Court File and Parties

COURT FILE NO.: CV-21-00001304-0000

DATE: 2022/12/27

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 another motion brought in writing and without notice by the co-defendants Nathan Moore and Tracy Moore; a motion formally seeking an order amending an earlier order I made in relation to this matter on April 1, 2022, so as to extend the time for service of the moving defendants’ statement of defence, crossclaim and counterclaim and jury notice on their co-defendant Charlie Johnston, and validating the service of that pleading by the moving defendants, pursuant to my earlier order, as of May 3, 2022.

[2] The underlying circumstances leading up to the making of my earlier order are outlined in my endorsement released on April 1, 2022, and I accordingly will not reiterate all those circumstances in detail here. This endorsement instead should be read together with that earlier one.

[3] For present purposes, suffice it to say that:

a. this litigation concerns an incident said to have taken place on July 23, 2019, when the minor plaintiff Lachlan Buckle is alleged to have been bit by a dog owned the defendant Charlie Johnston and in the care of the defendants Nathan and Tracy Moore;

b. the plaintiffs were able to serve their statement of claim herein on the moving defendants;

c. the plaintiffs also were able to effect service of their statement of claim on the defendant Mr Moore through reliance on Rule 16.03(5), by leaving a copy of that pleading with Mr Johnson’s father at a specified 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;

d. the moving defendants were able to serve their statement of defence, crossclaim and counterclaim, as well as a jury notice, on the plaintiffs via plaintiff counsel;

e. the moving defendants nevertheless encountered difficulties serving their pleading and jury notice on their co-defendant Mr Johnston, primarily because Mr Johnston’s father declined to accept such service on the basis his son no longer resided at the same address, but also because further efforts to locate Mr Johnston to effect service personally, or to effect service via another residential property in the Village of Maryhill owned by Mr Johnston but apparently rented by him to others, proved unsuccessful and in fact indicated that Mr Johnston was evading service; and

f. in the circumstances, I made an order pursuant to Rule 16.04 of the Rules of Civil Procedure authorizing and directing substitute service of the moving defendants’ pleading and jury notice on Mr Johnston by the moving defendants mailing those documents by regular post to Mr Johnston via the specific residential properties in the Town of Breslau and the Village of Maryhill.

[4] As I noted in my earlier endorsement, although the notice of motion filed by the moving defendants in relation to their earlier motion also had requested an order pursuant to Rule 3.02 extending the time for such service, that request apparently was not being pursued by the time the matter was placed before me, as the remainder of the moving defendants’ motion material did not address that request, and the draft Order submitted by the moving defendants for my review and signature similarly contained no provisions addressing such relief.

[5] As I also noted in my earlier endorsement, although I would have been disposed to grant such relief in the circumstances, had it been required and requested, in my view such a formal time extension was not necessary in the circumstances. In particular, as noted in paragraph 6 of that earlier endorsement:

a. 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”; and

b. there was nothing before me to indicate that there had been or would be any attempt made by the plaintiffs to note the moving defendants in default.

[6] Following the release of my endorsement and the finalization and signing of a corresponding order on April 1, 2022, the moving defendants proceeded with efforts to serve their pleading and jury notice on Mr Johnston via the substitute service authorized by my order. In particular, an affidavit sworn on May 3^rd of this year by Natalie Tasker, (who identifies herself in the affidavit as a “Unit Manager, Legal Support” to counsel for the moving defendants), indicates that she served the moving defendants’ pleading and jury notice on Mr Johnston by:

a. mailing a copy of those documents to Mr Johnston via the relevant residential property in the Town of Breslau on May 3, 2022; and

b. mailing a copy of those documents to Mr Johnston via the relevant residential property in the Village of Maryhill on May 3, 2022.

[7] The moving defendants now have brought this further motion in writing because of an apparent concern that such service may not have been valid, insofar as:

a. they believe my earlier order “was predicated on the assumption that the Defendant Johnston had not been noted in default by the plaintiffs” at the time of the order;

b. they have discovered that the plaintiffs had the defendant Mr Johnston noted in default by way of a requisition dated November 29, 2021; and

c. they believe a further order now is required amending my earlier order to formally extend the time for service of their pleading and jury notice, and validate service of those documents on Mr Johnston as of May 3, 2022.

[8] With respect, I think this further motion by the moving defendants is misconceived and unnecessary. Without limiting the generality of the foregoing:

a. My earlier order, and its non-inclusion of provisions formally extending the time for service of the moving defendants’ pleading and jury notice, was not “predicated on the assumption that the Defendant Johnston had not been noted in default”. [Emphasis added.]

b. To the contrary, as expressly noted in paragraph 6 of my earlier endorsement, the order did not include such provisions because such relief was not pursued in the moving defendants’ further motion material and draft Order, and because the moving defendants had not yet been noted in default by the plaintiffs.

c. In that regard, I think it abundantly clear that the provisions of Rules 27.04(1) and 28.04(1) dealing with service of a statement of defence and counterclaim and/or statement of defence and crossclaim, read in context and in the context of the rules as a whole, are focused on “the defendant” seeking to deliver a statement of defence and counterclaim and/or statement of defence and crossclaim, and not on the party intended to be “the defendant” to such a counterclaim (i.e., a plaintiff) or crossclaim (i.e., a co-defendant), as the case may be. In particular:

i. the references to the “statement of defence” component to the pleading in question makes it clear that “the defendant” referred to in both rules is to “the defendant” attempting to respond, via the pleading in question, to a plaintiff’s statement of claim; and

ii. the Rules of Civil Procedure, via rules 27.05, 28.05 and 19.09, deal separately and distinctly with the time for delivery[^1] of a defence to a counterclaim or crossclaim, and with the ability of a defendant who has commenced such a counterclaim or crossclaim to have a defendant by counterclaim or defendant by crossclaim noted in default, which in my view makes it clear that the ability of a defendant to advance such a counterclaim or crossclaim was not intended to be addressed obliquely by reading rules 27.04(1) and 28.04(1) as precluding a defendant’s delivery of a statement of defence and counterclaim and/or crossclaim vis-a-vis a co-defendant whom a plaintiff may have noted in default in relation to the plaintiff’s claim.

d. There is still nothing before me to indicate that the plaintiffs in this proceeding have ever taken any steps to have the moving defendants noted in default and, as noted in my earlier endorsement, Rule 27.04(1) and Rule 28.04(1) of the Rules of Civil Procedure expressly allow for the delivery of a statement of defence and counterclaim and/or statement of defence and crossclaim “at any time” before such a defendant is noted in default.

e. When Ms Tasker mailed Mr Johnston a copy of the moving defendants’ defence pleading and jury notice by regular lettermail on May 3, 2022, that substituted service was authorized by my earlier order, was not precluded by Rules 27.04(1) or Rule 28.04(1) of the Rules of Civil Procedure, (as the moving defendants had not yet been noted in default by the plaintiffs), and by virtue of Rule 16.06(2), became effective service of those documents on Mr Johnston as of May 8, 2022.[^2]

[9] For the above reasons, my earlier order does not require amendment, the time for formal service of the moving defendants’ pleading and jury notice does not need to be extended, and there is no need for any further order validating service of the moving defendants’ pleading and jury notice on Mr Johnston.

[10] As of May 8, 2022, valid and effective service of that pleading and jury notice on Mr Johnston already has taken place, in accordance with the provisions of my earlier order.

“Justice I.F. Leach”

Justice I.F. Leach

Date: December 27, 2022

[^1]: I note in passing that, pursuant to Rule 1.03 of the Rules of Civil Procedure, the term “deliver” means to “serve and file with proof of service”, and the term “delivery” has a corresponding meaning.

[^2]: Rule 16.06(2) provides, inter alia, that service of a document by mail, (except in circumstances which do not apply in this case), “is effective on the fifth day after the document is mailed”. In their latest motion material, the moving defendants sought validation of their service as of the date of mailing, (i.e., May 3, 2022), which in my view is neither necessary nor accurate, having regard to the provisions of Rule 16.06(2).