[23] The action arises from a motor vehicle accident that occurred on December 5, 2008. The statement of claim, however, was not issued until December 7, 2010 – two days after the expiry of the applicable limitation period.
[28] In light of that report, one would have expected the plaintiff to have provided some detail to support the discoverability plea and why, despite these reported symptoms, she did not believe she had the ability to meet threshold within the limitation period.
[29] In terms of the odd timing for the issuance of the claim, the only explanation for it is found at paragraph 12 of Mr. Dran`s first supporting affidavit, where he states:
In order to protect the above noted limitation (sic), the statement of claim was issued on December 7, 2010.
[30] This assertion appears to conflicts with what the pleading states about discoverability. The two-year limitation period had already expired – 2 days earlier. If, as pleaded, the plaintiff formed the view on December 7, 2009, that her injuries now met threshold, then why would Mr. Dran believe that prior counsel issued to protect a limitation period that had already expired? This evidence is incompatible with the pleading.
Efforts made by current counsel to locate and serve the defendant
[42] Plaintiff’s current counsel assumed carriage of this file on July 11, 2012. It does not appear, however, that a file review was conducted at that time. Had the file been reviewed, Salmon’s failure to defend would have been noted and that would have led to the discovery that he had never been served. Presumably that would have left to a motion to extend the time for service at that time, and efforts to locate him would have been initiated. There is no explanation in the materials to explain why none of this transpired at that time.
[43] The only explanation as to why nothing occurred when carriage of the file was assumed is contained in the supporting affidavit of Kiren Dran, who indicates that he is counsel at the firm with carriage of the file. He says nothing, however, about his own involvement with this matter. All he states is as follows:
I am advised and verily believe that due to inadvertence, the law clerk tasked with the plaintiff’s file did not alert the lawyer with carriage of the file of the failed attempt to serve the defendant Jason Salmon, and did not perform the updated searches on the defendant. As a result, the failed attempt was not brought to the attention of the lawyer with carriage of the matter.
[44] This short passage raises the following questions:
– By whom was Dran advised:
– Who was this law clerk; – Did he ever speak with the former clerk directly? – If not how was he able to conclude that her reasons for doing nothing was the result of inadvertence? – Who was “the lawyer with carriage”? – Why are neither named? – Was does it mean when Dran says the clerk was tasked with the plaintiff’s file? – This is a file that was being assumed mid-action. Did a lawyer review it at any time or was it simply given to a law clerk to process?[72] Although this motion was first booked back in January 2013 and though it was not confirmed the first time it was up and then adjourned the second time at the plaintiff’s request, there is still no affidavit from the plaintiff attesting to the fact that it was always her intention to proceed with this action.
[73] The only evidence on point in contained in the affidavit of Simon Mariani, an articling student at the firm currently representing the plaintiff that was only delivered in late January 2014. He states:
The plaintiff has continued to meet with our office and express her continued interest to proceed with this litigation
[74] At this point, it is not even clear if the plaintiff was made aware that her rights were in jeopardy. There is no evidence to the effect that anyone ever raised this with her.
[90] The facts of this case are quite different from those in Chiarelli, supra. In Chiarelli, the court found that there were steps the defence ought reasonably to have taken to protect themselves from prejudice. This was based on their having received not only notice, but 12 medical reports, so they were aware the injuries were serious. They were therefore in a position to assess the potential magnitude of the claim and consider the value of taking steps to protect themselves early on.
[91] In this case, it is not even clear that notice was even sent to the defendant or his insurer, let alone received be either. The defendant had already moved from the address to which notice appears to have been sent while the insurer has no record of having received it.
[92] Even if the notice letter had been sent and received, absent any medical information as to the nature and extent of the injuries suffered, how can the defendant be faulted for not having initiated surveillance and why would the defendant have expected the defence to seek a defence medical assessment? With whom? No area of injury had been identified to allow the defendant to identify what kind of specialist they should retain to assess the plaintiff.
[93] As in Noori, I conclude that the defence would have suffered irreparable prejudice if validation of service had been permitted at this late date. They have lost the opportunity to conduct timely surveillance and a vocational assessment. They have also lost the opportunity to isolate the injuries suffered in this accident as distinct from those suffered in the plaintiff’s fall in May 2013 by way of defence medical examinations.
[94] It is not reasonable to have expected them to have undertaken any of these steps in the absence of any information at all about the plaintiffs’ alleged injuries or losses. Although plaintiff’s counsel was seeking and amassing these reports, they simply sat in their own file and none of these materials were forwarded to the defendant to allow them to assess the value of the claim or the work they should undertake to address it.
[95] At best, the defence received notice and then heard nothing between November 2009 and March 2013. In view of the two year limitation period and the 6 month period within which to serve the claim, they had no reason to do anything in the absence of service of the claim by June 2011.
[96] Notice letters are usually sent before a plaintiff is in a position to assess if they can meet the legislative threshold, as the plaintiff alludes in her own pleading. It is therefore not unusual for insurers to receive a notice that is never followed by an issued statement of claim.
[97] In this case, it is not even clear if notice of the claim was received, or even sent. There is no evidence form counsel with carriage at the relevant time addressing the issue. As a result, the plaintiff’s position regarding prejudice is totally unfounded.
[98] I am also mindful that a considerable period has now passed since this loss occurred and the parties have not yet gone to examinations for discovery. Trying to reconstruct the events that led to the accident so long after the fact will be difficult. When one is looking at a time frame of 6 years, concern about fading memoires is legitimate when liability remains in issue and those memories will have to be relied on.
[99] For all of the above reasons, I conclude that the motion must be dismissed if I am to do justice between the parties.