



COURT OF APPEAL FOR ONTARIO

CITATION:
Sbihat v. Nasar, 2021 ONCA 701

DATE: 20211008

DOCKET: C68867

Hourigan, Huscroft and Coroza
    JJ.A.

BETWEEN

Sameh
    Sbihat

Plaintiff/Appellant

and

Loay Abu Nasar, Darshan Singh
    Toor, Carmel Transport International Ltd. and AJM Toor Group Inc.

Defendants/Respondents

Todd J. McCarthy and Richard J.
    Campbell, for the appellant

David Zuber and Allison Pressé, for the
    respondents

Heard: October 6, 2021 by videoconference

On
    appeal from the order of Justice Mandhane of the Superior Court of Justice,
    dated November 10, 2020.

REASONS FOR DECISION

Introduction

[1]

This action arose out of a motor vehicle
    accident that occurred on April 28, 2016. The statement of claim was issued on
    April 23, 2018. The defendants Darshan Singh Toor and Carmel Transport
    International Ltd. were served with the statement of claim in January or
    February 2020  approximately 16 months after the six-month deadline prescribed
    by r. 14.08(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.
    The defendant AJM Toor Group Inc. was never served.

[2]

The appellant moved to validate service and
    extend the time for service. In his affidavit filed on the motion, the
    appellants former counsel explained that the non-service was caused by
    inadvertence and the failure of his staff to follow instructions. The motion
    was not opposed by the respondent Nasar. However, it was opposed by the
    remaining respondents (the Toor Respondents).

[3]

The motion was initially scheduled for October
    2020, but the appellants former counsel could not proceed on that date for
    medical reasons. The Toor Respondents consented to an adjournment on the
    understanding that the motion would be argued on the record already filed with
    the court. The appellants former counsel agreed to this undertaking in
    writing. Despite that agreement, the appellants former counsel served and
    filed a supplementary affidavit six days before the motion was to be argued.

[4]

The motion was ultimately heard on November 10,
    2020. The motion judge had to consider two issues: (1) whether to admit the
    appellants supplementary affidavit, and (2) whether to validate service and
    grant the extension of time for service.

[5]

The motion judge refused to consider the
    appellants supplementary affidavit because the appellant had previously
    consented not to file additional materials. Accordingly, she held that it was
    improper for the appellant to attempt to resile from that agreement.

[6]

Ultimately, the motion judge dismissed the
    motion. She found that the court should not extend the time for service where
    to do so would prejudice the respondents, and the onus was on the appellant to
    show that there was no prejudice. According to the motion judge, the appellant
    had provided an insufficient explanation for the delay and had adduced no
    evidence of a lack of prejudice beyond a bald assertion that the respondents
    would suffer no prejudice. The motion judge further found that the Toor Respondents
    would suffer actual prejudice in their ability to conduct investigations,
    preserve evidence, and obtain timely medical assessments.

Issues

[7]

The appellant makes two submissions on this
    appeal. First, he argues that this court should admit fresh evidence.  Second,
    he submits that the motion judge erred in refusing to validate service and
    extend the time for service.

Analysis

(i)

Fresh Evidence

[8]

Although the appellant brings a motion for leave
    to file fresh evidence, it is a misnomer to label the proposed evidence as
    fresh because it was filed on the motion. It consists of two affidavits. The
    first was sworn by the appellants former counsel and includes court filings in
    a related action arising from the same motor vehicle accident, along with correspondence
    between the appellants former counsel and the insurer for the Toor Respondents.
    The motion judge rejected this affidavit. The second affidavit is sworn by a
    clerk in the Toor Respondents counsels office. It attaches correspondence
    memorializing the agreement between counsel that no further material would be
    filed following the adjournment.

[9]

The jurisprudence regarding the filing of fresh
    evidence is of no assistance, given that the evidence was clearly available on
    the return of the motion. The operative question is whether the motion judge
    erred in rejecting this evidence.  In our view, she did not. On the record
    before her, it was clear that the parties had reached an agreement that no
    further material would be filed. The motion judge was correct in holding the
    parties to that agreement.

(ii)

Extension of Time for Service

[10]

In considering this ground of appeal, we accept
    the submission of counsel for the appellant that we may have regard to the
    pleadings filed in the companion action.  These pleadings establish that the
    insurer for the Toor Respondents was made aware of the accident and was in a
    position to investigate issues of liability and damages regarding the plaintiff
    in that action.  The insurers knowledge of the accident is further confirmed
    by its receipt of the Motor Vehicle Accident Report, which was filed in the
    material before the motion judge. Further, that report also gave the insurer
    constructive notice of the appellants claim because he was listed as an involved
    person.

[11]

In our view, the motion judge erred in her
    analysis of whether to validate service and extend the time for service in two
    respects.

[12]

First, the motion judge made a palpable and
    overriding error of fact in finding that there
was not a sufficient
    explanation
for the delay in service. The unchallenged evidence filed on
    the motion made clear that the delay was attributable to the former counsels
    inadvertence.

[13]

Second, in her prejudice analysis, the motion
    judge failed to consider that the insurer for the Toor Respondents had notice
    of the accident and the fact that the appellant was an involved person. This
    evidence was sufficient to meet the appellants onus of establishing that the
    Toor Respondents would suffer no prejudice if the order sought were granted. In
    those circumstances, the onus shifted to the Toor Respondents to demonstrate
    why they would suffer prejudice despite their knowledge of the accident and the
    appellants involvement.

[14]

On the evidence before us, there is nothing to
    suggest that the Toor Respondents have been hindered in any way in
    investigating the nature and extent of the appellants injuries. Plainly, they
    have had an opportunity to consider liability issues in the related action.

[15]

When these errors are corrected, it is evident that
    the appellant has met the test to validate service and extend the time for
    service of the statement of claim.

Disposition

[16]

For the foregoing reasons, the motion to admit
    fresh evidence is dismissed, and the appeal is allowed.  The order of the
    motion judge is set aside. In its place, an order shall issue validating the
    late service of the statement of claim. The deadline for serving the statement
    of claim on any defendants who have not been served is extended to thirty days
    from the date of this endorsement. As a term of this order pre-judgment
    interest shall not begin to run until February 7, 2020.  Regarding costs, in accordance
    with the agreement of counsel, we award the appellant $5,500 for the costs of
    the motion below and $7,500 for the costs of the appeal. Both amounts are all-inclusive.

C.W. Hourigan J.A.

Grant Huscroft J.A.

S. Coroza J.A.


