Court File and Parties

COURT FILE NO.: CV-19-3460 (Brampton)

DATE: 2021-09-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roy Ramnarine and Farah Lomongo Fua, plaintiffs

AND:

James Michael R. Marino, Alexander Alves Barreira and Intact Insurance Company, defendant

BEFORE: Justice R. Chown

COUNSEL: R. Minhas, for the plaintiff

HEARD: August 27, 2021 by video conference

ENDORSEMENT

[1] This is a motion for substituted service on a defendant who cannot be located. The plaintiff seeks to serve this defendant by serving him at his address as contained in the Ministry of Transportation database. Because documents served in this manner are not likely to come to his attention, substituted service is not appropriate. However, it is appropriate to dispense with service.

Test for Substituted Service

[2] Courts have variously described that a proposed method of substituted service must be such that:

a. "it is probable that the party being served will receive actual notice": Levis (Public Guardian and Trustee of) v. Colman, [1998] OJ No 3057 (Gen. Div.) at para. 14;

b. there is "a reasonable possibility of bringing the action to the attention of the defendant": Laframboise v. Woodward, (2002) 59 O.R. (3d) 338, 2002 49471 at para. 14; and

c. there is "some likelihood" the claim will come to the attention of the defendant: Niemi v. Western Assurance Company, 2011 ONSC 958 at para. 10.

[3] The test seems to be flexible depending on the extent of effort put forth by the plaintiff to locate the defendant. This statement of Senior Master Marriott in Brisette v. City-Wide Taxi Limited, [1952] O.W.N. 501 at 502 has been followed several times:

the principles usually followed as to substituted service are stated to be as follows: "If the writ is not likely to reach the defendant nor to come to his knowledge if service is substituted, then as a general rule substituted service should not be ordered."

Where by the refusal of an order for substituted service the plaintiff would be deprived of the right to relief that he could not obtain except by action, the Court may relax this rule to some extent, and where the material indicates that there is a possibility of the substituted service reaching the defendant it may make an order therefor. .... Ordinarily, however, the material should indicate that if service is made in the manner suggested therein there is a reasonable likelihood of its coming to the attention or knowledge of the defendant.

[4] Justice J.W. Quinn developed this further in Laframboise v. Woodward, 2002 49471 (ON SC) at para. 10, by explaining that the full context matters:

The inability to serve a party personally is proved by showing that all reasonable steps have been taken to locate the party and to personally serve him or her. What is reasonable will depend on the nature of the case, the relief claimed, the amount involved and all of the surrounding circumstances.

[5] In the case before Justice Quinn:

the defendant was successfully keeping one step ahead of the process server. Perhaps this was mere coincidence or perhaps it was because of the letter of November 24, 2000 which was forwarded to the defendant at her first address of record and spoke of legal action being brought against her. In the result, I was satisfied that all reasonable steps had been taken to effect prompt personal service (although, in a proper case, I would not rule out requiring a plaintiff to hire a private investigator to make an attempt to find a defendant).

[6] See also Chambers v. Muslim, 2007 82791 (ON SC) at para. 13, where Master Dash would not allow service of a lawyer by serving LawPro. The lawyer had disappeared. However, Master Dash dispensed with service.

Applying the Test

[7] The case before me is a motor vehicle accident / personal injury action claiming $2,000,000. The defendant Marino, who cannot be located, was the driver of the defendant's vehicle. The defendant Barreira was the owner. The police report indicates that the vehicle was uninsured. Other information in the record tends to confirm that no insurer is responding for the Barreira vehicle. The defendant Intact is the plaintiff's uninsured motorist carrier.

[8] The plaintiff has made extensive efforts to locate Mr. Marino. The starting point was Ministry of Transportation records, which have consistently shown an address for Mr. Marino on Ponytail Drive in Mississauga. As the materials indicate, there is an obligation to maintain current address information with the Ministry of Transportation. However, the records show Mr. Marino's licence status as "suspended, cancelled, unlicenced, unrenewable."

[9] The materials also indicate that on August 25, 2019, upon attendance at Mr. Marino's former Ponytail Drive address, a process server was advised he did not live there. That was two years ago.

[10] A process server could not locate Mr. Marino after trying the last known phone number for him; searching phone directories; calling some of the listings that might possibly have been his number; conducting advanced internet searches; conducting social media searches including Facebook, Instagram and LinkedIn; conducting property records searches; and other efforts. Many of the searches were repeated over a period of several weeks in 2019.

[11] The process server developed a name for Mr. Marino's sister, but could not locate her either.

[12] A different process server was hired in June of 2021 to try to locate Mr. Marino. She also conducted searches of phone directories, property title records, social media (as above but also Twitter, Snap Chat, Spokeo, and Pipl), and business directories. She called numbers listed in phone directories that might be a match, but no one she called acknowledged knowing Mr. Marino. She found a "James Marino" in Brampton on Facebook and attempted to contact him using Facebook Messenger, with no reply.

[13] Another process server also attended at the Ponytail Drive address on June 22, 2021 and was told by the current occupant that Mr. Marino does not live there.

[14] There is therefore no reason to think that mail sent to Mr. Marino at the Ponytail Drive address will come to his attention. In fact, the opposite is true. It is likely that mail would not come to his attention.

Dispensing with Service

[15] Every reasonable effort has been made to locate Mr. Marino. It is "impractical to effect service on him" within the meaning of rule 16.04 of the Rules of Civil Procedure. This case meets the criteria for dispensing with service.

[16] To advance this matter to the close of pleadings, either the claim against Mr. Marino must be discontinued, or there must be an order dispensing with service.

[17] At first blush, a judgment against Mr. Marino is likely of no value if he is never located. However, there may in future be a practical need to obtain judgment against him. For instance, a judgment may be necessary for the plaintiff:

a. to obtain recovery under his policy with Intact;

b. to access recovery under s. 258(1) of the Insurance Act, R.S.O. 1990, c. I.8, if a policy for the Barriera vehicle comes to light; or

c. to arrange, under s.198 of the Highway Traffic Act, R.S.O. 1990, c. H.8, the indefinite suspension of Mr. Marino's driver's licence until he pays the judgment or makes a payment arrangement.

[18] Further, Mr. Marino may be found. Any knowledge Mr. Barreira has as to Mr. Marino's whereabouts, or any information Mr. Barreira has that may assist in finding him, may be revealed in examinations for discovery. It may therefore become possible to serve Mr. Marino.

[19] In the circumstances, the most appropriate remedy is to dispense with service of the claim against Mr. Marino but order that any judge who is asked to grant judgment against Mr. Marino is to be alerted to the circumstances under which this order is being granted. That judge may decide to grant judgment against him, or that additional or updated efforts to serve Mr. Marino are appropriate, or that it is inappropriate to grant judgment against him given that he has not been served with the claim.

[20] I will also order that Mr. Marino shall be deemed to have been noted in default, effective immediately. This is necessary to avoid the need to give notice to Mr. Marino for further steps in this proceeding.

Disposition

[21] This court orders that service of the statement of claim on the defendant Marino is dispensed with.

[22] This court orders that the defendant Marino is deemed to be noted in default, effective immediately; however, no party shall request judgment against him without providing a copy of this endorsement to the judge hearing the request.

[23] This court makes no order as to the costs of this motion.

Chown J.

Date: September 7, 2021