Chiarelli v. Wiens, (2000) 129 O.A.C. 129 (CA)

• Judge: Catzman, Laskin and Rosenberg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 14, 2000
• Jurisdiction: Ontario
• Citations: (2000), 129 O.A.C. 129 (CA);2000 CanLII 3904 (ON CA);2000 CanLII 3904 (NS CA);46 OR (3d) 780;[2000] CarswellOnt 280;[2000] OJ No 296 (QL);129 OAC 129;43 CPC (4th) 19;94 ACWS (3d) 850

Chiarelli v. Wiens (2000), 129 O.A.C. 129 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. FE.031

Cathy Chiarelli and Francesco Chiarelli (appellants) v. Elisabeth Wiens (respondent)

(C32602)

Indexed As: Chiarelli v. Wiens

Ontario Court of Appeal

Catzman, Laskin and Rosenberg, JJ.A.

February 9, 2000.

Summary:

The plaintiff, Cathy Chiarelli, was injured in a 1988 motor vehicle accident. A state­ment of claim was issued in 1990 within the two year limitation period. The defendant could not be located to be served and her insurer refused to accept service. The six month period for serving the statement of claim expired. The plaintiffs' lawyer never moved to extend the time for service. The plaintiffs retained a new lawyer in 1996 and in 1997 a motion was brought for an exten­sion of time for service of the statement of claim. The Ontario Court (General Division) in a decision reported at 66 O.T.C. 250, granted the exten­sion. The defendant appealed.

The Ontario Divisional Court, O'Leary, J., dissenting, in a decision reported at 122 O.A.C. 147, allowed the appeal. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal and restored the order of the motions judge.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - The plaintiff was injured in a motor vehicle accident - A motions judge granted an extension of time for service of the statement of claim de­spite a delay of over six years since the expiry of the time for service - The mo­tions judge considered that the defendant had notice of the claim, that the defen­dant's address was inadequate for service, that the plaintiffs had no knowledge of their former lawyer's negligence and that they had moved promptly once they learned that the claim had expired - The motions judge also concluded that the defendant would not be prejudiced - The Ontario Court of Appeal held that the motions judge did not make any review­able error despite the long delay.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - The plaintiff was injured in a motor vehicle accident - A motions judge granted an extension of time for service of the statement of claim de­spite a delay of over six years since the expiry of the time for service - The On­tario Court of Appeal held that while the motions judge failed to consider the possi­ble preju­dice to the defendant arising from a de­layed defence medical examination of the plaintiff, any prejudice arising there­from would be slight and would not be a basis to interfere with the motions judge's order - The court noted that the defence medical usually took place shortly before trial when the most up to date medical information had been obtained and that therefore, even if the statement of claim had been served on time, the defence medical would likely still have taken place several years after the accident - There was also voluminous medical information on the plaintiff available - See paragraph 11.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - The Ontario Court of Appeal stated that "although the wording of the former and current rules [for extending time for service] differs, the guiding principles remain the same. As Lacourcière, J.A., said in Laurin v. Fol­desi: 'The basic consideration ... is whether the [extension of time for service] will advance the just resolution of the dispute, without prejudice or unfairness to the parties.' And, the plaintiff has the onus to prove that extending the time for service will not prejudice the defence" - See para­graph 12.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - A motion was brought for an extension of time for ser­vice of a statement of claim - The only allegation of prejudice in the materials filed by the defence was a very general statement that the defence had been preju­diced by the passage of time because rec­ords and witnesses might not be available and their recollections might not be ac­curate - The Ontario Court of Appeal stated that "although the onus remains on the plaintiffs to show that the defendant will not be prejudiced by an extension, in the face of such a general allegation, the plaintiffs cannot be expected to speculate on what witnesses or records might be relevant to the defence and then attempt to show that these witnesses and records are still available or that their unavailability will not cause prejudice ... if the defence is seriously claiming that it will be prejudiced by an extension it has at least an eviden­tiary obligation to provide some details" - See paragraph 14.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - The Ontario Court of Appeal stated that prejudice which would defeat a motion for an exten­sion of time for service must be caused by the delay and that prejudice to the defence that existed whether or not service was delayed was ordinarily not relevant - The court also stated that the defence could not create prejudice by its failure to do some­thing that it reasonably could have or ought to have done - See paragraphs 15 and 16.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - A motions judge granted an extension of time for service of a statement of claim despite a delay of over six years since the expiry of the time for service - The Ontario Divisional Court allowed an appeal - The court stated that it was inclined to think that it would not be appropriate to grant an extension if, after the deadline for service expired, there had been silence for a period longer than the limitation period - The Ontario Court of Appeal allowed an appeal and restored the order of the motions judge - The court stated that there was no rational basis for refusing to extend the time for service simply because the delay was longer than the applicable limitation period - There were no advance rules or guidelines on when an extension should be granted or refused - Each case was to be decided on its facts - See paragraphs 16 to 17.

Practice - Topic 2606

Service - Service and delivery of pleadings - Extension of time for - A motions judge granted an extension of time for service of a statement of claim despite a delay of over six years since the expiry of the time for service - The Ontario Divisional Court allowed an appeal - The Ontario Court of Appeal allowed a further appeal and re­stored the order of the motions judge - The court noted that in refusing to grant an extension, the court below had found it very significant that the defendant herself never knew that a statement of claim had been issued - The court stated that it would give no weight to that consideration - The defendant's insurer had negotiated on her behalf with the plaintiffs' lawyer for nearly three years - The plaintiffs could not be held accountable if the defendant's insurer chose not to tell her that an action had been started and had refused to accept service for her - See paragraph 18.

Cases Noticed:

Laurin v. Foldesi (1979), 23 O.R.(2d) 331 (C.A.), refd to. [para. 12, footnote 4].

Counsel:

Janet E. Gross, for the appellants;

John B. Graham, for the respondent.

This appeal was heard on January 14, 2000, before Catzman, Laskin and Rosen­berg, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Laskin, J.A., on February 9, 2000.