Court File and Parties

COURT FILE NO.: CV-19-00622712-0000 DATE: 20210907

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: ARUNAS PATKACIUNAS and 2346118 ONTARIO INC. Plaintiffs

AND: ECONOMICAL MUTUAL INSURANCE COMPANY and NOVY SVIT TRANSPORT INC. Defendants

BEFORE: S.F. Dunphy J.

COUNSEL: Mathieu Bélanger, for the Plaintiffs Andrae Shaw, for the Defendants

HEARD at Toronto: August 24, 2021

REASONS FOR DECISION

[1] This case raises a single narrow issue for decision. Do I have the necessary jurisdiction to treat a claim as having been commenced when the statement of claim ought to have been issued by the public official to whom it was presented for this purpose if doing so affects the application of a limitation period? In my view I do. I granted the plaintiffs’ motion at the conclusion of oral argument with reasons to follow – these are those reasons.

[2] The parties agree that the limitation period under s. 259.1 of the Insurance Act, RSO 1990, c I.8 required the plaintiffs to commence this claim within one year of the loss and they agree that the time for doing so expired on June 25, 2019. The claim was commenced in Toronto in the Superior Court of Justice and the court office of this court closes at 5:00pm on business days. The issue is whether the proceeding can be treated as having been commenced when the plaintiffs presented the claim for issuance before closing and a clerk refused to accept it on June 25, 2019 or whether it was commenced when the plaintiffs tried again the following day and the claim was accepted for issuance.

[3] I am quite satisfied on the evidence that the plaintiff did all that was required to have the statement of claim issued before the expiry of this limitation period. The plaintiffs’ paralegal was in the waiting room in the court office with a date and time stamped numbered ticket waiting to be called more than half an hour before closing on June 25, 2019. When the paralegal was called to the counter in his turn, the lone clerk on duty announced to him that his computer was shutting down in 90 seconds and he would not process the statement of claim for issuance on that day. The clerk turned around and walked away. He should not have done this. As a result of this court clerk’s actions, the paralegal was unable to obtain a stamp to evidence the issuance of the claim until the next day.

[4] An unfortunate chain of events gave the paralegal less of a margin for mishap than might have been preferred that afternoon. There was difficulty in finalizing client instructions. The paralegal was unaware of the procedure for issuing claims online and therefore travelled in person to the court office instead of seeking to issue the claim online. While travelling downtown from his office, there was an accident on the highway.

[5] Despite all of these obstacles, any one of which might have proved fatal, the paralegal was present in the courthouse in the issuing office and in line with a ticket in hand (E192) stamped at 4:29pm on June 25, 2019. When receiving the ticket, the paralegal advised the ticket clerk of his concern about wait times as he had a claim to issue with a limitation period expiring that day. The clerk assured him that he would be seen. He was in plenty of time. He ought to have been seen.

[6] The defendants’ own evidence obtained from court staff somewhat later confirms what common sense suggests. Time-sensitive filings are given priority in the in-take office and they take steps to ensure that these are processed before the office is closed. The paralegal waited for his number to be called. When it was called, he went to the counter and was advised by the clerk that his computer was shutting down and he would not accept the claim for filing. Common sense did not apply on this occasion due to a clerk in an apparent hurry to make a quick exit from work that day.

[7] The defendants questioned the paralegal’s credibility with an affidavit quoting relevant court staff that there is no “automatic shut-down” of computers at 5:00pm. This was a straw man. The paralegal’s evidence does not state or imply that the court’s computers are on an automatic shut-off at a particular time. What was described is entirely consistent with the clerk manually starting the normal shutdown sequence of his computer. For what it is worth, it takes this judge’s government-issued computer longer than 90 seconds to shut down (and considerably longer to start up). The paralegal’s evidence is entirely credible and consistent with common sense. The shut down sequence can easily be stopped or the computer restarted by a clerk performing his duties conscientiously.

[8] I readily infer from the paralegal’s evidence that he was called to the counter before closing time at 5:00pm and in circumstances where the office was – or ought to have been – open for business including the issuance of statements of claim. There would have been no point in calling his unique number just to tell him one-on-one that the office was closing for the night instead of just closing the doors and asking everyone to leave. Accepting as I do the sworn evidence of the paralegal – evidence recorded by him in an affidavit the following day and upon which he was very closely cross-examined – I find that the clerk had started the shutdown process of his computer prematurely and simply walked away from his desk and the protests of the paralegal instead of processing the statement of claim that he had a duty to issue that day. If the clerk had done his duty and accepted the claim for issuance instead of shutting down his computer, the claim would have been issued and properly recorded as issued on June 25,2019. The clerk should have done this. The policy of the court office was to do this. For some reason, this clerk on this day did not do what he ought to have done.

[9] The plaintiffs did not fail to commence a proceeding within the time limit prescribed by s. 259.1 of the Insurance Act, RSO 1990, c I.8. They did all that was necessary to commence a proceeding within the time prescribed. The court staff failed to record that fact. Staff ought to have confirmed that fact and provided evidence of it in the form of a properly dated stamp on the statement of claim to evidence its issuance.

[10] I have the inherent jurisdiction to treat as done that which public officials had a duty to do and when they had a duty to do it. I am declaring that the statement of claim was issued on June 25, 2019. I am not excusing the plaintiffs’ failure to take a step in the time prescribed – I am finding as a fact on the evidence before me that the step required was taken even if not recorded by the court as it ought to have been through no fault of the plaintiffs.

[11] Both parties relied upon the Supreme Court of Canada’s decision in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 SCR 801. Green involved a nunc pro tunc order (literally “now for then”) in the context of a limitation period that turned not on the commencement of a proceeding but by the completion of a required step in the proceeding after it was commenced. Green and cases that follow it must be treated with some caution because the circumstances in that case are quite different from the ones presented here. In Green and all of the cases following it, the limitation period required the plaintiff to do a thing within a period of time that the plaintiff failed to do for various reasons. Here the plaintiffs did the very thing required and did all that was necessary to accomplish it within the time prescribed. I do not read Green as establishing a “red line” rule that is applicable in all cases and in all circumstances regardless of whether the circumstance was ever considered in a prior case. That may be how statutes are construed; it is not how the common law is developed.

[12] Despite the significant point of difference between this case and Green, what is sought to be done here is entirely in line with the ratio of Green. There is no prejudice to the defendants beyond the loss of a procedural advantage that they had no way of knowing they had. The plaintiffs had six months to serve the statement of claim after issuance at all events and they gave notice of the claim long before the six month period expired. There is no prospect of the defendants’ having adversely relied upon an expiring limitation period that they had no way of knowing for six further months had expired. The irregularity at issue was certainly not intentional and indeed it was occasioned solely by a failing of the court. There was nothing foreseeable about the delay that occurred here. The prospect of requiring a motion in advance to excuse that which had not yet happened is of course an absurdity, but the assessment of this court that its own staff failed in the execution of their duty on that day and that such failing was the proximate cause for the failure being corrected is the functional equivalent. Nothing in the order sought undermines any of the legislative purposes underlying this or any other statutory limitation period. In this case, the failing was of the court and not of the plaintiffs. It may be good policy for plaintiffs to leave a margin or error for unexpected occurrences that lie within their own control – they are not required to anticipate failings by court staff over which they have no control.

[13] The “red line” rule suggested by the defendants to be applied even in cases entirely beyond the control of the plaintiffs could lead to absurdities. The court must have the capacity to control its own processes and when a demonstrated failing in the court’s processes is proved to be the proximate cause for the apparent failure to accomplish fully a required step before the expiry of a limitation period, the court’s inherent jurisdiction extends to treating as done that which its own staff ought to have done.

[14] I do not find the Court of Appeal’s recent decision in Thistle v. Schumilas, 2020 ONCA 88 to be particularly helpful. In Thistle, the plaintiff brought a claim in his own name that did not belong to him – it was property of the bankrupt that had vested in the trustee in bankruptcy upon his bankruptcy. When his status as an undischarged bankrupt was discovered, the defendant sought to have the claim dismissed while the plaintiff sought to have it “regularized” by seeking leave of the bankruptcy court to bring the proceeding in his own name and at his own risk. There was no apparent dispute in that case with the proposition that the claim in question was property of the bankrupt that vested in the trustee. This means that the bankrupt simply had no interest in the matter and it is hard to imagine how any sort of “leave” could retroactively vest in the plaintiff’s hands a cause of action that did not belong to him when the action was commenced, when the limitation period expired or even at the time when leave was being sought. The Court of Appeal noted that even the discharge of the bankrupt does not operate to “revest” in the discharged bankrupt property – including a cause of action – that had already vested in the trustee. Whatever discretionary power the bankruptcy court had to authorize the bankrupt to bring a claim in his own name that he had no interest in, that discretion could not be exercised nunc pro tunc. There was no impossibility in seeking relief in advance of the expiry of the limitation period – the bankrupt alone knew of his undischarged status and could have sought leave in a timely way had he been so minded. The circumstances here are quite entirely different.

[15] The claim will be amended as asked to bear an issue date of June 25, 2019 when it ought to have been processed and issued. The plaintiffs shall have their partial indemnity costs of this motion in the amount claimed being $7,331.97 all inclusive. This figure is reasonable in all the circumstances, a conclusion that is quite readily confirmed by contrast with the much higher amount contained in the defendants’ own outline of costs.

[16] I wish to congratulate both parties on a well-briefed, focused, and helpful presentation. I have not done justice to the extensive case law that I had the benefit of being pointed towards in their respective facta. I have endeavoured to set forth here the core reasons underlying my decision rather than to discuss and distinguish each case cited. I have reviewed and considered them all nevertheless.

[17] As a result of my finding on the plaintiffs’ motion, I find it unnecessary to consider any further the defendants’ motion for summary judgment on the basis of the expiry of the same limitation period. That motion shall be dismissed with the one single set of costs awarded.

S.F. Dunphy J.

Date: September 7, 2021