



COURT OF APPEAL FOR ONTARIO

CITATION: Pagliuso v. Primerica Financial
    Services Ltd., 2019 ONCA 778

DATE: 20191001

DOCKET: C66583

Sharpe, Hourigan and Jamal JJ.A.

BETWEEN

Fiori
    Pagliuso

Plaintiff
(Appellant)

and

Primerica Financial Services
    Ltd., Primerica Life Insurance
Company of Canada, PFSL Investments Canada Ltd., Primerica
Client Services Inc., Joseph Joe Muro (discontinued), Giuseppe
Joe Mozzone (discontinued), Claudia Mozzone (discontinued), Steve
Battiston (discontinued), Patrizia Battiston (discontinued), Julian
Serena (discontinued), and Franco Greco (discontinued)

Defendants
(Respondents)

Daniel Yudashkin, for the appellant

Caitlin R. Sainsbury and Maureen
    Doherty, for the respondents

Heard and released orally: September 30, 2019

On
    appeal from the order and endorsement of Justice Douglas K. Gray of the
    Superior Court of Justice, dated January 16, 2019.

REASONS FOR DECISION

[1]

In our view, the motion judge did not err in
    refusing to extend the time for the appellant to serve the statement of claim.
    The motion judge found that the appellant was aware of the facts giving rise to
    the claim in December 2012.  The appellant issued the statement of claim in
    March 2015. The rules required him to serve the statement of claim within six
    months of its issuance. The respondent was not served or given any notice of
    the claim. The appellant made a deliberate decision not to serve the statement
    of claim for three years when this motion for extension was brought.

[2]

We do not agree that the motion judge erred by
    taking into consideration the fact that the appellant intentionally did not
    serve the statement of claim.  Conduct of that nature is a relevant factor on a
    motion to extend a statement of claim: see
McGroarty v. CIBC Mellon Trust Company
,
    2012 ONCA 241 at para. 14: a tactical decision to delay service beyond the
    timeframe allowed for service by the rules will certainly redound against a
    party who subsequently seeks an extension of time.

[3]

In any event, we do not agree that the motion
    judge failed to consider prejudice or the overall equities of the case. The
    motion judge found that the respondent was entitled to rely on the presumptive
    prejudice arising from the expiry of the limitation period. The respondent
    argues that the limitation period expired even before the statement of claim
    was issued.  It certainly had expired before this motion was brought. The
    motion judge also found that the defendant had shown actual prejudice given the
    length of delay that occurred. We see no basis to interfere with that finding.

[4]

Nor do we see any basis upon which to interfere
    with the costs award made by the motion judge.

[5]

Accordingly, the appeal is dismissed. Costs in
    favour of the respondent fixed at $17,000, inclusive of disbursements and
    applicable taxes.

Robert J. Sharpe J.A.
C.W. Hourigan J.A.
M. Jamal J.A.


