COURT FILE NO.: CV-14-5787-00
DATE: 2020 01 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RAJINDER NAGRA, Plaintiff
AND:
TOMAS OGANESYAN, CARAVAN LOGISTICS INC., DAVID WANNAMAKER, WILFRED WANNAMAKER, ADAM PRICE, KELLY SLADE and RICHARD SLADE, Defendants
AND:
JEFFREY DONALDSON, VIRGINIA VERNET, PHTS LOGISTICS INC., RAOUL LAVAC, TERENCE SMITH, PCL CONSTRUCTORS CANADA INC., GORDON KENNEDY and AARON BIGRAS, Third Parties
BEFORE: Barnes J.
COUNSEL: Ian Drong, for the Plaintiff
Heather Douglas, for the Defendant Adam Price
Richard J. Campbell, for the Defendants Kelly Slade and Richard Slade
HEARD: September 13, 2019
ENDORSEMENT
INTRODUCTION
[1] The Plaintiff, Rajinder Nagra’s motion for an order validating service of the Statement of Claim on the Defendant Adam Price is granted. The Defendant Adam Price’s motion to dismiss Mr. Nagra’s action for delay is dismissed. Mr. Nagra’s motion for an order extending the date to set the matter down for trial to December 22, 2021 is granted.
BACKGROUND FACTS
[2] This action arises from a motor vehicle accident on January 25, 2013. Twelve vehicles were involved. There are at least seven defendants and eight third parties.
[3] Mr. Nagra issued the Statement of Claim on December 22, 2014. Mr. Price was not served with the Statement of Claim until June 17, 2019.
POSITION OF THE PARTIES
[4] Mr. Nagra seeks to extend the deadline to set this action down for trial: see Rule 48.14(5)-(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Mr. Price submits that the action should be dismissed for delay because Mr. Nagra has no acceptable explanation for the delay. Mr. Price also submits that he has been prejudiced by the delay as follows:
He has lost the ability to conduct surveillance to determine the impact of the accident on Mr. Nagra’s ability to work and perform his recreational and non-recreational activities;
His ability to conduct surveillance to determine the accuracy of Mr. Nagra’s claim has been compromised;
His ability to obtain a timely vocational/medical assessment has been compromised; and
The delay has led to diminished recollection as memories of witnesses fade.
[5] Mr. Nagra explained that the delay was due to his decision to first pursue a WSIB claim. A resolution under the WSIB claim could have rendered the action against Mr. Price unnecessary. He further explained that he attempted to serve Mr. Price and was unable to do so. Mr. Nagra also submits that there has been no non-compensable prejudice because counsel for Mr. Price has been aware of the action since June 2018 when he received a copy of the Statement of Claim. He submits that counsel for Mr. Price has had an opportunity to investigate the case due to his defence in several companion actions that arise from the same accident. Discoveries have also not been conducted.
DISCUSSION
[6] Rule 48.14(5)-(7) of the Rules of Civil Procedure states that where a plaintiff seeks an extension of time to set a matter down for trial, the plaintiff or moving party has the burden to show why the action should not be dismissed for delay. The moving party must show: (1) that there is an acceptable explanation for the delay; and (2) that allowing the action to proceed would not cause the defendant(s) to suffer non-compensable prejudice: Kara v. Arnold, 2014 ONCA 871, at para. 8. This test is conjunctive: Erland v. Ontario, 2019 ONCA 689, at para. 4.
[7] The delay from the issuance of the Statement of Claim to service of the claim on Mr. Price is approximately five years. During those five years, the following events have occurred.
[8] Mr. Nagra filed his WSIB claim on February 20, 2015. On April 15, 2015, his claim was denied because he filed it outside the statutorily prescribed time period. His objection was denied on March 31, 2016, and his appeal of the denial was denied on January 19, 2017.
[9] Since December 2, 2016, Mr. Nagra’s legal team has known who was representing Mr. Price in this action.
[10] Counsel for Mr. Price also learned of this action when they were asked in October 2017 to provide an affidavit of documents. This was as a result of a third lawsuit against Mr. Price. It is not disputed that there have been a number of companion actions arising from the same accident which involve Mr. Price and Mr. Nagra.
[11] Counsel for Mr. Nagra did not respond to a request from Mr. Price’s legal team, on February 1, 2018, that Mr. Price should be served immediately with the Statement of Claim.
[12] In April 2018, Mr. Price’s legal team requested a copy of the Statement of Claim and did not receive it from Mr. Nagra’s counsel.
[13] On July 27, 2018, counsel for Mr. Nagra was contacted by counsel for Mr. Price. Counsel for Mr. Nagra advised that efforts to serve Mr. Price on January 12, 2015 had been unsuccessful. Counsel provided an affidavit from a process server dated January 15, 2015 confirming this. There was no motion to validate service.
[14] After the failed attempts to serve Mr. Price personally in January 2015, no attempts were made to serve him again until August 5, 2018 and August 19, 2018. On August 5, 2018, the process server attempted service five times at an address obtained from Ministry of Transportation records on July 27, 2018, with no success. On August 19, 2018, the next attempt was at an address obtained from Ministry of Transportation records on June 12, 2019.
[15] Counsel for Mr. Price also received no response to follow-up contact with counsel for Mr. Nagra on March 18, 2019 and May 24, 2019 requesting that Mr. Price be served and an affidavit of service produced.
[16] Despite the efforts made to serve Mr. Price with the Statement of Claim, this was not done so until June 2019. On June 28, 2019, four and a half years after the claim had been issued, counsel for Mr. Nagra produced an affidavit of personal service on Mr. Price.
[17] It is reasonable to expect more timely efforts to move the action along after the attempted service in January 2015. However, it is apparent from counsel’s letter dated January 4, 2018 that had Mr. Nagra’s WSIB claim been successful, he would most likely have abandoned his claim against Mr. Price. In addition, Mr. Nagra did not participate in examinations for discovery scheduled for February 12, 2018, because he was a defendant in two companion actions and wanted to avoid being examined more than once.
[18] Thus, even if Mr. Price had been served in a timely manner, the pace of litigation would have been delayed for two reasonable reasons: 1) an exhaustion of options under the WSIB regime because it could result in resolution of the action; and 2) efforts to consolidate the examinations for discovery of Mr. Nagra due to the prospect of multiple examinations because of the companion actions.
[19] The efforts of Mr. Nagra to move this litigation forward could have been better. However, despite the technical nature of the dismissal of the WSIB claim, I find that Mr. Nagra’s explanation for the delay in the context of the factors already outlined is acceptable.
[20] On the issue of prejudice, Mr. Price’s interests have been protected by counsel throughout the companion proceedings which arise from the same facts as this action. Mr. Price is named as a defendant in at least three other actions arising from the same incident and his counsel have been in a position, since December 2, 2018, to investigate, minimize or eliminate the issues raised from the delay in conducting an investigation in this action. Therefore, under such circumstances, there is no reason to conclude that medical records and witnesses are not available.
[21] For all these reasons, I exercise my discretion in favour of granting the following order:
a) Mr. Nagra’s motion for an order validating service of the Statement of Claim on Mr. Price is granted.
b) Mr. Price’s motion to dismiss Mr. Nagra’s action for delay is dismissed.
c) Mr. Nagra’s motion for an order extending the date to set the matter down for trial to December 22, 2021 is granted.
d) In addition, the parties shall file a signed timetable for the court’s consideration within 30 days from the date of this endorsement.
COSTS
[22] The parties shall file a costs outline of no more than three pages within 20 days from the date of this endorsement.
Barnes J.
Date: January 16, 2020
COURT FILE NO.: CV-14-5787-00
DATE: 2020 01 16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RAJINDER NAGRA, Plaintiff
AND:
TOMAS OGANESYAN, CARAVAN LOGISTICS INC., DAVID WANNAMAKER, WILFRED WANNAMAKER, ADAM PRICE, KELLY SLADE and RICHARD SLADE, Defendants
AND:
JEFFREY DONALDSON, VIRGINIA VERNET, PHTS LOGISTICS INC., RAOUL LAVAC, TERENCE SMITH, PCL CONSTRUCTORS CANADA INC., GORDON KENNEDY, and AARON BIGRAS, Third Parties
COUNSEL: Ian Drong, for the Plaintiffs
Heather Douglas, for the Defendant Adam Price
Richard J. Campbell, for the Defendants Slade
ENDORSEMENT
Barnes J.
Date: January 16, 2020