Court File and Parties

COURT FILE NO.: 14-CV-517053 MOTION HEARD: 20190716 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anthony Garreffa, Plaintiff AND: Concetta Garreffa., Defendant

BEFORE: Master Abrams

IN ATTENDANCE: Mr. A. Garreffa, Plaintiff Ms. E. Deyoe, for the Defendant

HEARD: July 16, 2019

Reasons for Decision

[1] The plaintiff seeks an Order granting him leave to file a statement of claim in this action and granting him an extension of time for service of the notice of action (already issued) and statement of claim on the defendant, his mother.

[2] The plaintiff’s notice of action issued on November 27/14 but, until now, no statement of claim has been filed.

[3] Where a notice of action is used, the plaintiff is required to file a statement of claim after the notice of action is issued; and, no statement of claim may be filed thereafter, save with the written consent of the defendant (here not forthcoming) or with leave of the court, obtained on notice to the defendant (R. 14.03(3)).

[4] For the court to grant leave, one or more of the following circumstances must be at play: 1. The statement of claim was not filed because of a slip or inadvertence on the part of the plaintiff/the plaintiff’s lawyer; 2. The statement of claim was not filed for some other reasonable cause; 3. The defendant’s conduct has lulled the plaintiff into a false sense of security or, in some other way, has led the plaintiff to fail to serve the statement of claim; and, 4. There must be an absence of prejudice to the defendant by reason of the delay (see: Rafeek v. Yao, 2007 CanLII 58406 (S.C.J.), at paras. 27-28; Venneri v. TD General Insurance, 2006 CanLII 31306 (ON SC), [2006] O.J. No. 3630 (S.C.J.)).

[5] The plaintiff has advanced many reasons for his failure to serve his claim, including in argument. He says that he was ill (physically and emotionally) and refrained from moving forward on doctor’s orders, that he sought the assistance of counsel—to no avail, and that his family was hiding his mother from him and threatened him with police removal from his mother’s home. None of his statements is supported by independently verifiable evidence. No medical records or letters from a health professional have been filed; no evidence of efforts made to retain counsel has been proffered; and though, through to 2017, his mother resided in the same home in which she lived during his childhood, there is no evidence of the plaintiff having attempted to serve her there. The plaintiff’s brothers depose that the plaintiff knew where his mother was, throughout, and, indeed, came to her home as late as 2016.

[6] The evidence before me is that the defendant was not made aware of the existence of the plaintiff’s claim until May of 2018. The defendant is 80 years old. I am advised that her health is declining (with the defendant having been hospitalized for four surgeries in 2016 and now suffering from mobility issues) and that the defendant resides in a long-term care facility because she requires attendant care.

[7] The notice of action herein issued before the defendant’s health began to decline. Now, some three years after the plaintiff last visited the defendant’s home and with knowledge that she has moved into care, the plaintiff brings this motion. The defendant says that the plaintiff “is not only aware of the prejudice caused to the defendant by his delay, he has sought to capitalize on it, waiting to take steps in this action until he knew the defendant was in a more fragile state” (defendant’s factum). I do not know that this is so but the temporal gaps in the plaintiff’s move towards prosecuting his claims do give me pause.

[8] Then too, I must consider whether the plaintiff has met the requirements to be granted an extension of time for service. R. 14.08(2) requires that a notice of action and statement of claim be served within six months after the notice of action issues. R. 3.02 provides that the court may, by Order, extend the timeline.

[9] The court in Tarsitano v. Drutz, 2013 ONSC 5605, at para. 22, outlined five factors that should be taken into consideration in the exercise of the court’s discretion under R. 3.02: 1. Whether the defendant had notice, before the expiry of the limitation period, that the plaintiff was asserting a claim against her; 2. Whether the plaintiff moved promptly for an extension of time after the limitation period expired; 3. Whether it was reasonable for the defendant to infer that the plaintiff had abandoned his claim; 4. Whether the delay in serving the claim was at the behest of the plaintiff; and, 5. Whether there is prejudice to the defendant.

[10] The defendant had notice that the plaintiff intended to sue her by way of a letter sent to her in 2013. The notice of action issued in late November 2014 (but was not then served), and nothing more was said to the defendant about the plaintiff’s claims until 2018. The events that the plaintiff says give rise to the claims date back to 1980 (at the latest[^1]) and, in the plaintiff’s 2013 letter to the defendant, were said to have been discovered by him “in or about the end of October 2012”[^2]: more than two years before the notice of action issued. Given the plaintiff’s silence on the issue of his claims against his mother from 2013 until 2018, I agree with the defendant when she says that it was reasonable for her to infer that the plaintiff had abandoned any claims that he might have or might have had.

[11] No steps were taken by the plaintiff to request an extension of time for service of his claim until a Chambers appointment before Nishikawa, J. on August 14/18. This motion, which resulted from the Chambers appointment and direction provided by Nishikawa, J., was not heard until almost one year later. As a self-represented litigant, the plaintiff himself was responsible for the pace at which this matter proceeded, and it was he who decided when and how he would deal with service of his claim.

[12] On the issue of prejudice, there is a presumption of prejudice given that, at the latest, the plaintiff’s claims (on his version of the facts) were discovered more than 2 years before the notice of action issued and more than 6 years before the plaintiff raised the prospect of delivering a statement of claim. Further, at least one key witness, the plaintiff’s father and the defendant’s husband, Rocco, passed away in 2010. There is no evidence before me that any of the records of Garreffa Paving Company (i.e. the family business: see footnote 2, supra) have been retained or can be accessed and the evidence of the plaintiff’s two brothers and of the defendant is that none of them has any such records. The defendant says that she has no memory of the details of when the plaintiff worked for her late husband’s company and what monies he was paid, if she ever knew those details.

[13] I do not doubt that the plaintiff feels aggrieved. His submissions before me were emotionally charged. And, while the plaintiff has raised many issues, including about the manner in which his parents reared him and his family treated him, these are not issues that I am able to address, given the limits of my jurisdiction and given the nature of the plaintiff’s motion.

[14] In considering the plaintiff’s motion and the skeletal evidence adduced by him, I have made allowances for the fact that the plaintiff is (and has been) self-represented. I have had regard to, inter alia, the history of this litigation (with the reasons for the plaintiff’s delay not being independently supported by medical or other evidence), the time period to which the litigation refers (and the limitation period that has elapsed), the evidence of the parties (and of the plaintiff’s two brothers), the lack of evidence as to the existence of books and records to support or refute the plaintiff’s allegations (and the defendant’s denial of access to them), and the passing of one key witness, the plaintiff’s father and former employer, Rocco. In all, I am persuaded by the defendant that “[g]ranting leave to file and serve the statement of claim in this case will not advance the just resolution of the dispute” (defendant’s factum, at para. 55). The plaintiff’s motion is thus denied.

[15] Failing agreement, costs outlines and written costs submissions may be filed with Masters’ Administration (6th Floor, 393 University Avenue: attention: Ms. Jennifer Mahase for Master Abrams). The defendant’s costs outline and written costs submissions are to be served and filed by September 17/19; and, the plaintiff’s costs outline (if any) and written costs submissions are to be served and filed by October 4/19.

Master Abrams

Date: August 26, 2019

[^1]: With the plaintiff seeking to “[reclaim] the money that was pa[id] to [him] for [his] work in the family business…1976-1980…” (see: letter to the defendant, from the plaintiff, dated February 27/13).

[^2]: There is some evidence to suggest that the claims were discovered on November 20/12 (paragraphs 64-65 of the plaintiff’s April 10/19 affidavit) but, in any event, more than two years before the issuance of the notice of action.