Chambers v. Thomas, 2026 ONSC 2478
CITATION: Chambers v. Thomas, 2026 ONSC 2478
COURT FILE NO.: CV-19-00629399-0000
DATE: 2026-04-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Michael Chambers v. Leo Thomas
DATE HEARD: January 29th 2026 - Motion by videoconference, on notice
BEFORE: Associate Justice Eckler
COUNSEL: J. Van Allen appearing as agent for the lawyers for the plaintiff Michael Chambers/moving party
A. Chan appearing for the defendant Leo Thomas/responding party
REASONS FOR DECISION
Overview
[1] The plaintiff brings this motion for an order extending the time for service and validating service of the statement of claim nunc pro tunc. The defendant opposes this motion and requests that the motion be dismissed.
[2] On October 20th 2017, the plaintiff Michael Chambers was 61 years of age when he was involved in a car accident in a parking lot when the vehicle that he was operating collided with a vehicle being operated by an Uber driver, the defendant Leo Thomas. At the time of the collision, three passengers were in the defendant’s vehicle. The collision occurred when the two vehicles were attempting to park in the same parking spot. Chambers alleges that he sustained serious and permanent injuries as a result of the accident.
[3] In January 2018, Chambers retained a lawyer to pursue his tort and accident benefits claims. Between January 2018 to the present, five different counsel/firms have had carriage of, or custody of the plaintiff’s file. Following the accident, the plaintiff pursued an accident benefits claim, initiated a tort action and commenced two solicitors’ negligence actions.
[4] With respect to the tort action, a statement of claim was issued on behalf of Chambers on October 18th 2019, wherein the sole named defendant is Thomas.
[5] Sub-rule 14.08(1) of the Rules of Civil Procedure provides that:
Where an action is commenced by a statement of claim, the statement of claim shall be served within six months after it is issued.
[6] The statement of claim was not served until October 10th 2024. The plaintiff now brings this motion seeking an order extending the time for service and validating service of the statement of claim on the defendant Leo Thomas (“Thomas”) nunc pro tunc, to October 10th 2024.
[7] At the hearing of this motion and in their written materials, both parties advanced the position that pursuant to sub-rule 14.08(1) of the Rules of Civil Procedure, the plaintiff was required to serve Thomas with the statement of claim by April 20th 2020. However, on the hearing date of the motion, the court raised with counsel that the issue of the COVID extension had not been addressed by either party.
[8] The court requested that both parties consider and make submissions with respect to this issue. Both counsel then confirmed that due to the combined operation of section 7 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9 and the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 which temporarily suspended limitation periods from March 16, 2020 to September 16, 2020, the time to serve the statement of claim was extended by an additional 183 days. Factoring in the COVID-19 extension, the parties agree that the statement of claim issued on October 18th 2019, ought to have been served on Thomas on or before October 19th 2020. (Brady v. Waypoint Centre for Mental Health Care, 2025 ONCA 722)
[9] The plaintiff argues that the motion should be granted as there will be no prejudice to the defendant. In particular, the plaintiff argues that there will be no prejudice to the defendant in granting the extension of time to serve the statement of claim because liability is not in issue, the defendant and his insurer have had notice of the plaintiff’s claim since at least January 11th 2018 and have had the opportunity to investigate and the plaintiff has obtained and produced all documents relevant to the issues in the action.
[10] The defendant opposes the plaintiff’s motion on the grounds that he will suffer non-compensable prejudice if an extension is granted. The defendant also opposes the motion on the basis that the delay of almost four years in serving the statement of claim is extensive and has not been reasonably explained. The defendant also argues that the court should decline to exercise its discretion to extend the time to serve the statement of claim as the failure to serve the statement of claim was neither due to an omission or due to inadvertence and instead was a deliberate decision.
[11] Chiarelli v. Weins, 2000 ONCA 3904 confirms that the primary consideration on this motion is the issue of prejudice to the defendant.
[12] Prejudice, while the most significant issue, is not the only factor that must be considered by the court. All relevant factors must be considered and weighed, including the explanation for the delay in serving the statement of claim. (Chiarelli at para. 17, Tookenay v. O”Mahony Estate, 2024 ONSC 709, at para. 32, Maharaj v. Prajapati, 2023 ONSC 3547 at para. 37)
[13] Having regard to these principles, I find first, that granting the requested extension in this case will not serve to advance the just resolution of the dispute without prejudice or unfairness to the parties, and in particular with respect to the defendant, Mr. Thomas. For the reasons outlined below, I find that an extension of the time for service of the statement of claim would result in unfairness and prejudice to the defendant.
[14] I also find that a consideration of the issue of delay, having regard to the factors outlined in Tookenay v. O’Mahony Estate 2024 ONSC 709, further militates against a finding that it would be appropriate to exercise the court’s discretion to extend the time to serve the statement of claim in the context of the immediate case.
Factual Background
[15] The plaintiff, Michael Chambers was involved in a motor vehicle accident on October 20th 2017, when his vehicle collided with the defendant Thomas’s vehicle as the two vehicles were attempting to park in the same parking spot.
[16] After the accident the plaintiff first retained counsel in January 2018. From 2018 to the present, five different counsel have had carriage of, or custody of the plaintiff’s file.
[17] The transfer of the plaintiff’s file from firm to firm is outlined below in chronological order. The chronology of events is lengthy and at times confusing due to the evidentiary gaps which exist given that two of the five lawyers retained and/or who had carriage of the plaintiff’s file have not provided evidence on this motion.
[18] The trajectory of the plaintiff’s file from firm to firm, between 2018 to the present is as follows:
First Firm - Paul Wilkins – PW Lawyers – January 2018 – November 2018 or October 2019
[19] Paul Wilkins (“Wilkins”) of PW Lawyers was retained by the plaintiff in January 2018 to represent the plaintiff with respect to his statutory accident benefits claim with Aviva Insurance and his tort claim against the driver Leo Thomas with respect to the October 20th 2017 accident.
[20] On or about January 11th 2018, the defendant Thomas received a letter from PW Lawyers wherein notice was provided pursuant to the Insurance Act of the plaintiff’s intention to prosecute a claim for damages arising out of the October 20th 2017 accident.
[21] Shortly after receiving the notice letter, Thomas forwarded the January 11th 2018 notice letter to his insurer, Intact Insurance Company. (“Intact”).
[22] By way of letter dated June 19th 2018, an Intact claims representative, Ms. Amanda Willet (“Ms. Willet”) sent correspondence to PW Lawyers confirming receipt of the notice letter dated January 11th 2018. Intact confirmed that the insured carried a valid policy of insurance with liability limits of $2,000,000.00. Intact confirmed that “the investigation into liability is ongoing”.
[23] In the same letter dated June 19th 2018, Intact requested a number of productions from plaintiff’s counsel including the police report, the plaintiff’s photo ID and driver’s licence, the complete AB file, a decoded OHIP summary for the last 7 years, clinical notes and records for the last 7 years, employment records for the last 5 years and income tax returns for the last 5 years. Intact reserved its right to arrange an independent medical examination upon receipt of the requested documentation.
[24] Ms. Willet confirmed that she looked forward to discussing the plaintiff’s claim in more detail upon receipt of the requested documentation. She confirmed that she was available to answer any questions or address any concerns. Ms. Willet provided her complete address, phone number, fax number and an email address where she could be contacted. The fax confirmation sheet confirms that Ms. Willet’s letter dated June 19th 2018, was successfully delivered to PW Lawyers via fax on June 19th 2018.
[25] PW Lawyers rendered an account to the plaintiff dated October 2nd, 2019, which the plaintiff did not receive. (“PW account”) However, the account is in the record before me. The account contains a law clerk docket entry of 0.1 on June 19th 2018, for “Review of letter from Intact Insurance”.
[26] No response was received from PW Lawyers such that on August 9th 2018, Intact/Ms. Willet sent further correspondence to PW Lawyers again requesting the same medical and income loss documentation as was previously requested in June 2018. A fax confirmation sheet dated August 9th 2018, confirms that the letter was successfully sent. The PW Account contains a law clerk docket entry of 0.1 on August 9th 2018 for “Review of letter from Intact Insurance”.
[27] No response was received from Wilkins such that on November 29th 2018, Intact/Ms. Willet sent further correspondence to PW Lawyers again requesting the same medical and income loss documentation. A fax confirmation sheet dated November 29th 2018, confirms that the letter was successfully sent.
[28] Ms. Willet/Intact sent a fourth letter to PW Lawyers on February 8th 2019 confirming that she had not received any of the documentation requested in her three prior letters sent in June, August and November 2018. Given that none of the supporting documentation had been provided, Ms. Willet questioned whether the plaintiff’s injuries would pass the threshold and whether there was a valid claim for economic loss. Ms. Willet again requested supporting documentation and confirmed that if she did not receive the requested documentation or if a statement of claim was not served on the insured within 60 days, she would proceed to close her file on the assumption that the plaintiff did not have a sustainable tort claim to pursue. A fax confirmation sheet dated February 8th 2019 confirms that the letter was successfully delivered.
[29] Ms. Willet’s claims log notes confirm that the claim was closed on April 8th 2019 given that, despite repeated requests, no information or communications had been received from plaintiff’s counsel since January 2018.
[30] Mr. Wilkins’ licence to practice law was revoked in August 2019.
[31] No affidavit was filed by Wilkins or any lawyer from PW Lawyers on this motion.
Second Firm - Michael Salehi - Salehi Law Professional Corporation - November 2018 to May 2022
[32] In his affidavit sworn on July 15th 2025, the plaintiff’s evidence is that he retained Michael Salehi (“Salehi”) in November 2018 to represent him and take “whatever steps he considered appropriate to pursue my motor vehicle accident claims, including my accident benefits and tort claims”.
[33] Salehi represented the plaintiff with respect to his tort and AB claims until May 11th 2022 when Cary Schneider of Schneider Law Firm (“Schneider’) was retained by the plaintiff.
[34] Salehi therefore was representing the plaintiff when the presumptive two-year limitation period expired for the issuance of the statement of claim in the tort action, as well as the expiry of the deadline to serve the statement of claim issued on October 18th 2019.
[35] No affidavit was filed by Salehi on this motion. Moreover, no evidence was filed on this motion by lawyers from PW Lawyers or Salehi Law Professional Corporation to explain or provide particulars with respect to the steps taken, if any, to effect the transfer of the plaintiff’s file between the two firms.
Third Firm - Richard Patterson – Anthony Law Office Professional Corporation- September/October 2019 to December 2019 or January 2020 or July 2020
[36] Mr. Patterson has provided evidence that Mr. Wilkins’ license to practice law was revoked in August 2019, almost a year after the plaintiff had retained Salehi.
[37] Despite the fact that the plaintiff’s evidence is that he retained Salehi in November 2018, Richard Patterson’s evidence is that in or around September or October 2019, Patterson was asked to assist Wilkins, along with one of his associates who was experienced in personal injury work, to provide legal services to Wilkins’ clients while Wilkins' appeal of the revocation of his license to practice law was pending.
[38] Patterson’s evidence is that Wilkins created a list of 250 files that Patterson agreed to oversee. Patterson’s evidence is that the plaintiff’s file was not on the list.
[39] Patterson’s evidence is that “in or around October of 2019 it was identified that the 2-year limitation period for the plaintiff's October 20, 2017 motor vehicle accident was approaching”.
[40] Patterson’s evidence is that “therefore, on October 18, 2019, a Statement of Claim was electronically issued to preserve the plaintiff’s rights”. Patterson was identified in the Statement of Claim as the plaintiff's lawyer of record and remains listed as the plaintiff's lawyer of record.
[41] With respect to service of the statement of claim, Patterson’s evidence is that “in keeping with Wilkins' usual practice, in the normal course any statement of claim that was issued would have been served upon the defendant upon being issued. However, for the reasons that follow the Statement of Claim in the within Action was not served”.
[42] Patterson then goes on to provide evidence of the transfer of the plaintiff’s file from September or October 2019 to January 2020, with a further explanation for the period up until July 2020. In this regard, on October 21st 2019, Patterson requested that the Law Society of Ontario (“LSO”) assign trusteeship over some of Wilkins’ files. Thereafter, the LSO made arrangements to transfer some of Wilkins’ files to Goodman Elbassiouni LLP.
[43] Patterson’s evidence is that in December 2019 or January 2020, he sent the plaintiff’s file along with other files to the Trustee Services department of the LSO.
[44] Thereafter, Patterson believes that the LSO released the files sent from Patterson to the LSO, to Goodman Elbassiouni LLP. Patterson did not maintain a copy of the plaintiff’s file.
[45] Patterson’s evidence is that he wrote to the plaintiff on July 14th 2020 to advise him that the statement of claim had been issued from his office while Patterson was trustee of his file. In the July 14th 2020 letter, Patterson advised the plaintiff that the trusteeship of his file was now with Corey Evan Goodman, lawyer and Sam Elbassiouni, paralegal. Patterson advised the plaintiff that the “matter remains time sensitive” and recommended that the plaintiff retain new counsel immediately if not already done so. Patterson’s evidence is that with the July 14th 2020 correspondence, he also enclosed a “Notice of Change Lawyer or Plaintiff’s Notice of Intention”. As noted, by this time, the plaintiff had already long since retained new counsel, being Salehi, whom he retained in November 2018.
[46] In his affidavit sworn on July 11th 2025, Patterson’s evidence is that “on July 14th 2020, I wrote to the plaintiff to advise him that, as previously indicated by mail and by e-mail, I was no longer able to represent him in the capacity of his lawyer for any matter”. Patterson’s evidence suggests that Patterson had sent prior correspondence to the plaintiff, including some by email. However, the plaintiff’s evidence is that he has never met Patterson nor did he ever retain Patterson to represent him with respect to his motor vehicle accident claims.
[47] The plaintiff’s evidence is that neither Patterson, nor anyone on Patterson's behalf, sent the plaintiff a copy of the Statement of Claim issued on October 18, 2019. The plaintiff’s evidence is that he did not know that Patterson had issued the statement of claim until Schneider advised him of this sometime after May 11, 2023.
[48] Patterson’s evidence is that having reviewed a “Service Documents Delivery Tracking printout dated July 22, 2020” for the purposes of this motion, he now knows that his July 14th 2020 letter and enclosures which included a copy of the issued statement of claim were not delivered to the plaintiff in July 2020.
Fourth Firm - Corey Goodman - Goodman Elbassiouni LLP – fall/winter 2019 to January/February 2020
[49] Mr. Goodman’s affidavit filed in support of this motion was sworn on July 14th 2025. Mr. Goodman’s evidence is that between the fall of 2019 and early winter of 2020, Goodman Elbassiouni LLP was retained by a number of Wilkins' former clients after Wilkins’ license to practice law was revoked by the LSO. Mr. Goodman’s evidence is further that during the same period, Paul Wilkins ("Wilkins") himself, arranged for the transfer of a number of client files to Richard Patterson ("Patterson") (the "Client Files").
[50] In January 2020 Goodman Elbassiouni LLP undertook to the LSO to take custody of the Client Files that Wilkins had transferred to Patterson and the LSO facilitated the transfer of the Client Files to his firm. The Law Society Undertaking to Take Possession of Client Files was signed on January 15th 2020. The undertaking to the LSO included that Goodman’s firm would make best efforts to contact each of Wilkins' former clients, except for those who had already retained the Goodman firm, to inform them that Goodman had custody of their files and that they needed to retain another lawyer to carry on with their particular matter.
[51] Goodman’s evidence is that Mr. Chambers’ file was not on the list that Patterson sent to Goodman but Mr. Chambers’ file was on the list that the LSO sent to Goodman. In the list that the LSO sent to Mr. Goodman, the date of loss of Chamber’s accident is noted as October 20th 2017.
[52] On or about January 15, 2020, Goodman’s firm received the digital drive and a cabinet of Wilkins' client's files. Goodman’s evidence is that he believes that this plaintiff's file was one of these files. He does not explain why he believes this.
[53] After receiving the plaintiff's file contents, Goodman tasked Hope Continuity ("Continuity") and Sam Elbassiouni ("Elbassiouni") with contacting Wilkins' clients. Goodman’s affidavit goes on to state that:
I am advised by Elbassiouni and verily believe that Continuity telephoned the Plaintiff sometime in or around late January of 2020 to advise him that we had custody of his file. The Plaintiff informed Continuity that he had already retained another lawyer, Michael Salehi. Thereafter, the Plaintiff made arrangements with Continuity to attend our office to pick up his file. I have been unable to determine the precise date on which the Plaintiff picked up his file. However, my belief is that he picked it up sometime in or around late January or early February 2020.
[54] While not raised by the defendant, the evidence from Goodman relating to Continuity appears to be hearsay upon hearsay as Goodman’s evidence is that he was advised by Elbassiouni that Continuity telephoned the plaintiff. There is no evidence in Goodman’s affidavit with respect to the source of the evidence relating to Continuity that was apparently obtained by Elbassiouni. Goodman does not explain why he believes that the plaintiff picked up his file in late January or early February 2020.
[55] Goodman’s evidence is that he reviewed the plaintiff’s file contents for the purposes of swearing his affidavit filed in support of this motion. His evidence is that the current documents in the possession of Goodman Elbassiouni LLP for the plaintiff do not include a copy of the statement of claim that was issued on October 18th 2019.
Fifth and Final Firm - Cary Schneider – Schneider Law Firm – May 11th 2022 to Present
[56] The plaintiff retained Schneider Law Firm and Cary Schneider on May 11th 2022.
[57] Cary Schneider (“Schneider”) has filed three affidavits in support of the plaintiff’s motion.
[58] Schneider’s evidence is that upon being retained, he did not conduct a search or have a search conducted to determine if one of the plaintiff's prior lawyers had commenced an action against the motor vehicle accident defendant, Leo Thomas. The reason provided is that the information and documentation available to Schneider at the time, and that he was subsequently provided with, or able to obtain, did not cause him to believe that a Statement of Claim had been issued against Thomas. Schneider’s evidence is that his understanding was that a tort action had never been commenced.
[59] On May 19th 2022, Schneider wrote to Salehi to advise of his retainer and requested confirmation that a tort claim had not been commenced. Salehi did not respond to this letter.
[60] On January 13th 2023, Schneider commenced a solicitor’s negligence claim on behalf of the plaintiff against Michael Salehi and Salehi Law Professional Corporation which was served the same day.
[61] On January 19th 2023, Krista Springstead of Bruder Springstead LLP (“Springstead”) wrote to Schneider to advise him that her firm had been retained by LawPRO to defend Salehi. Thereafter, Springstead delivered a Notice of Intent to Defend on March 29th 2023 and a Statement of Defence on April 18th 2023.
[62] On May 11th 2023, Springstead advised Schneider that she had “discovered” that a statement of claim had been issued on behalf of the plaintiff by Richard Patterson within two years of the motor vehicle accident of October 20th 2017. In May of 2023, Ms. Springstead provided Schneider with a copy of the statement of claim issued against Thomas on October 18th 2019.
[63] Schneider’s evidence is that upon being provided with a copy of the statement of claim in or around May of 2023, he did not have it served “because the deadline for service had expired on April 18th 2020” and he “did not consider that a motion to extend the time for service would succeed”.
Schneider Commences a Second Solicitor’s Negligence Action on Behalf of the Plaintiff
[64] After learning of Patterson’s involvement with the plaintiff’s tort claim, instead of bringing a motion seeking an order to extend the time to serve the statement of claim, Schneider commenced a second solicitor’s negligence action on behalf of the plaintiff on July 12th 2024, against Michael Salehi and Salehi Law Professional Corporation and Richard Patterson and Richard Patterson Professional Corporation.
[65] On July 16th 2024, Springstead served a Notice of Intent to Defend on behalf of Michael Salehi and Salehi Law Professional Corporation.
[66] On September 25th 2024, Sandi Smith of Marta Watson LLP served a Notice of Intent to Defend on behalf of Richard Patterson and Richard Patterson Professional Corporation.
LawPRO Repair Counsel’s Involvement – October 2024
[67] In October 2024, Schneider was contacted by LAWPRO’s repair counsel, Jillian Van Allen (“Van Allen”) and agreed to her acting as his agent both with respect to service of the statement of claim and proceeding with this motion.
[68] On October 8th 2024, approximately one year and five months after Schneider learned that a statement of claim had been issued by Patterson, Van Allen sent correspondence to the defendant Thomas to advise of her retainer. In her October 8th 2024 correspondence, Van Allen also enclosed a copy of the statement of claim issued on October 18th 2019, and a Notice of Motion for a motion to extend the time for service of the statement of claim on Thomas. Van Allen’s letter and attachments were personally served on Thomas on October 10th 2024, and were also sent to Thomas’ insurer Intact Insurance by both email and personal service.
[69] On March 25, 2025, Mr. Healey, counsel at Intact, advised Van Allen that he was appointed as counsel for the defendant and confirmed his instructions to oppose the plaintiff's motion to extend the time for service of the statement of claim.
[70] At the time of the hearing of this motion, Patterson remains listed as counsel of record for the plaintiff. Ms. Van Allen confirmed that if the plaintiff is successful on this motion, Mr. Schneider will deliver a notice of change of lawyer.
The Law
[71] Sub-rule 14.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that “where an action is commenced by way of a statement of claim, the statement of claim shall be served within six months after it is issued”.
[72] Sub-rule 3.02(1) of the Rules of Civil Procedure provides that “the court may by order extend or abridge any time prescribed by these rules, or an order, on such terms as are just”.
[73] Sub-rule 1.04(1) of the Rules of Civil Procedure provides that “these rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.
[74] There are no fixed rules or guidelines to be applied in circumstances where a party seeks an extension of time to serve a statement of claim. The basic consideration is whether the extension sought will advance the just resolution of the dispute, without prejudice or unfairness to the parties. Each case is to be decided on its facts, focusing on whether the defence is prejudiced by the delay. (Chiarelli v. Weins, 2000 ONCA 3904, at paras. 12 and 17)
[75] The Ontario Court of Appeal in Chiarelli v. Weins, 2000 ONCA 3904 outlined the following list of factors for the court to consider on a motion where a plaintiff is seeking an order to extend the time for service of a statement of claim:
• On a motion to extend the time for service, the court should be mainly concerned with the rights of litigants not with the conduct of counsel. (para.9)
• They key issue on the motion is that of prejudice. The court should not extend the time for service if to do so would prejudice the defendant. (para.10)
• The plaintiff bears the onus to show that the defendant would not be prejudiced by an extension. (para.14)
• Although the onus remains on the plaintiff to show that the defendant will not be prejudiced by an extension, the plaintiff cannot be expected to speculate on which witnesses and 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. (para.14)
• If the defence is serious about claiming prejudice, it has at least an evidentiary obligation to provide some details. (para.14)
• The defence cannot create prejudice by its failure to do something that it reasonably could have or ought to have done. (para.16)
• Moreover, prejudice that will defeat an extension of time for service must be caused by the delay. Prejudice to the defence that exists independently of whether service is delayed is not relevant on a motion to extend the time for service. (para.16)
• The court should not fix in advance rules or guidelines when an extension should be refused. (para.17)
• Each case should be decided on its facts, focusing on whether the defence is prejudiced by the delay. (para.17)
[76] While prejudice is the most significant factor, it is not the only factor that must be considered by the court. All relevant factors must be considered and weighed, including the plaintiff’s explanation for the delay in serving the statement of claim. (Maharaj v. Prajapati, 2023 ONSC 3547 at para. 37, Pagliuso v. Primerica Financial Services Ltd., 2019 ONSC 460 at paras. 14-16, affirmed 2019 ONCA 778)
[77] A consideration of the issue of delay in the context of a motion seeking an order extending the time for service of a statement of claim was more closely examined in Tookenay v. O’Mahony Estate 2024 ONSC 709 at para. 32. (“Tookenay) In particular, in addition to the primary consideration of prejudice, the court outlined the following factors for the court to consider relating to the issue of delay:
(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.
[78] The analysis and disposition below are rooted in the application of the legal principles outlined above.
Evidence
[79] For the purposes of this motion, the plaintiff filed six affidavits. In particular, the plaintiff relies on the affidavit of the plaintiff, Michael Chambers, sworn on July 15th 2025, the affidavit of Richard Patterson, sworn on July 11th 2025, the affidavit of Corey Goodman sworn on July 14th 2025, the affidavit of Cary Schneider sworn on July 15th 2025, the reply affidavit of Cary Schneider sworn September 17th 2025 and the supplementary affidavit of Cary Schneider sworn on January 15th 2026. Only Mr. Goodman was cross-examined on his affidavit.
[80] The defendant filed three affidavits on this motion. In particular, the defendant relies on the affidavit of the defendant, Leo Thomas, sworn on September 5th 2025, the affidavit of Mahroze Khan, senior counsel at Intact, sworn on September 5th 2025 and the supplementary affidavit of Mahroze Khan sworn on January 22nd, 2026. No cross-examinations were conducted with respect to the affidavits filed by the defendant.
Analysis
[81] The issue of prejudice to the defendant is the paramount consideration on this motion, with the court remaining mindful of being mainly concerned with the rights of litigants not with the conduct of counsel. (Chiarelli, at paras. 9-17)
[82] Prejudice, while a significant factor, is not the only factor that must be considered by the court. All relevant factors must be considered and weighed, including the explanation for the delay in serving the statement of claim. (Chiarelli v. Weins, 2000 ONCA 3904 at para. 17, Tookenay, at para. 32, Maharaj v. Prajapati, 2023 ONSC 3547 at para. 37)
[83] The Tookenay factors are considered below, commencing with an examination of the length of the delay in serving the statement of claim, the explanation for the delay and whether the plaintiff moved promptly for an extension of time after the period of time expired. The issue of prejudice, which is of paramount importance on this motion, is considered last.
Delay
a) Length of the Delay
[84] There is no dispute that the statement of claim was issued on October 18th 2019, and pursuant to sub-rule 14.08(1), with the COVID extension, ought to have been served on the defendant by October 19th 2020.
[85] The statement of claim was not served on the defendant until October 10th 2024, such that the length of delay in serving the statement of claim is 3 years, 11 months and 22 days, or just under 4 years. I find that the delay of just under 4 years is extensive and significant.
b) The Evidence that Explains the Delay
[86] The statement of claim was issued on October 18th 2019. Patterson is listed as lawyer of record on the statement of claim. The statement of claim was required to be served by October 19th 2020.
[87] As an explanation for the delay in the statement of claim being served, Patterson and Goodman have provided a chronology of a complex chain of custody of the plaintiff’s file from October 2019 to January 2020 and/or to July 2020.
[88] The plaintiff’s evidence is that he was not aware that a statement of claim had been issued by Patterson until Cary Schneider advised him of this sometime after May 11th 2023.
[89] The plaintiff’s evidence is that he has never met Patterson and did not retain him with respect to his motor vehicle accident claims. The plaintiff’s evidence is that he does not recall being contacted by the law firm Goodman Elbassiouni LLP and he does not remember speaking with this firm. The plaintiff’s evidence is that he did not attend the offices of Goodman Elbassiouni LLP to pick up his file material in or around January or February of 2020.
[90] Schneider was retained on May 11th 2022. Schneider’s evidence is that he was not aware that a statement of claim was issued until he was advised by Salehi’s counsel on May 11th 2023.
[91] Upon learning in May 2023, that a statement of claim was issued by Patterson on October 18th 2019, Schneider opted not to proceed with a motion to extend the time for service of the statement of claim and instead made a decision to pursue a second solicitor’s negligence action against Patterson.
c) Whether the Evidence that Explains the Delay is Sufficient?
[92] Having regard to whether or not the evidence that explains the delay is sufficient, I find that it is not.
[93] Paul Wilkins was retained by the plaintiff in January 2018 and prepared his final account on October 2nd, 2019.
[94] The statement of claim was issued on October 18th 2019 and was required to be served by October 19th 2020. During this time period of almost one year, between October 18th 2019 to October 19th 2020, three firms/lawyers were either retained by the plaintiff or had carriage of the plaintiff’s file:
• Michael Salehi November 2018 to May 2022
• Richard Patterson – October 18th 2019 to December 2019/January 2020/July 2020
• Corey Goodman Fall/Winter 2019 to January 2020
Patterson’s Explanation
[95] The evidence of Patterson is that in September or October 2019, Wilkins created a list of 250 specified client files which Patterson agreed to oversee for Wilkins while Wilkins’ appeal of the revocation of his licence to practice law was pending. However, Patterson’s evidence is that the list of 250 clients did not include the plaintiff’s file.
[96] Despite the fact that the plaintiff’s evidence is that he retained new counsel, Salehi in November 2018, and despite the fact that Patterson’s evidence is that the plaintiff’s file was not on the list of 250 files that he agreed to oversee for Wilkins, Patterson’s evidence is nevertheless that “in or around October of 2019 it was identified that the 2-year limitation period for this plaintiff’s October 20th 2017 motor vehicle accident was approaching. Therefore, on October 18th 2019, a statement of claim was electronically issued to preserve his rights”.
[97] While Patterson’s evidence is that the plaintiff’s file was not on the list of files that he was asked by Wilkins to oversee, Patterson does not explain who identified the approaching limitation period or how the issue was identified.
[98] With respect to the failure to serve the statement of claim, Patterson’s evidence is as follows:
In keeping with Wilkins' usual practice, in the normal course any statement of claim that was issued would have been served upon the defendant upon being issued. However, for the reasons that follow the Statement of Claim in the within Action was not served.
[99] Not only is Patterson’s affidavit silent on the issue of who identified the upcoming limitation period, it is also silent regarding the issue of whether or not he spoke to Wilkins and/or LawPRO and/or Goodman and/or Salehi with respect to the statement of claim having been issued and the requirement that the statement of claim be served within the required timeline.
[100] Moreover, Patterson does not reference his practice with respect to service of claims. Rather he specifically references Wilkins’ usual practice relating to service of the statement of claim and then purports to provide evidence explaining why Wilkins’ usual practice was not followed.
[101] Despite the reference to Wilkins’ usual practice not being followed, the plaintiff has provided no explanation as to why there is no evidence from Wilkins to explain why his usual practice was not followed. Instead, the plaintiff relies on the evidence of Mr. Patterson, which in my view, never really addresses the critical issue of why the statement of claim was not served on time.
[102] Leaving aside the lack of evidence from Wilkins, I also find that Patterson has not provided an adequate explanation for the delay. Patterson attempts to explain how he came to be involved in overseeing the plaintiff’s file, and he provides some evidence relating to why the statement of claim was issued and how, and when, he ceased to have carriage over the plaintiff’s file. However, in my view, Patterson did not provide an adequate explanation as to why the statement of claim was not served during the time period from October 18th 2019 until July 14 2020 when he wrote to the plaintiff to advise that he was no longer able to represent the plaintiff.
[103] Patterson does not provide evidence that he could not serve the statement of claim due to his role in overseeing the plaintiff’s file. Patterson does not say that he could not get instructions, he does not allege that the statement of claim was not served through inadvertence or due to a “slip”. Patterson skirts around the issue of why the statement of claim was not served by providing evidence about the transfer of the plaintiff’s file, while at the same time providing evidence that the plaintiff’s file was not on the list of files that he was asked by Wilkins to oversee.
[104] Patterson’s affidavit is also silent on the issue of any steps taken or not taken to attempt to serve the statement of claim between October 18th 2019 to December 2019 or January 2020 when he maintains that he then sent the plaintiff’s file to the Trustee Services Department of the LSO.
[105] Significantly, Patterson’s affidavit is also silent on steps taken, or not taken to alert the LSO, Wilkins or Goodman that he issued the statement of claim on October 18th 2019 and/or any discussions relating to the requirement to diarize the date for service of the statement of claim.
[106] Despite the fact that Patterson’s evidence is that the plaintiff’s file was not on the list of files that he was asked by Wilkins to oversee, Patterson’s evidence is that in December 2019 or January 2020, Patterson sent the plaintiff’s file along with other files to the Trustee Services department of the LSO. It is not clear how Patterson ended up with the plaintiff’s file. Moreover, the plaintiff’s evidence is that he had already retained new counsel in November 2018.
[107] Patterson also offers no explanation as to why, if the plaintiff’s file was transferred out of his care in late December 2019 or early January 2020, and he did not keep a copy of the file, it came to be that he wrote to the plaintiff in July 2020 to advise him that the statement of claim had been issued. He also offers no explanation as to why he prepared a notice of intention to act in person on July 14th 2020 on behalf of the plaintiff Chambers and in this document he states that Richard Patterson, “acting Trustee of the lawyer trust account of Paul Anthony Wilkins, may no longer adequately represent the plaintiff”. Patterson offers no explanation as to why this document was prepared when his further evidence is that the plaintiff’s file had already been transferred to the LSO in December 2019 or January 2020.
[108] In my view Patterson has not provided an adequate explanation relating to why the statement of claim was not served during the period between October 18th 2019 and January 2020 or July 2020.
No Evidence from Salehi
[109] I also find that it is problematic that no evidence has been provided to the court with respect to the transfer of the plaintiff’s file from any of the involved firms to Salehi or any evidence from Salehi with respect to whether or not he was aware that a statement of claim was issued in October 2019.
[110] Salehi had carriage of the plaintiff’s file from November 2018 to May of 2022. During his retainer the presumptive two year limitation period for the plaintiff to issue a tort claim expired on October 20th 2019, and the time to serve the statement of claim issued on October 18th 2019 expired.
[111] After the statement of claim was issued, Salehi sent correspondence to Paul Wilkins at PW Lawyers on October 24th 2019, to advise that Salehi had become aware that PW Lawyers was trying to contact the plaintiff Mr. Chambers who Mr. Salehi confirmed was his client. Salehi asked PW Lawyers not to contact Mr. Chambers again.
[112] The October 24th 2019 correspondence from Salehi to Wilkins suggests that after the statement of claim was issued and sometime after Salehi was retained but prior to October 24th 2019, someone from PW Lawyers had been attempting to contact the plaintiff, Mr. Chambers. No evidence has been provided by Mr. Chambers or PW Lawyers with respect to these attempt(s) by PW Lawyers to contact Mr. Chambers. It is noteworthy that the statement of claim was issued on October 18th 2019, just a few days prior to the date when Mr. Salehi contacted PW Lawyers to ask the firm to cease contacting the plaintiff, Mr. Chambers.
[113] The plaintiff relies on several affidavits in support of this motion and the court has been provided with differing evidence with respect to who had possession of the plaintiff’s file, when the lawyers had possession of the file, and what is contained in the file. The statement of account prepared by PW Lawyers (Wilkins) confirms that shortly before the date when the statement of claim was issued, a law clerk at PW Lawyers spent 4.5 hours “preparing transfer file” on October 2nd, 2019. This is the last entry in the account and no evidence has been provided to the court by PW Lawyers with respect to whom the file was transferred to in October 2019, when the actual file transfer took place and what was contained in the file.
[114] The correspondence dated October 24th 2019 from Salehi to PW Lawyers references an enclosure as being a “direction and authorization”, which suggests that after the statement of claim was issued, the plaintiff may have authorized the transfer of his file from PW Lawyers to Salehi.
[115] Neither Mr. Chambers nor Mr. Salehi nor Mr. Wilkins have provided evidence relating to who at PW Lawyers was attempting to contact Mr. Chambers in October 2024, and for what purpose; nor has any evidence been provided to the court with respect to the transfer of file materials, if any, between PW Lawyers and Salehi and what was, or was not contained in any transferred file material, including the issued statement of claim.
[116] The evidence of Schneider is that counsel retained for Salehi in the solicitor’s negligence action “discovered” that a statement of claim had been issued on behalf of the Plaintiff by Patterson within two years of the motor vehicle accident of October 20th 2017. Neither Salehi, Salehi’s retained counsel or Schneider have provided any evidence in terms of how this issued statement of claim was “discovered”. It is, however, noteworthy that it was Salehi’s counsel who “discovered” the statement of claim having been issued on October 18th 2019.
[117] The plaintiff’s evidence is that “in or around November 2018, I retained Michael Salehi (“Salehi”) to represent me and understood that he would take whatever steps he considered appropriate to pursue my motor vehicle accident claims, including my accident benefits and tort claims”.
[118] In Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, 87 O.R. (3d) 660, at para. 28, Sharpe J.A. confirmed that “[t]he law will not ordinarily allow an innocent client to suffer irrevocable loss of the right to proceed by reason of the inadvertence of his or her solicitor”. Sharpe J.A. further noted that the situation may be different where the lawyer’s conduct is not inadvertent but deliberate. ( Finlay v. Paassen, 2010 ONCA 204 at para. 33)
[119] If it is accepted that the plaintiff did not instruct Mr. Patterson to issue the statement of claim and if it is accepted that the plaintiff understood that Mr. Salehi would pursue his motor vehicle accident claims including his tort claim, in my view there should be some evidence in the record explaining why Mr. Salehi did not pursue the tort claim on behalf of his client and importantly to confirm whether or not he was aware of the existence of the statement of claim which was issued on October 18th 2019. This is particularly so given the evidence of communications between Wilkins’ firm and the plaintiff and Salehi in October 2019, including the correspondence sent from Salehi to PW Lawyers dated October 24th 2019, sent after the date when the statement of claim was issued.
[120] In Eadie v. Crompton Co. 2008 ONSC 719, the plaintiff’s motion to extend the time to serve a statement of claim was dismissed for failure to provide a reasonable explanation for the delay and for failure to move promptly to bring the motion. In terms of the explanation for the delay, the court noted that even if there was solicitor’s inadvertence to explain the delay in service for a period of time, the court highlighted that with respect to the period of 14 months before the motion was heard, there was no explanation provided for the default or to explain why a new claim was not issued given that the limitation period had not yet expired during this time period. This would have shown an intention to pursue the claim.
[121] Similarly, in the immediate case, Salehi has offered no explanation as to why, if he was not aware that a statement of claim was issued on October 18th 2019, a tort action was not initiated on behalf of his client prior to the expiry of the presumptive limitation period.
Unexplained Gap In The Evidence Providing An Explanation for The Delay
[122] In Tookenay v. O’Mahony Estate 2024 ONSC 709 the court dismissed the plaintiff’s motion to extend the time to serve the statement of claim. The plaintiff provided an explanation for the delay in serving the statement of claim for a period of nine months but failed to provide any explanation for a final period of delay of 30 days, after realizing that the statement of claim had not been served. The court concluded that the failure to provide any explanation for this period of delay was fatal to the plaintiff’s motion and the court found that it was appropriate to dismiss the plaintiff’s motion on that basis alone. (Tookenay at para. 57) The court then proceeded to consider the issue of prejudice and dismissed the plaintiff’s motion.
[123] On the current record before me, there is a lengthy and unexplained gap of almost two years between July 2020 and May 2022, when the plaintiff was represented by Salehi. The presence of this significant gap during the critical time period when the time to serve the statement of claim expired and when Mr. Salehi was the plaintiff’s retained counsel, further results in a finding that the explanation for the delay in serving the statement of claim is insufficient.
Second Period of Delay – May 2022 to October 2024
[124] With respect to the second period of delay from May 2022 to October 2024, I find that Schneider’s explanation for the delay is not sufficient and the plaintiff’s explanation for the delay is not sufficient.
[125] Mr. Schneider was retained on May 11th 2022, and continues to represent the plaintiff today.
[126] I accept that when Schneider was first retained, he was not aware that Patterson had issued a statement of claim, which prompted Schneider, on behalf of his client, to commence the first solicitor’s negligence action against Salehi and his firm.
[127] In January 2023, Ms. Springstead was retained by LawPRO to defend Salehi.
[128] On May 11th 2023, Springstead advised Schneider that she had discovered that a statement of claim had been issued on behalf of the plaintiff by Richard Patterson within two years of the motor vehicle accident. Schneider was provided with a copy of the statement of claim on or around May of 2023.
[129] Schneider’s evidence is that after being provided with a copy of the statement of claim in May 2023, Schneider did not have it served because the deadline for service had expired on April 18 2020. His evidence is that he did not consider that a motion to extend the time for service would succeed. The court notes that April 18th 2020 was the expiry of the six month deadline under rule 14.08(1). However, with the COVID extension, this deadline is extended to October 19th 2020.
[130] After being advised of Patterson’s involvement, Schneider issued a second Statement of Claim on behalf of the plaintiff on July 12th 2024, naming Michael Salehi and Salehi Law Professional Corporation and Richard Patterson and Richard Patterson Professional Corporation as defendants.
[131] After learning about the statement of claim having been issued in October 2019, Schneider made a decision to pursue a second solicitor’s negligence action. In May 2023, a deliberate decision was made not to seek an extension of time to serve the statement of claim as newly retained counsel for the plaintiff determined that a motion to extend the time for service would not be successful. There is no evidence from Schneider or the plaintiff that the decision to not pursue a motion to extend the time for service was made in error or through inadvertence. There is no evidence before the court that the decision made in May 2023, not to proceed with a motion to extend the time for service was made without the plaintiff’s knowledge or instructions.
[132] In Pagliuso v. Primerica Financial Services Ltd., 2019 ONSC 460 (Ont. S.C.J.) the plaintiff sought an order to extend the time to serve a statement of claim. Justice Gray held that where the delay lays at the feet of the plaintiff personally, rather than flowing from other reasons such as a lawyer’s inaction, the defendant need not show prejudice to succeed at resisting the motion. The plaintiff appealed the decision of Justice Gray.
[133] In dismissing the plaintiff’s appeal, the Ontario Court of Appeal confirmed that “a tactical decision to delay service beyond the timeframe allowed for service by the rules will certainly redound against a party who subsequently seeks an extension of time”. (Pagliuso v. Primerica Financial Services Ltd. 2019 ONCA 778 at para. 2)
[134] Neither Schneider, nor the plaintiff has provided evidence that the decision made in May 2023 not to bring a motion to extend the time for service was made through inadvertence, due to an error or a “slip” or without the plaintiff’s knowledge, approval or instructions.
[135] In the immediate case, I find that the plaintiff and his counsel intentionally did not serve the statement of claim in May 2023. Conduct of this nature is a relevant factor on a motion to extend the time to serve a statement of claim. (Pagliuso, 2019 ONSC 460 at para. 24, affirmed 2019 ONCA 778 at para.2 )
[136] The delay in serving the statement of claim in the immediate action is lengthy and the onus falls on the plaintiff to provide a reasonable explanation for the delay. Patterson’s inadequate explanation for the delay in serving the statement of claim coupled with both the failure to provide any evidence from Salehi and Wilkins relating to the issue of delay in serving the statement of claim, and no evidence being provided for the critical time period between July 2020 to May 2022, in my view, results in the explanation for the delay being insufficient and inadequate.
[137] The inadequacy and insufficiency of the explanation is further compounded by the additional deliberate delay in serving the statement of claim between May 2023 and October 2024.
d) Whether or not the plaintiff moved promptly for an extension of time after the expiry of the relevant time period
[138] The plaintiff’s evidence is that he was not aware that Patterson issued the statement of claim until May 2023.
[139] We do not know if Salehi had knowledge that the statement of claim was issued as he has not filed an affidavit in support of this motion. Therefore, it is difficult to determine if it can be said that the plaintiff moved promptly for an extension of time after the period expired in October 2020.
[140] Schneider was retained in May 2022. His evidence is that in May 2022, he was not aware that a statement of claim had been issued by Patterson in October 2019.
[141] Schneider was provided with a copy of the issued statement of claim in or around May of 2023.
[142] A deliberate decision was made not to serve the statement of claim in May 2023 as Schneider determined that a motion to extend the time for service would not be successful. Instead, Schneider opted to commence a second solicitor’s negligence action.
[143] It was only approximately 1.5 years later, after Schneider was contacted by LAWPRO’s repair counsel, that this motion was launched.
[144] With respect to the delay in bringing this motion between May 2023 until October 2024, I cannot conclude that the further period of delay of almost 1.5 years can be considered to be “moving promptly” to seek an extension of the time to serve the statement of claim.
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?
[145] The plaintiff maintains that he was not aware that a statement of claim had been issued on his behalf. His evidence is that he did not pick up his file from Elbassiouni. However, Goodman’s evidence is that the plaintiff did pick up his file sometime in January or February 2020.
[146] Even if the court accepts that the plaintiff was not aware until May 2023 that a statement of claim had been issued, and further that the initial period of delay between October 18 2019 to May 2023 did not result from the direction or participation of the plaintiff, the same cannot be said for the time period between May 2023 to October 10th 2024.
[147] In my view, the additional period of delay of almost 1.5 years between May 2023 to October 10th 2024, resulted from the direction, participation and involvement of the plaintiff. In this regard, there is no evidence from the plaintiff or Schneider that the plaintiff did not provide instructions to Schneider to pursue the second solicitor’s negligence action and forgo an attempt at that time to bring a motion seeking an order to extend the time to serve the statement of claim.
[148] I find therefore, that the period of delay from May 2023 to October 10th 2024, in serving the statement of claim can be said to have resulted from the direction and/or participation and/or involvement of the plaintiff.
f) The extent to which the defendant, himself bears some or all of the responsibility for the delay
[149] I find that the defendant bears no responsibility for the delay in the statement of claim being served. No efforts were made to serve the statement of claim on the defendant until he was personally served with the statement of claim by LAWPRO’s repair counsel on October 10th 2024.
[150] The defendant accepted service of the statement of claim on the first attempt at service made on October 10th 2024.
[151] There is no evidence that the defendant attempted to evade service. He was always there to be found and was served on October 10th 2024, the first time that service was attempted, 3 years, 11 months and 22 days after the expiry of the date when service ought to have been effected.
g) Whether or not it was reasonable for the defendant to infer from all the circumstances that the plaintiff had abandoned his claim
[152] On January 11th 2018, PW Lawyers sent a notice letter to the defendant providing notice of the plaintiff’s intention to prosecute a claim for damages arising out of the October 20th 2017 motor vehicle accident.
[153] The defendant’s evidence is that he received the notice letter dated January 11th 2018 and sent the notice letter to his insurer Intact. The defendant did not receive any further documents from the plaintiff until he received the notice of motion for this motion and was served with the statement of claim, approximately 6.5 years later, on October 10th 2024.
[154] After the insurer received the plaintiff’s notice letter dated January 11th 2018, the insurer wrote at least four letters to plaintiff’s counsel asking for medical and income loss documentation. The adjuster’s log note dated January 2nd, 2019 states: “Diary review. We continue to chase the PC for productions, so far nothing meaningful”.
[155] In the last letter sent to plaintiff’s counsel dated February 8th 2019, sent shortly prior to the expiry of the presumptive two year limitation period to issue a tort claim, the Intact adjuster confirmed that if Intact did not receive a response to its letter within 60 days it would close its file on the assumption that the plaintiff did not have a sustainable tort claim to pursue.
[156] The accident in question occurred in a parking lot with the Intact adjuster’s log notes indicating that no injuries were sustained. Despite repeated requests for medical and income loss productions, the defendant/insurer did not receive any medical or income loss documentation to support that the plaintiff sustained threshold injuries. The insurer followed up on multiple occasions with plaintiff’s counsel in attempts to obtain medical productions.
[157] No medical productions were provided to the defendant’s insurer until December 5th 2024, when the plaintiff’s current lawyer sent the plaintiff’s affidavit of documents to the insurer after the notice of motion for this motion was served. These productions were provided over 7 years after the accident in question occurred, approximately 6.5 years after the insurer first requested productions and approximately 5 years after the statement of claim was issued and just over 4 years after the expiry of the deadline for service of the statement of claim.
[158] Having regard to these circumstances and in particular to the lack of response to the insurer’s many request letters, the lack of any contact made to the defendant or his insurer for the period of 6 years and 9 months, from January 11th 2018 until October 10th 2024, and the significant length of the delay in serving the statement of claim being 3 years, 11 months and 22 days, I am of the view that in all of the circumstances, it was reasonable for the defendant and the insurer to infer that the plaintiff had abandoned his claim.
h) Whether the applicable limitation period for the action has already expired
[159] The presumptive two year limitation period to commence an action expired on October 18th 2019, six years and three months ago. (or five years from the date that the notice of motion for this motion was served)
[160] The accident which forms the basis of this action occurred on October 20th 2017, 8 years and 3 months ago. (or seven years from the date that the notice of motion for this motion was served).
[161] The limitation period for the action has long since expired.
i) Whether the defendant had notice before the expiry of the limitation period that the plaintiff was asserting a claim against the defendant
[162] On January 11th 2018, PW Lawyers sent a notice letter to the defendant providing notice of the plaintiff’s intention to prosecute a claim for damages arising out of the October 20th 2017 motor vehicle accident.
[163] The defendant therefore received notice prior to the expiry of the limitation period that the plaintiff was asserting a claim against the defendant.
j) Whether the defendant would suffer prejudice if the motion is granted
[164] Delay, on its own, is not sufficient to defeat this motion. As noted, the consideration of utmost importance is the issue of prejudice.
[165] As confirmed in Tookenay, a presumption of prejudice arises in the immediate case by operation of the relevant deadlines under the Rules of Civil Procedure because the statement of claim was served late and well past the outermost plausible limitation date. Even where an originating process is issued within the limitation period, if it is served both late and outside the limitation date, then a presumption of prejudice attaches. (Tookenay at para.59)
[166] The plaintiff, who bears the onus to show that the defendant would not be prejudiced by an extension, argues that there will be no prejudice to the defendant if the time for service of the statement of claim is extended for the following three reasons:
Liability is not in issue.
The defendant and his insurer received notice of the plaintiff’s claim on January 11th 2018, and have had an opportunity to investigate.
The plaintiff’s current counsel, Mr. Schneider has obtained and produced all documents relevant to the issues in this action as set out in the draft affidavit of documents that was served on December 5th 2024.
[167] The defendant has filed three affidavits with evidence outlining the alleged prejudice resulting from the late service of the statement of claim, including an inability to investigate the accident, impact on witnesses, preservation of evidence and lack of complete medical records. The defendant also raises the issue that the accident occurred almost 9 years ago, with a significant four year delay in the statement of claim having been served, to infer prejudice as to the complete recollection of the parties involved in the motor vehicle accident.
[168] In my view, there is merit to the defendant’s submissions with respect to the issue of prejudice.
[169] Each of these arguments is canvassed below.
Liability
[170] The plaintiff argues that liability is not in dispute. The defendant maintains that liability is in issue.
[171] The plaintiff argues that the court should accept his position that liability is not in dispute because Mr. Schneider’s affidavit states that liability is not in dispute. The plaintiff points out that the defendant has not specifically stated in an affidavit that liability remains in dispute such that this court must accept Mr. Schneider’s assertions relating to liability not being in dispute.
[172] I do not accept this argument. No admission of liability has been made by the defendant. Moreover, the defendant has filed as evidence copies of Intact’s request letters to plaintiff’s counsel. In Intact’s first letter dated June 19th 2018, sent to PW Lawyers, Intact specifically confirmed that its liability investigation was ongoing and Intact requested certain liability documents from plaintiff’s counsel including the police report and the plaintiff’s driver’s licence.
[173] Chambers filed an affidavit in support of this motion and in this affidavit described the accident of October 20th 2017, as having occurred when “the defendant’s vehicle stuck [sic] my vehicle while we were trying to park in the same spot”.
[174] The accident in question occurred while the two vehicles were attempting to park in the same parking spot. Intact confirmed in June 2018, that its liability investigation was ongoing. There is no evidence of an admission of liability having been made by Intact.
[175] I therefore reject the plaintiff’s argument that there is no prejudice to the defendant with respect to its alleged inability to properly investigate the accident as liability is not in dispute. In my view, the nature of the accident, Intact’s confirmation that its investigation was ongoing and the lack of any admission of liability by Intact, militates against a finding that liability is not in dispute with respect to the October 20th 2017, motor vehicle accident.
Investigation
[176] The plaintiff highlights that in Chiarelli, the Ontario Court of Appeal confirmed that the defence cannot create prejudice by its failure to do something that it reasonably could have or ought to have done. Moreover, prejudice that will defeat an extension of time for service must be caused by the delay. Prejudice to the defence that exists independently of whether service is delayed is not relevant on a motion to extend the time for service.
[177] Relying on Chiarelli, the plaintiff argues that there will be no prejudice to the defendant if time for service of the statement of claim is extended because the defendant and his insurer have had notice of the plaintiff’s claim since at least January 11th 2018, and have had the opportunity to investigate. The plaintiff argues that the defendant was aware of the accident in question as early as October 23rd 2017, when it was reported by Uber. The plaintiff argues that Intact could have, and did investigate this accident.
[178] The Intact tort adjuster’s log notes indicate that on October 24th 2017 at 11:51 am, contact was made by phone between Intact and Anna Desouza “from claims pro on behalf of Aviva re: TP inquiry”. The loss details outlined in the adjuster’s notes relating to the phone conversation with the Aviva adjuster suggest that as a result of the collision the insured’s vehicle “scratched TP rear d/s door”. The tort adjuster confirmed that she did not have any details “as of yet on the file”. There is no information in the log notes to suggest that the Intact adjuster was provided with any information with respect to the plaintiff’s injuries at this time. The log notes states: “adv no details as of yet…”.
[179] Thereafter, on October 24th 2017 at 3:40 pm, an Intact employee spoke by phone to the defendant Thomas. There is no evidence in the record before me that a formal statement was taken by Thomas. However, the Intact log notes dated October 24th 2017, 3:40 pm, confirm that an adjuster spoke to Mr. Thomas who described the collision occurring as his vehicle and another vehicle were attempting to “get into the spot”. The adjuster’s notes refer to “3 passengers, no injuries, TP no/no”, suggesting no passengers or injuries in the plaintiff’s vehicle. The police were not called and no police or emergency services attended the scene. The log notes again indicate no injuries.
[180] The plaintiff maintains that there is no prejudice to the defendant given that the defendant and his insurer received notice of the accident within a few days of the accident occurring and had every opportunity to investigate. The plaintiff argues that any prejudice relating to the failure to do so, falls on the shoulders of the defendant and is not rooted in the plaintiff’s delay in serving the statement of claim.
[181] I do not agree. In the face of the report from the insured that the accident occurred in a parking lot, with one vehicle sustaining a scratch and no reported injuries, in my view it cannot be said that Intact ought to have engaged in a further in depth investigation beyond what it initially did undertake in October 2017.
[182] Similarly, once the notice letter was sent to the defendant from plaintiff’s counsel, Intact wrote to plaintiff repeatedly in attempts to investigate and gather information with respect to the plaintiff’s injuries/damages. The Intact adjuster wrote to plaintiff’s counsel on June 19th 2018, requesting liability, medical and income loss documentation. Intact also reserved its right to arrange and conduct an independent medical examination upon receipt of the requested productions.
[183] Intact sent follow-up letters on August 9th 2018, November 29th 2018, January 2nd, 2019, and February 8th 2019, asking for the previously requested liability, medical and income loss documentation. In the January 2nd 2019 letter, Ms. Willet confirmed that given the plaintiff’s failure to respond to Intact’s prior letters, Intact must assume that the plaintiff has neither a threshold injury nor an economic loss for which they can claim.
[184] Ms. Willet’s log notes confirm that the claim was closed on April 8th 2019, given that no information or communications had been received from plaintiff’s counsel since January 2018, despite multiple requests to which no response was received.
[185] I reject the plaintiff’s argument that the defendant will not be prejudiced by an extension of time to serve the statement of claim because the defendant and his insurer received notice of the plaintiff’s claim on January 11th 2018, and have had an opportunity to investigate.
[186] A similar argument was advanced and rejected in Lyman v. Chan 2018 ONSC 4037, where Justice Ricchetti, as he then was, stated the following at para 33:
The Plaintiffs point to the TD Insurance letter of October 4, 2013 to demonstrate that TD Insurance could have and was investigating the matter. I do not accept this. What was TD Insurance to investigate? It did not know the extent of injuries, damages or other details of the Plaintiff's claim that would allow a meaningful investigation. TD Insurance attempted to investigate this matter by obtaining the information/documentation requested from the Plaintiff's counsel. Plaintiff's counsel chose to ignore TD Insurance's initial request. When the requests were renewed in 2015 and 2017, again Plaintiff's counsel chose to ignore those requests.
[187] Similarly, in the immediate case, Intact did not know the extent of injuries, damages or other details of the plaintiff’s claim that would allow for a meaningful investigation.
[188] While the defendant was provided with notice of a potential claim in January 2018, “simply providing a notice of intention to sue does little if anything to permit the defendants to fully and properly investigate the facts and claim”. (Maharaj v. Prajapadi, 2023 ONSC 3547 at para. 42)
[189] The plaintiff highlights that in Chiarelli, the Ontario Court of Appeal granted the plaintiff’s appeal with respect to her motion seeking an order to extend the time for service of a statement of claim where the delay in issue was over six years. However, in Chiarelli, the plaintiff was involved in a car accident on October 26th 1988 where she sustained a “very serious whiplash injury”. A police report was prepared and the day after the accident occurred the accident was reported to the defendant’s insurer, State Farm. The insurer obtained a statement from the plaintiff who confirmed that she sustained injuries to her neck, shoulders and back.
[190] Within one month of the accident occurring, the plaintiff retained a lawyer who put the insurer on notice of a claim. The plaintiff’s condition deteriorated. She began to experience numbness in her right arm and was diagnosed with disc damage in her lower back. State Farm paid for the medical reports received. State Farm was then provided with medical information relating to the plaintiff’s injuries for a period of four years between December 1988 and November 1992 as the medical information became available. Significantly, in Chiarelli, the statement of claim was not served because of incomplete information relating to the defendant’s address and because the insurer refused to accept service of the statement of claim. When the six-month period for service expired and State Farm wrote to the plaintiff’s lawyer to say that it assumed that the plaintiff had abandoned her claim, the lawyer wrote back to say that this was not the case and that the lawyer would move for an order extending the time for service. Notably, the Court of Appeal stated that “the insurer’s failure to act when it knew CC’s injury was serious was not caused by any delay in serving the statement of claim”.
[191] None of these facts are present in the immediate case. In particular, despite four requests for liability and medical productions none were received by Intact until December 2024, well after this motion was launched. Intact was not aware that a statement of claim had been issued and certainly did not refuse to accept service as the insurer did in Chiarelli. When the adjuster wrote to plaintiff’s counsel the fourth time to enquire about the status of the plaintiff’s claim and suggested that she was going to close her file, no response was received.
[192] It cannot be said that Intact failed to act when it knew that the plaintiff’s injuries were serious as in the immediate case, the evidence suggests otherwise. In particular, the adjuster’s log notes record no injuries having been sustained as a result of the accident and the plaintiff’s lawyer did not provide medical productions to clarify the nature and extent of the plaintiff’s injuries until December 2024, over seven years after the accident and just under seven years after the plaintiff provided notice to the defendant.
[193] In the immediate case, bearing in mind that the accident in question occurred in a parking lot, with the stated damage to one of the vehicles, as reported to the adjuster as being a scratch and with a report to the insurer of no injuries having been sustained and no medical productions provided to substantiate the plaintiff having sustained any injuries, in my view it cannot be said that Intact’s investigation should have been more exhaustive than the one which was completed. Indeed, the extent of Intact’s investigation, in my view, was entirely appropriate given the facts known at the time. It cannot be said therefore that the now alleged prejudice was created by Intact’s failure to do something that it reasonably could have, or ought to have done.
[194] I find that the plaintiff has failed to meet his onus to demonstrate that the defendant will not be prejudiced by an extension. I further find that the defendant has met its evidentiary obligation to provide some details of how its ability to defend and investigate the plaintiff’s claim has been prejudiced due to the delay in the statement of claim being served. These details are as follows:
[195] The accident in question occurred on October 20th 2017, over 8 years ago, with the delay in serving the statement of claim being just under four years. I find that the parties’ recollection of what transpired on the date of loss will be impaired. In Maharaj v. Prajapati, 2023 ONSC 3547, where an accident occurred 7.5 years prior to the hearing of a motion seeking to extend the time to serve a statement of claim, the court confirmed that “diminished memories over all these years is a serious problem” and that “prejudice can easily be presumed in these circumstances”.
[196] There is no contemporaneous police report or self-collision report to assist the parties on the issue of liability such that the parties’ memories relating to the mechanics of the accident is particularly important in this case.
[197] There are no known witnesses to the accident. However, the adjuster’s log notes indicate that at the time of the collision there appear to have been three passengers in Thomas’s vehicle. As noted by the defendant, the defendant’s ability to obtain the passenger information from these three passengers is compromised by the delay. Even if these passengers could now be located, their recollection of what happened on October 20th 2017 will be compromised. (Maharaj, at para. 48)
[198] The plaintiff is now 70 years of age. He complains of psychological, physical and cognitive issues flowing from the motor vehicle accident in question. Over eight years have now passed since this loss occurred and the parties have not attended examinations for discovery. Attempting to recall the events that led to the accident so long after the fact will be difficult. Fading memories is a real and legitimate concern when issues of liability and damages remain in dispute and those memories will have to be relied on.
[199] While the issue of impaired memories is something that parties must address in most civil actions, I find that this issue has been compounded significantly by the delay of almost four years in serving the statement of claim and will prejudice the defendant’s ability to investigate and properly defend the plaintiff’s claim. In my view prejudice can be presumed in these circumstances and I find that the plaintiff has failed to rebut the presumption of prejudice.
Productions
[200] The plaintiff further argues that extending the time to serve the statement of claim will not result in prejudice to defendant because the plaintiff’s current counsel, Mr. Schneider has obtained and produced all documents relevant to the issues in this action as set out in the draft affidavit of documents that was served on December 5th 2024.
[201] The plaintiff highlights that it is significant that the affidavit of documents served contains many of the relevant pre-accident and post-accident records including inter alia the Mount Sinai Hospital records from November 4th 2002 to October 25th 2023, the clinical notes and records of the plaintiff’s treating psychiatrist, Dr. Westlind (Department of Psychiatry – Mount Sinai Hospital), from October 24th 2012 to November 1st, 2023, the clinical notes and records of Dr. Benny Chang from January 1st, 2017 to March 12th 2024, the plaintiff’s decoded OHIP summary for the claims period April 1st 2011 to March 28th 2023 and the plaintiff’s income tax returns from 2012-2024. The plaintiff underscores that no employment files have been produced because at the time of the accident, the plaintiff was a self-employed photographer, creative director and freelance curator.
[202] The plaintiff maintains that while he sustained physical, cognitive and psychological injuries as a result of the accident, a significant component of the plaintiff’s claim is how his pre-accident psychological condition has been impacted by his involvement in the accident. The plaintiff maintains that there is no prejudice to the defendant with respect to the late delivery of medical productions as the plaintiff has produced the records of his treating psychiatrist, Dr. Westlind, who has treated the plaintiff for the past 22 years. Moreover, the plaintiff has obtained a report from Dr. Westlind dated June 21st, 2024.
[203] The plaintiff also points out that in addition to advancing this tort action relating to the October 20th 2017 accident, he is also advancing a claim for statutory accident benefits. The plaintiff notes that there have been approximately 27 medical assessments and reports obtained by either the statutory accident benefits insurer or on behalf of the plaintiff. In support of its position that the late delivery of medical and income loss productions have not resulted in prejudice to the defendant, the plaintiff highlights that none of the doctors who assessed the plaintiff, and who have provided opinions and reports with respect to his entitlement to various statutory accident benefits, have indicated that they could not provide an opinion due to the unavailability of medical records.
[204] In the immediate case, medical productions and income loss documentation were requested in 2018 and were not provided to Intact until December 2024, over six years after the initial request was made.
[205] There are several difficulties associated with the late production of medical records which can serve to prejudice a defendant’s ability to properly defend a personal injury case. In this regard, in Maharaj v. Prajapati, 2023 ONSC 3547 the court stated the following:
The submission that the medical evidence has been preserved, even if true, is not a complete answer to the loss of evidence. OHIP records only go back 7 years. The Defendants have never seen any medical documentation, would now have to go back and investigate the medical issues with doctors. Are any retired? Do their detailed records exist? Do they have any recollection? A timely and complete investigation cannot occur now. (Maharaj at para. 46)
[206] The statement of claim issued on behalf of the plaintiff confirms that the plaintiff is claiming damages of $2,000,000.00 plus interest with respect to the injuries he alleges that he sustained in the October 20th 2017 accident. The plaintiff alleges that he sustained permanent and serious injuries including physical and psychological injuries. He alleges that he sustained injuries to his arm, neck, shoulders, head and neck. He further alleges that he suffers from profound shock, psychological impairments, cognitive impairments, headaches, tingling in fingers, anxiety, depression, emotional trauma, memory loss, and fatigue which continue to the present and will continue into the future. The plaintiff alleges that as a result of the injuries sustained in the accident, he has undergone and will be required to undergo extensive hospital, medical, surgical, therapy, drug and other forms of treatment. Indeed, the plaintiff has confirmed that he has undergone approximately 27 medical assessments.
[207] The plaintiff further alleges that he has incurred a loss of income and a loss of competitive advantage and a loss of his competitive position in the economic marketplace. He alleges that he will suffer a diminution of income on a permanent scale. The plaintiff also alleges that the injuries sustained in the accident have prevented him from participating in social, athletic, household, academic and employment activities to the extent to which he participated in such activities prior to the accident. The plaintiff claims damages relating to his alleged inability to complete household chores into the future.
[208] In the immediate case, the plaintiff did not sustain a single and easily identifiable injury with causation not being an issue. Nor are the plaintiff’s injuries limited to either physical or cognitive or psychological. In this regard, Mr. Schneider’s description of his client’s injuries only serves to confirm the complex nature of the plaintiff’s damages’ case which will require consideration of the alleged physical, cognitive and psychological injuries. Mr. Schneider’s description of his client’s injuries is as follows:
This is a Plaintiff whose injuries as a result of this accident are physical as well as cognitive and psychological. A significant component of this Plaintiff's claim is how his pre-accident psychological condition has been impacted by his involvement in this accident. I have obtained an opinion from the Plaintiff's treating psychiatrist at Mount Sinai Hospital, Dr. Paul Westlind, dated June 21, 2024. Dr. Westlind has been regularly treating this Plaintiff for the past 22 years. Dr. Westlind's treatment of this Plaintiff has never been interrupted for more than a few weeks at a time. The Report of Dr. Westlin was sent to the Intact Insurance adjuster when the Plaintiff's Affidavit of Documents was served on December 5, 2024.
[209] The damages aspect of the plaintiff’s case is complex in light of the alleged ongoing impairments caused by the accident in question which occurred in 2017. This coupled with the plaintiff’s significant pre-accident medical history as well as certain references in the medical productions to a prior motor vehicle accident in 2002, imaging of the brain in 2002 and 2003, references to a bone scan in 2016, a referenced motor vehicle collision in November 2017, and prostate cancer in 2015, serve to highlight the importance of the defendant’s ability to consider, request and examine in a timely fashion the pre-accident medical records it deems to be necessary to properly defend the case and to conduct timely defence medical assessments and examinations for discovery.
[210] In my view, in the immediate case, given the nature of the alleged injuries coupled with the plaintiff’s significant pre-accident medical history, the availability of the identified pre-accident medical records and income tax returns is not a sufficient response to rebut the presumption of prejudice. Indeed, the extent of the plaintiff’s pre-accident medical history is evident by the fact that the decoded OHIP summary produced for the period from October 20th 2015 to March 28th 2023 is 262 pages long.
[211] From 2018 to 2019, the defendant made multiple requests for pre-accident records. Having reviewed the plaintiff’s affidavit of documents served in December 2024, the defendant has identified records in the decoded OHIP summary which have not been produced and may no longer be available. These include missing records from the family doctor, Dr. Benny Chang. There are 37 entries with respect to visits to this doctor for the period April 6th 2011 to December 31st, 2016 which have not been produced. There are 34 entries missing from the records of Dr. Westland between April 14th 2011 to October 23rd, 2012. There are 75 entries for the period April 14th 2011 to January 14th 2015 with respect to a provider in the decoded OHIP summary which the defendant refers to as “hospital code 1423”. The defendant argues that all of these records are relevant, have not been produced and may no longer be available.
[212] The timing of these visits in proximity to the October 20th 2017 motor vehicle accident suggest that these records would be considered relevant and producible if they are available. However, it is not clear that these records are available.
[213] The defendant also points out that no pre-accident clinical notes and records have been produced for any of the non-OHIP providers. In this regard, the defendant was able to identify specific non-OHIP providers whose records have not been produced including records from one doctor and two clinics.
[214] During oral submissions, counsel for the plaintiff confirmed that the plaintiff does not know why there are certain records missing from the medical productions produced. Moreover, counsel advised the court that the records are available. However, evidence of the availability of the identified missing medical records is not in the record before me.
[215] The plaintiff argues that relevant employment information has been provided as the plaintiff has produced tax returns and the plaintiff was self-employed such that there are no employment files to be produced. However, the tax returns produced just prior to the hearing date of this motion reference that in the years 2012, 2013, 2014, 2015, 2016 and 2017, the plaintiff received social assistance. There is no evidence from the plaintiff that the social assistance file has been requested and is still available for the time period in question which dates back to 2012 or at least to 2013, being three years pre-accident. Moreover, no business or financial records have been produced by the plaintiff.
[216] Having regard to the issue of prejudice, it is acknowledged that a mechanical application of a presumption based simply on the passage of time is not appropriate. Rather, the issue of prejudice is a question of fact which must be considered within the circumstances of this particular case. (Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 at para. 76).
[217] In this regard, the difficulties and prejudice caused to a defendant in a personal injury action when there is delay in providing medical productions and delay in the case moving forward has been commented upon in the decisions of Maharaj and Lyman. I find that much of the prejudice to the defendants accepted in those cases applies equally here. In both cases, the court denied a plaintiff’s motion to extend the time for service of the statement of claim.
[218] In Maharaj, the plaintiff was involved in a motor vehicle accident on November 15th 2015. The insurer was put on notice on April 10th 2017. The statement of claim was issued on October 31st, 2017 and in early 2019 the insurer raised the issue of the action not proceeding. In April 2019, approximately one year after the time expired to serve the statement of claim, the insurer advised plaintiff’s counsel that it would not consent to the motion to extend the time for service of the statement of claim. The motion was not brought to extend the time until 2023, approximately 4 years and 10 months after the expiry of the time to serve the statement of claim. While no OHIP records had been provided to the insurer prior to the motion, unlike the facts of the immediate case, the insurer was aware that the statement of claim was issued within a year of the expiry of the time for service.
[219] The court noted that the medical productions had been requested in 2017 and had not been provided as of 2023. The plaintiff argued that the medical evidence was available and had been preserved. The court ultimately determined that the plaintiff’s argument that the medical evidence had been preserved was not a complete answer to the loss of evidence and confirmed that the defendants who had never seen any medical documentation “would now have to go back and investigate the medical issues with doctors”. (Maharaj, at para.46) In denying the plaintiff’s motion to extend the time for service of the statement of claim, the court questioned whether a defence medical examination could now be meaningful in light of the passage of time and the alleged injuries including the issue of causation. (Maharaj, at para. 48).
[220] In Lyman v. Chan, 2018 ONSC 4037 there was a delay of two years in bringing the motion to extend the time for service of the statement of claim and the passage of approximately 4 years and 5 months since the motor vehicle accident had occurred. In denying the plaintiff’s motion for an order extending the time for service of the statement of claim, the court underscored various issues which resulted in prejudice to the defendant caused by the delay. The court was satisfied that prejudice was made out noting the defendant’s inability to complete a proper and complete investigation with respect to the issues of liability and damages, inability to obtain timely defence vocational/medical assessments and diminished memories of witnesses.
[221] In the immediate case, the defendant has identified gaps in the productions which in my view support its position that its ability to defend the plaintiff’s action has been prejudiced. However, it is not only the issue of the gaps in the productions which is significant. With the passage of time, even if documents are not lost, their significance becomes clouded. Moreover, even if the court were to accept that appropriate and adequate medical and income loss productions have been produced, which I have not found, there would still be the issues of diminished memories and the impact of the delay on the defence medical examinations.
[222] In this regard, the defendant’s ability to obtain answers to questions relating to the plaintiff’s pre-accident medical history, given the passage of almost 10 years since the accident occurred will be impacted by the delay. In my view, the delay of almost four years in serving the statement of claim has served to contribute, in a not insignificant fashion, to the issue of diminished memories. Finally, in my view, the ability of the insurer to conduct timely and meaningful defence medical examinations has been negatively impacted by the almost four year delay in serving the statement of claim.
Disposition
[223] I find that the plaintiff has failed to satisfy his onus to demonstrate that the defendant will not be prejudiced if the time to serve the statement of claim is extended. I accept the defendant’s position that his ability to defend this action has been prejudiced by his inability to investigate the accident in a timely manner, the impact on witnesses’ memories due to the passage of time, preservation of evidence, lack of a contemporaneous defence medical and economic assessments, and lack of complete medical and income loss documentation. The accident in question occurred over 8 years ago. This motion was brought seven years after the accident occurred and I find that the almost four year delay in serving the statement of claim, results in the inference of prejudice as to the complete recollection of the parties with respect to the motor vehicle accident. Moreover, Intact has lost the ability to take relatively contemporaneous statements and preserve any evidence it required.
[224] I find that in the immediate case, any defence medical assessments will be severely prejudiced as the assessors will not have reasonably contemporaneous assessment to the time of the accident. It is acknowledged that such assessments may not have taken place within the first three years following the accident as the plaintiff had two years to issue a claim and a further year to serve the claim given the COVID extension. However, the delay of an additional almost four years in serving the statement of claim in my view is significant in the immediate case, in light of the nature of the alleged physical, cognitive, and psychological injuries sustained having regard to issues of causation, the plaintiff’s age and the plaintiff’s significant pre-accident medical history.
[225] I also find that there is merit to the defendant’s argument that prejudice flows from the delay in serving the statement of claim having regard to the diminished recollection of events relating to both liability and damages. As noted in Lyman, “memories fade over time, particularly details become important at a later date. It will be some time before this matter can be set down for trial. Once it is set down for trial, it may take several years for a trial to be scheduled. The delay will be significant”. (Lyman at para. 33)
[226] In addition to the primary consideration of the issue of prejudice, I find that the delay in bringing this motion having regard to the factors outlined in Tookenay, further militates against a finding that the requested order should be granted.
[227] The timelines in the Rules of Civil Procedure must be followed to ensure fairness and promote confidence in the administration of justice and the fair and just determination of disputes. However, some latitude must be permitted for unexpected, unusual and explained contingencies that make it difficult or impossible for a party to comply with the Rules. In such situations, where the court is being asked to exercise its discretion to extend the timelines in the Rules, the party requesting the court to exercise its discretion must provide the court with a reasonable explanation for the delay. The explanation for the delay should be clear and comprehensive and free of any lengthy unexplained gaps.
[228] The delay in the immediate case is lengthy and I have made a finding that the explanation for the delay is inadequate. Patterson’s explanation is vague and insufficient.
[229] Moreover, and significantly, there is a gap in the explanation for the delay between the time period of January 2020 or July 2020 to May of 2022. During this time period, the time to serve the statement of claim expired and the time to issue a tort action expired. There is no dispute that Salehi was the plaintiff’s retained counsel during this time period, yet Salehi has provided no evidence that he was not aware that a statement of claim had been issued or to explain if he was not aware that a statement of claim was issued, why he did not commence a tort action on behalf of his client if the plaintiff intended at all times to proceed with a tort action.
[230] There is also no evidence from Wilkins and Salehi relating to the transfer of the plaintiff’s file, the timing of the transfer or if a file transfer occurred. No evidence has been provided to the court relating to Salehi’s knowledge or lack thereof of the issued statement of claim, and of Intact’s requests for productions in 2018 and 2019.
[231] When considering the issue of delay for the time period from May 2022 to October 2024, the court is mindful that motions to extend the time to serve a statement of claim must be brought reasonably quickly after the deficiency has come to the attention of counsel. In Lyman, in dismissing a plaintiff’s motion for or order to extend the time for service, Justice Ricchetti underscored the importance of abiding by the time lines outlined in the Rules as follows:
Motions to extend the time to serve a Statement of Claim must be brought reasonably quickly after the deficiency has come to the attention of counsel. The Rules are designed to promote the just determination of disputes on the merits in a timely manner. To simply ignore the timeframes in the Rules and do nothing for long periods of time after the non-compliance comes to counsel's attention, does nothing to promote the administration of justice or the fair and just determination of disputes. (Lyman, at para. 30).
[232] Justice Ricchetti further highlighted that “there is good reason why limitation periods exist and why claims, which have not been set down within 5 years of the issuance of the Statement of Claim, are automatically dismissed”. (Lyman, at para. 31).
[233] In May 2023, the plaintiff and his retained counsel Mr. Schneider were alerted to the existence of the statement of claim issued on October 18th 2019, and made a deliberate decision not to bring a motion to extend the time to serve the statement of claim. This resulted in a further delay of almost 1 year and five months which only served to add to the already lengthy delay of two years and seven months for a total period of delay being just under four years. I have found that this deliberate decision made in May of 2023 is not a reasonable explanation for the additional lengthy period of delay in serving the statement of claim.
[234] On this motion, the basic consideration is whether the extension sought will advance the just resolution of the dispute, without prejudice or unfairness to the parties.
[235] Given the repeated requests by Intact to obtain information/documentation regarding the claim which was ignored by the plaintiff for six years, the lack of explanation and/or the inadequate explanation and/or the failure to provide a reasonable explanation for the significant delay and the cumulative effect of the presumed prejudice to the defendant as outlined above, I find that in the circumstances of the immediate case, the plaintiff has not discharged his onus to show that the defendant will not be prejudiced by the requested extension.
[236] I find that granting the requested extension in this case will not serve to advance the just resolution of the dispute without prejudice or unfairness to the parties, and in particular with respect to the defendant, Mr. Thomas.
[237] For these reasons, the motion is dismissed.
Costs
[238] Pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
[239] Rule 57.01 provides that in exercising its discretion under s. 131, the court may consider, in addition to the result in the proceeding (and any offer to settle or contribute), the factors set out in that Rule.
[240] The overarching objective is to fix an amount that is fair, reasonable, proportionate and within the reasonable expectations of the parties in the circumstances: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 ONCA 14579, 71 O.R. (3d) 291 (C.A.).
[241] At the hearing of the motion, the parties confirmed their agreement that if the plaintiff succeeds on this motion, no costs shall be payable. If the defendant is the successful party, the plaintiff shall pay costs to the defendant the amount of $6500.00.
[242] Therefore, given that the defendant is the successful party on this motion, costs in the amount of $6500.00 all-inclusive are ordered payable by the plaintiff to the defendant within 30 days.
ASSOCIATE JUSTICE ECKLER
Released: April 29, 2026