Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
491 Steeles Avenue East, Milton ON L9T 1Y6
RE: Bozica Hruskar, plaintiff
AND: Loblaws Inc. and Loblaw Companies Ltd, defendants
BEFORE: Justice R. Chown
COUNSEL: Gordon Marsden, for the plaintiff Ex parte
HEARD: June 13, 2022, in writing
ENDORSEMENT
Overview
1This is a motion to extend the time for service of the statement of claim. This motion is brought without notice.
The Law
2The typical grounds for a motion of this nature are that there has been difficulty in serving the defendant. In that circumstance, orders extending the time for service are granted without notice quite routinely, often with little specific evidence to satisfy the requirement in rule 37.07(2) that notice is “impractical or unnecessary.” Presumably, the reasoning behind this is that if it has been hard to serve the defendant with the statement of claim, it is impractical to serve the same defendant with a notice of motion.
3In Laurin v. Foldesi (1979), 1979 1875 (ON CA), 23 O.R. (2d) 321 (C.A.), Lacourciere J.A. said:
We are all of the view that there is no rule of law making it mandatory to serve the defendant with notice of an application for renewal. Although it is of course the desirable and preferable practice, we are of the opinion that the learned Judge of first instance erred in considering that he had a mandate from the Court of Appeal on the basis of Prescott v. McArthur to set aside the renewal of a writ obtained ex parte.
4The reference in this passage to “renewal” of a writ is a reference to the pre-1985 Rules of Practice, but the guiding principles for determining whether more time should be granted to serve an issued claim have not changed under the Rules of Civil Procedure.
Analysis
5In this case, the need for the extension of time arises not from difficulties in serving the defendant, but rather because the plaintiff moved and did not keep her lawyers informed of her contact information or arrange for her mail to be forwarded (or she did not respond to her forwarded mail), so that her lawyers went for months without instructions. More than a year passed between issuance of the claim and this motion being brought. The claim arises from a slip and fall which is alleged to have occurred on February 11, 2019, so well over three years ago.
6There is reason to think that the time for service will be extended. It will largely depend on whether the defendants have suffered any prejudice by the delay. The defendants may well consent to the motion. However, it is “desirable and preferable” that the defendants be given notice of this motion so that they can be heard.
Disposition
7I therefore adjourn this motion pursuant to rule 37.07(5)(b) and direct that the notice of motion shall be served on the defendants together with a copy of this endorsement.
Chown J.