Court File and Parties

Citation: Marks v. Lehigh, 2017 ONSC 6673

Court File No.: 13-4112-SR

Date: 2017/11/06

Superior Court of Justice - Ontario

Re: Robert Marks, Plaintiff

And: Lehigh Hanson Heidelberg Cement Group, Defendant

Before: The Honourable Justice G.E. Taylor

Counsel: Christopher Clemmer, Counsel for the Plaintiff Michelle Henry, Counsel for the Defendant

Heard: October 17, 2017

Endorsement

Introduction

[1] This is a motion to validate service of the Statement of Claim by facsimile transmission on August 8, 2013 or alternatively extending the time for service of the Statement of Claim, nunc pro tunc, to September 23, 2016.

[2] In this action, the plaintiff seeks damages for the alleged wrongful termination of his employment with the defendant on August 10, 2012. The Statement of Claim was issued on August 8, 2013. A clerk in the office of the solicitors for the plaintiff purported to serve the Statement of Claim on the defendant by way of facsimile transmission on August 8, 2013. In December, 2015 a lawyer in the office of the solicitors for the plaintiff (not the lawyer who was responsible for issuing the Statement of Claim) realized that the defendant had not been properly served with the Statement of Claim. On September 23, 2016, the Statement of Claim was served by delivering a copy to the plant manager of the entity which now operates from the location where the plaintiff worked.

Facts

[3] The plaintiff commenced employment with a predecessor of the defendant in 1998. His employment was terminated on August 10, 2012. In September, 2012, the defendant retained Daniel Senior, an associate lawyer with McLeod Green Dewar LLP & Associates (“MGD”) to act for him in relation to the termination of his employment.

[4] Mr. Senior sent a letter to the defendant dated February 1, 2013 advising that he represented the plaintiff and making a demand for compensation for payment in lieu of notice of termination. That letter was sent by way of courier to Megan Roose, Human Resource Manager of the defendant at 1570 Yorkton Court, Burlington, Ontario and by way of facsimile transmission to the defendant at 1081 Rife Road, Cambridge, Ontario to the number 519-740-2543. By way of a letter dated March 27, 2013, the law firm of Filion Wakely Thorup Angeletti LLP responded to Mr. Senior’s letter of February 1, 2013. The letter asserted the position that the plaintiff had abandoned his employment and as such was not entitled to notice of termination or pay in lieu of notice. The letter from the solicitors for the defendant also set out the basis for the refusal to consider making a payment to the plaintiff in lieu of notice of termination because of the plaintiff’s failure to provide medical support for his extended absence from work.

[5] The Statement of Claim was issued on August 8, 2013 and at the direction of Mr. Senior, Karen Nead, a law clerk at MDG served the Statement of Claim on the defendant by facsimile transmission to the number 519-740-2543. The transmission was successful. The covering letter which accompanied the Statement of Claim was addressed to 1081 Rife Road, Cambridge Ontario to the attention of Megan Roose, Human Resource Manager. The confirmation of the facsimile transmission indicates that 12 pages were sent and received. The Statement of Claim is 11 pages in length.

[6] Mr. Senior departed MGD in September, 2013. The file was assigned to Jennifer Richards, another associate lawyer with MGD. Ms. Richards took no steps to advance the litigation. Ms. Richards employment with MGD ended in October, 2014 at which time carriage of the file was assigned to Sarah Harvey, another associate lawyer with MGD. Ms. Harvey took no steps to advance the litigation. Ms. Harvey’s employment with MGD ended in December, 2015. Following Ms. Harvey’s departure from MGD the file was assigned to Emily Carroll, an associate lawyer with MGD. At that time it was learned that the Statement of Claim had never been properly served.

[7] The issue of the failure to properly serve the Statement of Claim was reported to the Lawyers’ Professional Indemnity Corporation (“LawPro”) in March, 2016. Counsel for LawPro was appointed in April, 2016. Between April and August, 2016, counsel for LawPro conducted an investigation with respect to the file, contacted the plaintiff and sought instructions. Efforts commenced in September, 2016 to effect proper service of the Statement of Claim on the defendant and on September 23, 2016, service was effected on Stan Orlowski at 1081 Rife Road, Cambridge, Ontario. On October 5, 2016, current counsel for the defendant responded in writing to counsel for LawPro.

[8] The plaintiff asserts in his affidavit sworn August 16, 2017 that it has always been his intention and desire to proceed with his claim against the defendant and at no time did he instruct anyone at MGD to delay in advancing his case.

[9] In an affidavit sworn by a lawyer in the office of counsel for the defendant, it is stated that the plaintiff was employed by Hanson Hardscape Products Inc. and that the defendant is not, and never has been, a legal entity in Canada. Hanson Hardscape Products was created by Articles of Amalgamation on January 1, 2008. In August, 2012 the assets of Hanson Hardscape Products were sold to Oldcastle Building Products, Inc. and the corporation was dissolved by Articles of Dissolution dated October 8, 2014.

[10] Megan Roose, to whom the letters of February 1, and August 8, 2013 were sent is no longer employed by Hanson Hardscape Products or any affiliated corporation. She stated to an unnamed person at the office of the solicitors for the defendant that she did not receive the Statement of Claim in this proceeding.

[11] Oldcastle Building Products currently operates the facility located at 1081 Rife Road, Cambridge. When the Statement of Claim was served in September, 2016, a lawyer for Oldcastle Building Products forwarded the Statement of Claim to counsel presently acting for the defendant.

[12] The affidavit of the lawyer in the office of the solicitors for the defendant states that he was advised by the lawyer who wrote the March 27, 2013 letter to Mr. Senior that she was unaware that a Statement of Claim had been issued.

[13] The affidavit of the lawyer in the office of the solicitors for the defendant also states that no steps were taken to preserve documents relating to the plaintiff’s claim and that all efforts to locate and obtain a copy of the plaintiff’s employee file have been unsuccessful. It is asserted that the failure to properly serve the Statement of Claim in this action has caused real and the irreparable prejudice to the defendant to fully and properly defend and challenge the allegations made by the plaintiff.

Discussion and Analysis

[14] Rule 3.02 of the Rules of Civil Procedure provides as follows:

(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.

(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.

[15] Rule 16.08 of the Rules of Civil Procedure states:

Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,

(a) the document came to the notice of the person to be served;…

[16] Although the defendant was not properly served with the Statement of Claim in August, 2013, I am satisfied that a copy of the Statement of Claim was received. Mr. Senior’s letter of February 1, 2013 was forwarded to the same facsimile number to which the Statement of Claim was sent. Mr. Senior’s letter was obviously received because of the response dated March 27, 2013 from solicitors purporting to act for the defendant. The confirmation of facsimile transmission on August 8, 2013 indicates that 11 pages were sent and received. This is consistent with the 11 page Statement of Claim and the covering letter being sent and received.

[17] Counsel for the defendant on this motion submitted that I should conclude that Mr. Senior’s letter of February 1, 2013 which prompted the response from lawyers representing the defendant was as a result of the letter being sent by courier to Megan Roose at 1570 Yorkton Court, Burlington rather than by facsimile transmission to 1081 Rife Road, Cambridge. The letter was sent by courier to Megan Roose. The letter from the lawyers for the defendant refers to “your letter of February 1, 2013 to Ms. Megan Roose”. However, the letter from the solicitors for the defendant did not suggest that the facsimile number or address in Cambridge were not associated with the defendant.

[18] Although it may have been that the Statement of Claim was not brought to the attention of Megan Roose in or around August, 2013, I am satisfied that it was received at the facility located at 1081 Rife Road, Cambridge, which was associated with the defendant. When the Statement of Claim was served in September, 2016, it was brought to the attention of the defendant or an associated company. I conclude that the Statement of Claim which was improperly served in August, 2013 was also likely brought to the attention of the defendant.

[19] I will note at this juncture that the issue of whether the plaintiff has sued the correct corporate entity as his former employer is not before me on the present motion. I simply observe that in March, 2013, the lawyer who responded to Mr. Senior’s February 1, 2013 letter advised that she was acting for the defendant and did not raise any issue about the defendant not being the plaintiff’s former employer.

[20] The Ontario Court of Appeal in Chiarelli v. Wiens, 2000 CanLII 3904 (ON CA), [2000] O.J. No. 296 stated at paragraph 12 that in deciding whether to grant an extension of time, the basic consideration is whether the extension will advance the just resolution of the dispute, without prejudice or unfairness to the parties.

[21] The Court in Chiarelli also stated at paragraph 15 that the onus is on the plaintiff to show that the defendant will not be prejudiced by the extension of time sought. However, it is not sufficient for the defendant to allege, without particulars, that it will be prejudiced if the extension of time is granted.

[22] Lastly, in Chiarelli at paragraph 17, the Court said that there are no fixed rules or guidelines as to when an extension of time should be refused. Each case must be decided on its facts with the focus being on whether the defence is prejudiced by the delay.

[23] In this case, the defendant was aware of the plaintiff’s intention to seek damages for wrongful termination of his employment by at least March, 2013. The letter from counsel for the defendant to Mr. Senior identifies the reasons why the defendant terminated the plaintiff’s employment. Such reasons included the failure of the plaintiff to provide medical documentation explaining why he could not return to work or, if he could, what if any restrictions there would be on his ability to perform his job functions. The letter makes it clear that the defendant made numerous requests to the plaintiff to provide medical information which the plaintiff did not provide. I can only presume that the defendant identified and preserved the documentation necessary to support the position then being asserted.

[24] Chiarelli also makes it clear that the prejudice to the defendant must be caused by the delay. There is no evidence that documents which were identified in March, 2013 as relevant to the defence of the plaintiff’s claim were destroyed as a result of any general purging procedure, or otherwise, during the period after the Statement of Claim expired.

[25] The defendant refers to the unlikelihood of being able to locate material witnesses without identifying the persons who are no longer available. However, it is known that Megan Roose, the former Human Resource Manager, has been contacted by the solicitors for the defendant and Stan Orlowski, who was the Plant Manager at the facility located at 1081 Rife Road, Cambridge during the period of the plaintiff’s employment, continues to work at that location.

[26] The defendant submits that the conduct of the various lawyers at MGD who worked on the plaintiff’s file goes beyond “a mere slip”. I am satisfied that the lawyers at MGD were negligent but that is not sufficient reason to refuse to validate improper service or to extend the time for service of the Statement of Claim. In Lico v. Griffith, 1996 CanLII 7990 (ON SC), [1996] O.J. No. 1364 it was observed that the negligence of a solicitor is not a factor to be considered on the issue of whether an extension of time should be granted (paragraph 42).

Conclusion

[27] I have concluded that permitting the plaintiff to proceed with this action will advance the just resolution of the dispute, without prejudice or unfairness to the parties.

[28] The Notice of Motion seeks, in the alternative, an order validating service of the Statement of Claim by facsimile transmission on August 8, 2013 or an order extending the time for service of the Statement of Claim nunc pro tunc to September 23, 2016. I am satisfied that the plaintiff has met the test to permit either order to be made but only one of the alternatives is necessary. I therefore order that service of the Statement of Claim by facsimile transmission on August 8, 2013 is validated. The defendant shall have 30 days from the date of release of this Endorsement to deliver its Statement of Defence.

[29] At the conclusion of oral argument, both counsel made brief submissions indicating that they were seeking costs in favour of their respective client. At that time, I express the tentative view that it would be appropriate for there to be no order as to costs. The plaintiff sought and obtained an indulgence from the court. Although the plaintiff was successful, I do not find the position of the defendant in opposing the motion to be unreasonable. That said, if the parties are unable to agree on an appropriate disposition as to costs, written submissions are to be submitted.

[30] The written submissions of the plaintiff are to be delivered to my office within 14 days of the release of this Endorsement, not to exceed three pages in length exclusive of a Bill of Costs and Costs Outline. The written submissions of the defendant are to be delivered to my office within 28 days of the release of this Endorsement, also not to exceed three pages in length exclusive of a Bill of Costs and Costs Outline. If cost submissions have not been received within 40 days of the release of this Endorsement, costs will be considered as having been resolved and the file will be closed. Counsel are directed to file electronic copies of their cost submissions at Kitchener.Superior.Court@ontario.ca to my attention.

“G.E. Taylor”

G.E. Taylor, J.

Date: November 6, 2017