Although litigants and the courts are typically very willing to give a Plaintiff many indulgences when it comes to serving their Statement of Claim, this recent decision is a poignant reminder not to take these graces for granted. Indeed, in this case the worst-case scenario unfolded for the Plaintiff and their lawyers: not only did the defendant refuse to grant an indulgence to allow the Plaintiff more time to serve their Statement of Claim, the court agreed that an extension of time could not be granted in this case because it would cause significant and uncompensable prejudice to the Defendant. Based on this ruling, the Plaintiff’s claim was stopped dead in its tracks.
This case involved some fairly specific facts, centered around a Defendant doctor in a medical malpractice case, who became very ill and incapacitated after the time the Statement of Claim should have been in his hands. By the time the Statement of Claim was served, the Defendant Doctor was in no position to communicate intelligibly, thereby depriving him of the ability to defend himself. By the time the motion was heard, the Defendant had died. To make matters worse for the Plaintiff, this was not a situation where the Defendant could not be found, or was evading service: the Plaintiff’s law firm simply had their lines of communication crossed amongst the staff, such that the deadline to serve the Statement of Claim was missed. By the time things were sorted out, the Statement of Claim was served ten (10) months past the six (6) month service compliance time under the rules.
Also working against the Plaintiff was a Statement of Claim that was issued on the eve of the expiration of the limitation period so it wasn’t open to the Plaintiff to simply issue a new Statement of Claim and proceed to serve the new claim. Indeed, if this was the case, then this motion may have been decided very differently, or perhaps not needed at all.
When the Plaintiff’s lawyer sought an extension of time to serve the Claim, which is often provided on consent, the Defendant’s Estate refused. This required the Plaintiff to seeks an order from the court granting an extension of time to serve the Statement of Claim (and otherwise validate the service of the Statement of Claim 10 months after it was supposed to be served), and the judge refused to grant the extension, or validate the late service, agreeing with the Defendant Estate that it would be too prejudicial to the Defendant’s Estate to allow the Plaintiff to serve the Statement of Claim beyond the six (6) months required under the rules, at a time when the Defendant subsequently became mentally incapacitated.
Take Away
Although this may be a rare and unlikely set of circumstances, the reality is that this scenario can play out at any time and with defendants of any age. A plaintiff cannot control what happens in a defendant’s life, but what a plaintiff can do is serve their claims on time, and if that is done, it doesn’t matter if the defendant became mentally incompetent, or died, during the time allotted for service under the rules. The only certainty is that a Statement of Claim served on-time will fully protect a Plaintiff against what happened in this case.
Tookenay v. O’Mahony Estate, 2024 ONSC 709
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc709/2024onsc709.html