CITATION: Cardenas v. City of Toronto, 2016 ONSC 4178
COURT FILE NO.: CV-12-445878A
DATE: 20160623
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID CARDENAS, a minor under the age of eighteen years represented by his Litigation Guardian, CARMEN VICTORIA CARDENAS, EVELYNE CARDENAS and CARMEN VICTORIA CARDENAS, personally
Plaintiffs
– and –
EUGENIO SALLESE
Defendant
- and –
CITY OF TORONTO, RODRIGO CARDENAS, THE ESTATE OF FRANCESCO CAVALLO, and ROSA CAVALLO
Third Parties
J.D. Rioux, for the Defendant/Moving Party
David Bierstone, for the Third Parties Estate of Francesco Cavallo and Rosa Cavallo/Responding Parties
HEARD: June 21, 2016
r.f. goldstein j.
[1] In June 2008 seven-year-old David Cardenas, the Plaintiff, was riding his bicycle southbound on Neames Crescent in Toronto. Eugenio Sallese, the Defendant, was driving his car. He was driving northbound on Neames Crescent. They had a head-on collision near a bend in the road.
[2] Rosa and Francesco Cavallo owned a house on Neames Crescent. The accident occurred in the vicinity of their house.
[3] Young Mr. Cardenas suffered a catastrophic head injury. He sued (by his litigation guardian) Mr. Sallese. Mr. Sallese (in reality his insurance company) in turn sought to third-party the Cavallos. The third party claim alleges that some trees on the Cavallo property blocked Mr. Sallese’s view of the oncoming young Mr. Cardenas. When a motorist strikes a cyclist, the motorist bears the burden of showing that the accident was not his fault. An adjuster examined the property and took a statement from Rosa Cavallo.
[4] Mr. Sallese’s counsel put the Cavallo’s home insurance company (Economical Insurance) on notice that they would be issuing a third-party claim against the Cavallos. Economical denied liability.
[5] In September 2012 the statement of claim was issued and served. Mr. Sallese then issued a third-party claim against the Cavallos. By this point Francesco Cavallo had died so the claim was issued against his estate and against Rosa Cavallo.
[6] Economical, counsel for the Cavallos, served a notice of intent to defend and then, in March 2013, a served a statement of defence.
[7] Of note is the fact that the Plaintiff seeks $7.25 million plus costs and interests. The limit of liability on the Economical home insurance policy is $1 million. Clearly, Mr. Sallese’s insurer seeks to widen the pool of available insurance money.
[8] Economical eventually discovered that Rosa Cavallo had not been served. She evidently had moved back to Italy after the death of her husband. Economical moved to strike the statement of defence in 2014. All parties agreed that an oversight had caused Economical to defend against the claim on behalf of the Cavallos. Justice B. O’Marra agreed to strike the claim and gave Mr. Sallese six months to personally serve the claim on Rosa Cavallo: Cardenas v. Sallese, 2014 ONSC 3733. In the course of his reasons, Justice O’Marra stated:
The parties agree that it is almost certain that Rosa Cavallo is unaware of the claim that is being pursued on Ontario. The instructions to defend on behalf of the third party insured in this case were based on the mistaken assumption that they had in fact been served.
[9] Mr. Sallese’s counsel has made attempts to serve Ms. Cavallo in the two years that have elapsed since Justice O’Marra extended the time for personal service. He now asks the court to validate that service so that the third party claim can proceed.
[10] Mr. Sallese’s counsel initially made attempts to serve Ms. Cavallo in Italy under the provisions of the Hague Convention. Those attempts were unsuccessful. According to the process servers in Italy, they were unable to find Ms. Cavallo.
[11] Mr. Sallese’s counsel then hired a private investigator to find and serve Ms. Cavallo. Eventually the investigators found a Rosa Cavallo at an address in Caulonia, Italy. The investigators were advised by neighbours near that she had multiple residences in Italy. Indeed, the investigators say that they found more than one address for Rosa Cavallo. They went to the address in Caulonia. She did not answer the door although they had reason to believe that she was home. They say that they left the statement of claim at the address, believing that she was probably home.
[12] Mr. Sallese’s counsel asks the court to validate service pursuant to Rule 16.08 of the Rules of Civil Procedure. He argues that there is evidence that the statement of claim came to the notice of the person to be served. He also argues that the evidence shows she would have been personally served but for her attempts to evade service by refusing to answer the door.
[13] I cannot agree. Based on the evidence before me, I am simply not satisfied that the statement of claim has come to the attention of Rosa Cavallo.
[14] The Rules make provision for information and belief affidavits, but the sources of the information in this case are second or even third hand hearsay. It is true that the person who served the document in Italy is identified in the affidavit of Mr. Hutchison (the private investigator in Canada). All of the other information regarding Ms. Cavallo’s address comes, however, from sources that are unidentified. It is unclear who learned of Ms. Cavallo’s address and how. According to the unsourced information of the unidentified investigators, there is apparently more than one Italian residence for Rosa Cavallo, a curious oddity when one considers that she is an elderly lady who moved back to Italy after living (at least according to the limited material before me) rather modestly in Canada.
[15] At the least, I must question the reliability of that information based on the hearsay and untested nature of some of the critical aspects of it: Metzler Investment GMBH v. Gildan Activewear Inc., [2009] O.J. No. 3394 (Sup.Ct.). I think that there is a real question as to whether a Rosa Cavallo has been served, let alone the correct Rosa Cavallo. Substituted service does not simply mean dispensing with service simply because the whereabouts of the defendant are unknown: Laframboise v. Woodward (2002), 2002 CanLII 49471 (ON SC), 59 O.R. (3d) 338 (Sup.Ct.).
[16] Personal service is important in this case since Ms. Cavallo’s potential liability far exceeds the limits of her policy. Furthermore, I do not agree that that the interests of justice require dispensing with personal service in this case. The potential prejudice is great, whereas the case against Ms. Cavallo is, on its face, quite weak: she is, at best, accused of having some bushes on her property that may have impeded the view of a driver who, on a residential street, struck a young boy on a bicycle.
[17] The motion is dismissed.
[18] The parties may each submit a costs outline and cost submissions of no more than two pages within 30 days of the date of this judgment.
R.F. Goldstein J.
Released: June 23, 2016
CITATION: Cardenas v. City of Toronto, 2016 ONSC 4178
COURT FILE NO.: CV-12-445878A
DATE: 20160623
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID CARDENAS, a minor under the age of eighteen years represented by his Litigation Guardian, CARMEN VICTORIA CARDENAS, EVELYNE CARDENAS and CARMEN VICTORIA CARDENAS, personally
Plaintiffs
– and –
EUGENIO SALLESE
Defendant
- and –
CITY OF TORONTO, RODRIGO CARDENAS, THE ESTATE OF FRANCESCO CAVALLO, and ROSA CAVALLO
Third Parties
REASONS FOR JUDGMENT
R.F. Goldstein J.