Court File and Parties

Court File No.: 19-81591 Superior Court of Justice - Ontario

Re: Michelle Ero-Oriri (a minor by her litigation guardian Emily Sidney) and Emily Sidney, Plaintiffs And: Dr. Sasha Carsen

Before: Master Kaufman

Counsel: Marc Sauvé and Andréa Baldy, Counsel for the Plaintiffs

Heard: In writing

Reasons for Decision

[1] The plaintiff, Michelle Ero-Oriri underwent a surgery to her right knee on October 4, 2017. She commenced an action against her surgeon on October 3, 2019 by way of notice of action. Her mother, Emily Sidney is a Family Law Act claimant.

[2] The plaintiffs did not serve their statement of claim on the defendant Dr. Carsen. They bring this motion for a six-month extension because they wish to obtain an expert opinion before deciding to serve the action on the defendant surgeon.

[3] Under the Rules of Civil Procedure [1], the plaintiffs must serve the statement of claim and the notice of action within six months after the notice of action is issued: Rule 14.08(2). The deadline for service was therefore April 3, 2020. They brought this motion on March 16, 2020, before the deadline expiry. The plaintiffs argue that the extension would not prejudice the defendant because they have filed the notice of action before the expiry of the limitation period, the expert’s opinion will allow the plaintiffs to determine whether to proceed with the action, and they brought this motion before the date by which the claim had to be served.

[4] Rule 3.02 provides that "the court may by order extend or abridge any time prescribed by these rules or an order, on such terms that are just." Rule 3.02(2) states "A motion for an order extending time may be made before or after the expiration of the time prescribed."

[5] The basic consideration in determining whether to grant an extension of time for service is whether it will advance the just resolution of the dispute, without prejudice or unfairness to the parties. The plaintiff has the onus to prove that extending the time for service will not prejudice the defence: Chiarelli v. Wiens, [2000] O.J. No. 296 (Ont. C.A). The Court will consider whether the defendant had actual knowledge that an action had been commenced; the likelihood that the defendant might legitimately have concluded from want of service that the claim had been abandoned; and the length of time since the cause of action arose; and the likelihood of evidence having disappeared or lost its reliability in that interval; and the diligence with which service has been attempted, and the reasons for its failure, and whether the non-service has been caused or induced by the defendant; and the expiry, prior to the court motion, of a statutory limitation; and whether the non-service arose from a mere slip in practice or other error on the part of the solicitor for the plaintiff: Syms v. Wojtaniak (1977), 14 O.R. (2d) 678, 3 C.P.C. 120 (H.C.), aff'd (1977), 18 O.R. (2d) 369, 4 C.P.C. 278 (C.A.).

[6] While there are no hard and fast rules as to when extensions of time should be granted, in my view, they should not generally be granted when the sole basis for the request is that more time is required to investigate the merits of the claim and the defendant has no knowledge of the claim. A plaintiff is not only obliged to commence any claim within appropriate limitation periods, but is also obliged, once having done so, to serve the defendant with the originating process (statement of claim, or notice of action and statement of claim), so that the defendant is made aware of the commencement of the proceedings and can act accordingly to protect its interests: Cocomile Estate v. Cocomile Estate, 1988 CarswellOnt 529, [1988] O.J. No. 1952, 13 A.C.W.S. (3d) 63, 33 C.P.C. (2d) 61, at para 21 (Ont. Master).

[7] Extending the time for service to further investigate a claim could be raised in virtually every case before the court, thereby depriving defendants of the ability to protect themselves in cases such as this one where they have no knowledge of the proceeding, which is a form of prejudice. The law already provides plaintiffs two years from when the cause of action was discovered to investigate the claim, and a further six months to serve the claim.

[8] The plaintiffs do not explain why they wish to obtain their expert opinion before serving the claim, but presumably it is to avoid exposing themselves to liability for the defendant’s costs of defending the claim. If that is their concern, then they could simply serve the claim while at the same time advise the defendant that the claim is still being investigated, and that the defendant will be told within a specified time if the plaintiffs intend to proceed with the claim. The plaintiffs could undertake to not note the defendants in default in the meantime.

[9] Fortunately for the plaintiffs, denying this motion does not affect their ability to pursue the claim. Pursuant to the recently issued Order under s. 7.1 of the Emergency Management and Civil Protection Act, any provisions of a regulation establishing any period of time within which a step must be taken in any proceeding in Ontario shall be suspended for the duration of the COVID-19 emergency, retroactive to March 16, 2020. Accordingly, the plaintiffs have 17 days after the emergency to serve their statement of claim.

[10] This motion is dismissed.

Master Kaufman Date: April 8, 2020

Footnote:

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