COURT FILE NO.: CV-16-549101
DATE: October 19, 2021
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Abu Amin v. Amerjit Bhandhoal and Surinder Bhandhoal;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Allan Chapnik for Abu Amin;
Louise A. James for Amerjit Bhandhoal and Surinder Bhandhoal;
HEARD: September 1, 2021.
REASONS FOR DECISION
[1] This is a motion by the plaintiff, Abu Amin, that originally was for three orders, namely an order increasing the prayer for relief to $10,000,000, an order extending the time for service of the statement of claim to March 30, 2021 nunc pro tunc, and an order extending the time to set this action down for trial. By the time of argument, Mr. Amin was not claiming the third order as I was advised that the court has suspended enforcing Rule 48.14 during the pandemic.
[2] The defendants oppose the request for an extension of the time for service of the statement of claim to March 30, 2021 nunc pro tunc. If they succeed, the amending order is moot as the claim will be at an end. If they do not succeed, the defendants take no position on the amending order.
BACKGROUND
[3] The following facts are not in dispute.
[4] On March 18, 2014 the defendant Surinder Bhandhoal was driving a car owned by the defendant Amerjit Bhandhoal. She backed the car out of a parking spot in a private plaza parking in Brampton. A car driven by Mr. Amin was driving by at that time and hit the Bhandhoal car. Mr. Amin’s car was uninsured.
[5] As he had no insurance, Mr. Amin made a first party Accident Benefits (“AB”) claim on the policy of the defendants’ insurer, State Farm. State Farm accepted the claim and opened an AB file. State Farm is now owned by Certas.
[6] On April 15, 2014 the State Farm AB department notified its Bodily Injury (“BI”) Department of the Amin AB claim. The BI Department handles third party claims against the defendants, such as the within tort claim. It opened its own file on April 16, 2014. In its log notes, the BI Department described the incident as involving its insured backing into Mr. Amin’s car and having “liability adverse” to its insured.
[7] The BI Department obtained an Autoplus report confirming that Mr. Amin was uninsured. On April 21, 2014 it closed the file as it concluded that, as Mr. Amin had no insurance, he did not have a tort claim by virtue of the Insurance Act, R.S.O. 1990, c. I.8, section 267.6. It is undisputed for the purposes of this motion that this conclusion was wrong. The Insurance Act prohibits tort claims by uninsured motorists but only for collisions on public highways, not in private parking lots such as in this case.
[8] In January, 2015 Mr. Amin retained the law firm of Hanson Duby to represent him concerning this incident. The lawyer with carriage was Spyros Bekiaris. He assisted Mr. Amin with his AB claim. As for the tort claim against the defendants, namely the within claim, Mr. Bekiaris did research and advised Mr. Amin that he had no claim for the same reasons the State Farm BI Department closed its file, namely that Mr. Amin was uninsured at the time of the collision. Mr. Amin accepted this advice. He did not seek other advice.
[9] Nevertheless, on March 18, 2016, two years after the accident, Mr. Bekiaris had the within statement of claim issued. In cross-examination he said he did this “out of an abundance of caution.” He never told Mr. Amin about this and never had the statement of claim served as he believed Mr. Amin had no tort claim.
[10] Mr. Bekiaris left the Hanson Duby firm on March 13, 2018. Mr. Duby took carriage of the file, and reiterated Mr. Bekiaris’ advice to Mr. Amin that he had no tort claim. The firm dissolved in 2019 and Mr. Duby retained the file. He died in late January, 2021.
[11] In the meantime, in the AB file, Mr. Amin’s condition arising from the accident was classified by Certas as “catastrophic impairment.”
[12] On February 6, 2021 Mr. Amin retained his present lawyers, the Pace Law Firm (“Pace”). Pace pursued disclosure of the file from the LSO trustee placed in charge of Mr. Duby’s practice. The Duby files were disorganized. On March 17, 2021 the trustee disclosed the part of the file that contained the statement of claim. On discovering the statement of claim Pace advised Mr. Amin of its existence and his right to a tort claim.
[13] On Mr Amin’s direction, the statement of claim was served on March 30, 2021, namely just over seven years after the collision, five years after the commencement of this action, and just over four years and six months after the six month deadline under the Rules of Civil Procedure to serve the statement of claim, namely September 18, 2016.
[14] In May, 2021 Pace brought this motion. It was originally returnable June 4, 2021 but was adjourned on consent to allow for submissions. It was made returnable before me on August 20, 2021 for a period of an hour. I determined that this was not enough time and adjourned the motion to be argued on September 1, 2021 as a long motion.
[15] In support of the motion, Mr. Amin filed his affidavit sworn on May 6, 2021, his supplementary affidavit sworn on July 13, 2021, the affidavit sworn by Mr. Bekiaris on July 9, 2021 and the affidavit of Natalie Robichaud, a Pace clerk, sworn on July 19, 2021. In opposition to the motion, the defendants filed the affidavit of David Wong, in-house counsel at the defendants’ insurer, sworn on May 31, 2021. There were cross-examinations.
ISSUES
[16] With the elimination of the Rule 48.15 and amendment issues, the following are the issues to be determined on this motion:
a) Will the requested extension of time for service prejudice the defendants?
b) Has the plaintiff adequately explained his failure to serve in time?
ANALYSIS
a) Will the requested extension of time for service prejudice the defendants?
[17] Rule 14.08(1) requires that a statement of claim be served in six months after it is issued. Rule 3.02(1) authorizes the court to extend or abridge any time prescribed by the rules “on such terms as are just.” This authority can be given before or after the prescribed period expires.
[18] The leading case on the issue of time extension for service of a statement of claim is the decision of the Court of Appeal in Chiarelli v. Wiens, 2000 CanLII 3904 (ONCA). In this case, a lawyer for a plaintiff injured in a car accident put the defendant’s insurer on notice of a claim within a month. The plaintiff’s condition deteriorated. Over the next four years the lawyer obtained and served the insurer with much medical information and many medical reports. Just before the expiration of the relevant limitation period two years after the accident, the lawyer had a statement of claim issued. However, he could not find the defendant and the insurer refused to accept service. The lawyer then out of work pressure, as he described it, “froze” and did nothing to extend the time for service and get the defendant served. Just over five years after the accident, the insurer closed its file. About eight years after the accident, the plaintiff retained new counsel who brought a motion to extend the time for service of the statement of claim.
[19] The motions judge granted the motion. That decision was overturned by the Divisional Court. That decision was overturned by the Court of Appeal which restored the decision of the motions judge. The Courtt found that the defendants would not be prejudiced by the order. There are several principles that were established by the Court for such motions:
• The court must be concerned primarily about the rights of litigants, not the conduct of counsel.
• The key issue on the motion is prejudice, and the plaintiff has the onus of proving that the requested extension will not prejudice the defendant.
• The defendant has an evidentiary onus to show actual prejudice, namely he or she must identify what specific evidence has been lost due to the delay.
• The defendant cannot cause prejudice by failing to do something it reasonably could have or should have done.
• The prejudice that will defeat the motion must be caused by the delay.
[20] Concerning the issue of prejudice, this motion before me is somewhat unusual as the defendants’ insurer, now Certas, has since the accident in 2014 accumulated considerable medical information and evidence concerning the plaintiff’s condition by virtue of its AB file. That the plaintiff consents to the disclosure of this medical file to the defendants was made manifest by his inclusion of numerous key medical evidence and reports from his AB file in his supplementary affidavit. This accumulation of evidence by Certas is like the medical evidence that was supplied to the defendant in Chiarelli, only it is arguably “better” in this case as it is medical evidence garnered by Certas itself.
[21] Mr. Chapnik summarized the extent of the AB file which is significant:
• 2,301 pages of medical records;
• Mr. Amin’s OHIP medical records dating from as far back as March 18, 2009, over five years before the accident;
• Mr. Amin’s William Osler hospital records dating from July 5, 2009, over five years before the accident;
• The clinical notes and records of Mr. Amin’s family doctor, Dr. Okafor, dating from October, 2012, namely the date of Mr. Amin’s first visit with Dr. Okafor;
• No less than 17 medical assessments of Mr. Amin commissioned by State Farm;
• Three rounds of surveillance commissioned by State Farm.
[22] In addition to this substantial Certas AB file that will be available to the Certas BI Department, Mr. Chapnik pointed out that the defendants are still alive. Mr. Wong in cross-examination conceded that the defendant driver, Surinder Bhandhoal, was interviewed by Certas after the service of the statement of claim in March, 2021 and that there was no complaint of memory loss. Mr. Wong conceded that neither the other passenger in the defendants’ vehicle, their daughter, nor the defendant driver, Amerjit Bhandhoal, have been interviewed. I note that neither of the defendants swore an affidavit in this motion. I draw the inference from all this that these three persons are alive and capable of giving evidence without significant memory loss. Mr. Chapnik also pointed out that neither the plaintiff nor the defendants could identify any specific witnesses or relevant documents that have been lost. This point was not disputed. This all indicates that the defendants will not be prejudiced by the requested order.
[23] Ms. James’ first and primary argument was that the defendant’s insurer has been prejudiced because it would have conducted a different investigation of Mr. Amin’s claim as a third-party insurer. It is undisputed that a third-party insurer for a defendant in a tort action like the within action is in a more adversarial relationship with the plaintiff than it is as a first-party insurer in an AB claim.
[24] Ms. James argued that the defendants were deprived of this opportunity solely because of the plaintiff’s failure to give timely notice of the tort claim as required by the Insurance Act section 258.1(1)(b) and his delay in service of the statement of claim. An Insurance Act notice causes an insurer to open a tort file in its BI Department. Such a timely notice was served on the insurer in Chiarelli but not here. As a result, according to Ms. James, the State Farm BI Department remained ignorant of and unconnected to the adjusting activity in the AB file. This was due, she said, to a “firewall” that existed between the two departments given their potentially conflicting positions.
[25] I am not convinced by this argument. First, in my view the evidence shows that State Farm was not blameless in failing to have an active BI file from the beginning of this case in 2014. Its AB Department notified its BI Department of the existence of the Amin AB claim on April 15, 2014, less than a month after the accident. This was done no doubt out of a concern over a possible tort claim. The BI Department opened its own file.
[26] Ms. James argued that there is no evidence that State Farm knew that the accident happened in a parking lot. I disagree. The disclosed State Farm log notes indicate that State Farm reached the conclusion quickly that the accident was caused by the defendant driver backing into the plaintiff’s car and that the defendants had risk of liability. There was no affidavit from the authors of these notes. As a result, I draw an inference from these notes that is reasonable and adverse to the defendants, namely that State Farm BI Department interviewed the defendant driver and found out that the collision happened in a parking lot, not a public highway, and that the defendant driver was probably at fault. As a result, State Farm’s decision to close the BI file after seven days on account of the information it obtained that Mr. Amin’s car was uninsured was as arguably wrong as it was later for Mr. Bekiaris to reach the same conclusion and advise Mr. Amin not to pursue a tort claim.
[27] Second, the argument about the “firewall” is unconvincing given the evidence in this motion. There was considerable discussion about this issue. Mr. Chapnik pointed out that the Insurance Bureau of Canada has a document called Bulletin 184 which mandates a firewall between an insurer’s AB claims and its BI claims in situations like this. However, as Mr. Chapnik pointed out, this is an industry document, not legislation, and there was no evidence that State Farm in fact adopted and applied Bulletin 184 during this time and to this case. There was no mention of this document or the firewall in the evidence.
[28] Ms. James pointed me to the decision of Master Muir in De Souza v. Aviva Insurance Company of Canada, 2013 ONSC at paragraphs 8 and 9. Here there is mention of Bulletin 184 and the firewall. Ms. James argued that I should, as a result, take judicial notice of the existence of Bulletin 184 and its application to this case. I do not agree. Master Muir stated in paragraph 8 of his De Souza decision that “the defendant maintains a firewall between its first party accident benefits claims and third party bodily injury claims.” In short, there was evidence of the existence of a firewall in that case. That is not the case here. Mr. Wong makes no mention on it in his affidavit. As a result, there is no evidence in this motion that would compel the court to conclude that the State Farm BI Department remained ignorant of and unconnected to the AB file. Indeed, the fact that the AB Department alerted the BI Department to the existence of an AB file makes one suspicious as to whether a firewall in fact existed.
[29] What of the argument that the State Farm BI Department would have conducted a different investigation of Mr. Amin? Ms. James conceded that the AB surveillance would have been done same way by the BI Department. I note also that there is no evidence of what other surveillance the BI Department would have done.
[30] However, Ms. James argued that the defence medical examinations and reports the BI Department would have obtained would have been different in content than the 17 medical assessments and reports the AB Department obtained. In a tort action, the obtaining of defence medical assessments and reports is governed by section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Rules 33 and 53.03 of the Rules of Civil Procedure. I was advised that the obtaining of an AB insurer’s medical assessment and report is governed by Statutory Accident Benefits Schedule, Ont. Reg. 34/10, section 44. Ms. James argued that Rule 53.03 requires more information and structure in an expert medical report than does Reg. 34/10, section 44 for AB medical assessments and reports. She pointed out for example the requirement in Rule 53.03 to identify the instructions given to the expert.
[31] I am not convinced of this argument. Rule 53.03 does require information and structure in an expert medical report in a tort action, while Ont. Reg. 34/10, section 44 remains silent as to the content of AB medical reports. But, as Mr. Chapnik pointed out, the basic purpose of the two regimes appears to be the same, namely facilitating a medical examination of the relevant injuries of the injured person to determine the nature, severity and causation of same, providing the examining medical professional with all documentation and information necessary to make the examination successful, and having the professional generate a report of his or her findings.
[32] I note again that the defendants have not produced concrete evidence as to how medical assessments under Rules 33 and 53.03 would have produced different results from those obtained by the AB Department. As this is an issue that the defendants have raised and that concerns the insurer’s adjusting work, it is incumbent on the defendants to prove this point. Concrete evidence could have been obtained from medical professionals who provide these services to Certas. It was not. Therefore, I fail to see how the defendants will be prejudiced by the absence of defence medical assessments under the Rules over the last five years, given the extensive Certas AB investigation of Mr. Amin.
[33] Ms. James also pointed out that there is evidence in this motion of fading witness memories. She said that Mr. Amin admitted in cross-examination that he could not recall his pre-accident doctors other than his family doctor, Dr. Okafor. She argued that back in early September, 2016 just before the service deadline of September 18, 2016, Mr. Amin’s memory would have been better in this regard. In my view, this is speculation. With as much medical attention Mr. Amin has apparently received, he might well have lost his recollection of physicians other than his family doctor as early as September, 2016.
[34] Ms. James pointed out that Mr. Amin admitted in cross-examination not recalling whether there was another person in the defendants’ vehicle at the time of the accident. There was, namely the defendants’ daughter. Ms. James argued that this showed that Mr. Amin may have forgotten other witnesses to the accident because of the delay in service. This is again, in my view, speculation. There is no evidence of any other witnesses at the time of the collision. Furthermore, whether Mr. Amin would have remembered other witnesses in September, 2016, namely 2 ½ years after the accident, is unclear.
[35] Ms. James also pointed out that Mr. Amin stated in cross-examination that he could not recall anything about his consulting business. She pointed out that Mr. Amin operated this business in 2016 and that this loss of memory will affect the defendants’ ability to examine the Amin claim of business income loss. In my view, this memory loss would be prejudicial more to the plaintiff than to the defendant, as the plaintiff has the onus of proving the business loss claim.
[36] The one area where there might be prejudice to the defendants on account of the delay in service is the fact that the defendants sold their car in 2018. They were obviously not aware of the Amin tort action at that time. Had the statement of claim been served by September 18, 2016, the defendants would no doubt have kept their car for examination and use in this litigation. This is a potential of real prejudice to the defendants.
[37] Ms. James argued what the loss of the defendants’ vehicle means to the defendant. She conceded that there will probably be no issue as to liability in this action. However, she argued that the vehicle would have had relevance to the issue of the causation of the damages alleged by Mr. Amin, in particular his alleged damage of “catastrophic impairment.”
[38] The defendants did take photographs of the vehicle shortly after the accident. However, Ms. James argued that existence of the real vehicle would have been important assistance to the work of any defence accident reconstruction expert in reconstructing the accident. She also argued that the car would have had a crash event record, colloquially known as “the black box,” which could have been of assistance to the defendants. She advised that the “black box” records the speed of the car at the time of collision, whether brakes were applied, the time of collision, airbag deployment, the impact of the collision, and whether the vehicle has had other collisions.
[39] In the end, I am not convinced of this argument either. There will probably be no issue as to liability and it is undisputed that the collision had a minor impact. The defendants’ photographs were not put into evidence by the defendants. I draw the inference therefore that they will give important information as to the location of the collision on the defendants’ car and the extent of the collision.
[40] As to the points about the accident reconstruction expert and the black box, none of these submissions were supported by evidence from the defendants. Again, since these points involve the adjusting work of Certas, it is incumbent on the defendants to prove with concrete evidence how they have been prejudiced in this regard. They have not provided such evidence.
[41] Finally, Mr. Chapnik made an important point about the black box. He said that the information recorded by black boxes are overridden by the subsequent use of the car. That point was not challenged by Ms. James. That means that the information in the black box about the collision would probably have been gone by September, 2016, which is after all 2 ½ years after the accident.
[42] For all these reasons, I find that there is no prejudice to the defendants in the requested order for the extension of time for service.
b) Has the plaintiff adequately explained his failure to serve in time?
[43] There is authority for the proposition that a plaintiff must adequately explain his inordinate delay in serving the statement of claim. In Nugent v. Crook, 1969 CarswellOnt 951 (ONCA) in paragraph 2, the Court held that some acceptable explanations include an accidental slip or mere inadvertence of counsel and being lulled by the defendant’s conduct into believing that the deadline would not be strictly enforced. The absence of an explanation was a factor in the decision of Justice Bielby in Noori v. Grewal, 2011 ONSC 5213 (SCJ) paragraph 53 in denying a motion to extend the time for service of the statement of claim that was served 15 months after it was issued.
[44] In the motion before me there is a clear and consistent explanation for the delay in the service of the statement of claim. Mr. Amin received and relied upon the advice of a paralegal, Ms. Taser Shah, in 2014, lawyer Mr. Bekiaris in 2015 and lawyer Mr. Duby later in 2018 all of which consistently was that Mr. Amin had no tort claim as his vehicle was uninsured at the time of the collision. This was arguably wrong advice as the collision happened in a parking lot. He did not seek other advice. He decided not to pursue what he thought was a meritless claim. Furthermore, Mr. Amin was not even aware of the existence of this action until he hired his present lawyers in February, 2021 after Mr. Duby’s death and they discovered the statement of claim Mr. Bekiaris had had issued on March 18, 2016 out of an abundance without informing Mr. Amin. Mr. Amin of course did not know that the statement of claim had not been served.
[45] Ms. James argued that Mr. Amin admitted in on three occasions in cross-examination that he decided not to start a suit against the defendants based on the legal advice he received. She said this was an “abandonment” of his claim that should be fatal to his claim.
[46] Ms. James referred me to the decision of Master Muir in Graff v. Sacrey, [2018] O.J. No. 332 (Master) wherein he dealt with a motion to set aside a registrar’s dismissal order. There was also a motion seeking to extend the time for service of the statement of claim on two of the defendants who had not been served for over six years. Master Muir granted the order setting aside the dismissal order, but not in relation to the two defendants who had not been served. He also denied the requested extension of time to serve the statement of claim. One of the factors he said he relied upon in making that decision was the fact that the plaintiff had formally abandoned the claim against the two defendants several years earlier with an email sent by the plaintiff’s lawyer to the two defendants stating that position.
[47] I distinguish this decision from the motion before me. First, there was no issue raised in Graff that the plaintiff’s decision to abandon her claim was due to faulty legal advice. The decisions to abandon the claim and then later to pursue the claim were not explained. In the motion before me there is no doubt that Mr. Amin did not pursue this tort action because of potentially mistaken legal advice about his right to do so. Second, Mr. Amin never served the defendants with a document stating that he did not intend to sue them. Indeed, because of the potentially faulty legal advice he received, there is a real issue, in my view, as to whether Mr. Amin ever deliberately ceased pursuing the defendants. The fact that Mr. Bekiaris had the statement of claim issued in the first place bolsters this view. The lawyer who gave the potentially faulty advice was uncertain about it and wanted to keep the claim alive. Third, importantly, Master Muir indicated that because of the plaintiff’s notice of abandonment in that case, the two defendants were prejudiced as they decided as a result not to challenge their insurer’s denial of liability coverage for the claim. As I have explained at some length, I find that Mr. Amin’s initial decision not to pursue a tort claim has not prejudiced the defendants.
[48] Ms. James referred me to the decision of Gaudet v. Levy, [1983] O.J. No. 1060. In this case, the plaintiff was injured in a bar and received medical treatment two months later. A writ of summons was issued naming the physicians as defendants. It was found that the plaintiff’s lawyer then consciously decided not to serve the writ believing the plaintiff had no case in negligence against the physicians based on the evidence he had obtained. About a year after the expiry of the writ and apparently past the applicable limitation period, the lawyer obtained expert evidence supporting the plaintiff’s case and brought a motion for an order renewing the writ. It was granted at first instance, but then denied on appeal to Master Sandler. Master Sandler’s decision was upheld on appeal to the Divisional Court. These underlying facts make this case similar to the motion before me.
[49] But this decision does not support the defendants. The court did not consider the initial decision not to serve the writ as per se justifying the denial of the writ renewal. It considered that decision relevant only because of the delay it caused and prejudice to the defendants it found stemmed from that delay.
[50] The focus in Gaudet was on prejudice. The reason was because the physicians filed no evidence in the motion. Master Sandler stated therefore that he could not find actual prejudice to the defendants in the motion; but he added that there was only a “presumed prejudice because of the delay;” see Gaudet, op. cit., paragraph 4. The plaintiff argued that the finding of no actual prejudice should justify overturning the decision. The Divisional Court disagreed stating that the delay itself created a presumption of prejudice. That was the basis given for upholding Master Sandler’s decision. In short, this decision does not stand for the proposition that a decision not to serve a statement of claim amounts to an abandonment that itself justifies a denial of time extension to serve. As for the decision on presumed prejudice to the defendants due to delay without evidence in support, I believe that this case has been overturned by Chiarelli.
[51] In the end, I rely upon the statement made by the Court of Appeal in Chiarelli are paragraph 9: “. . . on a motion to extend the time for service, the court should be concerned mainly with the rights of litigants, not with the conduct of counsel.” The court noted with approval the following factual findings of the motions judge who had approved the extension in that case and whose decision was upheld, namely that the defendant had notice of the claim, that the defendant’s address was inadequate for service, that the plaintiffs moved promptly once they learned the claim had expired, and that they did not know of their lawyer’s negligence until then.
[52] Except for the address for service point, the same things could be said about the motion before me. The defendant had timely notice of the potential tort claim. It opened and adjusted extensively an AB claim from Mr. Amin. It opened a BI file and then closed it arguably for a wrong reason. Meanwhile Mr. Amin was not aware of his right to a tort claim and his statement of claim and its expiration until this year and moved promptly with this motion at that point.
[53] I, therefore, find that Mr. Amin has adequately explained his delay in serving the statement of claim. I find that there is insufficient evidence on which the court could find that he deliberately abandoned his claim against the defendants at any time.
CONCLUSION
[54] For these reasons I order that the time for service of the statement of claim be extended nunc pro tunc to March 30, 2021 thereby making the service on the defendants that day valid. I grant the amending order as well. The one condition of this order is that the defendants will have thirty (30) days from the date the amended statement of claim is served to deliver a statement of defence.
[55] As to costs, at the end of the argument, Mr. Chapnik advised that his client is not seeking costs. I have no record of Ms. James delivering a costs outline on behalf of the defendants although I recall that she did so. In any event, because the defendants were unsuccessful and given my findings about the conduct of Mr. Amin, I have decided not to award costs. I award no costs.
DATE: October 19, 2021
ASSOCIATE JUSTICE C. WIEBE