ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lorne Belisle
Plaintiffs
- and -
Allstate Insurance Company of Canada, Stuart Oberg and Lorraine Wipson
Defendants
COUNSEL:
D.V. Vroenhoven, for the Plaintiff
M. Burgar, for Allstate Insurance Company of Canada.
No-one appearing for Stuart Oberg and Lorraine Wipson
HEARD: December 21, 2022, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Motion
1The Plaintiff brings this motion to set aside the Registrar’s administrative dismissal order dated March 28, 2021, and to extend the time to serve the Statement of Claim.
2The Plaintiff argues that the initial failure to serve the Statement of Claim and then the delay and resulting administrative dismissal, were the result of the inadvertence of two lawyers. The Plaintiff further argues that no prejudice will ensue to the Defendant from the setting aside of the administrative dismissal, and that the action may proceed expeditiously.
3The Defendant, Allstate Insurance Company of Canada (“Allstate”) opposes the motion. Allstate takes the position that the Plaintiff is unable to satisfy the test applicable to a Rule 37.14 motion to set aside a Rule 48.14 dismissal order. Allstate argues that not only is there no satisfactory explanation for the delay in the prosecution of this action, it has suffered prejudice as a result of the delay. Allstate seeks the dismissal of the motion with costs.
4For the following reasons the motion is granted.
FACTS:
5On July 13, 2013, the Plaintiff was driving in the parking lot of the Grand Portage Lodge and Casino when a vehicle driven by the Defendant, Stuart Oberg (“Oberg”) of Grand Portage, Minnesota, backed out of a parking space and struck his vehicle. Oberg is alleged to have been intoxicated. The vehicle he was driving was owned by the Defendant, Lorraine Wipson (“Wipson”), of Grand Portage.
6The Plaintiff suffered injuries as a result of the accident. The Plaintiff alleges numerous injuries including (but not limited to) disc bulging requiring a spinal fusion, drop foot, mild traumatic brain injury, post-traumatic stress disorder, major depressive disorder, injuries to his shoulders, neck, back, spine, arms and legs, and various lacerations, sprains and tears.
7The Plaintiff retained counsel in Minnesota to seek compensation for his injuries. MetLife was the insurer who defended on behalf of Oberg and Wipson. On June 21, 2019, MetLife resolved the claims against their insureds for the policy limits of $100,000 USD payable to the Plaintiff. As part of the resolution, a full and final release was signed by the Plaintiff.
8The vehicle driven by the Plaintiff was owned by his spouse. His spouse was insured by Allstate at the time of the accident. The insurance policy included an OPCF 44R endorsement which provides underinsured liability coverage to the Plaintiff. The endorsement provides up to $1 million coverage in the event of injuries sustained in a motor vehicle accident in which the third-party driver is underinsured. The same policy also provides the Plaintiff coverage for statutory accident benefits.
9The Plaintiff also retained counsel in Ontario, namely Mr. Potestio. On September 18, 2014, Mr. Potestio wrote to Allstate to give notice of the potential claim against the underinsured coverage. The letter provided details of the MetLife $100,000 USD limit that was applicable to Oberg.
10On October 29, 2014, and February 13, 2015, Allstate wrote to Mr. Potestio requesting more information. No response was received.
11The first statement of claim was issued on July 8, 2015.
12On July 24, 2015, following the two-year anniversary of the accident date, Allstate wrote again to Mr. Potestio. Allstate asked if a claim had been issued. Mr. Potestio responded that same day, advising that the claim had been issued but not served. The Statement of Claim was never served on Allstate by Mr. Potestio’s office at any time thereafter. Allstate followed up on October 3, 2016, and May 21, 2019, to no avail.
13In the meantime, the Plaintiff applied for statutory accident benefits (SABs) from Allstate. The Plaintiff provided medical documentation ongoing from 2013. On January 22, 2020, Allstate deemed him to be catastrophically impaired from a mental and behavioural perspective.
14There was also a companion action as between the Plaintiff and his spouse with respect to her damages.
15On or about August 18, 2018, the Plaintiff changed counsel and retained Trianta Longo LLP (Longo Lawyers). Longo Lawyers received the file from Mr. Potestio on December 14, 2018. The file was not complete.
16Mr. Antman at Longo Lawyers assumed carriage of the file. When he undertook a review of the file, he did not discover the existence of the first statement of claim issued July 8, 2015. He states that Mr. Potestio did not direct him to it in the form of any correspondence or memoranda. He also states that several pieces of correspondence with Allstate regarding the underinsured coverage claim were missing from the file.
17Not realizing that an action had been started, Longo Lawyers issued a separate action against Allstate on December 4, 2019 (the second action). The second action also pertained to underinsured coverage for the July 13, 2013, accident.
18The second Statement of Claim was served on Allstate. Allstate delivered a Statement of Defence in the second action on March 31, 2020. Allstate disputes liability and have made allegations of negligence on the part of the Plaintiff. Allstate also pleads that the second action is statute and contract barred by virtue of the expiry of the limitation period.
19Despite the duplicative nature of the second action Allstate never mentioned Mr. Potestio’s email advising of the first action in either the Statement of Defence or any correspondence.
20Examinations for discovery of the Plaintiff took place December 14, 2020. Mr. Antman attests that the examination for discovery in the second action dealt with the exact same subject matter as the first action (liability and damages).
21On January 26, 2021, counsel for Allstate communicated to Mr. Antman for the first time, about the previous notice that was sent by Mr. Potestio in September 2014. Allstate communicated this information in support of a limitations defence to the second action.
22Mr. Antman states that the January 2021 email from Allstate’s counsel was the first he became aware of Mr. Potestio’s September 18, 2014, correspondence to Allstate and Mr. Potestio’s failure to serve the first action.
23Mr. Antman then made inquiries of Mr. Potestio as to his prior communication with Allstate. It was at this point he discovered he was missing pieces of correspondence in the file materials.
24On February 5, 2021, Mr. Potestio responded to Mr. Antman confirming that the first action had not been served. Mr. Potestio had retrieved some email communication with Allstate, but advised he had to retrieve others from archived files.
25On February 9, 2021, Longo Lawyers issued a solicitor’s negligence action against Mr. Potestio for his failure to serve the first action six months after it was issued.
26On March 28, 2021, an administrative dismissal order was issued pursuant to Rule 48.14 of the Rules of Civil Procedure, dismissing the first action for delay. Allstate brought the administrative dismissal to Mr. Antman’s attention by email dated April 12, 2021.
27The fifth anniversary of the issuance of the first claim was July 8, 2020. As a result of the COVID emergency suspension of limitation periods (O.Reg. 73/20), the usual five-year period before the automatic dismissal of an action not set down for trial, was extended to January 6, 2021.
28Mr. Antman attests that due to his inadvertence in failing to note the existence of the first action upon receipt of Mr. Potestio’s file, the administrative dismissal date was not diarized. But the inadvertence goes beyond this, in my view. Upon learning of the first action, Mr. Antman again failed to diarize for the administrative dismissal date or take the necessary steps to prevent an administrative dismissal. It appears from his affidavit that Mr. Antman’s focus was on figuring out what had happened and proceeding with the second action.
THE LAW:
The Applicable Rules:
29Rule 14.08 of the Rules of Civil Procedure provides that where an action is commenced by a statement of claim, the claim shall be served within six months after it is issued.
30To ensure that actions do not languish, once claim is issued, a Plaintiff has five years to set the action down for trial. Rule 48.14 of the Rules of Civil Procedure provides that the registrar shall make an order dismissing an action where the action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action [an administrative dismissal].
31Rule 3.02 gives the court the discretion to extend or abridge any time prescribed by the rules, on such terms as are just. This includes the time for service of a statement of claim or to set the action down for trial. A motion for the extension of time may be made by a party before or after the expiration of the time prescribed.
32The court also has discretion to set aside or vary the Registrar’s order for dismissal for delay on such terms as are just: Rules 37.14(2) and 48.14(1).
33In exercising the discretion granted under the Rules, the court must be mindful of the following:
a. Rule 1.04 provides that the Rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. The court shall make orders and give directions that are proportionate to the importance and complexity of the issues and the amount involved in the proceeding.
b. Rule 2.01 provides that a failure to comply with the Rules is an irregularity, and the court may grant all necessary amendments or other relief, on such terms as are just to secure the just determination of the merits of an action.
Test for Setting Aside a Dismissal Order:
34The parties agree that the legal test and factors to consider for the setting aside of an administrative dismissal was originally set out by Master Dash in Reid v. Dow Corning Corp. 105 ACWS (3d) 649, [2001] OTC Uned 459, 11 CPC (5th) 80, [2001] CarswellOnt 2213, [2001] OJ No 2365 (QL), and adopted by the Ontario Court of Appeal in Scaini v. Prochnicki, 2007 ONCA 63, (2007), 85 O.R. (3d) 179, at para. 12:
a. whether the plaintiff provided a satisfactory explanation for the litigation delay;
b. whether the plaintiff led satisfactory evidence to explain that they always intended to prosecute the action within the time limit set out in the rules or a court order but failed to do so through inadvertence;
c. whether the plaintiff demonstrated that promptness in bringing the motion to set aside the dismissal; and
d. whether the plaintiff has satisfied the court that there is no significant prejudice to the defendants in presenting their case at trial as a result of the delay or steps taken following the dismissal.
35These factors are not exhaustive, and the Plaintiff is not required to satisfy each of them. This is not a rigid, one-size-fits-all test. A contextual approach is required. The court must consider and weigh all relevant factors to determine a just order in the circumstances of the case. The overriding objective is to achieve a result that balances the interests of the parties and takes account of the public’s interest in the timely resolution of disputes: Scaini v. Prochnicki, at paras. 23-25; Prescott v. Barbon, 2018 ONCA 504, at para. 15.
36As noted by Blair, J.A. in Kara v. Arnold, 2014 ONCA 871, [2014] O.J. No. 5818 (QL), at para. 9:
9Dismissals for delay involve a careful balance between two competing values. On the one hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in the resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.
Extending Time for Service of a Statement of Claim:
37The leading case on the issue of extending the time for service of a statement of claim is Chiarelli v. Wiens, 2000 CanLII 3904 (ON CA). While the Court of Appeal in Chiarelli set out a number of factors for consideration, the primary issue is whether there has been prejudice to the defendant caused by the delay, or that will be caused by the granting of the extension.
ANALYSIS:
38Allstate argues that the motion must fail primarily because:
a. There is no satisfactory explanation for the delay; and
b. There is actual prejudice suffered by the Defendant if the action is allowed to proceed.
Are the First Two Factors satisfied re satisfactory explanation for the delay, and always intended to proceed but for inadvertence?
39The Defendant argues that there is no evidence from Mr. Potestio or the Plaintiff to confirm that there was always an intention to proceed, and that there was no intention to abandon the first action. There is nothing to explain the failure to serve the Statement of Claim, and insufficient evidence to explain the delay leading to the administrative dismissal.
40I agree with the Defendant that it would have been helpful to have had evidence from Mr. Potestio or the Plaintiff as to what happened in the period of time prior to the Longo Lawyers retainer. Having said this, while it is helpful to understand the delay from the beginning (Mr. Potestio’s retainer), the delay during the retainer of Longo Lawyers is explained, and this is when the five-year time limit expired. I also accept that particularly when there is a solicitor’s negligence action ongoing, it may be difficult for a litigant to secure the direct evidence of the lawyer they are suing. The Plaintiff’s position is that the sole reason for the delays was inadvertence and I have no reason not to accept this explanation.
41I am satisfied that the Plaintiff did always intend to proceed with his claim against Allstate, but that the failure to do so was solicitor inadvertence/negligence. Viewed as a whole, I find the evidence supports this conclusion. I rely on the following in support of this finding:
a. The affidavit of the Plaintiff, read as a whole, indicates that he took the necessary steps to retain counsel both in Minnesota and Ontario to deal with the legal issues arising out of the accident and pursue his claims. Mr. Belisle states at paragraph 6 of his affidavit that he understood Mr. Potestio to be representing him in all his claims against his insurer in Ontario.
b. For some reason that is not explained in his affidavit, the Plaintiff felt the need to retain new counsel. He remained in regular contact with his new counsel, a new claim was commenced, and Mr. Antman proceeded with the new claim through to the discovery stage. Mr. Antman has explained that in the voluminous material received from Mr. Potestio, he missed the Statement of Claim. He has further explained that there was key correspondence missing from the file. It was reasonable for the Plaintiff to be able to rely on the counsel he retained to guide him through his claims.
c. When it was discovered by Mr. Antman that there was a first action, and that it was never served, an action was immediately commenced against Mr. Potestio for failure to do so. This suggests that at least from the Plaintiff’s perspective, it was Mr. Potestio’s inadvertence in failing to do so and not as a result of his instructions.
d. While Mr. Antman was focused on dealing with issues out of the discoveries and the claim against Mr. Potestio, he has explained that it was his failure to properly diarize the action that led to the administrative dismissal. There is no evidence that any actions of the Plaintiff caused the delay or that the Plaintiff did not wish to proceed with his claims. The fact that he continued with the second action suggests his ongoing intention to advance his claims.
42I disagree with Allstate that the evidence supports a conclusion that the Plaintiff intended to abandon the first action. In addition to the evidence that explains the delay, this conclusion makes no sense in the circumstances of this case. Inadvertence is the only conclusion that makes sense. The first action arose out of the same accident and pertained to the same damages as the second. By starting a new claim there was the additional expense to the Plaintiff and a limitations issue. The Plaintiff would have avoided a limitations issue by simply obtaining an order to extend the time for service of the Statement of Claim in the first action. While a motion to extend the time for service may have been required, this is arguably a preferable route to commencing a new action that presents limitations issues. If the Plaintiff intended to abandon his first action, why sue Mr. Potestio for a failure to serve it? Mr. Antman has explained his inadvertence. His explanation is contrary to his own interests in that it exposes him for liability to the Plaintiff. There is no reason to disbelieve the evidence of Mr. Antman as to inadvertence.
Is There Prejudice to the Defendant?
43The Defendant alleges the following prejudice:
a. Actual prejudice caused by the 2019 US settlement and release; and
b. Presumed prejudice arising by virtue of the passage of time and expiry of the limitation period.
US Settlement and Release:
44During the interval when nothing occurred to advance the first action, steps were taken by the Plaintiff and his Minnesota lawyer (Mr. Layman) to resolve his claims in Minnesota. Allstate says it has been prejudiced by those steps.
45The OPCF 44R at paragraph 20 provides:
Where a payment is made under this change form, the insurer is subrogated to the rights of the eligible claimant by whom a claim is made, and may maintain an action in the name of that person against the inadequately insured motorist and the persons referred to in section 7 of this change form.
46Allstate argues that the email of the Minnesota lawyer dated June 12, 2019, was the first indication it had of a liability claim being advanced on behalf of the Plaintiff in Minnesota. The lawyer stated in that email that:
…there is no approval needed from Allstate prior to my accepting the policy limits offer of the tortfeasor’s liability insurance to resolve the liability claim.
The Plaintiff proceeded to settle all claims for the policy limit and sign a release.
47Allstate argues that the release was unambiguous. It released the defendants from all claims. This occurred prior to receiving any reply from Allstate and with no input or approval from Allstate. The fourth paragraph of the “Release of All Claims” states:
The undersigned warrant and represent that with the exception of the undersigned, there are no known persons, forms, corporations, government entities, insurance companies, hospital or other third parties that have rights against the parties herein released based on subrogation, derivation or assignment resulting from or arising out of the occurrence…
48Allstate argues that the settlement created prejudice in that:
a. The release, which was signed on June 21, 2019, in exchange for $100,000 USD, was not provided to Allstate until March 24, 2021, when it was sent with a letter providing answers to undertakings in relation to the second action. Courts in Ontario have imposed an obligation on a party that enters into a settlement with some, but not all defendants, to immediately disclose the settlement agreement to the non-settling defendant, failing which they risk a finding of abuse of process and a stay of proceedings: Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743, Hamilton-Wentworth District School Board v. Zizek, 2022 ONCA 638, and Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898.
b. The release fundamentally changed the dynamic of the first action (which was not proceeding) in that it fully disposed of the claims against the defendants Oberg and Wipson and rendered crossclaims impossible.
c. The form and content of the release breached provisions 20 and 21 of the OPCF 44R, which obliged the plaintiff to keep the claims against Oberg and Wipson alive and open to Allstate to take an assignment and subrogate against Oberg and Wipson in the name of the Plaintiff; and
d. The broad terms of the release captures claims against any corporation and warrants against any outstanding claims of insurance companies, pursuant to assignment, subrogation or any other right.
49Firstly, Mr. Layman did not make a blanket statement that no approval was required by Allstate, as alleged by Allstate’s counsel. Rather his email asked Allstate to confirm that there is no approval required prior to him accepting the policy limits offer of the tortfeasor’s liability insurance to resolve the US claim. The Affidavit of Allan Chan, litigation specialist for Allstate further indicates that he spoke with US counsel on June 12, 2019 and was told that the underinsured motorist claim of the Plaintiff was to be referred to Mr. Antman of Longo Lawyers in Toronto. Knowing that an action had been commenced in 2015 (but never served) and knowing that another lawyer would be reviewing the underinsured motorist claim on behalf of the Plaintiff, on June 26, 2019, Mr. Chan wrote to Mr. Layman confirming Allstate’s consent to the Plaintiff accepting the settlement. Copies of the settlement documents were requested, but not in advance of granting permission. They were not provided by US counsel.
50I acknowledge that at the time consent to the US settlement was granted by Allstate, it had not received a copy of the first claim and Allstate’s follow up requests were not responded to. I acknowledge that the correspondence from Mr. Layman does not specifically mention a tort action being at play. I acknowledge that Allstate did not have all of the information when it made a decision to approve the settlement. Having said this, Allstate was aware at the time that consent to the US settlement was given by it, that an action had been commenced (even though it was never served) and that the Plaintiff was going to another lawyer to deal with his underinsured claims. Allstate did not request that Mr. Layman protect its subrogation rights as a condition of approval to the settlement. While the circumstances were not ideal, Allstate had an opportunity to protect its interests. It did not grant approval conditionally upon receipt and approval of the US settlement documents, nor did it grant it conditionally upon confirmation of whether the first action was proceeding or not. It granted unconditional approval. If there is prejudice in this regard (which is not clear that there is), it should fall at the feet of Allstate.
51The same litigation specialist involved in the approval of the US settlement on Allstate’s behalf is the same adjuster who received the Statement of Claim in the second action and referred it to litigation. The Statement of Claim in the second action references MetLife tendering its policy limits, and the Plaintiff’s acceptance. The Statement of Defence does not raise or deal with any issues arising out of this settlement.
52Secondly, the Plaintiff argues that there is no prejudice arising out of the release and inability to sue the U.S. defendants because the Ontario courts have no jurisdiction over the US defendants in any event. The Plaintiff argues that by virtue of the release and cases such as Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, Tamminga v. Tamminga, (2014) 2014 ONCA 478, 120 O.R. (3d) 671, [2014] O.J. No. 2915, and Forsythe v. Westfall et. al., 2015 ONCA 810, (2015) 128 O.R. (3d) 124, the Ontario action should be stayed as against the Oberg and Wipson US defendants, but may proceed against the insurer only in Ontario. These cases suggest that all issues other than the claims of the Plaintiff against their insurer should be determined in Minnesota. I am satisfied based on the case law cited by the Plaintiff that there is little to no prejudice arising out of the release given this court’s tenuous jurisdiction over a claim against an extra-provincial defendant. I also note there is nothing in the evidentiary record on this motion that indicates Allstate added the Defendants as Defendants to the second action.
53I note that the release now affords a possible defence (although I make no comment or findings on the merit of such defence) that the release also protects Allstate from action by the Plaintiff.
54With respect to the obligation to disclose the terms of the settlement, I agree with the Plaintiff that the caselaw cited by Allstate is distinguishable. Allstate was not a party to the US action, and it was not kept in the dark about the existence of a settlement. It was promptly advised of the settlement. While Allstate’s frustration is understandable given it requested, but did not receive certain documents, I do not see that any prejudice ensued. Allstate was aware of the settlement and the amount, even if it had not seen the documents. Allstate is a litigant that would have known to ask to see any release required by the settlement.
Presumed Prejudice After Expiry of Limitation Period and Given Length of Delay:
55Generally, the longer the delay the greater the presumption of prejudice. There is also a presumption of prejudice after the expiry of a limitation period.
56There are different aspects to the issue of prejudice. The first focuses on whether the defendant would suffer any significant prejudice in presenting their case at trial, with the onus on the plaintiff to adduce evidence to indicate why the court should conclude the defendant will not suffer prejudice: Prescott, at paras. 34 & 39.
57The court must also consider whether the interest in finality must trump a party’s request for an indulgence: Prescott, at paras. 36 & 39.
58Allstate argues that the accident occurred 9.5 years ago. Allstate wrote repeatedly asking for a copy of the claim and status. There was no response and no copy of the claim provided until April 2021, after this action had been dismissed for delay, and 7 years and nine months after the accident. Allstate had an interest in finality and certainty of legal position and was entitled to close its file in relation to the 2015 statement of claim.
59Allstate further argues that the limitation period expired two years from the date the insured made a request for indemnification from the insurer. Allstate argues that based on the date that notice was received by Allstate, the limitation period expired September 22, 2016.
60The Plaintiff argues that a notice letter advising of a potential claim is not necessarily the same thing as a demand for indemnification for the purpose of commencement of the limitation period: Sarokin v. Zang, 2020 ONSC 1839, at paras. 6, 9, 32 and 39. The Plaintiff’s position is that the September 2014 notice of claim provided by Mr. Potestio is not a demand for indemnification and therefore the limitation period had not expired as of September 22, 2016, or as of the commencement of the second action. The Plaintiff argues that any formal demand for indemnification under the OPCF 44R could not crystallize until the Plaintiff settled his claims with the US defendants. Applying Sarokin, even the second action is within the limitation period.
61The first action was commenced within the limitation period advocated by either party. The second action is statute barred by virtue of Allstate’s argument. By allowing the Plaintiff to proceed with the first action, Allstate loses its limitation period defence. It is prejudiced in this regard.
62I agree with the Defendant that I do not have to decide when the limitation period expired. As indicated, the first action was commenced within the limitation period, but the Statement of Claim was not provided to Allstate until, arguably, after expiry.
63The concern with respect to delay after the expiry of the limitation period is often that memories fade over time, evidence could be compromised, and the interest in finality. I find that the Plaintiff has rebutted the presumption of prejudice arising from the length of delay. This is not a situation in which the issues underlying the claim in the first action lay dormant for the entire 7 years and then litigation was sprung on Allstate out of the blue. Allstate was still dealing with the claims in one form or another. Allstate amassed a substantial SABs file in which significant medical evidence was accumulated that will be relevant to the issue of damages. Even though this may be a separate file internally, it addresses any concern for medical evidence not being available for production by virtue of the passage of time. Allstate received communication and an update with respect to the US action, and was litigating the exact same claims in the context of the second action from December 2019. There was some indication in submissions, but not in the evidence that a defendant may no longer be available with respect to evidence pertaining to liability. Allstate has had the ability to investigate in a timely way. There may be records in the US litigation that can be relied upon, the litigation between the Plaintiff and his spouse, and in the 2019 action. I would be more sympathetic to Allstate’s argument if it had not heard a word about the claims underlying the action in a 7-year period. That is not the case. Allstate has even had the opportunity to conduct discoveries. All of this can be used in defence of the first action.
64I find that there is no prejudice to Allstate’s ability to defend the proceeding. There is prejudice in the form of costs. There may be additional costs to Allstate arising out of preparation of another Statement of Defence. There may be other additional costs that I am not considering, and Allstate has not argued. Allstate should be able to recover these from the Plaintiff. The duplication of costs arose from the Plaintiff’s solicitors’ negligence and should not fall at the feet of Allstate.
Delay in Bringing the Motion:
65Finally, Allstate argues that the Plaintiff has not moved forthwith to set aside the administrative dismissal as soon as it came to his attention. Allstate and the Plaintiff were aware of this order in April 2021, but this motion was not brought until July 2022.
66I am satisfied with the explanation for this delay. Once the issue was discovered, LawPro became involved and conducted their investigation. Counsel for the Plaintiff states that LawPro communicated with the Plaintiff’s current lawyers, Mr. Potestio, Mr. Antman and with counsel for Allstate. He states that they moved as promptly as possible given what had to be done and pandemic restrictions. The issues, at least as they arose in the 2019 action were canvassed in mediation in June 2021. While ideally the matter should have moved quicker, I do not find this fatal in this case.
CONCLUSION:
67After considering the foregoing, I find that the facts of this case justify the setting aside of the administrative dismissal and the granting of leave to serve the Statement of Claim. While I can certainly understand Allstate’s frustration and approach that “enough is enough” [Henderson v. Kenora-Rainy River District Child & Family Services, 2022 ONCA 387 at para. 20], on the circumstances of this case this matter should be determined on its merits.
68With respect to costs, ordinarily a successful party is entitled to costs. In this case, I find that subject to any offers to settle served by Allstate that may warrant an award of costs to it, it is fair and reasonable that there be no order of costs. The Plaintiff seeks indulgences from the court. It was reasonable for Allstate to have opposed the motion. If Allstate has served any offers that would lead to a conclusion it is entitled to costs, a brief appointment shall be scheduled before me of no longer than one-half hour to deal with the issue.
69I appreciate there may be a number of issues arising out of this order. These will include, but not be limited to the impact of this order on the US defendants given the release and the caselaw cited by the Plaintiff with respect to jurisdiction of this court, consolidation of the 2015 and 2019 actions, use of the discoveries in the 2019 action, and time to set the action down for trial. I may be spoken to in a case management role with respect to any such issues that the parties are unable to resolve.
70I therefore order as follows:
a. The Registrar’s administrative dismissal of this action is set aside;
b. The Plaintiff shall deliver the statement of claim in the 2015 action no later than May 1, 2023;
c. Allstate shall deliver a statement of defence no later than June 16, 2023;
d. This order shall be without prejudice to any arguments of the parties with respect to limitations or the effect of the release signed in the US action;
e. Subject to there being any offers from Allstate that would impact my assessment of costs, there shall be no order as to the costs of the motion.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: April 17, 2023
COURT FILE NO.: CV-15-0311-00
DATE: 2023-04-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Lorne Belisle
Plaintiff
- and –
Allstate Insurance Company of Canada, Stuart Oberg and Lorraine Wipson
Defendants
DECISION ON MOTION
Nieckarz J.
Released: April 17, 2023