



COURT OF APPEAL FOR ONTARIO

CITATION: Sultan v. Hurst, 2018 ONCA 37

DATE: 20180117

DOCKET: C64087

Feldman, Pepall and Huscroft JJ.A.

BETWEEN

Muhammad Asim Sultan

Plaintiff/Appellant

and

Mark Hurst

Defendant/Respondent

Jillian van Allen, for the appellant

Jeffrey Goit, for the respondent

Heard and released orally: January 11, 2018

On appeal from the judgment of Justice Harper of the
    Superior Court of Justice, dated June 22, 2017.

REASONS FOR DECISION

[1]

The appellant appeals the decision of the motion judge refusing to validate
    the late service of the statement of claim. The claim was issued within the two
    year limitation period following the accident, but was served more than two
    years after the expiry of the six month limit to serve a statement of claim set
    out in r. 14.08(1) of the
Rules of Civil Procedure
. By the time the
    claim was served, the limitation period had expired. Therefore, the practical
    effect of the motion judges order was to prevent the plaintiff from pursuing
    his claim.

[2]

The appellant raises two alleged errors. First, he says that the
    defendant waived the irregular service by delivering a statement of defence. We
    do not accept this submission. Besides the fact that this issue was not raised
    before the motion judge, the respondents statement of defence did not waive
    the irregularity but specifically pleaded and relied on it as part of the
    defence.

[3]

The second alleged error is that the motion judge erred in his analysis
    and conclusion that the defendant suffered prejudice by the delay. We see no
    error in the motions judges analysis or conclusion.

[4]

The respondent made several attempts to request information regarding
    the plaintiffs injuries from the plaintiffs counsel, who never responded. The
    respondent gave evidence that its ability to conduct a defence medical, timely
    surveillance of the plaintiff and a full investigation, were hampered by the
    delay. The motion judge was entitled to accept this evidence. He also found
    prejudice in the ability of the defendant to get timely OHIP records which are
    only obtainable for seven years from the date of request.

[5]

In our view, there is no basis on this record to interfere with the
    decision of the motion judge.

[6]

The appeal is therefore dismissed, with costs in the amount of $4,500,
    inclusive of disbursements and HST payable to the respondent.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

Grant
    Huscroft J.A.


