Court File and Parties

COURT FILE NO.: CV-18-605443

DATE: 20191114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Estate of Robert William Drury, Sr. and Robert Drury Jr., Personally and as Estate Trustee, Plaintiffs

AND:

Shirley Adele Margaret McLaughlin, Defendants

BEFORE: Master P.T. Sugunasiri

COUNSEL: Melfi, A., Counsel for the Plaintiffs/Moving Parties

Gilmore, J., Counsel for the Defendant

HEARD: October 16, 2019

REASONS FOR DECISION

Overview:

[1] The dispute arises after Hugh Kenneth Drury died intestate on January 12, 2016. At the time of death, he resided with Shirley McLaughlin at 65 Maple Avenue West in Beeton, Ontario. The Plaintiff, Robert William Drury Sr. owned the property until he died on September 8, 2016. Prior to his death, Robert Sr. sought vacant possession of his home. Shirley refused to vacate on the basis that she was Kenneth’s common-law spouse with property and other rights.

[2] Ultimately, Justice LeMay ordered Shirley to vacate the Beeton Property by September 30, 2016. On September 24, 2016, a fire occurred there. The Fire Marshal and Police Department concluded that arson caused the fire and charged Shirley.

[3] On September 19, 2018, Robert Jr had a Statement of Claim issued against Shirley for malicious and intentional arson damage or gross negligence causing him and his father a loss of enjoyment of life and damages for loss of property. At the time the Plaintiffs issued their claim, Shirley’s criminal proceedings were in progress. Robert Jr had until March 19, 2019 to serve the Claim but did not do so until early July of 2019 when he served it with this motion to extend time for service. He now seeks to retroactively extend the time for service and validate it.

[4] For the brief reasons that follow, I allow the motion and validate service as of today’s date. Robert Jr has provided a reasonable explanation for the three month delay in serving the Claim and the delay has not caused Shirley non-compensable prejudice. In the circumstances of this case, extending the time will advance the just resolution of the dispute without unfairness or prejudice arising from the delay.

Analysis:

[5] Rule 14.08(1) requires a plaintiff to serve his claim within six months of issuance. In this case, the Plaintiffs should have served their Claim by March 19, 2019. The Claim came to Shirley’s attention when the Plaintiffs served this motion record on her by regular mail on June 24, 2019.

[6] I accept Shirley’s principles of law that govern extensions of time as they have been set out by the Ontario Court of Appeal in Chiarelli v Wiens, 2000 3904 at paras 14-17. Generally, the Court of Appeal has instructed our court to avoid fixing rules or guidelines for when an extension should be refused. Instead the court should decide each case on its facts, focusing on whether the defence is prejudiced by the delay (at para. 17). The applicable rules are 1.04, 2.01 and 3.02 which in effect allow a court to extend time if it secures a just, cost effective, and efficient determination of the case.

[7] The Plaintiffs’ delay in serving the claim was no more than three months. In my view, their default is minor. The three month delay has not caused Shirley non-compensable prejudice to Shirley.

[8] First, I accept Robert Jr’s explanation that he was waiting until Shirley’s related criminal matter had concluded to pursue the civil claim. I am not bound by Lim v Kim et al, 2008 64680 (Master) where Master Sproat disqualified this reason for delay. In any event the fact the Master Sproat did not accept ongoing criminal proceedings as a legitimate reason for the Plaintiff’s delay in prosecuting that action does not mean that such an explanation can never be accepted in any motion for an extension of time. As the Court of Appeal directs, every case should be decided on its unique circumstances.

[9] Second, it is clear from Robert Jr’s cross-examination that his counsel drove the decision to delay service. I infer from the transcript that Robert Jr is not a sophisticated litigant and relied on counsel’s advice on how to proceed. As accepted by the OCA in Chiarelli supra, on a motion to extend time for service, the court should be concerned mainly with the rights of the litigants, not with conduct of counsel (at para. 9). Counsel’s advice on how to proceed should not in and of itself prevent Robert Jr. from pursuing his claim.

[10] In that regard, I distinguish this case from Pagliuso v Primerica Financial Services Ltd., 2019 ONSC 460. In Pagliuso, the plaintiff issued the claim in 2015 and sought an extension of time to serve it in 2019. In dismissing the motion, Justice Gray adopted the principle used in Rule 24 dismissal for delay motions that intentional and contumelious conduct is sufficient for a plaintiff to lose the ability to prosecute his action. In that case the plaintiff lacked the funds to proceed with the action and therefore instructed his lawyer not to serve the claim until he had funds to proceed. Justice Gray dismissed the plaintiff’s motion on the basis that he made a personal decision that was not the fault of his counsel and he took the risk that he would be successful on an extension of time motion. In Justice Gray’s view, the plaintiff was playing “fast and loose with the rules.” In this case, Robert Jr was relying on the advice of counsel to delay service until the related criminal proceedings had concluded. There is a logic to such a delay unrelated to any personal preferences, choices or circumstances of Robert Jr. The delay was perhaps intentional, but not “contumelious” (in other words, not disdainful, lacking respect or rude in a contemptuous way).

[11] In any event, the Court of Appeal notes that the focus of the Court’s analysis in should be on prejudice. The Plaintiffs have addressed prejudice by pointing to the preservation of the relevant documents within the criminal proceedings. Beyond this they cannot be expected to guess at what witnesses or documents might be relevant to Shirley and then attempt to show that these witnesses and records are still available, or that their unavailability will not cause Shirley prejudice (Chiarelli supra at para 14).

[12] Shirley argues both presumed and actual prejudice. Her alleged actual prejudice arises from her inability to conduct her own inspection of the property or have her own expert opine on its cause because the property is now sold. However, the evidence reveals that the property was sold under power of sale on November 23, 2018.[^1] This was even prior to the expiration of the permissible time for service. Any prejudice from losing the opportunity to conduct her own inspection did not arise as a result of the three month delay in service.

[13] Shirley also submits that she has suffered presumed prejudice as a result of receiving notice of the claim after the expiration of the limitation period for bringing the action. In my view, any such prejudice is minimal. Assuming that the limitation period started to run from the date of the fire (September 24, 2016), the Plaintiffs had until September 24, 2018 to issue their claim. They did so on September 19, 2018. Even if the Plaintiffs had served the Claim on time (by March 19, 2019), Shirley would still only have had notice of it after the expiration of the limitation period. On this analysis, presumed prejudice should only become relevant after two years and six months from the date of loss. Shirley had notice of the claim two years and nine months from the date of loss. Three months of presumed prejudice does not oust the Plaintiffs’ ability to prosecute the claim.

[14] Even if I am wrong in my analysis, there is at best, nine months of presumed prejudice. This presumption recognizes that memories fade over time and the expiration of the limitation period gives a potential defendant peace of mind. In the present case, the presumption is offset by the fact that Shirley is in the midst of a related criminal trial that is keeping her memory current. The length of time of the presumed prejudice is also relevant. In the circumstances of this case, nine months of presumed prejudice is insufficient to deprive the Plaintiffs of an opportunity to cure their minor default. On the contrary, it is in the interest of justice that the action proceeds and is heard on its merits.

[15] For the foregoing reasons, I allow the Plaintiffs’ motion to extend the time to serve their Claim and validate service as of today’s date.

Costs:

[16] The Plaintiffs have been wholly successful on the motion. They do not seek costs. They do however seek $300 for the cost of Robert Jr’s cross-examination. Rule 39.02(4)(b) requires a cross-examining party to pay the partial indemnity costs of the adverse party on the motion regardless of outcome. I order Shirley to pay the Plaintiffs all-inclusive costs of $300 payable within 30 days of today’s date.

Original signed

Master P. Tamara Sugunasiri

Date: November 14, 2019

[^1]: I note that this evidence came from a late breaking property search that the Plaintiffs provided at the hearing. Though not attached to an affidavit, Shirley does not contest its authenticity. I accept the document as a valid record from the Land Titles Office.