COURT FILE NO.: CV-14-515933
MOTION HEARD: 2018 06 05
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Louise James
v.
Our Lady of Victory Senior Citizens’ Residence (York) Inc.
BEFORE: MASTER R.A. MUIR
COUNSEL: Warren Rigby for the plaintiff Hari Nesathurai and Graeme Oddy, student-at-law, for S & T Landscaping
REASONS FOR DECISION
[1] This is a motion brought by the plaintiff for an order varying the order of Master Hawkins of December 11, 2015. The plaintiff seeks an extension to a court ordered deadline for the service of her amended statement of claim.
BACKGROUND AND HISTORY OF THE ACTION
[2] This action arises from a slip and fall accident that took place on January 29, 2013. The plaintiff issued a statement of claim on November 12, 2014 naming Our Lady of Victory Senior Citizens’ Residence (York) Inc. (the “Owner”) as the only defendant. On March 4, 2015, the plaintiff learned from the Owner of the potential involvement of another party which had provided winter maintenance services to the Owner.
[3] The plaintiff then brought a motion seeking leave to amend her statement of claim to add the winter maintenance contractor, S & T Landscaping (“S & T”), as a defendant to this action. That motion was heard by Master Hawkins on December 11, 2015. Although the presumptive limitation period had expired in January 2015, Master Hawkins nevertheless granted the relief sought by the plaintiff. It appears that Master Hawkins determined that S & T should be added as a defendant on the basis of discoverability. He included a term that S & T be permitted to plead a limitation defence. Master Hawkins also ordered that the amended statement of claim be served by March 31, 2016.
[4] Master Hawkins’ decision was provided by way of oral reasons only. He endorsed the motion record “order to go in terms of oral reasons recorded”. Master Hawkins was asked to sign a draft order at the time but declined to do so as it would have required extensive amendments. Instead, he gave direction to counsel for the plaintiff (not Mr. Rigby) with respect to how he should obtain a transcript of the oral reasons and thereafter take out the formal order which would permit the plaintiff to amend and serve the statement of claim on S & T.
[5] As of the date of the hearing of this motion, the formal order from the motion before Master Hawkins has not been taken out and the statement of claim has not been amended or served.
[6] The thirty months that have followed the decision of Master Hawkins in December 2015 include several periods of unexplained delay. There appears to have been some effort to obtain a transcript of the oral reasons in January and February of 2016. However, those efforts were not successful. The plaintiff was eventually successful in placing an order for the transcript on an expedited basis on March 23, 2016. Of course, that order was placed only one week before the expiry of the time for service of the amended statement of claim as ordered by Master Hawkins.
[7] The transcript was received on April 12, 2016. The plaintiff waited for another two months to send a draft order, based on the transcript, to the lawyer for S & T. The lawyer for S & T replied immediately advising that a portion of the hearing was missing from the transcript, specifically the ruling on costs and the deadline for service.
[8] The lawyer for the plaintiff then followed up with the transcription service to obtain a complete copy of the oral decision. The full transcript was received by the plaintiff’s lawyer on July 28, 2016. That copy of the transcript included the term of the order setting out the deadline for service of the amended statement of claim.
[9] Unfortunately, the plaintiff did nothing to address this situation for the next 10 months. Finally, on May 30, 2017, the plaintiff served a motion record returnable June 6, 2017 seeking an extension of time. That motion was eventually adjourned on consent to September 12, 2017. The plaintiff failed to confirm the September 12, 2017 motion. It was therefore not listed for a hearing on that date and did not proceed.
[10] The plaintiff did nothing further until November 20, 2017 when the lawyer for the plaintiff contacted the lawyer for S & T in order to re-schedule the motion to extend time. A new date for the motion was booked and then rescheduled once again. A fresh motion record was eventually served on March 20, 2018. The motion was then heard by me on June 5, 2018.
[11] The Owner took no position on this motion. S & T is opposed to the relief sought by the plaintiff.
ANALYSIS
[12] The plaintiff did not provide the court with any authority setting out the test to be applied on this motion in these circumstances. S & T argued that this motion is really about extending a deadline established by a court order and the test applicable to setting aside a registrar’s dismissal order should apply with appropriate modifications. That test is well known and is summarized in the decision of the Court of Appeal in Chrisjohn v. Riley, 2015 ONCA 713. While the court must consider all relevant factors, four factors are of central importance. The court must consider the explanation for the delay, whether the deadline was missed due to inadvertence, any delay in bringing the motion to set aside the order and prejudice to a defendant. Prejudice is the key consideration. See Chrisjohn at paragraphs 16 and 36. Ultimately, the court must take a contextual approach and consider all of the circumstances of each particular case and make the order that is just. See Chrisjohn at paragraph 28.
[13] Although the parties did not provide the court with any authorities dealing specifically with the issue of extending the time for service of a statement of claim under the Rules of Civil Procedure, RRO 1990, Reg. 194, that test is also well settled. In Chiarelli v. Wiens, 2000 CanLII 3904 (ON CA), 2000 OJ No. 296 (CA) the Court of Appeal confirmed that the main consideration is whether the extension of time will advance the just resolution of the dispute without prejudice or unfairness to the parties. See Chiarelli at paragraph 12.
[14] It is also important to note that both of these lines of authority confirm that the party seeking the extension of time bears the onus of demonstrating that the responding party will not be prejudiced. See Chiarelli at paragraph 12 and Chrisjohn at paragraph 37.
[15] These are the factors and principles I have considered and applied in determining the issues on this motion. I have concluded that it would not be just in the circumstances of this motion to extend the time for service of the amended statement of claim on S & T.
[16] First, there were lengthy periods of unexplained delay following the order of Master Hawkins. The transcript from the hearing shows that the plaintiff’s lawyer was in the courtroom when Master Hawkins made his order imposing the deadline of March 31, 2016 for the service of the amended statement of claim. Despite this, the plaintiff’s lawyer did not proceed diligently to obtain a copy of the transcript and take out the order in a timely manner. Even after receiving a copy of the transcript in April 2016, the plaintiff’s lawyer waited another two months to seek the approval of S & T to the form and content of the draft order. The complete version of the transcript was received in July 2016 but the plaintiff’s lawyer did nothing to seek relief from the service deadline until May 2017. Although that motion was ultimately scheduled for September 12, 2017, it was not confirmed and did not proceed. Another six months of delay followed before the fresh record for this motion was served. There is a suggestion in at least one letter sent by the plaintiff’s lawyers that some of this delay resulted from “a significant shift in our support staff”. However, no details of those events were provided as part of the evidence on this motion.
[17] This delay must also be viewed within the context of how S & T came to be a part of this proceeding. S & T was not named as a defendant when this action was started. It only received formal notice of this claim when it was served with the plaintiff’s motion record to amend the statement of claim in May 2015. This was more than two years after the incident giving rise to the claim and outside of the presumptive limitation period. Nevertheless, Master Hawkins determined that there was an issue to be tried with respect to discoverability and added S & T as a defendant. This initial delay in naming S & T is then followed by another two years of mostly unexplained delay by the plaintiff in taking out the order of Master Hawkins and filing and serving the amended statement of claim. The presumptive limitation period expired more than three years ago. The event giving rise to this claim took place more than five years ago. S & T has still not been made a party to this action.
[18] Second, there is no evidence from the lawyer for the plaintiff that the failure to meet the service deadline was a result of inadvertence. It simply appears as if the date for service was ignored. No attempt was made to seek an order varying the order of Master Hawkins before the expiry of the time for service. No attempt was made to obtain such an order in the 12 months following the deadline. The draft order sent to the lawyer for S & T on June 9, 2016 contains a date for service of the amended statement of claim of September 15, 2016. This date appears to have been randomly selected by the lawyer for the plaintiff without regard to the order of Master Hawkins. None of this points to inadvertence.
[19] Third, the plaintiff has failed to meet her onus to demonstrate that S & T will not be prejudiced by the extension of time. The plaintiff’s evidence on this motion with respect to the issue of prejudice consists of a bald statement by a lawyer working in the law firm representing the plaintiff. That statement simply concludes that “the extension sought will not result in any prejudice to the parties that cannot be compensated for by way of costs or an adjournment”. No factual basis is provided for this conclusion. The plaintiff’s evidence does not include any of the usual information with respect to the availability of witnesses or the preservation of documents and other evidence. This action is approaching its fourth anniversary and no oral discovery of any party has taken place. The plaintiff did not seek to add S & T to this action until after the expiry of the presumptive limitation period. Now, another two years have gone by. Memories fade over time. Witnesses become difficult to locate. Documents can be misplaced or destroyed. In my view, the plaintiff has failed to meet her onus with respect to the key consideration of prejudice.
[20] S & T submitted as part of its argument that it has suffered actual prejudice. It points to certain daily log books kept by S & T that are no longer available. I do not accept this evidence as sufficient to establish actual prejudice. The evidence from S & T does not indicate when those log books were lost. There is no evidence that they were lost during the period of delay following the order of Master Hawkins. I do not view this alleged actual prejudice as a factor on this motion.
CONCLUSION
[21] The plaintiff has failed to explain lengthy periods of delay. The plaintiff has not demonstrated that the service deadline was missed due to inadvertence. Importantly, the plaintiff has failed to meet her onus of demonstrating that S & T would not be prejudiced. In December 2015 the plaintiff was afforded an opportunity to add S & T to this action, despite the expiry of the presumptive limitation period. After receiving that indulgence, another two years of delay has followed. For these reasons, I have concluded that it would not be just to extend the time for service of the amended statement of claim on S & T. The plaintiff’s motion is therefore dismissed.
COSTS
[22] If the parties are unable to resolve the issue of the costs of this motion, they shall provide the court with brief written submissions by July 6, 2018. These submissions may be sent directly to me by email.
Master R.A. Muir
DATE: 2018 06 06