Court File and Parties

COURT FILE NO.: CV-21-00001304-0000 DATE: 2022/04/01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LACHLAN BRUCE BUCKLE, a minor by his Litigation Guardian Lisa Marie Buckle, RUBY BUCKLE, a minor by her Litigation Guardian Lisa Marie Buckle, LISA MARIE BUCKLE and CHRISTOPHER BUCKLE, Plaintiffs AND: NATHAN MOORE, TRACY MOORE and CHARLIE JOHNSTON, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Shauna K. Powell, for the Plaintiffs Janet Clermont, for the Defendants Nathan Moore and Tracy Moore No court filing to date for the Defendant Charlie Johnston

HEARD: In writing

Endorsement

[1] Before me is a motion brought in writing and without notice by the co-defendants Nathan Moore and Tracy Moore, for an Order permitting substitute service of their Statement of Defence, Crossclaim and Counterclaim herein, [1] as well as their Jury Notice, on their co-defendant Charlie Johnston.

[2] Having reviewed the material filed by the moving defendants, I am satisfied that the requested order should be granted – albeit with some minor revisions noted below.

[3] Without limiting the generality of the foregoing, in my view, while Rule 28.04(2) of the Rules of Civil Procedure normally would require personal service of the moving defendants’ pleading on Mr Johnston, or service on him pursuant to one of the alternatives to personal service contemplated by Rule 16.03, (i.e., insofar as Mr Johnston apparently has yet to deliver a notice of intent to defend or a statement of defence in the main action), the evidence filed by the moving defendants makes it clear that resort to Rule 16.04(1) is warranted in the circumstances. In particular:

a. Since service of their pleading and jury notice on the plaintiffs, (on January 31, 2022), the moving defendants have made a number of unsuccessful attempts to serve Mr Johnston with the same material.

b. Although the plaintiffs were able to effect service of their statement of claim on Mr Johnston via Rule 16.03(5) back on October 8, 2021, (i.e., by leaving a copy of that pleading with Mr Johnston’s father at a specified residential address in the Town of Breslau, after the father acknowledged that he and his co-defendant son were members of the same household at that address), that alternative to personal service is no longer open to the moving defendants. In particular, when the moving defendants’ process server attended at the same address on February 17, 2022, Mr Johnston’s father once again answered the door, but on that occasion denied that he and his son were members of the same household; i.e., indicating that his son was on a two-year military deployment, and denying that his son lived at that address when not on deployment. Mr Johnston’s father apparently was not inclined to provide any further information or co-operation in that regard. In particular, Mr Johnston’s father declined to provide the process server with any indication of when his son might be returning from his indicated deployment, or any indication of where his son might be residing on his return.

c. Through further investigation, the moving defendants were able to locate another residential property apparently owned by their co-defendant, located at a specified address in the Village of Maryhill, Ontario. In particular: that was the contemplated service address for Mr Johnston indicated in the plaintiffs’ statement of claim; plaintiff counsel was able to supply the moving defendants with documentation printed on July 23, 2019, by a specified animal hospital in the Village of Elora, (located to the north of Maryhill, in Wellington County), indicating that “Charlie Johnston” lived at the specified Maryhill address, although he was “travelling to Iraq” for six months starting on May 17, 2019; and a title search commissioned by the moving defendants in relation to the property, conducted on March 9, 2022, confirmed that the specified Maryhill address is still owned by “Todd Charles Johnston”. However, when the moving defendants’ process server attended at that address on March 13, 2022, in a further attempt to effect service, the property was vacant and an adult neighbour, who refused to identify himself, indicated that he had not seen Charlie Johnston “since before Christmas”.

d. The moving defendants were friends with their co-defendant at the time of the alleged dog bite injuries underlying this litigation, (i.e., on July 23, 2021), and have remained friends with him into this year; a friendship which has included telephone contact between the defendant Mr Moore and Mr Johnston within the first three months of this year. Further to that contact, Mr Moore has advised the moving defendants’ lawyer:

i. that Mr Johnston and his father are not estranged but remain in contact with each other;

ii. that Mr Johnston owns a rental property in Maryhill;

iii. that Mr Johnston was advised about this litigation, and indicated that he would contact the insurer providing him homeowner coverage in that regard, while declining to provide the name of that insurer; and

iv. that Mr Johnston subsequently professed to have taken legal advice from an unnamed lawyer indicating that he did not have to respond to the litigation until such time as he was “properly served”.

e. Having regard to the above, I am satisfied that the co-defendant Mr Johnston is effectively evading service of the moving defendants’ pleading and jury notice, and that it is impractical to expect that the moving defendants will be able to effect personal service or a Rule 16.03 alternative to personal service in that regard, at least for the foreseeable future.

f. I also am satisfied that substituted service of the defendants’ pleading by the method proposed, (i.e., mailing the pleading to the Breslau residence of Mr Johnston’s father and to Mr Johnston’s Maryhill property), will result in the pleading coming to Mr Johnston’s attention.

[4] In their notice of motion, the moving defendants indicated that they also would be seeking an order pursuant to Rule 3.02, extending the time for delivery (i.e., service and filing) of their pleading on Mr Johnston. In that regard, reference was made to the time for delivery of a statement of defence and crossclaim prescribed by Rule 28.04 of the Rules of Civil Procedure.

[5] However, while I certainly would have been disposed to grant such relief in the circumstances, had it been required and requested, it appears that the moving defendants decided such relief was unnecessary; i.e., insofar as the remainder of the motion material does not address the granting of such relief, and the draft Order submitted with the motion record includes no such provisions.

[6] In that regard, I am inclined to agree that such a formal time extension for service of the moving defendants’ pleading is unnecessary in the circumstances. The provisions of Rule 27.04(1) and Rule 28.04(1) allow for delivery of a statement of defence and counterclaim (where all parties are parties to the main action) or statement of defence and crossclaim “at any time before the defendant is noted in default”. There is nothing before me to indicate that there has been or will be any attempt made by the plaintiffs to note the moving defendants in default.

[7] For the above reasons, I have reviewed and signed the draft Order, albeit with the following revisions indicated on the face of the Order:

a. I have added wording to more accurately describe the moving defendants’ pleading as a “Statement of Defence and Crossclaim and Counterclaim”;

b. I have corrected the spelling of Maryhill – which the moving defendants described as “Mary Hill” in their motion material and draft Order; [2] and

c. I have clarified that the pleading need only be mailed by regular post. [3]

Justice I.F. Leach Date: April 1, 2022

[1] In their motion material, the moving defendants consistently refer to the pleading as their “Statement of Defence and Crossclaim”. However, the relevant pleading, (a copy of which was included as an exhibit with the submitted motion material), is actually a statement of defence, crossclaim and counterclaim, and bears that title in capitals on its face.

[2] I believe I can take judicial notice of the proper spelling of Maryhill; i.e., a village located in the Region of Waterloo Waterloo, northeast of the city of Kitchener, Ontario.

[3] In circumstances where there indications of service evasion by a litigant who is aware of attempts to effect service, use of registered mail requiring an intended recipient’s active acknowledgement of receipt and/or retrieval of such mail is unlikely to be effective.