Court File and Parties
CITATION: Mohammed v. Ayoub and Abuhasaam, 2023 ONSC 4581 COURT FILE NO.: CV-22-88598 DATE: 2023/08/09 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HANADI MOHAMMED, Plaintiff -and- RAWAA AYOUB, HAMID AYOUB and MAHMOUD ABUHASAAM, Defendants
BEFORE: Madam Justice S. Corthorn
COUNSEL: Kathleen Carkner, for the moving party (proposed litigation administrator) No one appearing for the defendants, the motion having been brought without notice
HEARD: In Writing
Endorsement
Introduction
[1] In August 2019, Hanadi Mohammed was involved in a motor vehicle collision. She was a passenger in a car driven and owned by the defendants, Rawaa Ayoub and Hamid Ayoub, respectively (“the Ayoub vehicle”). The Ayoub vehicle was struck by a car driven and owned by the defendant, Mahmoud Abuhasaam (“the Abuhasaam vehicle”).
[2] The evidence before the court is that Hanadi Mohammed passed away in June 2021 for causes said to be unrelated to the injuries she is alleged to have sustained as a result of the collision.
[3] This action was commenced in February 2022 – eight months after Ms. Mohammed’s death and six months after the two-year anniversary of the date of the collision.
[4] The motion before the court is for (a) an order to continue, given the transmission of interest on the death of Ms. Mohammed, (b) a one-year extension of the deadline for service of the statement of claim, and (c) leave to amend the statement of claim to address the transmission of interest. The motion is brought without notice to the defendants.
[5] The motion record is dated May 16, 2023. It came before me on August 4, 2023.
[6] For the following reasons, the motion is adjourned and shall be continued at an oral hearing.
Deficiencies in the Evidence
[7] First, no explanation is provided as to why the action was commenced in the name of the deceased individual, rather than in the name of the Estate of Hanadi Mohammed through someone acting in a representative capacity on behalf of the Estate. More than eight months had elapsed since Ms. Mohammed’s death when the statement of claim was issued.
[8] Second, no explanation is offered as to why, between February 2022 and August 2022, no steps were taken to obtain the relief now requested. The moving party seeks an indulgence from the court. Even if it were reasonable to proceed in writing without notice to the defendants (which I find it is not), the court requires an explanation for that delay.
[9] Third, there is no evidence as to the position of the defendants at this time. The only evidence the defendants and their respective insurers have any knowledge of the potential claim arising from the August 2019 collision is the following statement from para. 3 of the supporting affidavit of the lawyer (“the Affidavit”): “On or around, January 23, 2020, the Plaintiff put all the Defendants and their insurers on notice of her claim.”
[10] There is no evidence as to how the defendants and their respective insurers were put on notice of the potential claim on behalf of the late Ms. Mohammed. If copies of notice letters or other forms of communication providing notice of the potential claim are available, the documents should be included as exhibits attached to a supporting affidavit.
[11] There is no evidence as to any communication with the defendants and/or their respective insurers subsequent to January 23, 2020 when they are each said to have been put on notice of the potential claim. At paras. 9-10 of her affidavit, the lawyer addresses the potential prejudice to the defendants if the requested extension of the deadline for service is granted:
I do not believe that an Order extending time for service of the Statement of Claim will cause prejudice. All Defendants and their automobile insurers have been on notice of the claim since on or around January 23, 2020. They have, at all material times, been in a position to mitigate any prejudice by investigating this claim and to take any and all necessary steps to protect and preserve the Defendants’ rights and interests in this litigation.
Since no prejudice will accrue to the Defendants by extending the time for service, it is in the interest[s] of justice to do so.
[12] The evidence is insufficient to support the belief expressed by the lawyer in the first sentence of para. 9 of her affidavit. The third sentence of that paragraph is conclusory and entirely unsupported by any evidence. Paragraph 10 is also conclusory.
[13] Fourth, if the order to continue is ultimately granted, more than the title of proceeding to the statement of claim will require amendment. The substantive text will require amendment to reflect the transmission of interest of Ms. Mohammed’s rights to her estate. The motion record should therefore include a proposed, draft amended statement of claim.
Interim Disposition
[14] Motions in writing are available to parties and their counsel in an effort to increase the efficiency with which matters are litigated. The increased efficiency is intended to be of benefit to litigants, lawyers, and the court. The efficiencies gained through the ‘basket motion’ process are lost when the materials filed are deficient. For that reason alone, I would adjourn this motion to be continued at an oral hearing.
[15] There are, however, other reasons why this matter should proceed to an oral hearing and on notice to the defendants. As I have already noted, the moving party is seeking at least one indulgence from the court. The relief requested requires the court to consider potential prejudice to the defendants. The court will want to hear from the defendants on that issue.
[16] Rule 9.03(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that an action is stayed in several circumstances addressing deceased parties, estates, etc. This action is stayed until it is regularized by an order to continue and leave to amend the statement of claim.
[17] The purpose of this endorsement is not to identify every deficiency in the evidence on the motion. The purpose of the endorsement is to highlight the key deficiencies, explain why the motion will not proceed in writing, and direct that the motion be made on notice to the defendants. The defendants may well have something to say about prejudice suffered by reason of (a) the commencement of the action subsequent to the two-year anniversary of the date of the collision, and (b) the delay of approximately one year in bringing this motion.
[18] I therefore make the following order:
- The motion in writing is adjourned to be continued at an oral hearing.
- Subject to the continuation of the motion for an order to continue, the action is stayed pursuant to r. 9.03(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
- A copy of this endorsement and of the motion record dated May 16, 2023 shall be served on the defendants.
- A further motion record, for a motion on notice to the defendants, shall be served on the defendants. That motion record shall include a copy of this endorsement as part of the record in the proceeding (i.e., not as evidence).
[19] It will be within the discretion of the judge or associate judge hearing the motion to either hear the motion in its entirety or to hear the motion in two parts (i.e., first determining the request for an order to continue and then determining the motion for an extension of the deadline for service of the statement of claim). I am not seized of the matter.
[20] There shall be no costs of the motion in writing.
Madam Justice S. Corthorn Date: August 9, 2023