# Superior Court of Justice
**Court File No.:** CV-20-71989
**Date:** 2026-04-02
**ONTARIO
SUPERIOR COURT OF JUSTICE**
**B E T W E E N:**
Iris Chisela
**Plaintiff**
— and —
Kamaljit Kaur Purewal, John/Jane Doe #1, and John/Jane Doe #2
**Defendants**
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**Counsel:**
O. Miketic, for the Plaintiff
No one appearing, for the Defendants
J. Elsasser, for the interested non-party, Certas Home and Auto Insurance
**Heard:** March 9, 2026
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## Reasons for Decision
**Associate Justice J. Kriwetz**
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## Nature of the Motion
[1] The Plaintiff moves for (a) and order validating the service of the amended statement of claim, which was issued on March 11, 2024, and (b) an order extending the time for the service of the amended statement of claim to November 21, 2025.
[2] The Defendant, Kamaljit Kaur Purewal, has not delivered a statement of defence to the amended statement of claim and has not been noted in default. She was served with this motion record but has not filed any materials in response. Neither she nor anyone on her behalf appeared at the hearing.
[3] The non-party, Certas Home and Auto Insurance ("Certas") is the Defendant's insurer and, as such, has an interest in this matter. It opposes the relief requested and has filed materials in response.
[4] The Plaintiff takes the position that Certas does not have standing to oppose this motion. I will address this point and the substance of the motion below.
[5] The Plaintiff is represented by Georgiana Masgras of the firm of Masgras Professional Corporation. There were others in Ms. Masgras' office who were involved various correspondence and court appearances in these proceedings. Therefore, I will refer to the Plaintiff's legal representatives, generally, using the term "Plaintiff's counsel". When necessary, I will refer to Ms. Masgras specifically.
[6] Counsel who appeared at the hearing of this motion for the Plaintiff does not appear to be with the Plaintiff's counsel's firm.
---
## Procedural History
[7] To say that this action has a complicated procedural history would be an understatement. Nevertheless, it is necessary to set out the chronology of events in some detail.
[8] This claim arises from a motor vehicle collision which occurred on January 30, 2018. The Plaintiff alleges that she was a passenger in the Plaintiff vehicle which collided with the Defendant's vehicle. The driver of the Plaintiff vehicle did not commence a claim, and the Plaintiff did not sue the said driver. The two vehicles were allegedly driving side by side at approximately 30 to 40 kilometres an hour when the collision occurred. It appears that the parties drove away in their respective vehicles following the alleged incident. Neither party made a report of the incident to a collision reporting centre. The police did not attend at the scene. Apparently, no party sought hospital care, and there does not appear to be any documentation regarding property damage to either vehicle.
[9] The statement of claim was issued on January 27, 2020. The Plaintiff was representing herself at the time. The defendants named in the statement of claim were, Manjit Purewal ("Defendant 1"), John/Jane Doe #1, and John/Jane Doe #2.
[10] Defendant 1 served a statement of defence on or about September 23, 2020.
[11] On September 8, 2021, Defendant 1 changed legal representation from Jason Duyck to Christeena Lucknauth.
[12] On September 27, 2021, the Plaintiff appointed her current counsel to represent her in this matter.
[13] Defendant 1 was examined for discovery on May 2, 2022. During those examinations, the Plaintiff learned that Defendant 1 was not, in fact, driving the motor vehicle involved in the alleged collision, but that the Defendant, Kamaljit Kaur Purewal ("Defendant 2") was the driver.
[14] The Plaintiff was also examined for discovery. Though it is not clear from the materials, her examinations appear to have taken place on the same date as Defendant 1's examination.
[15] On November 28, 2022, nearly seven months after the examination for discovery of Defendant 1, the Plaintiff served a motion record seeking to amend the statement of claim to remove Defendant 1 from the claim and to add Defendant 2 as a defendant (the "Amendment Motion"). The motion was made in writing.
[16] The Amendment Motion came before Associate Justice McGraw on April 17, 2023. At first instance, Associate Justice McGraw adjourned the matter because there was no evidence that the proposed defendant (i.e. Defendant 2) had been served, and there was no evidence as to what her position was.
[17] The affidavit filed in support of this motion was sworn on December 2, 2026, by the Plaintiff herself (the "Plaintiff's Affidavit"). At paragraph 10, she states:
> "On June 2, 2023, my counsel's office, through Kunal Mohite, emailed Christeena Lucknauth, counsel for the Defendant, serving the endorsement of the Honourable Associate Justice McGraw and requesting the position of the Defendant, Kamaljit Kaur Purewal. At that time, my counsel's office was under the impression that Ms. Lucknauth also represented the proposed Defendant, Kamaljit Kaur Purewal, and the email therefore asked her to confirm whether she acted for Ms. Purewal. On June 20, 2023, Mr. Mohite sent a follow-up email to Ms. Lucknauth, enclosing the Affidavit of Service of the motion record served on Ms. Purewal, and again requested the position of her client. On June 23, 2023, Ms. Lucknauth responded and clarified that her client takes no position on the motion to amend the pleadings, thereby indicating that she represents the proposed Defendant, Kamaljit Kaur Purewal." Attached hereto and marked as Exhibit "G" to this, my Affidavit, is a true copy of the Email Correspondence from June 2, 2023, to June 23, 2023."
[18] I pause here to note that, having reviewed the correspondence at Exhibit "G" to the Plaintiff's Affidavit, nowhere does Ms. Lucknauth state that she represents Defendant 2.
[19] The Amendment Motion came back before Associate Justice McGraw as an in-writing matter on July 18, 2023, at which time His Honour's endorsement noted that the proposed defendant had been served by mail, but it was not clear if the Plaintiff had requested the proposed defendant's position on the motion. Consequently, the Plaintiff was given the option to re-file the motion in writing or schedule a hearing, on notice to the proposed defendant, before Associate Justice McGraw.
[20] It is not clear what occurred after July 18, 2023, because the record shows that Associate Justice McGraw signed the order amending the statement of claim on August 2, 2023 (the "Amending Order").
[21] It is also not clear from the record when the Plaintiff's counsel became aware that the Amending Order had been issued. The record shows that Ms. Lucknauth wrote to the Plaintiff's counsel on May 18, 2023, June 8, 2023, and June 29, 2023, making requests for a copy of the affidavit of service of the amended statement of claim, but she did not receive it.
[22] Despite having issued the Amending Order on August 2, 2023, for reasons which are also not clear, Associate Justice McGraw made another endorsement on January 29, 2024, which stated:
> "Counsel has confirmed that the Proposed Defendant is unopposed. Order to go in the form filed, as amended, which I have signed."
[23] Paragraph 14 of the Plaintiff's Affidavit then states:
> "After receiving the signed Order dated August 2, 2023, together with the attached Amended Statement of Claim, on March 1, 2024, Mr. Akshay Tope, a member of my counsel's office, duly served order with scheduled (sic) A- amended statement of claim on counsel for the Defendant, Ms. Christeena Lucknauth, by email, in accordance with Rule 16.05(f) of the Rules of Civil Procedure. At all material times, Ms. Lucknauth had confirmed that she represented the Defendant, Ms. Kamaljit Kaur Purewal, and had communicated her client's position on the Plaintiff's motion to amend the Statement of Claim. My counsel was therefore under the reasonable impression that Ms. Lucknauth continued to act as counsel of record for Ms. Purewal when the service was effected. Attached hereto and marked as Exhibit "I" to this, my Affidavit, is a true copy of the Email Correspondence dated March 1, 2024."
[24] Despite what the Plaintiff sworn, I note that there is nothing in the record where Ms. Lucknauth specifically states that she represented Defendant 2 at any time. I also note that the correspondence attached as Exhibit "I" to the Plaintiff's Affidavit shows that it was the Amending Order, and not the amended statement of claim, which was sent to Ms. Lucknauth on March 1, 2024.
[25] On March 11, 2024, more than seven months after the Amending Order was issued, the amended statement of claim was formally issued and entered. The amended statement of claim was not, however, served until quite some time later, as discussed in further detail below.
[26] Paragraphs 16 and 17 of the Plaintiff's Affidavit states that, on May 3, 2024, "Defence counsel confirmed their agreement to proceed with mediation before several proposed mediators." There was correspondence between counsel to arrange for the mediation. The mediation was scheduled for January 22, 2025, and briefs were exchanged. However, the mediation did not proceed because of the Plaintiff's "unforeseen personal circumstances". I note that copies of the said correspondence and the mediation briefs were not attached as exhibits.
[27] On January 23, 2025, the Plaintiff passed the Trial Record under the amended statement of claim. I will have more to say about this below.
[28] On February 12, 2025, Ms. Lucknauth wrote to the Plaintiff's counsel acknowledging receipt of "the endorsement". She also requested a copy of the affidavit of service of the amended statement of claim. There was no response.
[29] A Notice of Change of Lawyer appointing Jamie Elsasser as counsel for Defendant 1 was served on the Plaintiff's counsel on April 17, 2025. I note that the said notice used the original title of proceeding.
[30] Paragraph 18 of the Plaintiff's Affidavit states that, between April 14, 2025, and October 22, 2025, the parties were engaged in efforts to conduct a defence medical examination of the Plaintiff. Copies of the correspondence, which consists of an e-mail chain on between those to dates, were attached as Exhibit "K". The correspondence from Ms. Lucknauth's office on April 14, 2025, had advised the Plaintiff's counsel that Ms. Elsasser was taking over the matter and that the Notice of Change of Lawyer would be forthcoming.
[31] According to the affidavit of Norma Barron, sworn January 15, 2026, which was filed by Certas (the "Certas Affidavit"), Ms. Elsasser and an associate from the office of the Plaintiff's counsel attended Assignment Court on April 23, 2025, before Justice Espie, at which time Ms. Elsasser advised the Court that she did not have standing in the amended action and that Ms. Lucknauth had been requesting the affidavit of service of the amended claim since 2023 but had not received it. Justice Espie put the matter over to the Assignment Court on July 16, 2025, and advised the parties to "sort out the delay".
[32] Ms. Elsasser then wrote to the Plaintiff's counsel on April 24, 2025, confirming what had occurred in Assignment Court the previous day and requested the affidavit of service of the amended claim. Ms. Elsasser's letter also stated, inter alia,
> "…Upon receipt of the Affidavit of Service, and confirmation that service was effected in compliance with the Rules of Civil Procedure, I expect to be instructed to file a Defence on behalf of Kamaljit Kaur Purewal.
>
> Please be aware that we represented the former defendant, Manjit Purewal, who has since been struck from this action."
[33] Not having received a response from the Plaintiff's counsel, Ms. Elsasser sent follow up letters on May 23, 2025, and June 11, 2025. The Plaintiff's counsel did not reply.
[34] At the July 16, 2025, Assignment Court before Mr. Justice Krawchenko, Ms. Elsasser, reiterated her position. Mr. Justice Krawchenko asked counsel appearing for the Plaintiff whether she had the affidavit of service of the amended statement of claim, to which counsel responded that they did. Mr. Justice Krawchenko then ordered the Plaintiff's counsel to deliver the affidavit of service by no later than 4:00 p.m. that day.
[35] At 12:46 p.m. on July 16, 2025, Ms. Elsasser sent an e-mail to the Plaintiff's counsel, stating, inter alia, that the affidavit of service which had been provided was that of the motion record to amend the claim, which was sent to Defendant 2 by regular mail, and not the affidavit of service which was ordered by Mr. Justice Krawchenko.
[36] Then, at 4:29 p.m. on July 16, 2025, the Plaintiff's counsel sent an e-mail to Ms. Elsasser enclosing an affidavit of service which stated that the amended claim was served at 3:48 p.m. that same day. It appears, however, that Defendant 2 had been served with the Amending Order, rather than the amended statement of claim.
[37] On July 24, 2025, Ms. Elsasser wrote to the Plaintiff's counsel setting out her position as to what had occurred and advised that she intended to move for an order dismissing the action on behalf of Defendant 1 (the "Dismissal Motion"). The Plaintiff's counsel responded by e-mail on August 1, 2025, setting out her position.
[38] Ms. Elsasser then made unsuccessful attempts to schedule the Dismissal Motion with the Plaintiff's counsel. Not having received any cooperation concerning the return date, she unilaterally scheduled the hearing for November 27, 2025.
[39] The third Assignment Court took place on September 17, 2025. Because Dismissal Motion was pending, the matter was adjourned to the Assignment Court on June 17, 2026.
[40] Defendant 2 was personally served with the amended statement of claim on November 21, 2025.
[41] The Plaintiff also brought a motion, initially returnable on November 27, 2025, seeking an order validating the service of the statement of claim and an order extending the time for service of the amended claim to July 16, 2025.
[42] Both motions came before me on November 27, 2025. The Plaintiff's motion was adjourned to December 18, 2025, because the purported service of the motion on Ms. Elsasser, who did not represent Defendant 2, was improper and ineffective. The Dismissal Motion was filed before Defendant 1 had been provided with a copy of the amended claim, which removed him as a defendant. Having then received it, the Dismissal Motion did not proceed because Defendant 1 no longer had standing.
[43] The Plaintiff then amended its notice of motion and delivered a revised motion record dated December 2, 2025, with an updated affidavit sworn by the Plaintiff (i.e. the Plaintiff's Affidavit). This is the motion which is before this Court.
[44] The Plaintiff's motion did not proceed on December 18, 2025, because Certas had request more time to file responding materials and a factum. The motion was, therefore, adjourned to January 22, 2026.
[45] When the motion was returned on January 22, 2026, it became apparent that the hearing would take more than an hour. Consequently, it was adjourned to the long motions list for the week of March 9, 2026.
---
## Issues
[46] The issues to be determined are as follows:
> a) Does Certas have standing to be heard on this motion?
>
> b) Should the service of the amended statement of claim be validated?
>
> c) Should the time for service of the amended statement of claim be extended?
>
> d) Should the action be dismissed for delay under rule 48.14 of the Rules?
---
## Does Certas Have Standing to be Heard?
[47] Certas is not a party to these proceedings. The Plaintiff, therefore, submits that Certas lacks standing and its submissions should not be considered.
[48] In response, Certas submits that the Court may grant standing to it under Rules 2.03, 13.01 and/or 13.02 of the Rules of Civil Procedure (the "Rules"). It also submits that the Court should grant it standing because the materials filed by the Plaintiff were incomplete and inaccurate in some respects, and that its materials and submissions would assist the Court in adjudicating upon the motion.
[49] Rule 13.02 states that,
> "Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument."
[50] In my view, the materials filed by Certas provided relevant information, which was not included in the Plaintiff's materials. Likewise, Certas' submissions to the Court were most helpful. I, therefore, grant standing to Certas pursuant to rule 13.02, and, if necessary, rule 2.03. I decline to rely on rule 13.01, as that would result in Certas being added as a party, which it did not request.
---
## Validation of Service of the Amended Claim
[51] One of the orders sought in the notice of motion is the validation of the service of the amended Statement of Claim. I am of the view that the Plaintiff is not entitled to such relief.
[52] Rule 16.08, which permits the Court to make an order validating service, applies only where a document has been served in a manner other than one authorised by the Rules. In this case, the amended Statement of Claim was personally served on Defendant 2 on November 21, 2025. Personal service of the amended Statement of Claim is one of the means authorised by the Rules. Therefore, rule 16.08 does not apply.
---
## Extension of Time for Service of the Amended Claim
[53] There is no question that the amended claim was not served in a timely manner. More than twenty-seven months had passed from the time that the Amending Order was issued until the amended statement of claim was served.
[54] Rule 26.01(1) requires an amended pleading to "be served forthwith on every person who is, at the time of service, a party to the main action." Rule 26.01(3)(b) states that "where the amended pleading is an originating process, it shall be served personally or by an alternative to personal service under rule 16.03 on an opposite party who has not responded to the original pleading."
[55] The amendment to the statement of claim resulted in the addition of Defendant 2 as a party. Therefore, in my view, since Defendant 2 was added as a party to an originating process, she should have been served within 6 months of the date the Amending Order was issued (i.e. August 2, 2023), as required by rule 14.08(1). Therefore, the deadline for service would have been February 2, 2024. The amended statement of claim was not, however, served until more than twenty-one months later.
[56] Despite the delay in service, the Court has the general discretion under rule 3.02(1) to extend or abridge any time prescribed by the Rules on such terms as are just. The principles by which the court is to exercise such discretion is set out in the relevant case law.
[57] The leading case on a motion to extend the time for service of a statement of claim, which both parties cited in their factums, is the Ontario Court of Appeal decision in [Chiarelli v. Wiens, (2000) 2000 CanLII 3904 (ON CA)](https://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3904.html), 46 O.R. (3d) 780. In that case, there was a delay of over six years from the expiry date for serving the claim. The Court noted that, on such motion, the court should be mainly concerned with the rights of the litigants, not the conduct of counsel. Furthermore, the key issue on such a motion is whether the defendant would be prejudiced if an extension was granted.
[58] On the issue of prejudice, the Court of Appeal stated at paragraph 14:
> "Although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice. It seems to me that if the defence is seriously claiming that it will be prejudiced by an extension it has at least an evidentiary obligation to provide some details. The defence did not do that in this case."
[59] The Court of Appeal also stated that the defence cannot create prejudice by its failure to do something that it reasonably could or ought to have done, and that prejudice which will defeat a motion to extend the time must be caused by the delay. Then, at paragraph 17 of the decision the Court of Appeal stated:
> "The court should not fix in advance rules or guidelines when an extension should be refused. Each case should be decided on its facts, focusing as the motions judge did in this case, on whether the defence is prejudiced by the delay."
[60] Both parties also referred to [Rowland v. Wright Medical Technology Canada Ltd., 2015 ONSC 3280](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc3280/2015onsc3280.html), where Mr. Justice Perell summarised the principles set out in Chiarelli, supra, and stated the following at paragraphs 16 to 18:
> "The key factor in determining whether to grant an extension for service of the statement of claim is prejudice from the delay in service; if the defendant is not prejudiced by the delay in service, the court may extend the time for service of the statement of claim: [Chiarelli v. Wiens (2000), 2000 CanLII 3904](https://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3904.html) (ONCA), 46 O.R. (3d) 780 (C.A.); Khroad v. Hill, [2010] O.J. No. 581 (Ont. S.C.J.); [Chudzik v. Fehr, 2006 CanLII 19 (ON SC)](https://www.canlii.org/en/on/onsc/doc/2006/2006canlii19/2006canlii19.html), [2006] O.J. No. 4 (S.C.J.) at para. [17](https://www.canlii.org/en/on/onsc/doc/2006/2006canlii19/2006canlii19.html).
>
> The plaintiff has the onus of showing that extending the time for service of the statement of claim will not result in prejudice to the defendant: Khroad v. Hill, supra, at para. 26. In determining whether there is any prejudice, the court will consider whether: (a) material witnesses have disappeared or died; (b) relevant documents have been preserved; (c) the delay is such that it can reasonably be assumed that memories have faded; and (d) any new facts are being alleged: Chiarelli v. Wiens, supra; Eade (Litigation Guardian of) v. Browne Estate, [2005] O.J. No. 1753 (S.C.J.) at para. 5; Khroad v. Hill, [2010] O.J. No. 581 (S.C.J.) at para. 28.
>
> On a motion to extend, the focus is on the discrete prejudice caused by the delay in serving the documents and not any prejudice from the passage of time from the relevant events to the commencement of the action; [McGroarty v. CIBC Mellon Trust Co., 2012 ONCA 241](https://www.canlii.org/en/on/onca/doc/2012/2012onca241/2012onca241.html); Chiarelli v. Wiens, supra at para. [16](https://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3904.html)."
[61] On the issue of prejudice, the Plaintiff states that she does not believe that Defendant 2 will suffer any prejudice because, despite having only been served with the amended statement of claim on November 21, 2025, she had prior knowledge of it. In submissions, the Plaintiff asserted that Certas' allegations of prejudice were merely general allegations. The Plaintiff also submits that, if there was any prejudice, it was caused by the defendants.
[62] The Plaintiff also stated that her counsel was under the impression that Defendant 1's counsel was also acting for Defendant 2. She also submits that the fact that Defendant 1's counsel was making arrangements for a defence medical and mediation, together with Certas' knowledge of the amendment, shows that Defendant 2 had not suffered any prejudice.
[63] In response to Certas' argument that it has been prejudiced in that it can no longer assert a third party claim (discussed in more detail below), the Plaintiff states, in her factum, that "(s)ubsequent service does not retroactively invalidate the amendment or revive limitation defences already addressed or waived", and that "(t)he inability to advance hypothetical contribution claims cannot outweigh the Plaintiff's rights to have her claim adjudicated on its merits."
[64] Certas submits that Defendant 2 has suffered prejudice in the following respects.
> a) The motor vehicle collision occurred eight years ago, and therefore the memories of the parties and witnesses will have undoubtedly faded. This is particularly so because the collision was minor side-swipe event which occurred at low speed. The parties drove away after the incident, neither party sought hospital treatment, no police or other first responders attended, and there were no reports of property damage. As such, the incident was not a memorable event.
>
> b) Because of the passage of time and having regard to the record keeping requirements of the College of Physicians and Surgeons of Ontario and the Ontario College of Pharmacists, two years of the Plaintiff's pre-collision medical records are now unavailable.
>
> c) The Plaintiff has claimed for economic loss and future economic loss, including loss of employment flexibility and a loss of long-term employment opportunities. As such, Certas submits that Defendant 2 has been prejudiced in that the Plaintiff has not produced any employment records, and that, given the limited time employers are required to maintain records under the Employment Standards Act, 2000, such records are no longer available.
>
> d) Certas also submits that, assuming the Plaintiff discovered the claim against Defendant 2 at the examinations for discovery, which occurred on May 2, 2022, the limitation period for such a claim under the Limitations Act, 2002, would have expired on May 2, 2024. It also submits that since the Plaintiff was a passenger in a motor vehicle operated by a third party, who is not currently a party to this action, Defendant 2 is now precluded from asserting a third-party claim against that third party. Citing [NuVision Health Inc. v. Teva Canada Ltd., 2020 ONSC 8](https://www.canlii.org/en/on/onsc/doc/2020/2020onsc8/2020onsc8.html), Certas submits that, in such case, there is a presumption of prejudice, which the moving party must disprove by showing special circumstances exist. In this case, Certas states that Defendant 2 "would be prejudiced by having to disprove a prejudice that was unilaterally and unnecessarily imposed on her by the Plaintiff."
>
> e) In its factum, Certas also submits that, if the Plaintiff discovered that she had a cause of action against Defendant 2 on May 2, 2022, the limitation period for a claim against her would have expired on May 2024. Defendant 2 was not, however, served with the amended statement of claim until long after the limitation period expired. Therefore, "the amendment is of no practical effect as the plaintiff is, in substance, seeking to assert a new claim against an unserved party outside the appropriate limitation period." On this same point, Certas also states that "just as an amendment will not be permitted where the opposing party establishes prejudice that cannot be remedied by costs or an adjournment, the extension of service should not be permitted using these same principles." In support of this, Certas cites Rush v. Via Rail Canada Inc., 2017 O.J. 1984.
[65] Certas also referred to the cases of [Graff v. Sacrey, 2018 ONSC 543](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc543/2018onsc543.html) (SCJ) and [Noori v. Grewal, 2011 ONSC 5213](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc5213/2011onsc5213.html) (SCJ). In each case, the court dismissed the motion to extend the time for service.
[66] In Graff, the Court dismissed the motion because the plaintiff made a deliberate decision not to pursue one group of defendants, and there was actual prejudice.
[67] In Noori, the defendants were served with the claim well after the time prescribed by the Rules and, as such, notice of the claim was received 32 months after the collision. The Court found that the evidence reflected a "continued and studied disregard of the Rules…" by the plaintiff, that the plaintiff did not discharge the onus of proving no prejudice would result from the order being granted, and that there was evidence of actual prejudice.
[68] Nearly seven months passed from the date of the examinations for discovery of Defendant 1, at which time the Plaintiff discovered that Defendant 2 was the driver of the other motor vehicle, for the Plaintiff to bring the Amendment Motion.
[69] More than seven months passed from the time that the Amending Order was issued to the date the statement of claim was formally amended. In submissions, the Plaintiff stated that the motion to amend was made in writing and there was a delay in being informed of the outcome. As noted above, it is unclear when the Amending Order was released, and the fact that Associate Justice McGraw issued a further endorsement nearly six months after he signed the Amending Order is curious and unexplained.
[70] There were delays in serving the amended statement of claim. The several inquiries from Ms. Lucknauth about this were ignored. Likewise, Ms. Elsasser's inquiries were also ignored. The representations made by the Plaintiff's counsel, before Mr. Justice Krawchenko on July 16, 2025, were false, but counsel subsequently advised that her statements to His Honour were based on an honest belief that certain facts were true but which she later discovered not to be true.
[71] It then took the Plaintiff approximately three more months after the July 16, 2025, Assignment Court to serve the amended statement of claim upon Defendant 2.
[72] In summary, the Plaintiff's explanation for the delays is inadvertence.
[73] With respect to the Plaintiff's counsel's "impression" that Ms. Lucknauth was also acting for Defendant 2, I, once again, note there is nothing in the correspondence, or any other document in the record before this Court, in which either Ms. Lucknauth or Ms. Elsasser stated that they represented Defendant 2. Neither one of them went on record as counsel for Defendant 2 at any time.
[74] However, Ms. Lucknauth was served with the Amendment Motion on November 28, 2022. Therefore, she knew that the Plaintiff intended to let Defendant 1 out of the action and add Defendant 2 as a defendant to the claim.
[75] Furthermore, on March 1, 2024, Ms. Lucknauth was served with the Amending Order, which granted the Plaintiff leave to amend the claim in accordance with order sought in the Amendment Motion.
[76] As previously stated, the statement of claim was formally amended in accordance with the Amending Order on March 11, 2024. It is not clear when either Ms. Lucknauth or Ms. Elsasser became aware of this. The Certas Affidavit states that its office was not provided with a copy or made aware of the issued amended claim but a copy of it is appended to the said affidavit. Nevertheless, even though she may not have been served with the formally amended claim at the time, Ms. Lucknauth did, in May 2024, seek to arrange for a mediation.
[77] Also, as noted above, Ms. Elsasser advised the Plaintiff's counsel on April 24, 2025, that she expected to be instructed to file a statement of defence on behalf of Defendant 2 upon receipt of an affidavit of service and confirmation that service was effected in accordance with the Rules. She repeated this in follow-up correspondence.
[78] It is also apparent from the material in the record that, after Ms. Elsasser became counsel of record for Defendant 1, she engaged in correspondence with the Plaintiff's counsel to schedule a defence medical examination of the Plaintiff. She also continued ask the Plaintiff's counsel for a copy of the affidavit of service of the amended claim.
[79] Certas was aware that Defendant 1 was being let out of the action. The first step in that process occurred on August 2, 2023, with the issuance of the Amending Order. The process was completed with the formal amended statement of claim on March 11, 2024. Certas was also aware from the Amending Motion that, apart from the removal of Defendant 1 and the addition of Defendant 2, no other substantive amendments to the claim were being sought. Nowhere in the materials before this Court did Ms. Lucknauth explicitly state that she expected to be retained by Defendant 2. Nevertheless, such expectation could reasonably be inferred from her actions as described above. As noted, Ms. Elsasser explicitly stated that she expected to be retained to represent Defendant 2 once the affidavit of service had been provided and Defendant 2 had been properly served with the amended claim.
[80] It, therefore, seems that both parties conducted themselves with the expectation that, once the claim was amended and served, counsel for Defendant 1 would go on record for Defendant 2 and the action would carry on. In the meantime, while waiting for the amendment and service to be completed, the parties discussed arrangements to move the litigation forward.
[81] Though some of the delays may have been beyond the Plaintiff's control, most of the delays incurred were caused by her counsel's failure to take steps available to move things along in a more expeditious manner. Ms. Lucknauth and Ms. Elsasser were repeatedly following up with the Plaintiff's counsel and were, for the most part, repeatedly ignored. Failing to respond to counsel's proper correspondence is unacceptable conduct.
[82] Despite this, and without diminishing the seriousness of the conduct of the Plaintiff's counsel, the primary concern for the Court on a motion like this should be the rights of the litigants, not the conduct of counsel, and whether Defendant 2 will suffer prejudice if the extension is granted: [Chiarelli, supra, paras. 9 and 10](https://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3904.html). Any such prejudice must also be caused by the delay itself: [Chiarelli, supra at para. 16](https://www.canlii.org/en/on/onca/doc/2000/2000canlii3904/2000canlii3904.html); [Rowland, supra, at para 16](https://www.canlii.org/en/on/onsc/doc/2015/2015onsc3280/2015onsc3280.html).
[83] The Plaintiff has the onus to show that Defendant 2 will not be prejudiced by the extension. The Plaintiff's submissions in this regard have been set out above. I am of the view that, although the Plaintiff's evidence in this regard is not extensive, it is sufficient to meet the onus.
[84] In view of the foregoing, Certas has "an evidentiary obligation to provide some details" regarding the prejudice Defendant 2 will alleged suffer. In this respect, to reiterate, Certas argues that some medical records and employment records are now not producible because of the time required to maintain those records has passed. It also states that, because of the expiration of the limitation period, it will be unable to assert a third party claim against the driver of the vehicle in which the Plaintiff was a passenger. It submits that it is reasonable to assume that witness memories of the incident have faded. It also submits that Defendant 2 was served after the limitation period for a claim against her had expired.
[85] At paragraph 15 of Chiarelli, supra, the Court stated, "the defence cannot create prejudice by its failure to do something that it reasonably could have or ought to have done." As examples, the Court stated that the defence could not complain that it lost the opportunity to interview the police officer or to conduct surveillance or obtain the no-fault insurer file, when it could have done all those things earlier.
[86] In my view, much of the alleged prejudice which Certas states has been caused "by its failure to do something that it reasonably could have or ought to have done". In this regard, I note the following.
> a) Certas is the insurer for Defendant 2 and Defendant 1. Therefore, it was aware of the Plaintiff's claim from at least the time that it responded to the original statement of claim.
>
> b) The Plaintiff was examined for discovery in 2022. Therefore, Certas had her discovery evidence and knew what medical and employment records were relevant. Certas now complains that those records have not been produced when it could have previously pursued the issue, including moving for an order compelling their production.
>
> c) If Certas wanted to add the driver of the vehicle in which the Plaintiff was a passenger at the time of the collision as a third party, it could have done so at any time when Defendant 1 was a party to the claim.
>
> d) Though, the amended claim was not served in a timely manner, Certas, was aware of the nature of the amendments well-before it was served. It knew the amended claim merely substituted Defendant 2 for Defendant 1 and made no substantive changes to the claim. Neither Defendant 1 nor Defendant 2 opposed the Amendment Motion.
>
> e) There appears to be nothing in the record showing that Certas raised any issues of prejudice prior to its response to this motion. In fact, Ms. Elsasser advised the Plaintiff's counsel on April 24, 2025, that she expected to file a defence on behalf of Defendant 2 once service of the amended claim had been completed. She repeated this in her follow-up letters described above. She also advised the Court at this hearing that if the Plaintiff's motion was granted, Certas would likely defend the claim on behalf of Defendant 2.
[87] Furthermore, if the limitation period for a claim against Defendant 2 expired on May 2, 2024, the fact is that the Amending Order and the formal amendment to the statement of claim occurred before then. Certas has cited no authority for its proposition that the amended claim is "rendered of no practical effect" if it is not served within the limitation period. In my view, Rush, supra, does not assist Certas. It involved a motion to add a defendant to the action after the expiration of the limitation period. In this case, as noted above, the Amending Order was issued on an unopposed basis, and the formal amendment to the claim occurred, before the limitation period expired.
[88] I also note that, apart from the general allegation that witnesses' memories fade over time, there is no direct evidence on this point.
[89] Finally, it should be noted that paragraph 2 of the Amending Order states that leave to amend the claim was "granted without prejudice to the rights of the Defendants." Defendant 2 is, therefore, not precluded from raising any defences.
[90] Therefore, considering all the foregoing, and notwithstanding the delays caused by the Plaintiff's counsel, I am of the view that it is just and appropriate to grant the Plaintiff an order extending the time for service of the amended statement of claim to November 21, 2025.
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## Dismissal for Delay Under Rule 48.14
[91] Rule 48.14(1)1 states, in part,
> "Unless the court orders otherwise, the registrar shall dismiss an action for delay in either the following circumstances, subject to subrules (4) to (8):
>
> 1. The action has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action."
[92] Certas argues that the Plaintiff set the action down for trial five days before the five-year anniversary of the commencement of the action, and that, but for the Plaintiff's inaccurate trial record certification, the registrar would have administratively dismissed the claim. Certas also points to all the delays in this case and submits that the circumstances are similar to [Barbiero v. Pollack, 2024 ONCA 504](https://www.minicounsel.ca/onca/2024/504), where the Court of Appeal upheld the dismissal of a 21-year-old class action for delay. Therefore, it argues that this claim ought to be dismissed for delay.
[93] The trial record filed by the Plaintiff includes the following documents:
> a) The jury notice dated September 23, 2020, filed by Defendant 1 in the original, unamended claim.
>
> b) The original statement of claim issued on January 27, 2020.
>
> c) The statement of defence and crossclaim of Defendant 1 dated September 23, 2020. (I note that the crossclaim is as against the John/Jane Doe defendants)
>
> d) The Amending Order dated August 2, 2023.
>
> e) Solicitor's Certificate
[94] The said Solicitor's Certificate, which is dated January 23, 2025, was signed by Ms. Masgras, whereby she certified that the time for the delivery of pleadings has expired. This was false. It is clear from the facts set out above that Defendant 2 had not even been served with the amended claim at the time Ms. Masgras signed the certificate. Therefore, the time for the delivery of pleadings had not expired. Furthermore, with the claim having been amended quite some time before she signed the certificate, Ms. Masgras must have known that Defendant 1 had been let out of the action.
[95] It is almost needless to say that the trial record filed by Ms. Masgras was completely improper. The reasonable inference to be drawn from all the facts is that it was filed to avoid the effects of rule 48.14(1)1.
[96] Facing the deadline for dismissal for delay by the registrar, the proper course of action would have been to move for an order extending the time for the action to be set down for trial, or seek a timetable under subrule 48.14(4), or move for a status hearing under subrule 48.14(5) if a timetable could not be agreed upon, or, if the matter was dismissed under subrule 48.14(1)1, to then move for an order under subrule 48.14(10) to set the order aside.
[97] Nevertheless, no order dismissing the action has been made, and this action remains "alive".
[98] While I am sympathetic to Certas' argument that this action would likely have been dismissed but for the filing of the improper trial record and the false Solicitor's Certificate, and though I am also very troubled by the conduct of the Plaintiff's counsel, I am of the view that the Court's focus should, once again, be on the parties, and not the conduct of counsel.
[99] Though there have been significant delays in this matter, and perhaps more fulsome explanations could have been put forward, I do not find they rose to the inordinate and inexcusable level as found to be the case in Barbiero, supra.
[100] Therefore, I decline to dismiss the action for delay.
[101] Notwithstanding my ruling on this point, the fact remains that the trial record which was filed is improper. I am not aware of a specific rule which sets out the available remedies in such case, nor have I been referred to any case on point. Nevertheless, I am of the view that the appropriate remedy is for the filing of the trial record be set aside, and I rely on rules 1.04(1) and (2) in making such order.
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## Additional Orders
[102] In my view, this action must be put "back on track" so that it can be properly adjudicated upon on its merits.
[103] As an Associate Judge, I do not have the authority under rule 50.13(1) to direct a case conference on my own initiative, but the parties may request one. Therefore, I encourage the parties to do so as soon as possible, for the purpose of establishing a timetable for the completion of the remaining steps up to and including the proper setting down of this action for trial. I also encourage the parties to discuss with one another and try to agree upon a timetable prior to any case conference.
[104] Having ordered the filing of trial record be set aside, I also order the registrar not dismiss this action for delay pending further order of the Court.
[105] Defendant 2 shall have 30 days from the date of the release of these reasons to deliver a statement of defence.
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## Costs
[106] If the parties are unable to agree on the disposition of the costs of this motion, they may make written submissions, not to exceed 3 pages in length. The written submissions are to be delivered within two weeks of the date of the release of these reasons and should be sent via e-mail to [HamiltonSopinka.SCJJA@ontario.ca](mailto:HamiltonSopinka.SCJJA@ontario.ca).
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Associate Justice J. Kriwetz
Released: April 2, 2026
minicounsel