Fridays with Rogers Partners
At our weekly meeting, Annie Levanaj discussed the recent decision in Day v. Adams, 2022 ONSC 610.
Overview
The defendant brought a motion to dismiss an action for delay on the grounds that the plaintiff failed to serve the Statement of Claim in accordance with the Rules of Civil Procedure[1] (the “Rules”). The action arose from an alleged motor vehicle accident occurring in 2015. The Statement of Claim was issued January 9, 2017 (on the second anniversary of the accident) but was incorrectly served. In addition, there was an administrative error in the Statement of Claim, as the title of proceedings had the parties’ names reversed.
At the hearing of the motion, plaintiff’s counsel, Mr. Falletta, submitted that the claim had been effectively served on January 19, 2022. The court accepted January 19, 2022 as the date of service of the claim.
However, the court noted that this was more than 5 years since the Claim had been issued. Rule 14.08 of the Rules requires service of a statement of claim within 6 months from the date of issue. This meant more than seven years had passed since the date of the accident. The court considered what had caused the delay in service, in order to determine whether the delay could be justified, or was overly prejudicial to the defendant.
History of Proceedings
The Fire
The plaintiff’s law clerk, Ms. Belanger, provided affidavit evidence for the motion that their law firm suffered an office fire on January 12, 2017 (three days after the Claim was issued). This had resulted in the firm losing certain files, including documents relating to service of the Statement of Claim in this action.
Ms. Belanger spoke with the plaintiff after the fire, and attended the courthouse to obtain a copy of the Statement of Claim. However, she realized at the courthouse that there had been an administrative error in the title of proceedings (the reversal of the parties names), and also became aware of “a possible service issue”.
The Plaintiff’s 2019 Motion
In March 2019, the plaintiff initiated a motion seeking an order correcting the title of proceedings. A copy of the plaintiff’s Motion Record was mailed to the defendant.
The Plaintiff’s motion was heard on April 18, 2019. On the motion, the Master granted the plaintiff leave to amend the claim to correct the style of cause. Master Sugunasiri deleted a paragraph in the plaintiff’s draft Order which had stated that the Statement of Claim could be served within 90 days from the date of the 2019 Order, and instead adjourned the plaintiff’s motion to extend time to serve the Statement of Claim sine die, to be returned on notice to the defendant.
Ms. Belanger stated in her affidavit for the present motion that copies of the 2019 Order of Master Sugunasiri and the amended Statement of Claim were sent by regular mail to the defendant on June 17, 2019, and attached to her affidavit a copy of a letter of that date which she purported was the covering letter for these documents. However, the court noted that the letter did not indicate that the Claim was being served. Instead the letter stated:
“Enclosed please find a copy of the Order of Master Sugunasiri, which is being served upon you pursuant to the Rules of Civil Procedure”.
The evidence failed to demonstrate that the amended Statement of Claim was enclosed with the letter to the defendant. Additionally, the Court noted that even if the Claim was sent, it contained two problems:
- Failure to comply with Rule 16.01, which requires personal service of an originating process, so mailing a copy did not suffice; and
- Failure to comply with Rule 14.08 which requires a claim to be served within six months of issuance. As the plaintiff did not obtain an order granting an extension of time for service, service of the Statement of Claim was required to be effected by June 9, 2017.
Correspondence Between the Parties
The Court considered the evidence of correspondence between counsel for the parties. Counsel for the defendant, Ms. Ansell, wrote to Mr. Falletta June 27, 2019, informing him that she was retained to defend the claim, and confirming she had received the Plaintiff’s Motion Record. She requested a copy of the Order from the plaintiff’s 2019 motion and proof of service of the 2019 Order and amended Statement of Claim.
Ms. Ansell subsequently made multiple attempts to contact both Ms. Belanger and Mr. Falletta, seeking a response to her initial email and requesting the proper service of documents. After numerous emails over three months, Mr. Falletta finally replied in September of 2019, indicating that he would have his law clerk reply.
This was followed by multiple follow up emails from Ms. Ansell, until Ms. Belanger finally replied on November 5, 2019, stating that she had served the defendant with the 2019 Order and amended Statement of Claim on April 19, 2019, via regular mail.
Ms. Ansell replied that while the Statement of Claim may have been mailed to the defendant, the Rules required personal service, and that Ms. Ansell was not aware of any order for substituted service. From November 2019 until December 2020, Ms. Ansell sent further follow up emails, but received no response.
On December 30, 2020, counsel for the defendant served Mr. Falletta with a Notice of Motion for the present motion to dismiss the action for delay, together with a draft order. The plaintiff’s responding materials for the motion did not explain the lack of response from counsel, and did not offer any explanation as to why the plaintiff took no steps to move forward with the action.
The Law on Motions for Dismissal for Delay
Rule 24.01(1)(a) permits a defendant to move to have an action dismissed for delay when the plaintiff has failed to serve the statement of claim on all the defendants within the prescribed time. Further, Rule 24.01(2) states that:
The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) [failure to set the action down for trial within 5 years, and failure to return an action struck from the trial list to the trial list within 2 years] applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. [emphasis added]
The plaintiff relied on two cases – Innvest[2] and Oakville[3]—in support of an order validating service of the statement of claim in these circumstances. The court distinguished the present action from those cases. Unlike in Innvest, here there was no evidence that the defendant authorized and instructed the lawyer to accept service, and defendant’s counsel had made multiple requests for proper service.
Unlike in Oakville, where the issue on the motion was whether service of the Statement of Claim on the defendants ought to be validated or whether the time for service ought to be extended, here, no motion had been brought to validate service or to extend time for service of the Statement of Claim. The court also noted the court had not been provided with evidence or explanations as to why the Statement of Claim was not served within the six months required by the Rules.
The court relied on the Court of Appeal’s judgement in Ticchiarelli,[4] the leading case on dismissing an action for delay, where it stated: “an order dismissing an action for delay will be justified ‘where the delay is inordinate, inexcusable, and prejudicial to the defendants in that it gives rise to a substantial risk that a fair trial of the issues will not be possible’. The court needs to examine whether the reasons for the delay provided by the plaintiff are “reasonable and cogent” or “sensible and persuasive”.
Mr. Falletta submitted that he and his office were at fault for any delay, so the plaintiff should not be punished for the errors or fault of the lawyers. This submission was not accepted, as no evidence was presented that suggested the plaintiff intended to pursue the claim, or that the lawyers ignored the plaintiff’s instructions.
Mr. Fallette asked the court to consider Rule 1.04, which states that the Rules shouldbe liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits. While Justice Sheard accepted the submission, he stated that it did not operate here:
“Defendants are entitled to know in a timely way that they have been sued and to be given a proper opportunity to defend the claim. That did not happen here…A defendant is not required to wait indefinitely for the plaintiff to decide to move forward with a claim”.
Conclusion
The email communications demonstrated that the defendants did not accept service of the Statement of Claim, and that service was not complaint with the Rules. The plaintiffs did not obtain an order extending the time to serve the Statement of Claim.
Without having sought and been granted an order extending the time for service, service of the Statement of Claim on the defendant on January 19, 2022 did not cure the plaintiff’s failure to comply with Rule 14.08.
The court ultimately found that the delays were inordinate and inexcusable. The plaintiff failed to explain the reason for the delay, and failed to provide meaningful evidence to rebut the inference that the defendant was prejudiced by the plaintiff’s delay in moving forward with his action. The defendant’s motion was granted, and the action was dismissed. The defendant was awarded costs of $1,200.
[1] R.R.O. 1990, Reg. 194
[2] Innvest Master Properties GP X LTD v. 1271519 Ontario Limited, 2017 ONSC 5961
[3] Oakville Mini Storage Inc. v. 1674861 Ontario Ltd., 2016 ONSC 2383