Court File and Parties

COURT FILE NO.: CV-21-672089 MOTION HEARD: 20241030 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ashley Ann-Ricka Harrigin, Plaintiff AND: Tiffani Justice Clarke, Jane Doe, 1327557 Ontario Inc., John Doe and The Co-Operators Insurance Company, Defendants

BEFORE: Associate Justice Jolley

COUNSEL: Muniza Kabir, counsel for the moving party plaintiff Jonathan Tatner, counsel for the responding party defendant Clarke

HEARD: 30 October 2024

Reasons for Decision

[1] The plaintiff seeks an order discontinuing the action against the defendants Jane Doe, 1327557 Ontario, John Doe and Co-Operators, amending the statement of claim to identify the defendant Clarke, who is already named as the operator of the vehicle that allegedly struck the plaintiff, as the owner of that vehicle as well, extending the time to serve Clarke to 2 October 2023, or thereabouts, and then validating service of the statement of claim on Clarke as of that date.

[2] The accident that gave rise to this claim occurred on 17 November 2019 and the statement of claim was issued on 15 November 2021. The plaintiff was aware of the defendant Clarke’s address in November 2021 when she issued the claim. The address was set out in the statement of claim and has not changed.

[3] Pursuant to rule 14.08(1) of the Rules of Civil Procedure, the plaintiff was required to serve Clarke with the statement of claim by 14 May 2022. The plaintiff did not attempt to serve Clarke until 2 October 2023 when she was served by an alternative to personal service.

[4] The court in Tookenay v O’Mahony Estate, 2024 ONSC 709 at paragraph 32 set out the factors to be considered in determining whether the court should exercise its discretion to grant an extension of time to serve a statement of claim:

(a) the length of the delay, (b) the evidence filed that explains the delay, (c) whether the evidence regarding the explained delay is sufficient, (d) whether or not the plaintiff moved promptly for an extension of time after the period expired, (e) whether or not the delay in serving the claim resulted from the direction, participation, or involvement of the plaintiff personally in the service of the claim, (f) the extent to which the defendant, themselves, bears some or all of the responsibility for this delay, (g) whether or not it was reasonable for a defendant to infer from all the circumstances that the plaintiff had abandoned his claim, (h) whether the applicable limitation period for the action has already expired, (i) whether the defendant had notice before the expiry of the limitation period that the plaintiff was asserting a claim against the defendant, and (j) whether the defendant would suffer prejudice if the motion is granted.

[5] It is conceded that the plaintiff did not attempt to serve Clarke at any time from the issuance of the claim until October 2023. This date was the first notice Clarke had that the plaintiff was asserting a claim. On the motion before me, the plaintiff is required to lead evidence explaining why Clarke was not served within the allotted six months and explaining the 14 month delay from May 2022 to October 2023 in serving the statement of claim.

[6] The plaintiff relies on two main factors to explain why the plaintiff was not served by 14 May 2022:

(a) an inaccurate motor vehicle search; and (b) difficulties in the firm staffing and COVID-19.

An inaccurate motor vehicle search

[7] The plaintiff led considerable evidence about having inputted the wrong licence plate number into the MTO search in 2021 and not discovering that error until 6 October 2023. As a result, the plaintiff did not learn that Clarke owned the vehicle in question until October 2023. That evidence is relevant to the motion for leave to amend the claim to reflect that Clarke was the owner as well as the operator of the vehicle in question. But it does not explain why Clarke was not served with the statement of claim by May 2022, let alone in the 17 months that followed the expiry of time for service. The plaintiff had Clarke’s correct address from the outset. It was not information that it only received through the October 2023 corrected MTO search.

[8] The evidence before me indicates that service on Clarke was in no way impacted by the inaccurate licence plate search. The plaintiff served Clarke with the statement of claim by an alternative to personal service on 2 October 2023, before she had any knowledge of the MTO search error. It does not assist in explaining the delay.

Difficulties in the firm staffing and COVID-19

[9] The only explanation advanced by the plaintiff for not serving Clarke by May 2022 is that the firm’s employees were dealing with the ramifications of Covid-19 from 2020 until 2022. The affidavit filed in support indicated that employees were either ill with Covid-19 or had family members with Covid-19 and, as a result, the firm’s resources were scarce.

[10] While I have every sympathy for the disruption and illness caused by Covid-19, Covid arrived in March 2020. The temporary suspension of limitation periods in Ontario in place as of 16 March 2020 ended on 14 September 2020, a full year before this claim was even issued. Court operations were in full swing either in person or virtually for a year by the time the claim was issued. Law firms were working in person or virtually.

[11] There is also evidence that a partner in the firm (who did not have carriage of this file) passed away in June 2022. Understandably that caused others in the firm to take on additional files. But the time to serve Clarke started to run in November 2021 and expired in May 2022, so the partner’s passing in June 2022 would not have impacted the time period for service or provide an explanation why Clarke was not served before 14 May 2022. At best, it might explain why this motion was not brought until August 2024.

[12] All that was required in this instance was a telephone call or email to a process server between November 2021 and May 2022 to request that Clarke be served with the statement of claim. There is no satisfactory explanation why that did not happen until October 2023. There is insufficient evidence before me that explains the delay.

[13] The court must also consider whether the plaintiff moved promptly for an extension of time after the time for service expired. There is little evidence on this point, aside from the evidence from the plaintiff’s firm that it had staffing issues in 2023.

[14] After Clarke was served and the ownership issue came to light, plaintiff’s counsel advised the insurer for Clarke on 10 October 2023 that they intended to bring a motion to validate service on Clarke (and to amend the claim to plead that she was the owner of the vehicle in lieu of the incorrectly named numbered company). They reiterated on 24 October 2023 that they knew they had to bring this motion but they did not do so for a further almost 10 months, not serving their motion record until 1 August 2024.

[15] On 24 October 2023, Clarke requested production of the plaintiff’s affidavit of documents and schedule “A” productions. The email was not acknowledged for six months and then, the response from plaintiff’s counsel only reiterated that they knew they had to bring this motion to validate service. To the date of the motion, more than a year later, the plaintiff has not provided the defendant with her affidavit of documents or any records.

[16] The evidence before me indicates that the plaintiff did not make her request for collision reports, witness statements, etc. of Accident Support Services International until 24 July 2024.

[17] The facts are not dissimilar to those before Richetti, J. in Maharaj v. Prajapati, 2023 ONSC 3547 where the court dismissed the plaintiff’s motion to extend the time to serve the statement of claim. In that case, the plaintiff knew in 2019 that a motion to extend the time would have to be brought and did not bring the motion until 2023. Like here, the plaintiff never provided the defendants with his medical records, which left the defendants, according to the court at paragraph 42, unable “to fully and properly investigate the liability and damages aspect of the claim that arose 7 ½ years ago” (the gap in the case at present being 5 years).

[18] The court also dismissed as unreasonable the plaintiff’s argument that the firm was busy and had staffing issues. It noted that the solution to such a problem is to direct the client to counsel who is able to promptly assist him, if required. It also rejected as inadequate the statement that medical evidence had been preserved. The records only went back seven years, so some records would be lost. Further, doctors may have retired or have little recollection of their involvement.

[19] Lastly, the court did not accept Covid-19 as a reason for not serving the defendant by April 30, 2018 or bringing the motion to extend the time for service expeditiously. In April 2019, plaintiff’s counsel advised that it would be bringing its motion to extend the time for service. The motion was not forthcoming until 2023. The court noted in its decision released in June 2023 that “regular motions have been scheduled and heard continuously since 2020. Further what of the last year or two when court proceedings have become closer to ‘normal operations’…. This is not a reasonable explanation for the delay.”

[20] Clarke has pointed to the prejudice she will suffer if this motion is granted and the claim allowed to proceed. She argues that she has been denied the ability to conduct a prompt investigation, which the plaintiff exacerbated by not providing Clarke with her productions, which she requested more than a year ago. I cannot discount the fact that witnesses may be difficult to locate and their memories, and Clarke’s, may have faded in the five years since the accident occurred.

[21] While I accept that a plaintiff’s lawyer’s failure to serve the statement of claim within the time provided by rule 14.08(1) should not undermine a just resolution of the dispute (Heaps Estate v. Jesson, 2007 CarswellOnt 2322), in exercising my discretion under rule 3.02(1), I must also be mindful of the prejudice to the defendant. I must also take into account the lack of credible explanation for not making any attempt to serve Clarke between November 2021 and October 2023 when the plaintiff had Clarke’s address all along. While there is no doubt that Covid-19 continued and continues to be a presence, it cannot explain the failure between November 2021 and May 2022 to make any attempt to contact a process server and have Clarke served or the failure between May 2022 and August 2024 to bring a motion to extend the time for service.

[22] The delay in serving Clarke has not been adequately explained and there is sufficient presumed and actual prejudice to the defendant that I decline to exercise my discretion in the plaintiff’s favour. While the matter is unfortunate, I find it would be unfair to Clarke at this stage to have to defend a claim she knew nothing about for the last five years. The motion is dismissed.

[23] The order discontinuing the action against the defendants Jane Doe, 1327557 Ontario Inc., John Doe and The Co-Operators Insurance Company is granted.

Costs

[24] Clarke seeks costs of the motion and the action on a partial indemnity basis in the all-inclusive amount of $13,865.10. In considering all the circumstances, I find the all-inclusive sum of $10,000 to be a reasonable amount for the plaintiff to have expected to pay in the event she was not successful on the motion. The plaintiff shall pay that amount to the defendant Clarke within 30 days of the date of this decision.

Associate Justice Jolley Date: 4 November 2024