COURT FILE NO.: CV-24-00085970-0000 DATE: 20241121
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Olasz Scanning and Core Drilling Inc. v. J&S Mechanical Incorporated et al
BEFORE: Associate Justice Rappos
COUNSEL: Matthew Glowacki, for the Plaintiff Olabode Odetoyinbo, for the Defendant Shakil Adhmad
HEARD: November 21, 2024 (via videoconference)
REASONS FOR DECISION
[1] The case before me represents the epitome of what this Court has often referred to as “motions culture”, being the use of procedural motions by parties to drive up costs and delay the proceeding. [1] Such motions “clog the already taxed judicial system”, and waste time, money, and judicial resources. [2] Instead of resolving matters “in a practical way” with a short conversation, parties are left to pursue the “lengthy formal process of a motion”. [3] It seems that the Court’s repeated requests that lawyers follow the Three C’s of cooperation, communication and common sense has fallen on deaf ears.
[2] In this case, the Plaintiff brings a motion to validate service of the statement of claim on the Defendant, Shakil Ahmad. The Plaintiff alternatively seeks an order for substituted service of the claim, or to dispense with service of the claim.
[3] The issue at the heart of this motion is the refusal by Mr. Ahmad’s lawyer to accept service of the claim on his behalf.
[4] The action was commenced on June 7, 2024. The Plaintiff attempted to personally serve Mr. Ahmad at two addresses known to the Plaintiff, which were both business locations. The Plaintiff’s process server was informed that Mr. Ahmad was not at either address. At one location the process server was told that Mr. Ahmad had not been there for two years, but that he was still getting mail sent to the address.
[5] On August 2, 2024, the Plaintiff’s lawyer received an e-mail from Anthony Appadoo, who advised that “our office has been retained by Shakil Ahmad in relation to court file #CV-24-00085970-0000”. That is this proceeding.
[6] The e-mail went on to discuss substantive issues in the action, and how Mr. Ahmad should not be held liable for the claims. The e-mail includes extracts from a share purchase agreement to support Mr. Ahmad’s position.
[7] In that same e-mail, Mr. Ahmad’s lawyer did the following: (a) asked for a waiver of defence; (b) asked counsel to take no steps to note Mr. Ahmad in default without advanced notice; and (c) stated that “this email does not constitute acceptance of service on behalf of our client. Kindly provide a copy of your Affidavit of Service”.
[8] It is difficult to comprehend how Mr. Ahmad’s lawyer could ask for indulgences in the same email where he was not offering to accept service on behalf of Mr. Ahmad.
[9] In the weeks that followed, the Plaintiff’s lawyer and Mr. Ahmad’s lawyer engaged in a without prejudice call, and the Plaintiff’s lawyer repeatedly asked Mr. Ahmad’s lawyer to accept service of the claim. Mr. Ahmad’s lawyer refused to do so, saying he did not have instructions to accept service. He reiterated his view in an email dated September 25, 2024 that the Plaintiff must personally serve Mr. Ahmad.
[10] The Plaintiff discovered email addresses for Mr. Ahmad at a different company, and sent the claim to Mr. Ahmad using those addresses. One of the addresses was a generic accounting department email address.
[11] This company’s mailing address is one of the addresses where the Plaintiff attempted to personally serve Mr. Ahmad, and the server was informed that Mr. Ahmad did not work there.
[12] The Plaintiff was required to bring its motion before me today. The Plaintiff served Mr. Ahmad and Mr. Ahmad’s lawyer with the motion records and factum by email.
[13] Mr. Ahmad served a responding motion record, which has an affidavit sworn by a law clerk. A copy of the statement of claim was included in the motion record as an exhibit.
[14] In the affidavit, the firm takes issue with the fact that the motion was brought without counsel to the Plaintiff conferring about the return day. They say that the Plaintiff has failed to adhere to the principles of fairness and courtesy, and acted unreasonably by sending a copy of the motion record to Mr. Ahmad’s employer. Mr. Ahmad has apparently faced negative repercussions and inquiries from his employer as a result. Mr. Ahmad argues that no costs should be awarded against him, as “it is well-established that the rules regarding service must be strictly adhered to”.
[15] In the words of the law clerk, Mr. Ahmad “has acted reasonably in raising and addressing the issue of proper service. The Defendant’s objection to the manner of service is reasonable…the Defendant’s rights in contesting service should be protected…It is the Plaintiff’s responsibility to ensure proper service is carried out in accordance with the Rules”.
[16] In an email dated November 12, 2024, Mr. Ahmad’s lawyer claimed that Mr. Ahmad was not evading service, that the Plaintiff had failed to follow the proper procedure, and suggested that Mr. Ahmed may have to bring a lawsuit against counsel to the Plaintiff “for an unlawful interference with his economic interests” because of the email service to Mr. Ahmad’s employer.
[17] This motion was scheduled for 50 minutes of court time. It never should have been before the Court.
[18] Mr. Ahmad’s lawyer should have accepted service of the claim on his behalf when the request was first made on August 2, 2024. If he had done so, he would have been adhering to the general principle that the rules are to be “construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. [4]
[19] Mr. Ahmad’s lawyer cannot rely on the argument that he “had no instructions to accept service”. Lawyers are officers of the court. They are not free to act on whatever instructions they have received from their client. They are obliged by the Law Society of Ontario’s Rules of Professional Conduct to:
(a) “carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity” (rule 2.1-1);
(b) “be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of their practice” (rule 7.2-1);
(c) “agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities, and similar matters that do not prejudice the rights of the client” [emphasis added] (rule 7.2-1.1); and
(d) “avoid sharp practice and shall not take advantage of or act without fair warning upon slips, irregularities, or mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a client's right” (rule 7.2-2).
[20] I believe Justice Myers’ comments in Strathmillan Financial Limited v. Teti regarding default proceedings are equally applicable to matters relating to service. Service issues should not be used by lawyers for tactical purposes. Using the service rules for tactical advantage just sets the parties down the path of unnecessary motions. [5]
[21] Where a lawyer has been retained by a defendant to represent him in an action, such counsel should consent to accept service of the statement of claim as a matter of professional courtesy. It is not in the interests of justice, or in the interests of any stakeholders accessing the judicial system, to require plaintiffs to bring motions to validate service and effectively compel counsel to accept service of the claim. [6]
[22] As a result, I am granting the Plaintiff’s motion to validate service of the statement of claim. It is hereby validated as of today’s date.
[23] The Plaintiff seeks costs on a substantial indemnity basis in the amount of $1,800 all inclusive. It argues that elevated costs are warranted, as the Plaintiff had to go to the expense of bringing the motion due to Mr. Ahmad’s refused to have his lawyer accept service.
[24] Mr. Ahmad’s lawyer served a costs outline seeking approximately $2,690 all inclusive on a substantial indemnity basis.
[25] Costs of a step in a proceeding are in the discretion of the Court, as set out in section 131 of the Courts of Justice Act. Rule 57.01 of the Rules of Civil Procedure sets out factors that the court may consider in exercising such discretion. Those factors include “(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; (f) whether any step in the proceeding was improper, vexatious or unnecessary; (g) a party’s denial of or refusal to admit anything that should have been admitted”.”
[26] The overarching objective is to fix an amount of costs that is objectively reasonable, fair and proportionate for the unsuccessful party to pay in the circumstances. [7]
[27] In my view, a costs award on a substantial indemnity basis is warranted in these circumstances. The conduct of Mr. Ahmad in refusing to have his lawyer accept service unnecessarily lengthened this proceeding and was completely unnecessary. This motion was wholly unnecessary, and the conduct warrants costs on a substantial indemnity basis. [8]
[28] The amount sought by the Plaintiff is reasonable, as it is less than the amount that would have been sought by Mr. Ahmad if he had been successful with his arguments.
[29] As a result, I hereby fix costs in the amount of $1,800 all inclusive payable by Mr. Ahmad to the Plaintiff within 30 days.
[30] Order to go as electronically amended and signed by me.
Associate Justice Rappos DATE: November 21, 2024
Footnotes:
[1] Country Wide Homes Upper Thornhill Estates Inc. v. Su, 2022 ONSC 4998, para. 16. [2] Goodman v Archer, 2016 ONSC 3498, para. 28. [3] Miller v. Ledra et al., 2023 ONSC 4656, para. 20. [4] Subrule 1.04(1), Rules of Civil Procedure. [5] Strathmillan Financial Limited v. Teti, 2021 ONSC 7603, paras. 1-5. [6] See Nobosoft Corporation v. No Borders, Inc., 2007 ONCA 444, para. 7 for similar comments in connection with extensions for time of deliver pleadings and the issue of noting in default. [7] Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, para. 61. [8] Laczko v. Alexander, 2012 ONCA 872, para. 2.