Court File and Parties

Court File No.: CV-24-4922-0000
Date: 2025-05-13
Court: Superior Court of Justice – Ontario

Re:
Stacks-Toronto 01 Inc., Plaintiff
-and-
Wolfpack Construction Inc. and Wolfpack Build Inc., Defendants

Before: C. Chang

Counsel:
M. Ellis, for the Plaintiff

Heard: May 13, 2025 (in writing)

Endorsement

[1] The plaintiff brings this ex parte motion in writing for orders for substituted service of the statement of claim, extending the time for service of the statement of claim, and “that a copy of the Notice of Motion and supporting Affidavit shall not be served with the Order extending the time for service”.

[2] While I am satisfied that some of the requested orders should properly issue, the proffered draft order is improper. Despite this court’s repeated admonishments respecting counsel’s drafting of materials to be filed with the court, the sloppiness persists (see: e.g., TD Bank v. Wing, 2024 ONSC 168).

The Improper Draft Order

[3] The draft order proffered in the case-at-bar sets out the incorrect court file number, and contains a both plethoric and anemic preamble, as well as improper operative paragraphs.

[4] The incorrect court file number speaks for itself, and requires no further comment.

[5] Respecting the preamble, on a motion such as this, same should be much more summary in nature, but still properly informative. The preamble in the proffered draft order reads as follows:

THIS MOTION, made by the Plaintiff without notice for an Order for Substitutional Service of the Statement of Claim upon the Defendants by sending a copy of same, along with a copy of this Order, by regular mail, to their last known addresses, as follows, and that by so doing it shall be deemed to be good and proper service; and for extending the time for service of the Statement of Claim, was read this day at the court house, 491 Steeles Avenue East, Milton, Ontario L9T 1Y7.

It should instead read as follows:

THIS MOTION, brought by the plaintiff for an order for substituted service of the statement of claim, and other related relief, was read this day at Milton, Ontario.

[6] In addition, the “ON READING” part of the preamble should properly set out the evidence that was filed in support of the motion (see: Halton Standard Condominium Corp. No. 472 v. Tritan Inc., 2023 ONSC 6745, at para. 5). The applicable preamble in the case-at-bar improperly only refers to “the Motion Record of the moving party”.

[7] The operative paragraphs in the said draft order are also problematic.

[8] An order for the extension of time in which the plaintiff is to serve the statement of claim should properly specify the amount of that extension, e.g., 60 days. The proffered draft order in the case-at-bar sets out only that the said time “be extended”. The applicable omission is, at best, sloppy, and, at worst, dishonest.

[9] An order for substituted service of the statement of claim should properly set out that the plaintiff may serve the statement of claim, together with the applicable order, and the motion materials, by way of a specified manner, and that, upon such service, same shall be effective five days later, and constitute proper service. The proffered draft order in the case-at-bar completely fails to set out the former, and only partially sets out the latter.

The Improperly Sought Relief

[10] The notice of motion seeks an order for substituted service of the statement of claim by regular mail, and an order extending the time for service of the statement of claim “for an additional six (6) months”. In my view, the latter requested relief is unreasonable given the former: if the plaintiff is permitted to serve by regular mail, why would it need an additional six months to prepare and send out that mailing? Furthermore, when the motion materials were filed in March 2025, there were almost three months left in which the plaintiff could serve the statement of claim in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Indeed, even as of the date of this endorsement, there remains time to serve, and, had the motion materials been properly prepared, I would have granted the requested substituted service order in enough time to permit the plaintiff to serve the statement of claim without any extension of time.

[11] The notice of motion also seeks an order that the plaintiff not be required to serve its motion materials on the defendants. Rule 37.07(4) of the Rules of Civil Procedure expressly requires that, unless the court orders otherwise, a party who obtains an order without notice must serve not only that order, but also the motion materials used to obtain it. The materials filed in the case-at-bar fail to support that requested order, and, in fact, fail to address the issue at all (other than requesting the order). I am, in any event, of the view that, on a motion of this type, only exceptional circumstances would displace the transparency mandated by rule 37.07(4).

Conclusion and Disposition

[12] I repeat yet again: counsel must, in the proper discharge of their duty, be punctilious in the drafting of their materials, and attend to each and every drafting task with the highest levels of care and fastidiousness without regard to whether the applicable litigation step is proceeding on consent or is expected to be vigorously opposed (see: Halton, at paras. 9-11). Counsel must do better.

[13] The plaintiff is to file a proper draft order, and, if it still wishes to pursue its request for an order under rule 37.07(4), supplementary motion materials that properly support same.

[14] I am seized of this motion.

C. Chang
Date: May 13, 2025