Court File and Parties

COURT FILE NO.: 19-CV-79556

MOTION HEARD: 20191213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marlene Risdhal, Plaintiff

AND:

Christopher Lee a.k.a Chris Lee, Kevin Lee, 2605789 Ontario Inc., Charles Taub, The Empire Life Insurance Company and John Doe a.k.a. Life Insurance for Everyone, Defendants

BEFORE: Master Kaufman

COUNSEL: Margot L. Pomerleau, Counsel, for the Plaintiff

HEARD: December 13, 2019

REASONS FOR DECISION

[1] The plaintiff brings this motion to validate service on the corporate defendant, 2605789 Ontario Inc. and to dispense with service on the defendants Christopher Lee and Kevin Lee. The plaintiff has served all the other defendants.

[2] The plaintiff alleges that Christopher Lee was the plaintiff’s financial advisor and insurance agent. She alleges that she invested funds with him. The plaintiff allegedly sent $80,000 to the numbered company, which has a registered office in Kanata. She alleges that these funds were misappropriated. Kevin Lee, who is Christopher Lee’s brother, is the sole director of the numbered corporation according to the corporation profile report.

2605789 Ontario Inc.

[3] The plaintiff sent a copy of the statement of claim to the registered address for this company, however it was returned to sender and marked “moved / unknown”. In my view, there is no need for an order validating service because the Rules of Civil Procedure[^1] allow for alternative to personal service to be made by mailing the document at the last address recorded with the Ministry of Government and Consumer Services whenever the head office, registered office or principal place of business of a corporation cannot be found.

[4] The plaintiff, knowing that the corporation did not actually become aware of the lawsuit, will be vulnerable to a motion to set-aside any judgment obtained against the corporation (see Rule 16.07). However, the Court cannot validate service as the pre-requisites for such an Order are not met (the Court is neither satisfied that the document came to the attention of the person to be served, or would have come to the person’s attention had they not been evading service).

[5] Accordingly, the Statement of Claim was served on 2605789 Ontario Inc.

Christopher Lee

[6] The plaintiff provided a law clerk’s affidavit in which she states that it is her understanding that Christopher Lee is incarcerated. The source of that information is not explicitly stated. In any event, even if Christopher Lee was incarcerated, I am not satisfied that the plaintiff took every reasonable measure to ascertain his whereabouts.

[7] The plaintiff communicated with Mr. Ayers, a lawyer who acts for Christopher Lee on other matters. Mr. Ayers advised that he does not represent Mr. Lee in this matter and that he does not have instructions to accept service on his behalf. It appears that Mr. Ayers has been in contact with Christopher Lee but that he does not have an address for service.

[8] The plaintiff also requested the Crown Attorney’s office to either provide an address for Mr. Lee, or to forward the claim to him. She received a response the same day. The Crown’s office advised that it will not give an address for an accused nor serve the claim on her behalf.

[9] Rule 16.04 allows for substituted service where it is impractical for any reason to effect prompt service of an originating process. Where it is necessary and in the interests of justice, the Court may dispense with service.

[10] This Rule requires a party to show that is was unable to effect service despite making all reasonable efforts to locate the party and to personally serve that party. What is reasonable will depend on the nature of the case. In this case, the plaintiff could have made enquiries at the criminal counter to obtain information about the criminal proceedings. Such enquiries could lead to knowledge of the correctional institution where Mr. Lee is held, or the name of his criminal defence counsel.

[11] In addition, the plaintiff could bring a disclosure motion, on notice to either parties or non-parties, for information relating to Mr. Lee’s whereabouts. Before bringing such a motion, the plaintiff should request this information from them, including Mr. Ayers who acknowledges having been in recent contact with Mr. Lee.

[12] Dispensing with service is a remedy which will only be granted where a party has done everything in its power to effect service and it is clearly impossible to do so. I am not satisfied that this is the case here. In the circumstances, I am extending the time for service on Mr. Christopher Lee to May 1, 2020.

Kevin Lee

[13] The plaintiff attempted to serve Kevin Lee at the registered address for the numbered company and also by sending a copy of the claim by mail to nine persons listed as K. Lee or Kevin Lee on the website “Canada 411”. I am similarly not satisfied that these efforts meet the requirements of Rule 16.04.

[14] In addition to a motion for production referred to above, there are other methods of ascertaining a person’s whereabouts, including social media searches or publishing an advertisement in two consecutive editions of a newspaper where the defendant is known to reside. The plaintiff could also avail herself of the services of a skip tracer.

[15] In the circumstances, I will also extend the time for service on Kevin Lee to May 1, 2020.

Master Kaufman

Date: December 18, 2019

[^1]: R.R.O. 1990, Reg. 194.