Court File and Parties

COURT FILE NO.: CV-16-00564048 MOTION HEARD: 2018-06-14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robert Shuttleworth, Shuttleworth Specialty Services Inc., and Lily Lighting Limited, Plaintiffs AND: Mark Stephenson, Defendant

BEFORE: Master B. McAfee COUNSEL: Robert Shuttleworth, Plaintiff in Person Kimberly Gale, Counsel for the Defendant

HEARD: June 14, 2018

Reasons for Decision

[1] This is a motion brought by the plaintiffs for an order for leave to extend the time to prepare and file a statement of claim and for an order to extend the time to serve a statement of claim.

[2] The defendant opposes the motion.

[3] This action arises from a lease by the plaintiff Robert Shuttleworth (the plaintiff) of a garage owned by the defendant. The plaintiff leased the garage from in or about 2008. The plaintiff was required to vacate the garage by October 31, 2014. On November 12, 2014, the defendant changed the locks on the garage. On November 14, 2014, the defendant delivered a formal notice to the plaintiff to vacate the garage. The plaintiff was ultimately given until November 30, 2014, to remove his belongings from the garage.

[4] On November 14, 2016, a notice of action was issued. The plaintiffs claim damages and losses in the amount of $1,000,000. for tools, supplies, inventory, intellectual property taken and lost time and damages to businesses, also psychological suffering due to the misleading actions and statements by the landlord and the loss of funded research projects.

[5] On November 30, 2016, the notice of action was served personally.

[6] No statement of claim has been prepared or served.

[7] This motion was first returnable on March 12, 2018. The motion was returnable before a Judge and was adjourned because the motion was properly within the jurisdiction of a Master. In addition, the plaintiff had not yet obtained leave to act for the corporate plaintiffs. A notice of motion was previously served for a January 31, 2018, return date but it does not appear that any material was filed for that return date.

[8] By order dated March 29, 2018, the plaintiff was granted leave to act for the corporate plaintiffs.

[9] The applicable Rules of Civil Procedure provide as follows:

14.03(3) Where a notice of action is used, the plaintiff shall file a statement of claim (Form 14D) within thirty days after the notice of action is issued, and no statement of claim shall be filed thereafter except with the written consent of the defendant or with leave of the court obtained on notice to the defendant.

14.03(4) The notice of action shall not be served separately from the statement of claim.

14.08(2) Where an action is commenced by a notice of action, the notice of action and the statement of claim shall be served together within six months after the notice of action is issued.

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.

[10] One decision was before me on the motion: Eadie v. Crompton Co., 2008 CarswellOnt 134 (Master). The defendant relies on this decision in support of his position on the motion. In Eadie the motion to extend the time for service of the statement of claim was dismissed due to a lack of explanation for the delay and a failure to move promptly to bring the motion.

[11] 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.

[12] 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.

[13] Although the defendant was served with the notice of action on November 14, 2016, nothing further took place until this motion was brought. This motion was first returnable approximately one year and three months after the time to file a statement of claim had expired and approximately ten months after the time to serve the notice of action and statement of claim had expired.

[14] There was an initial attempt by the defendant to resolve the matter shortly after the notice of action was served. The plaintiff’s evidence is that the action of the defendant at a time when the plaintiff was financially weakened resulted in setbacks to the plaintiff from which the plaintiff has been unable to recover. The plaintiff is currently receiving social assistance and does not have a home or business address. The plaintiff suffers from daily pain arising from nerve and liver complications as a result of an August 2013 accident. I am satisfied that the delay has been adequately explained in these circumstances.

[15] Focusing on the issue of prejudice, I am satisfied that the plaintiffs have rebutted the presumption of prejudice. The plaintiffs have a list of the assets that they allege were seized by the defendant (Exhibit “F” to the affidavit of the plaintiff sworn June 14, 2018). The plaintiffs also have a list of the inventory and personal assets allegedly seized and disposed of (Exhibit “G” to the affidavit of the plaintiff sworn June 14, 2018).

[16] The defendant’s evidence is that there is prejudice because proving the contents of the garage and their value and proving the condition the garage was left in will be significantly harder if not impossible given the delay. The defendant has photographs of the condition of the garage and rear yard left by the plaintiff (Exhibit “J” to the affidavit of the defendant sworn February 16, 2018). The defendant removed the items in the garage but there is no evidence that the removal of the items took place during the period of delay at issue on this motion. I am not satisfied of actual prejudice to the defendant as a result of the period of delay at issue on the motion.

[17] Although not determinative, the defendant did serve and file a notice of intent to defend on February 21, 2018, and February 22, 2018, respectively. Rule 16.01(2) provides that a party who has not been served with an originating process but delivers a notice of intent to defend shall be deemed to have been served with the originating process as of the date of delivery.

[18] On the motion the defendant argued that the limitation period expired two years after the locks were changed and that the action is statute barred. Based on the record before me it is not clear that the applicable limitation period expired prior to the commencement of the action as argued by the defendant. The defendant is at liberty to plead any limitation period defence.

[19] In all of the circumstances of this particular matter I am satisfied that granting the relief sought would advance the justice resolution of the dispute, without prejudice or unfairness to the parties. I therefore exercise my discretion to grant leave to file a statement of claim and to grant an extension of time to serve the statement of claim.

[20] With respect to the issue of costs, the plaintiffs do not seek costs of the motion. If not successful in opposing the motion, the defendant seeks costs in the amount of $1,867.00 for costs thrown away of the previous attendances on the motion. The plaintiff advised that it was the previous lawyer for the defendant who requested that the motion be brought before a Judge. On April 4, 2018, I adjourned the motion to provide the plaintiff with an opportunity to file further evidence. The motion did not proceed on May 23, 2018, because it was not properly confirmed and was not on a list. In my view, the defendant is entitled to costs for the April 4 and May 23, 2018, return dates. I fix those costs in the all-inclusive sum of $500.00, payable by the plaintiffs to the defendant in the cause.

[21] Order to go as follows:

1. Leave is granted to file a statement of claim.
2. The time to serve and file a statement of claim is extended to July 31, 2018.
3. Costs of the motion are fixed in the all-inclusive sum of $500.00 payable by the plaintiffs to the defendant in the cause.

Master B. McAfee Date: June 19, 2018