a Notice of Action and Statement of Claim was a “step” intended to “advance [the action] from the beginning of the action to trial and [a development] in the course of putting the action in such a condition that it can be dealt with by the Court.”
[17] I am bolstered in this conclusion by subsection 131(1) of the Courts of Justice Act R.S.O. 1990, c. C. 43 which provides, in part, that “subject to the provisions of an act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court” (emphasis added). In my view it cannot be seriously disputed that the costs associated with an attempt to serve the Statement of Claim on the defendant would be regarded as a “step in a proceeding,” the costs of which would be recoverable, in the discretion of the court, under section 131 of the Courts of Justice Act.
[18] In my view, the fact that the time for service under the Rules of Civil Procedure had expired at the time of the attempted service and no order extending the time for service had been obtained, does not alter the fact that the attempted service was a “step” for the purposes of subrule 48.15(6). It remained open for the plaintiff to move, as it has in the present motion, after effecting service, to extend the time for service nunc pro tunc and to validate the service. The fact that the “step” may ultimately turn out to be ineffective does not detract from the fact that it was taken with a view to advancing the progress of the action, as opposed to being taken to impede its progress.
[19] On this basis, I find that the action was not deemed to have been dismissed on January 1, 2012 pursuant to subrule 48.15(6) para. 2, as a “step” had been “taken in the action” between January 1, 2010 and December 31, 2011.
[20] Even if I am wrong in finding that the attempted service on January 4, 2011 was a “step,” I would nevertheless “order otherwise” and find that subrule 48.15(6) para. 2 does not apply. It is evident from a plain reading of sub rule 48.15(6) that the authority conferred upon the court by 48.15(6) to “order otherwise” is distinct from the power to set aside the deemed dismissal under subrule 48.15(6) para. 3. The court is given the authority to order that an action is not deemed to be dismissed, even where no “step” was taken in the specified time period. If they were equivalent it would not have been necessary to give the court the authority to “order otherwise”.
[21] The subrule does not specify a test for the exercise of the power to “order otherwise”. In my view there is nothing to suggest that the test for the granting of an order setting aside the dismissal order was intended to be applicable. If that were the case it would similarly not to have been necessary to provide for the Court to “order otherwise,” as the authority to set aside a dismissal order would be sufficient.
[22] In my view, the discretion in the court to “order otherwise” is broad. The court should exercise the discretion judicially with a view to what is just and convenient and which will best achieve the general principle of interpretation in rule 1.04(1) namely to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” The court should take a holistic and contextual approach in exercising its discretion.
[23] In the present circumstances the plaintiff and his counsel demonstrated an intention to prosecute the claim against the defendant through its repeated attempts to serve the defendant, through the production of documentation and evidence to the defendant’s counsel and by the plaintiff providing a statement to the adjuster for the defendant’s insurer at its request. The Notice of Action and Statement of Claim were delivered by mail to the defendant, along with acknowledgement of receipt cards, on two occasions and were not returned by the postal service, permitting an inference to be drawn that they came to the defendant’s attention. The insurer for the defendant was provided with copies of the Notice of Action and Statement of Claim immediately after filing of the Statement of Claim and carried out an early investigation, requested production of documentation by plaintiff’s counsel, advised that it would instruct the defendant to cooperate with respect to service, appointed an adjuster, and appointed legal counsel. Moreover the plaintiff’s uncontradicted evidence in his affidavit sworn March 1, 2016 was that it has always been his intention to proceed with the case and that he understood that his action was proceeding in the normal manner save and except for the defendant’s efforts to evade service of the Notice of Action and Statement of Claim.
[24] In my view the rule change by which rule 48.15 was revoked may be “appropriately considered as part of the contextual analysis weighing the benefits of timely justice against the right to be heard,” as was done by Justice J. Wilson in the case of Klaczkowski v. Blackmount Capital 2015 ONSC 1650 (S.C.J.) at paras. 29-33, in reference to the amendment of rule 48.14. The principle in Klaczkowski was applied in reference to the revocation of rule 48.15 in the case of Prescott v. Barbon 2015 ONSC 7689 (Master) at paras. 21-22. The revocation of rule 48.15 therefore favours the exercise of a discretion to order that the subrule 48.15(6) para. 2 does not apply to deem the action dismissed.
[25] The fact that rule 48.15 has been revoked does not, in my view, prevent the court from ordering that subrule 48.15(6) para. 2 does not apply. To find otherwise would create a manifest unfairness whereby the revoked rule would operate to deem the action dismissed, without the corresponding ability of the court to grant relief from the operation of rule by “ordering otherwise,” which was an integral part of the subrule.
Extension of time for service of the Statement of Claim and Validating Service
[26] The Court of Appeal in Chiarelli v. Weins (2000) 2000 3904 (ON CA), 129 O.A.C. 129 (C.A.), set out, at paras. 14-16, the relevant principles to be applied when determining whether a Plaintiff should be granted an extension of service, as follows:
(a) Although the plaintiff bears the onus of demonstrating that the defendant would not be prejudiced by the extension, the defendant has an evidentiary burden to provide some details of prejudice to which would flow from an extension of time for service;
(b) The defendant cannot create prejudice by its failure to do something that it reasonably could have or ought to have done; and,
(c) Prejudice that will defeat an extension of time for service must be caused by the delay.
[27] Counsel for the plaintiff Mr. Pitcher deposed in his affidavit sworn August 18, 2015 that there will be no prejudice to the defendant, and set forth various reasons, including that liability is not in issue, the defendant and his insured had notice of the plaintiff’s claim since at least April 14, 2011, he had provided productions in support of the plaintiff’s claim on an ongoing basis to both the defendant’s insurer and counsel, that he has in his file available for production various clinical notes and records of named health care providers of the plaintiff, group plan disability claims file, decoded OHIP summary for the claims. April 1, 2007 to August 18, 2014 and the plaintiff’s employment file, and that the parties have exchanged offers to settle.
[28] The defendant has not delivered an affidavit suggesting that he has suffered prejudice or will suffer prejudice caused by the delay in serving the Notice of Action and Statement of Claim. The defendant argues that he is prejudiced by reason of the unavailability of OHIP summaries dating back to the date of the accident on March 22, 2006 and beyond. However the defendant has laid no evidentiary foundation for this suggestion.
[29] The plaintiff provided a statement to the adjuster for the defendant’s insurer. No information has been provided by the defendant with respect to the plaintiff’s statement. Presumably the defendant was in a position to ascertain from the plaintiff’s statement whether the lack of more complete OHIP summaries could cause it prejudice. The defendant’s insurer wrote to plaintiff’s counsel on September 24, 2008 requesting extensive documentary productions. OHIP summaries dating back prior to the accident were not among the productions requested. There is no indication that the defendant ever made any request for production of OHIP summaries dating back to the date of the accident and beyond. As observed by by Laskin, J.A. in Chiarelli at para. 14 the plaintiff cannot be expected to speculate on what records might be relevant to the defence and then attempt to show that they are still available or that their unavailability will not cause prejudice.
[30] Moreover, the defendant, by failing to cooperate with the plaintiff’s efforts to effect service on him notwithstanding his insurer’s instructions to him to do so, created prejudice by his failure to do something that he reasonably could have or ought to have done.
[31] I therefore find that it is appropriate to extend the time for service of the Notice of Action and Statement of Claim to January 8, 2011 and to validate the service of those documents on the defendant on that date.
Disposition
[32] For the reasons set forth above it is ordered that:
(a) Subrule 48.15(6) para. 2 (now revoked) does not apply to deem the action to be dismissed on January 1, 2012;
(b) the time for service of the Notice of Action and Statement of Claim on the defendant is extended nunc pro tunc until January 8, 2012; and
(c) service of the Notice of Action and Statement of Claim on the defendant on January 8, 2012 is hereby validated.
[33] If the parties cannot agree on costs, the plaintiff may make written submissions as to costs within 21 days of the release of this endorsement. The defendant shall have 14 days after receipt of the plaintiff’s submissions to respond. The submissions shall not exceed 3 double-spaced typed pages, exclusive of Bills of Costs or Costs Outlines.
All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad, J.
Date: March 24, 2016