Colehouse v. Jack et al., 2026 ONSC 1480

CITATION: Colehouse v. Jack et al., 2026 ONSC 1480 COURT FILE NO.: CV-23-0279-00

DATE: 2026-03-11

RE: Donald Colehouse v. Neal Jack and Pioneer Construction Inc.

HEARD: March 5, 2026

BEFORE: Lepere J.

COUNSEL: J. Javor appearing as agent for Plaintiff

No one appearing for the Defendants

Endorsement

1The Plaintiff seeks an Order on this ex parte motion to extend the time to serve the Statement of Claim on the Defendant, Neal Jack. In addition, they seek an order for substituted service of the Statement of Claim on Mr. Jack by publishing a notice in the local newspaper.

2I heard the motion on March 5, 2026, and further to my endorsement of that date directed the Plaintiff to file additional evidence on the motion, more specifically an updated driver’s licence search for the Defendant, Neal Jack.

3The Plaintiff has filed an additional Affidavit confirming that an updated driver’s licence search for Mr. Jack was done on January 18, 2026. The information on same remains the same as the search done in 2023.

Background Information

4This action was commenced via a Statement of Claim issued on July 21, 2023. It is a claim for damages arising from a motor vehicle accident that occurred on July 26, 2021. The Defendant, Neal Jack was the operator of the vehicle that allegedly struck the Plaintiff’s vehicle. At the time of the accident, he was operating a vehicle owned by the Defendant, Pioneer Construction Inc. (“Pioneer”). Pioneer was served with the Statement of Claim, and its insurer has responded to the claim and has appointed counsel. The insurer has denied coverage for Mr. Jack and has not agreed to accept service of the Statement of Claim on behalf of Mr. Jack.

5The Plaintiff was previously represented by a different lawyer. Mr. MacGillivray was retained by the Plaintiff in November 2025 and received the complete file from the Plaintiff’s prior lawyer on January 8, 2026. It was at this time upon a review of the file that he learned that Mr. Jack had not been served with the Statement of Claim and that no motion had been brought to extend the time to do so. The timeline to serve the Statement of Claim expired on January 21, 2024.

6The Plaintiff’s previous counsel did make attempts to serve Mr. Jack. Those attempts were as follows:

a. on May 25, 2023, they completed a driver’s licence search through the MTO which listed Mr. Jack’s address as 292B High Street South, Thunder Bay, Ontario and listed his licence as suspended, cancelled, unlicenced;

b. on May 30, 2023, a process server attempted to serve Mr. Jack at the Sough High Street address but was told by the person living there that there was no one by the name of Mr. Jack living there, that he had moved in a year ago and other residents in the building confirmed that Mr. Jack had moved out a long time ago;

c. on June 13, 2023, the Plaintiff’s prior lawyer asked Pioneer’s insurer if they had any other contact information for Mr. Jack and they confirmed that the only address they had for him was the South High Street address;

d. on July 21, 2023, a process server attempted to serve Mr. Jack again at the South High Street address but was provided the same information as the last time he attended; and

e. on September 29, 2023, the Plaintiff’s spouse completed a CGI Driver’s Abstract for Mr. Jack, and his address was still noted as being the South High Street address.

7Upon being retained, Mr. MacGillivray attempted to locate Mr. Jack online and via social media but could not find any information or social media accounts for him. On January 18, 2026, they conducted a further driver’s licence search through the MTO which provided the same information as to the one done in 2023.

8The Plaintiff then brought this motion. There is no evidence on this motion from the Plaintiff’s former lawyer as to why steps were not taken to get an order for substituted service of the claim on Mr. Jack or to extend the time to serve same.

Extension of Time to Serve Statement of Claim

9In Chiarelli v. Wiens, the Court of Appeal considered the exercise of the discretion to extend the time for service of a statement of claim. Laskin J.A. articulated the following principles, at paras. 14-16:

(i) The onus is on the plaintiff to show that the defendant will not be prejudiced by an extension of time. However, the plaintiffs cannot be expected to speculate. The defence has at least an evidentiary obligation to provide some details.

(ii) The defence cannot create prejudice by its failure to do something that it reasonably could have done.

(iii) The prejudice that will defeat an extension of time for service must be caused by the delay.

(iv) The extension of the time for service should not be denied “simply because the delay is longer than the applicable limitation period”.

(v) Each case should be decided on its facts, focusing on whether the defence is prejudiced by the delay.

10The law is clear that the court may grant an extension of time for service of a claim even after the expiry of a limitation period: see (Chiarelli at para 16; Eadie v. Crompton Co., [2008] O.J. No. 129 (S.C.J.)).

11I am prepared to grant the order extending the time to serve the Statement of Claim for the reasons that follow.

12Firstly, the owner of the vehicle and the employer of Mr. Jack at the time of the accident have had notice of the claim and were served with the claim within the timeline to do so. While the insurer for Pioneer is taking an off-coverage position with respect to Mr. Jack, I would expect that this may be litigated. There is no prejudice to the Defendant, Mr. Jack in extending the time to serve the claim as the coverage issue has not yet been determined and the litigation has not proceeded to any significant degree since the claim was issued.

13Secondly, while I appreciate that the extension of time is longer than the applicable limitation period, the claim against Pioneer (who was properly served) and Mr. Jack are linked, and it would be just and equitable for the claim to proceed with both Defendants having been served with the claim.

Order for Substituted Service

14Rule 16.04(1) of the Rules of Civil Procedure permits the court the make an order for substituted service where it appears to the court that it is “impractical for any reasons to effect prompt service of an originating process”. Impractical means “unable to be carried out or done”: see Laframboise, v. Woodward at para. 7.

15Quinn J. in Laframboise, at para. 14 stated that:

I do not think that substituted service is intended merely as an artificial alternative to personal service. Surely substituted service must have some likelihood of informing a defendant of the proceeding; otherwise, the exercise of obtaining an order for substituted service is a charade. In this regard, I accept the test in Babineau v. Babineau (1983), 32 C.P.C. 229 (Ont. S.C.), where Master Donkin held that the form of substituted service sought must have a reasonable possibility of bringing the action to the attention of the defendant. [See Note 6 at end of document] If the defendant will not learn of the action through substituted service then it strikes me as more appropriate to ask for an order dispensing with service altogether. In my view, substituted service is not available if the whereabouts of the defendant are unknown.

16In this matter the Plaintiff seeks to serve the Defendant by publishing a notice in the local newspaper. While this was not considered sufficient in Laframboise, that was because it was believed that the Defendant in that case was living in an obscure part of the Province. Here the only information we have is that he previously lived and worked in Thunder Bay. I find that publishing the notice as proposed by the Plaintiff in the local newspaper is the best way to bring the claim to the attention of Mr. Jack in the circumstances of this case. This attempt is better than simply dispensing with service all together.

Disposition

17For the reasons set out above, Order shall issue as per draft filed and located at Case Centre document A0016 with the exception that para. 3 of the Order shall be amended to state the following:

“THIS COURT FURTHER ORDERS that the Statement of Claim in this matter shall be deemed to have been served on the Defendant, Neal Jack on the date that the notice referenced in paragraph 2 of this Order is published in the Chronicle Journal.”

18Counsel shall ensure that a revised draft Order is foiled with the Court. In doing so, counsel should ensure that Schedule “A” is properly attached to the draft Order.

The Hon. Madam Justice R.A. Lepere

DATE: March 11, 2026

CITATION: Colehouse v. Jack et al, 2026 ONSC 1480 COURT FILE NO.: CV-23-0279-00