COURT FILE NO.: CV-17-00589032

MOTION HEARD: 20211028

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Karlene Facey, Plaintiff

AND:

Henry Zambrano Rojas and 1920036 Ontario Inc. o/a Roofing Service & Solar Inc, Defendants

BEFORE: Associate Justice B. McAfee

COUNSEL: R. Panag, Counsel, for the Moving Party, the Plaintiff A. Alilovic, Counsel, for the Non-Party Insurer TD Insurance

HEARD: October 28, 2021

REASONS FOR DECISION

[1] The plaintiff Karlene Facey (Facey) seeks an order extending the time for service of the statement of claim and substitute service of the statement of claim on the defendant Henry Zambrano Rojas (Rojas) by serving the non-party insurer TD Insurance (TD), and an order validating service of the statement of claim on the defendant 1920036 Ontario Inc. o/a Roofing Service & Solar Inc (192 Ontario).

[2] TD opposes the motion. No one appeared for Rojas or 192 Ontario.

[3] The plaintiff initially brought this motion in writing in or about October 2020. The Associate Judge adjourned the motion on the basis that the position of TD on the motion was unclear. Pursuant to the endorsement dated October 13, 2020, if TD did not oppose the motion, the motion could be brought back on in writing. If TD opposed, the motion was more properly brought as an opposed short motion.

[4] This action arises as a result of a motor vehicle accident that occurred on July 26, 2016. According to the motor vehicle accident report the vehicle owned by 192 Ontario and being operated by Rojas (the defendant vehicle) lost control and collided with a vehicle being operated by Facey (the plaintiff vehicle). According to the report, the defendant vehicle set off a chain reaction of vehicles attempting to avoid a collision. The defendant vehicle simultaneously collided with another vehicle which also made impact with another vehicle.

[5] TD issued a policy of automobile insurance to 192 Ontario effective from August 21, 2015 to August 21, 2016. Rojas is not named under the policy.

[6] A statement of claim was issued on December 22, 2017.

[7] The applicable Rules of Civil Procedure are as follows:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

3.02(1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just.

(2) A motion for an order extending time may be made before or after the expiration of the time prescribed.

14.08(1) Where an action is commenced by statement of claim, the statement of claim shall be served within six months after it is issued.

16.01(1) An originating process shall be served personally as provided in rule 16.02 or, by an alternative to personal service as provided in rule 16.03.

16.02(1) Where a document is to be served personally, the service shall be made,

(a) on an individual, other than a person under disability, by leaving a copy of the document with the individual;

16.03(1) Where these rules or an order of the court permit service by an alternative to personal service, service shall be made in accordance with this rule.

(6) Where the head office, registered office or principal place of business of a corporation or, in the case of an extra-provincial corporation, the attorney for service in Ontario cannot be found at the last address recorded with the Ministry of Government and Consumer Services, service may be made on the corporation by mailing a copy of the document to the corporation or to the attorney for service in Ontario, as the case may be, at that address.

16.04(1) Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.

[8] The plaintiff seeks to validate service on 192 Ontario in the manner set forth in the affidavit of service of F. Gabriele sworn April 4, 2019. According to the affidavit of service, 192 Ontario was served with the statement of claim by mailing a copy on June 12, 2018 to 690 Gladstone Avenue, Toronto (the Gladstone address), being the registered office address in the updated corporate profile report dated July 5, 2018.

[9] Eight attempts were made to serve 192 Ontario personally at the Gladstone address prior to mailing a copy of the statement of claim. Based on the affidavits of attempted service, the process servers were unable to find 192 Ontario at the Gladstone address, which is a residential address.

[10] The evidence before me is that none of the correspondence mailed to the Gladstone address has been returned.

[11] In oral submissions TD raised an issue concerning the truthfulness of the affidavit of service of F. Gabriele sworn April 4, 2019. TD did not cross-examine F. Gabriele. TD appears to be relying on the date of the corporate search appended to the affidavit of service. The date of the appended corporate search is July 5, 2018, which post-dates the date of service. However, the date of the appended corporate search does not post-date the date of swearing of the affidavit. The registered office address in the appended corporate search did not change from the address in the initial corporate search dated December 8, 2017. There is no irregularity in the affidavit of service to support TD’s position in this regard.

[12] The decision of Goodman & Goodman v. Mas Group Development Corp., [1992] O.J. No. 4203 (Ont. Gen.Div.) relied on by TD is distinguishable. Goodman & Goodman was a motion to set aside default judgment. The plaintiff was aware of another address for the defendant, had regular dealings with the defendant at the other address and had sent correspondence and invoices to the defendant at the other address. Notwithstanding the foregoing, the plaintiff served the defendant with the statement of claim at the address in the corporate profile report, service the plaintiff knew would be ineffectual. This is not the case before me. There is no evidence that the plaintiff was aware of or had any dealings with 192 Ontario at another address.

[13] 192 Ontario was served in accordance with Rule 16.03(6) within the time set forth at Rule 14.08(1). Service on 192 Ontario in the manner set forth in the affidavit of service of F. Gabriele sworn April 4, 2019 is hereby validated.

[14] With respect to service on Rojas, the leading authority on motions to extend the time for service of the statement of claim is the decision of the Court of Appeal in Chiarelli v. Weins, 2000 ONCA 3904, [2000] O.J. No. 296 (C.A.). As stated at paragraph 17 of Chiarelli:

The court should not fix in advance rules or guidelines when an extension should be refused. Each case should be decided on its facts, focusing … on whether the defence is prejudiced by the delay.

[15] In Chiarelli at paragraph 16, the Court of Appeal states as follows with respect to prejudice:

… prejudice that will defeat an extension of time for service must be caused by the delay. Prejudice to the defence that exists whether or not service is delayed ordinarily is not relevant on a motion to extend the time for service. In this case the defence complains that the police officer’s notes have been destroyed. However, they were destroyed within two years of the accident under a local police policy. Thus, the notes would have been unavailable to the defence even if the statement of claim had been served on time.

[16] I am satisfied that Rojas will not be prejudiced by the delay. According to the evidence set forth in the affidavit of Facey’s lawyer, M. Krylov, sworn February 12, 2021, all necessary documentation has been preserved including information relating to the accident, Facey’s medical history, the medical reports of treating physicians and medical records. The affidavit states that there is no indication that any necessary documents have been lost or destroyed or that the necessary witnesses are not available for trial.

[17] According to the responding affidavit of J. Imrie, Practice Leader with TD Staff Legal, sworn February 26, 2021, the individual defendants face significant personal exposure given the issues with coverage and the ability to investigate liability as been compromised.

[18] Any personal exposure regarding coverage issues is not prejudice as a result of the delay and would have existed if the statement of claim had been served on Rojas on time. There are no specifics of how the ability to investigate liability has been compromised. The evidence before me does not satisfy me of actual prejudice.

[19] According to the motor vehicle accident report, the address for Rojas is the Gladstone address. A driver’s licence search was conducted on March 23, 2017 listing the Gladstone address and an expiry date of February 23, 2018. A further driver’s licence search was conducted on December 8, 2017, listing the same information. At some point thereafter Rojas updated his driver’s licence. A further driver’s licence search was conducted on March 1, 2021, listing the Gladstone address and a new expiry date of February 23, 2023.

[20] Corporate searches for 192 Ontario were conducted on December 8, 2017, July 5, 2018, and March 10, 2021. The searches list Rojas as a director of 192 and list his address as the Gladstone address.

[21] According to the affidavits of attempted service, from January 19, 2018 to June 9, 2018, nine attempts were made to serve Rojas at the Gladstone address. No one answered the door to the apartment. On the February 21, 2018 attempt, the process server noted two letters addressed to “Roofing Service & Solar Inc.” sticking out of the mailbox.

[22] On March 4, 2020, plaintiff’s counsel wrote to TD enclosing the statement of claim and requested that TD advise of an address for their insured or, in the alternative, accept service of the statement of claim. This was TD’s first notice of the claim. It is TD’s position that it did not provide the requested contact particulars in accordance with the Personal Information and Protection of Electronic Documents Act, S.C. 2000, c. 5.

[23] In the supplementary affidavit of J. Imrie sworn April 15, 2021, J. Imrie deposes that as a result of skip search conducted at the request of TD, she believes that Rojas is currently residing in Ecuador.

[24] In reviewing the affidavit of service of TD’s motion material on the defendants sworn October 14, 2021, TD has email addresses for Rojas and for a representative of 192 Ontario. There is no updated affidavit concerning this new contact information. Based on a review of the affidavit of service, I am satisfied that TD has contact information for Rojas. Accordingly, I am satisfied that if served in the manner proposed, the statement of claim will reasonably come to the attention of Rojas. In addition, it would be reasonable for the plaintiff to serve a copy of the statement of claim and this order on Rojas by sending a copy by email to the email address in TD’s affidavit of service and by mail to the Gladstone address.

[25] The plaintiff undertakes not to move to strike the defence of Rojas if TD is unable to produce Rojas for discovery.

[26] For these reasons I am satisfied that it is just to grant an extension of time to serve Rojas with the statement of claim and substitute service of the statement of claim on Rojas.

[27] With respect to the issue of costs, the plaintiff was successful and is entitled to costs of the motion. However, the amount sought is high in all of the circumstances. In my view the all-inclusive sum of $1,500.00 is a fair and reasonable amount that TD could expect to pay for costs of the motion in all of the circumstances, payable within 30 days.

[28] On the undertaking of the plaintiff not to move to strike the defence of Rojas if he is not produced for discovery, order to go as follows:

1. Service of the statement of claim on 192 Ontario in the manner set forth in the affidavit of service F. Gabriele sworn April 4, 2019 is hereby validated.

2. Service of the statement of claim on Rojas by sending a copy of the statement of claim together with a copy of this order as follows:

a. by mail to TD Insurance 5045 South Service Road, Burlington, Ontario L7L 5Y7 and by email to agnes.miceli@tdinsurance.com;

b. by mail to 690 Gladstone Avenue, Toronto, Ontario M6H 3J4; and,

c. by email to Zambrano.homar@gmail.com;

shall be good and valid service of the statement of claim on Rojas, effective 7 days after mailing and emailing.

3. The time for service of the statement of claim on Rojas is extended to 30 days from the date of entry of this order.

4. Costs of the motion are fixed in the all-inclusive sum of $1,500.00 payable by TD to Facey within 30 days.

Associate Justice B. McAfee

Date: November 4, 2021