Court File and Parties
COURT FILE NO.: CV-17-59820
DATE: 20220127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Adams John Day
Plaintiff
– and –
John Day Steven Adams
Defendant
Counsel:
Gerry Falletta, for the Plaintiff/Responding Party
Lauren Froud, Student-at-Law, for the Defendant/Moving Party
HEARD via ZOOM: January 21, 2022
REASONS FOR DECISION
Sheard J.
Overview
[1] The defendant brings this motion to dismiss the action for delay on the grounds that the plaintiff failed to serve the statement of claim (the “Claim”)[^1] in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).
[2] The motion first came before me on January 11, 2022, but did not proceed for scheduling reasons. In my endorsement on that hearing, I indicated to counsel that the motion materials raised the following three issues:
- That there was no evidence that the Claim had been personally served on the defendant;
- That there was no evidence that a motion for substitutional service had been brought; and
- That the plaintiff’s motion to extend the time for service of the Claim, before (then) Master Sugunasiri on April 18, 2019, had been adjourned sine die.
[3] In the course of this hearing, Gerry Falletta, counsel for the plaintiff/responding party, provided the court with a copy of the affidavit of service of William Douglas Harrison, sworn January 21, 2022. Mr. Harrison’s affidavit states that he served the defendant with the Claim by (i) leaving a copy of the Claim with a person who appeared to be an adult member of the same household in which the defendant is residing in Coldwater, Ontario on January 13, 2022; and, (ii) sending a copy of the Claim by regular mail on January 14, 2022.
[4] Mr. Falletta submits that the manner in which Mr. Harrison served the Claim is permitted pursuant to rr. 16.01 and 16.03 (5) of the Rules and that service was effective on January 19, 2022 – the fifth day after the Claim was mailed.
Findings and Disposition
[5] While I accept that service of the Claim was effected on the defendant on January 19, 2022, that is more than five years after the Claim had been issued. R. 14.08 requires that a statement of claim be served within six months after it is issued. As the plaintiff did not have an order granting him an extension of time to serve the Claim, I find that service of the Claim on January 19, 2022 was not made in accordance with the Rules.
[6] While counsel for the defendant appears to have been provided with a copy of the Claim (although evidence on that point is not overly clear), there is no evidence that the defendant’s counsel had been instructed or authorized to accept service of the Claim on behalf of the defendant. To the contrary, the evidence is that counsel for the defendant repeatedly advised Mr. Falletta that the Claim needed to be served upon the defendant.
[7] Apart from issuing the Claim in 2017, obtaining an order in April 2019 correcting the title of proceedings, and serving the Claim on January 19, 2022, no evidence was put before this court that shows that the plaintiff has taken any meaningful steps to pursue the Claim. Importantly, on this motion, the plaintiff put forth no proposed litigation timetable and offered no evidence as to what steps he has taken, and/or intends now to take, to pursue the Claim.
[8] More than seven years have elapsed since the date of the accident that precipitated the Claim. More than five years have elapsed since the Claim was issued. It was well over two years ago that the plaintiff’s motion to extend the time for service of the Claim was adjourned sine die. Pleadings are incomplete; affidavits of documents have not been exchanged; and no examinations for discovery have been scheduled. However, the plaintiff has offered no explanation for these years of inactivity and his failure to move forward with these key litigation events.
[9] I find that the delays in this litigation have been inordinate and unexplained and that the responsibility for the delays lies entirely with the plaintiff.
[10] The plaintiff has failed to lead any meaningful evidence to rebut the inference that the defendant has been prejudiced by the plaintiff’s delay in moving forward with his action.
[11] I am satisfied that the plaintiff’s failure to prosecute his action in a timely way, or at all, creates a substantial risk that a fair trial of the issues on their merits will not be possible. In consideration of all the circumstances, and based on the record before me, I also conclude that the plaintiff has not demonstrated that the dismissal of the action would be unjust. Accordingly, for the reasons more fully set out below, the defendant’s motion is granted, and this action is hereby dismissed.
Evidence on the Motion
[12] The facts set out below are taken from affidavit evidence filed on this motion. The defendant filed an affidavit sworn by Odette Ansell, formerly Odette Fraser, (“Ms. Ansell”), the lawyer in the defendant’s law firm with carriage of this matter. The plaintiff put forth the affidavit of Laura Belanger (“Ms. Belanger”), a law clerk with Mr. Falletta’s law firm.
The Accident: January 9, 2015
[13] This action arises from an alleged motor vehicle accident that occurred in the Town of Simcoe, Ontario, on January 9, 2015. The Claim was issued on January 9, 2017, the second anniversary of the accident. The Claim alleges that the plaintiff had been a passenger in a motor vehicle that was being used to tow a vehicle out of a ditch. The O.P.P.[^2] Motor Vehicle Collision Report (the “MVA Report”) states that the plaintiff was standing in the roadway, attaching a tow cable to the rear of another vehicle, when a Snowmobile operated by the defendant collided with the plaintiff. The MVA Report indicates that the “involved person” was taken from the scene by ambulance, and that no charges were laid.
[14] Ms. Belanger asserts that through “administrative error”, the title of proceedings in the Claim had the parties’ names reversed: the plaintiff, Steve Adams, was identified as the defendant, and the plaintiff, John Day, was identified as the defendant.
[15] Ms. Belanger’s evidence is that on January 12, 2017, Mr. Falletta’s law firm suffered an office fire, causing it to lose some files, including any documentation with respect to the possible service of the Claim.
[16] Following the fire, Mr. Falletta’s office had no contact with the plaintiff until February 2019, when Ms. Belanger spoke with the plaintiff. After that conversation, Ms. Belanger attended at the courthouse to obtain a copy of the Claim. Ms. Belanger states that this is when the “misnomer” became apparent and she also became aware of the “possible service issue”.
Plaintiff’s Motion to Correct the Title of Proceedings
[17] In March 2019, the plaintiff brought a motion returnable April 18, 2019, seeking various relief, including an order correcting the title of proceedings (the “Plaintiff’s Motion”). A copy of the Plaintiff’s Motion Record was mailed to the defendant. A copy of the cover letter sent to the defendant was attached as an exhibit to Ms. Belanger’s affidavit but the materials before the court on the Plaintiff’s Motion were not provided to this court.
[18] The Plaintiff’s Motion was heard on April 18, 2019 by (then) Master Sugunasiri, who personally amended and signed an order (the “2019 Order”). Pursuant to paragraphs 1 and 2 of the 2019 Order, the Claim was amended to add Steven Adams as a defendant, and the title of proceedings was corrected to show John Day as plaintiff. A draft of the proposed amended claim was attached to the 2019 Order.
[19] Paragraph 3 of the 2019 Order was deleted by Master Sugunasiri. Paragraph 3 had provided that the amended statement of claim be served within 90 days from the date of the 2019 Order. Master Sugunasiri also amended paragraph 4, the final paragraph of the 2019 Order, so that it read that: “the motion with respect to extending the time to serve the claim be adjourned sine die, to be brought on notice to Mr. Adams.” As originally drafted, paragraph 4 of the draft order submitted on the Plaintiff’s Motion extended the time to serve the Claim by 90 days of the date of the order.
[20] In oral submissions on this motion, Mr. Falletta confirmed that neither the defendant, nor anyone on his behalf, were present in court when the Plaintiff’s Motion was heard by Master Sugunasiri.
Amendment of the Claim
[21] The Claim appears to have been amended on April 17, 2019 pursuant to the 2019 Order (despite that it is dated April 18, 2019). In her affidavit, Ms. Belanger states that a copy of the 2019 Order and the Claim (as amended) was sent by regular mail to the defendant by letter dated June 17, 2019. Ms. Belanger attached a copy of that letter as an exhibit to her affidavit.
[22] The June 17, 2019 letter makes no reference to the Claim and reads as follows:
“Enclosed please find a copy of the Order of Master Sugunasiri, which is being served upon you pursuant to the Rules of Civil Procedure. Please contact the undersigned with any questions or concerns. Thank you”.
[23] This evidence fails to establish that a copy of the Claim (as amended) was, in fact, included in the June 17, 2019 letter sent to the defendant. In any event, service of the Claim upon the defendant could not have been properly effected by mailing him a copy. Firstly, r. 16.01 requires personal service of an originating process. Secondly, r. 14.08 requires a claim to be served within six months after it is issued. As the plaintiff did not have an order granting an extension of time for service, to comply with r.14.08, the Claim had to be served by June 9, 2017.
[24] As stated earlier in these reasons, on this motion, Mr. Falletta acknowledged, on behalf of his client, that service in accordance with r. 16.01 was not effected on the defendant until January 2022, more than five years after the Claim was issued.
Communications between counsel
[25] By letter dated June 27, 2019, Ms. Ansell (then, Odette Fraser) wrote to Mr. Falletta confirming that she had been retained to defend the Claim. She also confirmed that she had been provided with the Plaintiff’s Motion Record and asked for a copy of the order obtained on the Plaintiff’s Motion, and proof of service on the defendant of the 2019 Order and the Claim. Ms. Ansell advised Mr. Falletta that upon receipt of those documents, she would proceed to enter a defence on behalf of her client.
[26] Ms. Ansell did not receive a response from Mr. Falletta. She wrote to him a second time on July 10, 2019, again asking for an affidavit of service of the Claim upon the defendant.
[27] Ms. Ansell did not receive a response from Mr. Falletta to her correspondence of July 10, 2019. Ms. Ansell wrote to Mr. Falletta a third time on August 13, 2019. She again asked for an affidavit of service of the Claim and confirmed that, upon receipt, they would be able “to plead into the action, book discoveries, and move this matter along expediently”.
[28] Having yet to receive a response from Mr. Falletta, Ms. Ansell wrote to him a fourth time on September 18, 2019, requesting a response to her earlier correspondence. She followed this correspondence by an email dated September 25, 2019, to which Mr. Falletta responded: “I will have my clerk respond ASAP Not sure what the hold up was Sorry for the delay G”.
[29] By email of October 7, 2019, in the same email chain, Ms. Ansell sent Mr. Falletta the following message: “Good afternoon Gerry, Kindly have your law clerk to send my office the below requested documents so that we can plead into this action and move it forward accordingly. Thank you, Odette.”
[30] Ms. Ansell emailed Mr. Falletta again on October 31, 2019 to advise that his clerk had still not forwarded the “AOS” [affidavit of service], requesting that they do so ASAP so that the defendant could plead and get the matter moving. Mr. Falletta responded later that same day saying: “sorry, I will get it to you today! g”.
[31] By email dated November 4, 2019, Ms. Ansell advised Mr. Falletta that she had still not received the AOS, that her client was getting impatient, and “wants us to bring a motion to dismiss for delay if we do not get the documents tomorrow by 5 p.m.”. Mr. Falletta responded the same day in an email addressed to Ms. Ansell and to Ms. Belanger. His messages read as follows: “Laura [Belanger] please respond and/or provide the requested documents ASAP! Odette I do not appreciate the short time limit.”
[32] On November 5, 2019, Ms. Belanger responded to Mr. Falletta’s email, copying Ms. Ansell. In her email, Ms. Belanger attached her affidavit of service, sworn November 5, 2019, stating that on April 19, 2019, she had served the defendant with the 2019 Order and the amended statement of claim, via regular mail. Ms. Belanger’s affidavit of service used the original title of proceedings that showed Steve Adams as plaintiff, and John Day as defendant. I note that the defendant’s address for service in 2019 is the same address used by Mr. Harrison in January 2022.
[33] I also note an apparent inconsistency between the affidavit of service sworn by Ms. Belanger on November 5, 2019 and the affidavit she swore in response to this motion.
[34] In the affidavit she swore on this motion, Ms. Belanger states that the Claim and 2019 Order were served on the defendant by letter dated June 17, 2019, sent by regular mail, as evidenced by the (file) copy of the cover letter, attached as an exhibit. In her affidavit on this motion, Ms. Belanger makes no reference to having served the defendant with the 2019 Order and Claim by letter mailed on April 19, 2019, despite having sworn that she had done so, in her affidavit of service of November 5, 2019.
[35] I further note that Ms. Ansell’s first letter to Mr. Falletta is dated June 27, 2019. The timing of Ms. Ansell’s letter suggests that, in the affidavit she swore in response to this motion, Ms. Belanger was correct that the 2019 Order and Claim were not mailed to the defendant until June 17, 2019.
[36] Little turns on the accuracy or reliability of this evidence.
[37] By email dated November 10, 2019, Ms. Ansell wrote to Ms. Belanger noting that, while the Claim may have been mailed to the defendant, the Rules required that service be effected by personal service and that Ms. Ansell was not aware of any order for substitutional service. On November 26, 2019, by way of follow-up, Ms. Ansell emailed Ms. Belanger again, forwarding her the email of November 10.
[38] On January 24, 2020, Ms. Ansell wrote to Mr. Falletta to advise that she had not received a reply to her emails to Ms. Belanger of November 10 and 26, 2019. Ms. Ansell again stated that the Rules required that the Claim be served personally, which had not yet occurred.
[39] On April 6, 2020, Ms. Ansell wrote again to Mr. Falletta indicating that she had still not received a response to her emails of November 2019 and January 24, 2020. Ms. Ansell sent a similar follow-up letter on May 6, 2020.
[40] On December 30, 2020, counsel for the defendant served Mr. Falletta with a Notice of Motion seeking an order dismissing the action for non-service, together with a draft Order. There is no evidence before the court of any further communications between counsel until the defendant brought this motion, dated October 1, 2021.
[41] The responding materials put forth by the plaintiff do not contradict the chronology set out above. More importantly, the plaintiff’s responding materials do not explain Mr. Falletta’s lack of response to Ms. Ansell’s correspondence, nor do they offer any explanation whatsoever as to why the plaintiff has taken no steps to move forward with the Claim.
[42] The merits of the defendant’s motion appear to be addressed in the following paragraphs of Ms. Belanger’s affidavit:
Dutton Brock LLP, lawyers for the Defendant, sent correspondence to Centennial Law Group on or about June 27, 2019 advising that they had been retained by the Defendant upon receiving the Motion materials. The Amended Statement of Claim and Order of Master Sugunasiri were subsequently served upon them.
I submit that Dutton Brock requested a copy of the Affidavit of Service of the Amended Claim on their client, the defendant, and that none was provided. Service was assumed on counsel and the Defendant did receive all materials as well as the Statement of Claim and Amended Statement of Claim.
The Plaintiff submits that the Defendant was not prejudiced as he did receive the appropriate pleadings.
The Law and Analysis
[43] R. 24.01 (1) (a) permits a defendant to move to have an action dismissed for delay when the plaintiff has failed to serve the statement of claim on all the defendant within the prescribed time.
[44] R. 24.01(2) states as follows:
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. (emphasis added)
[45] The plaintiff asks the court to consider the decisions in Innvest Master Properties GP X LTD v. 1271519 Ontario Limited, 2017 ONSC 5961 and Oakville Mini Storage Inc. v. 1674861 Ontario Ltd., 2016 ONSC 2383. Both cases involve a motion brought by the plaintiff for an order validating service of a claim.
[46] In Innvest, the plaintiff asserted that service had been effected when the lawyer for the affected party accepted service. In Oakville, the plaintiff asked that service be validated on the basis that, although “served in a manner other than one authorized by the Rules”, the claim came to the attention of the defendants well within the six-month timeline for service required by r. 14.08.
[47] I find that both cases referenced by the plaintiff are distinguishable on their facts.
[48] In Innvest, the motion before the court was for an order to validate service of the statement of claim on the basis that the lawyer for the defendant had accepted service on behalf of his client. In that case, the defendant had instructed his lawyer to accept service and the lawyer had, in fact, accepted service on behalf of his client.
[49] The facts here are vastly different. In this case, there is no evidence that the defendant authorized and instructed his lawyer to accept service of the Claim on his behalf; to the contrary, counsel for the defendant has consistently stated that service of the Claim on the defendant was required before a defence could be delivered and next steps in the action would take place. Also, unlike the facts in Innvest, here, it is undisputed that the defendant was not given notice of the Claim until June 2019, or possibly April 2019, by which dates the six-month time limit for service of the Claim had been exceeded by close to or over two years.
[50] In Oakville Mini Storage, the issue to be decided was whether service of the statement of claim on the defendants ought to be validated or whether the time for service ought to be extended.
[51] Unlike Oakville Mini Storage, here, no motion has been brought to validate service or to extend the time for service of the Claim. Also, very different from the evidence put forth on this motion, in Oakville, the evidence was that counsel had been engaged in ongoing discussions and had agreed that the claim need not be served, pending environmental investigations, although a courtesy copy of the claim was provided to defence counsel on January 30, 2015. Discussions broke down in May 2015 and attempts were made to serve the claim in July 2015, at which time most of the fifty defendants were served.
[52] Also different from the evidence that was before the court in Oakville Mini Storage, here, the court has been provided with no evidence or explanation as to why the Claim was not served within the six months required by the Rules. The failure to do so is particularly mystifying given that the plaintiff appeared to have known the defendant’s address.
[53] Although not referenced by either party, I understand that Ticchiarelli v. Ticchiarelli, 2017 ONCA 1, is the leading case respecting the test for dismissing an action for delay. In Ticchiarelli, the Court stated that an order dismissing an action for delay will be justified “where the delay is inordinate, inexcusable, and prejudicial to the defendants in that it gives rise to a substantial risk that a fair trial of the issues will not be possible” (at para.12). (emphasis added)
[54] To determine whether the delay is inexcusable, the court must examine the reasons for the delay and whether the plaintiff has provided explanations that are “reasonable and cogent” or “sensible and persuasive” (Ticchiarelli, at para 16).
[55] In oral submissions, Mr. Falletta submitted that he or his office is at fault for any delay and that his client ought not to be punished for the errors or omissions or fault of his lawyers. However, no evidence has been put forth to support those submissions. For example, on this motion, there is no evidence that the plaintiff intended to pursue the Claim, nor is there any evidence that Mr. Falletta ignored his client’s instructions to do so. Indeed, on this motion, there is no evidence or explanation whatsoever offered as to why the plaintiff has done nothing to pursue the Claim.
[56] Mr. Falletta submits that his client should be afforded an opportunity to have his action heard on its merits and, because the defendant has been aware of the action since June 2019, the defendant should not be able to argue any prejudice.
[57] I do not accept those submissions.
[58] The email communications from Ms. Ansell made it clear to the plaintiff that service of the Claim on the defendant by mail was not acceptable, nor in compliance with the Rules and that personal service of the Claim would be required, in the absence of an order for substitutional service.
[59] Furthermore, and importantly, the plaintiff failed to obtain an order extending the time within which to serve the Claim. The 2019 Order shows that the plaintiff understood that he needed an order extending the time for service and that his motion seeking such an order had to be brought on notice to the defendant. The plaintiff did not bring the Plaintiff’s Motion back on for a hearing and offers no explanation for his inaction.
[60] Without having sought and been granted an order extending the time for service, service of the Claim on the defendant on January 19, 2022 does not, and cannot, cure the plaintiff’s failure to comply with r.14.08, requiring service of the Claim within six months after it was issued.
[61] In oral submissions on behalf of the plaintiff, Mr. Falletta also urged the court to consider the provisions of r. 1.04 that directs that the Rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. I accept that principle but do not accept that it would, or should, operate in this case to validate service of the Claim made five years after the Claim was issued or, assuming service was in April or June of 2019, even 2 ½ years after the Claim was issued. At the very least, that relief would have to be sought on motion, on notice, and with a supporting evidentiary record.
[62] Defendants are entitled to know in a timely way that they have been sued and to be given a proper opportunity to defend the claim. That did not happen here.
[63] When, as did happen here, a plaintiff fails to move forward with his lawsuit, a defendant is entitled to ask the court to dismiss the lawsuit. A defendant is not required to wait indefinitely for the plaintiff to decide to move forward with a claim.
[64] R. 24.01 provides the framework for such a motion. The language in r. 24.01 (2) is mandatory: the court shall dismiss an action for delay unless the plaintiff demonstrates that dismissal of the action would be unjust. The onus is on the plaintiff to explain his delay and his failure to meet the timelines that are prescribed by the Rules and to explain why it is “just” that he be permitted to proceed with his action. I conclude that the plaintiff has failed to do so.
[65] Likewise, I conclude that the plaintiff has failed to meet his burden to provide a “reasonable and cogent” or “sensible and persuasive” or, in fact, any explanation at all, for the delay in moving forward with this litigation. I conclude that the delays in this litigation are inordinate and inexcusable.
Has the delay been prejudicial to the defendant in that it creates a substantial risk that a fair trial of the issues will not be possible?
[66] It has been five years since the Claim was issued and still the plaintiff has virtually done nothing to pursue his action.
[67] Where, as here, the plaintiff has done virtually nothing to pursue his action for five years, prejudice to the defendant caused by that the delay can be presumed. The onus lies with the plaintiff to lead evidence to rebut that presumed prejudice: Ali v. Fruci, 2014 ONCA 596.
[68] In evaluating the strength of the presumption of prejudice, a court is entitled to consider all of the circumstances, including the defendant’s conduct in the litigation: MDM Plastics Limited v. Vincor International Inc., 2015 ONCA 28.
[69] The events giving rise to the Claim are now over seven years old and it is fair to conclude, which I do, that with the passage of time, witnesses may be unavailable or, even if available, their memories will have faded; medical and/or financial records may no longer be available; and, assuming the plaintiff intends to pursue a claim for damages arising from physical injuries suffered, the passage of time may well have affected the defendant’s ability to obtain cogent medical and/or expert evidence usual to the defence of a personal injury claim.
[70] The onus was on the plaintiff to lead evidence on this motion to show that the obvious prejudice that flows from the passage of time, would not give rise to a substantial risk that a fair trial of the issues will not be possible. He has failed to do so.
[71] For all the foregoing reasons, the defendant’s motion is granted and the plaintiff’s action is dismissed.
Costs
[72] The defendant has been successful and is presumptively entitled to its costs. At the conclusion of the hearing, counsel were requested to exchange and to provide the court with their Costs Outlines, which were not to be opened by me until after I had determined this motion.
[73] At the hearing, Mr. Falletta advised that he did not intend to seek costs even if the motion was dismissed and, for that reason did not provide the court with a Costs Outline.
[74] After deciding this motion, I opened the document filed by defendant’s counsel and discovered that it was Bill of Costs, rather than a Costs Outline. The defendant’s Bill of Costs lists disbursements of $815.00, which includes court fees of $660.00. The defendant’s legal fees are calculated at $2,822.50 plus HST, on a partial indemnity basis. On a partial indemnity basis, the total amount set out in the defendant’s Bill of Costs is $4,424.98. Notwithstanding that, in the draft Order submitted by the defendant, he asks for costs of only $1,200.00, all inclusive.
[75] As I reserved my decision, the parties were not given an opportunity to make oral costs decision submissions. Notwithstanding, given the amount set out in the Bill of Costs, and subject to my comments below concerning the possibility of oral costs submissions, it appears to me that an award of costs of $1,200 to the defendant (for the motion and the action) would be fair and reasonable. On that basis, and except as provided below, I fix the defendant’s costs at $1,200, all inclusive.
[76] If plaintiff objects to the $1,200 in costs sought by the defendant, or if I have misunderstood the defendant’s request for costs, then counsel are to notify the other and this court immediately. In that event, I will issue supplementary reasons as required.
[77] If, within 14 days of the date of the release of these reasons, neither the plaintiff nor the defendant has notified the court that a further costs endorsement is requested, my costs order above will stand and no further submissions shall be entertained.
Sheard J.
Released: January 27, 2022
COURT FILE NO.: CV-17-59820
DATE: 20220127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Steven Adams John Day
Plaintiff
– and –
John Day Steven Adams
Defendant
REASONS FOR DECISION
Sheard J.
Released: January 27, 2022
[^1]: This term is intended also to include the Amended Statement of Claim, amended in April 2019. [^2]: Ontario Provincial Police.