Court File and Parties

COURT FILE NO.: CV-16-00559581 MOTION HEARD: 20180412 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sherryn Dogger, Plaintiff AND: Canadian National Exhibition Association, The Board of Governors of Exhibition Place, The Exhibitor Support Centre Inc., and R. Galati Contracting Ltd., Defendants

BEFORE: Master B. McAfee

COUNSEL: J. Korn for the Plaintiff G. Roger and S. Rosenbaum for the Board of Governors of Exhibition Place C. Girardo for the Exhibitor Support Centre Inc. K.C. Eng for the Canadian National Exhibition Association

HEARD: April 12, 2018

Reasons for Decision

[1] This is a motion brought by the plaintiff Sherryn Dogger (the plaintiff) for an order extending the time to serve the statement of claim on the defendants the Board of Governors of Exhibition Place (the Board) and the Exhibitor Support Centre Inc. (Exhibitor Support).

[2] The Board and Exhibitor Support oppose the motion.

[3] For the reasons that follow, the motion is granted.

[4] In this action the plaintiff claims damages as a result of an accident that occurred on August 30, 2014. It is alleged that on that date, the plaintiff attended Exhibition Place. The plaintiff rented a scooter from Exhibitor Support. The plaintiff alleges that she rode over a metal grate causing the scooter to wobble into a picnic bench. The plaintiff alleges that a metal plate protruding from the picnic table lacerated the plaintiff’s leg, resulting in permanent personal injury.

[5] On or about November 3, 2014, less than three months after the accident, plaintiff’s counsel sent a notice letter to the Canadian National Exhibition Association (CNEA). The insurance adjuster for CNEA acknowledged receipt of the notice letter on November 11, 2014, and suggested that the City of Toronto be placed on notice.

[6] On May 29, 2015, the plaintiff commenced an earlier action bearing court file number CV-15-529259, naming CNEA as the only defendant (the first action). On or about June 22, 2015, CNEA defended the first action.

[7] The examinations for discovery in the first action were scheduled to take place on January 26, 2016. At the examinations for discovery it was agreed that the examinations would be adjourned as a result of plaintiff’s counsel having been made aware of other potential defendants. CNEA undertook to provide the name and contact information for the vendor that rented the scooter to the plaintiff in the Direct Energy Centre, the name and contact information for the contractor who spread the wood chips on the ground in the area where the accident occurred and undertook to provide a copy of the master agreement between Exhibition Place and CNEA.

[8] On or about July 22, 2015, July 5, 2015, and February 24, 2016, counsel for CNEA provided information concerning other potential defendants.

[9] On August 30, 2016, the within action was commenced.

[10] On September 8, 2016, the defendant R. Galati Contracting Ltd. (Galati Contracting) was served with the statement of claim.

[11] According to the affidavit evidence of Lisa Francis, process server, on September 9, 2016, she met with an individual named Mike Cruz. Ms. Francis deposes that she understood that Mr. Cruz was the Director of Operations for the Canadian National Exhibition. She provided Mr. Cruz with three sealed envelopes containing the statement of claim, one for each of CNEA, the Board and Exhibitor Support.

[12] According to the affidavit of Mr. Cruz, he was the Director of Operations of CNEA on September 9, 2016. Mr. Cruz does not recall being served with the statement of claim. He deposes that if he was served, he would only have accepted service on behalf of CNEA.

[13] On September 15, 2016, CNEA served a notice of intent to defend. The cover letter from counsel for CNEA is addressed to all defendants.

[14] On February 21, 2017, CNEA served a notice of change of lawyer. The notice of change of lawyer indicates it is being sent to all defendants.

[15] On May 8, 2017, the Board and Exhibitor Support Centre were noted in default.

[16] On June 6, 2017, the office of plaintiff’s counsel contacted the office of counsel for CNEA by email to schedule examinations for discovery.

[17] On June 15, 2017, in response to the email, counsel for CNEA advised plaintiff’s counsel that on June 6, 2017, counsel for CNEA was contacted by Claimspro regarding the notice of change of lawyer. Counsel for CNEA advised that he suspected that ultimately counsel would be appointed for the Board and suggested postponing the scheduling of examinations for discovery.

[18] On June 20, 2017, Galati Contracting served a statement of defence and crossclaim.

[19] On July 5, 2017, the office of plaintiff’s counsel forwarded a copy of the statement of claim to the adjuster for the Board.

[20] On July 7, 2017, counsel for the City of Toronto wrote to plaintiff’s counsel confirming that they had been retained to defend it in this matter. Counsel stated that the Board is a board of the City of Toronto. Counsel noted that the client only recently received a copy of the statement of claim and the noting in default. Counsel stated that as this was the client’s first notice and the claim was served outside the time for service, the claim cannot proceed. Counsel requested a copy of the affidavit of service.

[21] The July 7, 2017, letter was the first instance that the plaintiff became aware of potential issues with service of the statement of claim.

[22] On July 25, 2017, counsel for the Board wrote to plaintiff’s counsel advising that a motion would be brought to invalidate the service of the statement of claim and to set aside the noting in default. On or about September 6, 2017, a notice of motion returnable October 3, 2017, was served for this relief.

[23] On October 3, 2017, the Board’s above-mentioned motion and a motion brought the plaintiff to validate service of the statement of claim on the Board and Exhibitor Support and in the alternative to extend the time for service of the statement of claim on these defendants were before the court.

[24] On October 3, 2017, on an unopposed basis, the Board’s motion was granted. The Board sought an adjournment of the plaintiff’s motion, which the plaintiff opposed. The plaintiff’s motion was adjourned for reasons set out in my endorsement dated October 3, 2017. The plaintiff’s motion was adjourned to November 29, 2017. The parties then agreed to a further adjournment of the plaintiff’s motion to April 12, 2018.

[25] On April 12, 2018, at the return of the plaintiff’s motion, a motion brought by Exhibitor Support for an order invalidating service of the statement of claim and setting aside of the noting in default was added to the list. On an unopposed basis, the motion brought by Exhibitor Support was granted.

[26] The parties agree that the six month time period within which to serve the statement of claim as set out in rule 14.08(1) expired on February 28, 2017.

[27] There is no issue that the within action was commenced within the relevant limitation period.

[28] The applicable rules of the Rules of Civil Procedure provide as follows:

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.

2.01(1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,

(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or

(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.

3.02(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.

[29] The leading authority on motions to extend the time for service of the statement of claim is the decision of the Court of Appeal in Chiarelli v. Weins, 2000 CanLII 3904 (ON CA), [2000] O.J. No. 296. As stated at paragraph 17 of Chiarelli:

The court should not fix in advance rules or guidelines when an extension should be refused. Each case should be decided on its facts, focusing … on whether the defence is prejudiced by the delay.

[30] In Chiarelli at paragraph 16, the Court of Appeal states as follows with respect to prejudice:

… 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.

[31] I am satisfied that the delay has been adequately explained. The delay was a result of a belief by plaintiff’s counsel that the Board and Exhibitor Support had been properly served as evidenced from the affidavits of service of L. Francis sworn October 31, 2016.

[32] With respect to the issue of prejudice as a result of the delay in serving the statement of claim, I am satisfied that there is no such prejudice.

[33] On the motion, counsel for the Board and Exhibitor Support argued that the plaintiff has not rebutted the presumption of prejudice. To the extent that there is a presumption of prejudice, I am satisfied that any presumption of prejudice has been rebutted. Medical records are available, including the ambulance call report. Further medical records can be requested and are likely available given the date of the accident. Photographs of the injury have been provided. The names and contact information for the after-the-fact witnesses have recently been provided. There is no evidence of any witnesses who observed the accident.

[34] On the motion counsel for the Board and Exhibitor Support submitted that for the purposes of the motion, the prejudice relied on is with respect to liability, not damages.

[35] The requirement that the Board and Exhibitor Support provide specific evidence of prejudice is set out in Chiarelli at paragraph 14.

[36] The evidence before me from the Board and Exhibitor Support and in particular the evidence of prejudice as a result of the delay does not satisfy me of actual prejudice to these defendants as a result of the delay in serving the statement of claim.

[37] The evidence of the Board in this regard is set forth at paragraph 42 of responding affidavit of Margaret Knebel, adjuster, sworn September 27, 2017. Ms. Knebel acknowledges that prejudice would have been suffered even if the statement of claim had been served within the appropriate time. Ms. Knebel deposes that she believes that additional prejudice was caused by the further delay between the expiry of the time to serve the statement of claim and the date that a copy of the statement of claim was received. She does not provide particulars of the additional prejudice as a result of the delay.

[38] The evidence of Exhibitor Support in this regard is set forth in the affidavit of Diane Carr, adjuster, sworn December 1, 2017. Ms. Carr’s evidence does speak to prejudice but not specifically with respect to the time period at issue on this motion.

[39] The plaintiff has satisfied its onus to show that the Board and Exhibitor Support will not be prejudiced by an extension.

[40] For these reasons, I am satisfied that it is just in all of the circumstances that the time to serve the statement of claim on the Board and Exhibitor Support be extended to June 29, 2018. The Board and Exhibitor Support shall deliver statements of defence on or before August 31, 2018, or such later date as may be agreed to.

[41] If any party seeks costs and if after reasonable attempts to agree on costs the parties are unable to agree, the parties may re-attend before me to address the issue of costs. Any re-attendance shall be scheduled, not necessarily take place, within 60 days of today’s date by contacting the motions scheduling unit.

Summary of Order

[42] Order to go as follows:

1. The time to serve the statement of claim on the Board and Exhibitor Support is extended to June 29, 2018;

2. The time for the Board and Exhibitor Support to deliver a statement of defence is extended to August 31, 2018, or such later date as may be agreed.

Master B. McAfee

Date: May 14, 2018