Court File and Parties

COURT FILE NO.: CV-20-00638064

MOTION HEARD: 20220114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Narendra Kumar Yadav, Plaintiff

AND: Tania Brieche, Defendant

BEFORE: Associate Justice L. La Horey

COUNSEL: Louis P. Covens, Counsel for the Moving Party Plaintiff (as agent) Derek Vihvelin, Counsel for the Responding Party Defendant

HEARD: January 14, 2022 by videoconference

REASONS FOR DECISION

[1] The plaintiff brings this motion to extend the time to file a statement of claim for personal injuries arising as a result of a motor vehicle accident. The defendant is opposed.

[2] Although the plaintiff commenced the proceeding within two years of the accident by way of notice of action, he failed to file the statement of claim within the 30-day period required by the Rules of Civil Procedure.

[3] For the reasons that follow, I grant an order extending the time within which the plaintiff may file the statement of claim.

Background

[4] The plaintiff’s claim arises out a motor vehicle accident that occurred on March 16, 2018. The plaintiff alleges that as he was exiting his parked vehicle, the defendant’s motor vehicle struck his vehicle.

[5] The plaintiff hired a lawyer (the “Lawyer”, not counsel on this motion) to represent him on or about March 21, 2018. On March 27, 2018, the Lawyer sent a notice letter to the insurer of the defendant’s motor vehicle, TD Meloche Monnex (“TD”). The letter identified the plaintiff, the defendant, the date of the accident and the TD policy number of the defendant’s insurance policy. The letter advised of the plaintiff’s intention to commence an action for personal injuries resulting from the accident and recommended that TD inform its insured of the notice letter.

[6] The plaintiff was also insured by TD and has made a claim to it for accident benefits in connection with the accident.

[7] On March 13, 2020, a notice of action was issued on behalf of the plaintiff as against the defendant for personal injuries sustained as a result of the accident. Thus, the notice of action was issued within the two-year limitation period.

[8] Rule 14.03(3) of the Rules of Civil Procedure provides that where a proceeding has been commenced by notice of action, the plaintiff shall file the statement of claim within 30 days after the notice of action is issued. The notice of action and statement of claim must then be served within six months after the notice of action is issued (Rule 14.08(2)).

[9] In response to the global COVID-19 pandemic, the Ontario government temporarily suspended all limitation periods and time periods within which steps must be taken in a proceeding in Ontario as of March 16, 2020 pursuant to Ontario Regulation 73/20.[^1] On September 14, 2020, O. Reg. 73/20 was revoked.[^2]

[10] It is not disputed that the last day for the plaintiff to file a statement of claim was October 11, 2020. It is also not disputed that had a statement of claim been filed on October 11, 2020, the last day for the plaintiff to serve the notice of action and claim was March 11, 2021. Similarly, had the plaintiff issued a statement of claim on or about March 13, 2020, instead of a notice of action, the plaintiff would have had until mid-March 2021 to serve the statement of claim on the defendant.

[11] The plaintiff served this motion record on the defendant and her insurer, TD, by regular mail on April 27, 2021. The motion record included the draft statement of claim that the plaintiff seeks to file.

[12] Therefore, leaving aside the notice letter, the defendant and her insurer were on notice of the claim only about six weeks later than they would have been had the plaintiff filed the statement of claim in time, and served the notice of action and statement of claim in time. Similarly, the defendant and her insurer received the draft statement of claim about six weeks after they would have received it if the plaintiff commenced the action by a statement of claim and served the claim on the last possible day.

[13] The motion was brought by Mr. Covens as agent for the plaintiff’s Lawyer. The motion record includes the affidavit of the Lawyer sworn April 22, 2021. In it, the Lawyer deposes that a statement of claim was not issued within 30 days of the notice of action for a number reasons including: (a) the COVID-19 pandemic had just began and he was unable to properly manage, oversee and access his files remotely, including diaries and his firm file list indicating important deadlines; (b) his office and support staff were affected as a result of the pandemic in that they could not all attend the office and his office was not set up for remote access from home; and, (c) inadvertence. The Lawyer deposed that he is the sole lawyer at his office and that he had difficulty transitioning the firm’s practice to a more paperless practice and to allow working from home.

[14] In his affidavit, the lawyer deposed that he notified his insurer, LawPro, in March 2021 that a statement of claim had not issued within 30 days. Further, he states that he has spoken to the plaintiff who says that he has always intended to pursue the action.

[15] The defendant did not file any responding affidavit evidence.

Law and Analysis

[16] Rule 14.03(3) provides that where a notice of action is used, the plaintiff shall file a statement of claim within 30 days after the notice of action is issued and that no statement of claim shall be filed thereafter except with written consent of the defendant or with leave of the court obtained on notice to the defendant. As the defendant does not consent, the issue for me is whether the court should grant leave to file the statement of claim.

[17] The parties agree on the relevant test for the exercise of my discretion. In Diemer (Cornacle Cattle Co.) v London Farms Ltd.,[^3] the Ontario Court of Appeal confirmed that the applicable test is as set out in Nugent v Crook.[^4] In that case, it was held that a court may extend the time to file a statement of claim where one or more of the following factors exist:[^5]

a) where the statement of claim has not been filed within 30 days through the mere slip or inadvertence of the plaintiff’s solicitor;

b) where the statement of claim has not been filed through other reasonable cause;

c) where the defendant’s conduct has lulled the plaintiff into a false sense of security;

d) the absence of prejudice to the defendant by reason of the delay.

[18] The four factors are not conjunctive and it is sufficient if one factor is present. However, even if the plaintiff can establish one of the factors, the court still has the discretion to refuse leave.[^6]

[19] In Deimer, the Court of Appeal also held that even though a notice of action is commenced with the relevant limitation period (as here), the failure to file the statement of claim on a timely basis brings the action to an end, absent the consent of the defendant or leave of the court. The expiry of a limitation period after the 30-day deadline for filing of the statement of claim gives rise to a rebuttable presumption of prejudice to the defendant.[^7] Further, the onus is on the plaintiff to establish proper grounds for the exercise of the court’s discretion.[^8]

Mere Slip or Inadvertence

[20] In his affidavit, the Lawyer deposes that the delay arose as a result of inadvertence. He also referred to difficulties arising as a result of the COVID-19 pandemic and the stay at home order enacted shortly after the issuance of the notice of action. In cross-examination, the Lawyer testified as to failures on the part of one of the law clerks in his office on whom he relied. The Lawyer’s evidence is that he discovered a number of problems with the law clerk’s work in or about March 2021, including a failure to file a statement of claim in this matter. Less than a week later he reported this matter to LawPro.

[21] The plaintiff contrasts this case, where the Lawyer has filed an affidavit saying that the failure to file the claim in a timely way was due to inadvertence, with Nugent, where leave was refused on the basis that the assertion of inadvertence was unsupported by an affidavit. It is also noteworthy that the delay in Nugent was two and half years, far longer than the case at bar.

[22] The defendant denies that the failure to issue a statement of claim on a timely basis was due to a “mere slip” or “inadvertence”. The defendant argues that that the COVID-19 pandemic does not provide an excuse for whole period of delay and states that the plaintiff took no steps to advance the litigation between March 13, 2020 and March 2021 when LawPro was advised of the issue.

[23] However, the test for leave does not require the plaintiff to have taken steps to advance the action in the period after the expiry of the 30 days and before the motion for leave. If the plaintiff has taken steps to advance the action, this can be a reason militating in favour of granting leave, as was the case in Deer v RBC.[^9] Had the plaintiff complied with the requirement to file a statement of claim in a timely way the only step that the plaintiff was required to take was to serve the statement of claim by mid-March 2021. The failure to take any steps to advance the action may result in prejudice, and should be considered at that stage of the analysis. In addition, the failure to move the action forward may also be considered in the overall exercise of discretion.

[24] The defendant also suggests that the Lawyer should have independently confirmed that the law clerk was doing her work, including filing the statement of claim in a timely way. However, even if this is correct, it is still inadvertence on the part of the plaintiff’s Lawyer.

Other reasonable cause

[25] The plaintiff also submits that the COVID-19 pandemic and the disruptions to the practice of law and the ensuing necessity to transition to a more paperless practice was a reasonable cause of the delay in the circumstances of this case. Counsel emphasized that the Lawyer was the only lawyer in his office at the time. To some extent, this factor overlaps with inadvertence, as the disruption caused by the pandemic is said to have been a factor in the inadvertence (at least in part).

[26] In response, the defendant notes that on cross-examination, the Lawyer testified that his office was completely shut down for not more than about a week and that after that time some staff members were able to work from home and some were coming into the office. However, the evidence is that there continued to some difficulties as a result of the pandemic. The Lawyer’s evidence was that it took some time to transition to a more paper-less office and for things to normalize completely. The defendant argues that the suspension of limitation periods and time lines until September 2020, was sufficient to accommodate the disruption in the Lawyer’s office caused by the pandemic and does not provide an excuse for the period of time between resumption of the running of time periods on September 14, 2020 and the deadline for filing the statement of claim on October 11, 2020.

[27] Having reviewed the evidence including the transcript of the Lawyer’s cross-examination, I accept the defendant’s argument that the pandemic was not a reasonable cause of the Lawyer’s failure to file the statement of claim in a timely manner.

Defendant’s Conduct

[28] The plaintiff does not allege that there is anything in the defendant’s conduct that lulled the plaintiff into a false sense of security.

Prejudice

[29] I accept that the plaintiff has rebutted the presumption of prejudice arising as a result of the expiry of the limitation period. The plaintiff has put into evidence the notice letter to TD indicating the plaintiff’s intention to pursue a claim and providing the relevant details (name of defendant, date of accident and their policy number) and asking that TD advise their insured of the intended action. This notice letter was provided within two weeks of the accident and gave the defendant and her insurer an opportunity to investigate the accident. The accident was investigated at the time by the police and a report was prepared (which the defendant says is supportive of her liability position). In addition, the plaintiff filed an accident benefits claim with TD and presumably TD has some medical records available to them as a result. The plaintiff was seen by a physician shortly after the accident and the notes and records of the physician are available.

[30] Finally, and as noted above, the defendant received the draft statement of claim approximately six weeks after the deadline for service of the statement of claim had it been issued properly.

[31] The defendant did not file any responding affidavit attesting to any prejudice. Based on the evidence before me I conclude that there is no prejudice to the defendant.

Conclusion

[32] The plaintiff has established two of the four Nugent factors. As noted above, I have a residual discretion to refuse leave. Having regard to all of the circumstances of the case, and the policy that actions should be heard on their merits, I grant the plaintiff leave to file the statement of claim, substantially in the form filed with the motion record, within two weeks of the issuance and entry of the order in this matter.

[33] During the hearing of this matter, counsel for the defendant agreed that formal service of the statement of claim was not required. I therefore make an order validating service of the statement of claim as of the date that it is filed with the court. Counsel for the plaintiff shall forthwith advise counsel for the defendant when the court accepts the statement of claim for filing.

Costs

[34] I heard submissions on costs at the conclusion of the hearing. The plaintiff sought costs on a partial indemnity basis if successful and provided a cost outline indicating partial indemnity costs in the sum of $6,129.10 inclusive of fees, disbursements and applicable taxes. In the event that the plaintiff was unsuccessful, Mr. Covens agreed that an order for partial indemnity costs payable to the defendant was appropriate.

[35] The defendant asked for costs on a partial indemnity basis if successful. Mr. Vihvelin had not prepared a costs outline, but asked for costs of $2,500 all-inclusive if the defendant was successful. In the event that the plaintiff was successful, Mr. Vihvelin submitted that the defendant should be entitled to costs on the basis that the motion was generated by the plaintiff’s failure and that he is seeking an indulgence. In the alternative, defence counsel submitted that an order of costs in the cause or an order of no costs was appropriate. In support of his position, defence counsel noted that the affidavit did not raise the issue of the failings of the law clerk which came out in cross-examination. I am not persuaded by this argument. The Lawyer’s affidavit said that the reason for the delay included inadvertence which would include inadvertence on the part of staff. Further the defendant continued her opposition to the motion even after the cross-examination.

[36] Having considered the circumstances of this case and applying them to the factors set out in Rule 57, I do not see a reason to depart from the usual rule that costs be awarded on a partial indemnity basis to the successful party. I find that the plaintiff’s requested costs in the sum of $6,129.10 all inclusive, to be a fair and reasonable amount and within the reasonable expectation of the parties. These costs are payable by the defendant to the plaintiff within 30 days of the release of this decision.

Disposition

[37] I therefore order:

a. that the plaintiff is granted leave to file the statement of claim in this action, in substantially the same form as the draft filed in the motion record, within two weeks of the issuance and entry of the order in this matter;

b. service of the statement of claim is validated and effective the date that the statement of claim is filed with the court;

c. the defendant shall pay the plaintiff costs of this motion on a partial indemnity scale fixed in the sum of $6,129.10 (all-inclusive) payable within 30 days of the release of this endorsement.

[38] In the event that there are any issues with respect to the form of the order, the parties may contact my assistant trial co-ordinator, Marco Magnante.

L. La Horey, A.J.

Date: January 17, 2022

[^1]: Made pursuant to s. 7.1 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9. On July 24, 2020, O. Reg. 73/20 was continued under the Reopening Ontario (A flexible Response to Covid-19) Act, 2020, SO 2020, c. 17. [^2]: O. Reg. 457/20. [^3]: 2016 ONSC 946 [^4]: (1969), 1969 CanLII 389 (ON CA), 40 OR (2d) 110 (CA) [^5]: Nugent v Crook speaks to failure to renew a writ. I have updated the factors to reflect the change in the Rules. [^6]: Deer v RBC Dominion Securities Inc., 2020 ONSC 1245 (Master) [^7]: Diemer at para 7 [^8]: Diemer at para 8 [^9]: Deerat para 10