



COURT OF APPEAL FOR ONTARIO

CITATION: Cardenas v. Toronto (City), 2017 ONCA 237

DATE: 20170323

DOCKET: C62485

Hoy A.C.J.O., Gillese and Brown JJ.A.

BETWEEN

David Cardenas, a minor under the age of eighteen
    years represented by his Litigation Guardian, Carmen Victoria Cardenas, Evelyne
    Cardenas and Carmen Victoria Cardenas, personally

Plaintiffs

and

Eugenio Sallese

Defendant (Appellant)

and

City of Toronto, Rodrigo
    Cardenas,
The Estate of Francesco Cavallo
, and
Rosa Cavallo

Third Parties (
Respondents
)

Todd J. McCarthy and Jean-Claude J. Rioux, for the
    appellant

David Bierstone, for the respondents

Heard: March 10, 2017

On appeal from the order of Justice Robert F. Goldstein of
    the Superior Court of Justice, dated June 23, 2016, with reasons reported at 2016
    ONSC 4178.

ENDORSEMENT

OVERVIEW

[1]

Almost nine years ago, in June
    2008, the plaintiff, seven-year old David Cardenas, was struck when riding his
    bicycle on Neames Crescent, Toronto, by a car driven by the appellant, Eugenio
    Sallese. An action was commenced by the Cardenas family in February 2012.

[2]

Rosa Cavallo and her husband,
    Francesco, owned a house on Neames Crescent. In June 2012, Sallese issued a
    Third Party Claim against Rosa Cavallo and the estate of her late husband,
    alleging that foliage on their property had created a hazard to motorists
    driving on the street where young David was struck.

[3]

Acting under the mistaken belief
    that the Third Party Claim had been served on the Cavallos, their insurer,
    Economical Insurance, filed a defence to the Third Party Claim in March 2013.
    When the insurer realized its mistake, it moved to set aside the defence in
    2014. By that time, Rosa had sold the house and moved to Italy. Her exact
    whereabouts was unknown.

[4]

By order dated June 19, 2014, B.
    OMarra J. set aside the defence and permitted Sallese six months to attempt
    personal service of the Third Party Claim on Rosa.

[5]

Sallese then began efforts to
    locate and serve Rosa in Italy. He did not do so within the six months
    stipulated by B. OMarra J.

[6]

About two years later, in June
    2016, Sallese moved for an order seeking an extension of time for service of
    the Third Party Claim on Rosa
nunc pro tunc
, together with an order validating service of the
    pleading on Rosa on the basis the pleading had come to her attention. The
    motion was supported by hearsay evidence describing the attempts that had been
    made to locate and serve Rosa.

[7]

The motion judge dismissed the
    motion. He observed most of the information concerning Rosas Italian address
    came from sources that are unidentified. He questioned the reliability of the
    information based on the hearsay and concluded there is a real question as to
    whether a Rosa Cavallo has been served, let alone the correct Rosa Cavallo. He
    decided he was not satisfied that the statement of claim has come to the
    attention of Rosa Cavallo.

[8]

The motion judge also refused to
    dispense with personal service on Rosa. He held that as her potential liability
    far exceeded the limits of her policy, the potential prejudice against Rosa was
    great, whereas the case against her was on its face, quite weak.

[9]

Sallese appeals. He submits the
    decision of the motion judge was an unfair triumph of form over substance. He
    argues the evidence that was before the motion judge clearly demonstrated Rosa
    knew Sallese was making a claim against her and the pleadings had come to
    Rosas attention and asks this court to dispense with service. Sallese also
    contends the motion judge erred by failing to give effect to an oral
    undertaking given by his counsel that Sallese would limit the amount of his
    Third Party Claim against Rosa to the limits of her insurance policy.
    Alternatively, Sallese requests this court grant a further extension of time to
    effect personal service on Rosa.

ANALYSIS

[10]

Although an affidavit on a motion
    may contain statements made on information and belief, the affidavit must
    specify the source of the information: r. 39.01(4) of the
Rules of
    Civil Procedure
. The affidavit filed by
    Sallese on the motion did not identify the source of key facts. The motion
    judge noted the sources of the information in this case are second or even
    third hand hearsay. That led the motion judge to question the reliability of
    the evidence filed regarding attempts to serve Rosa and to conclude the
    pleading had not come to Rosas attention.

[11]

We see no error with that
    conclusion. The requirements of r. 39.01(4) are clear, and Sallese did not
    adduce any evidence to support an argument that necessity required the
    admission of impermissible hearsay evidence. Accordingly, we see no basis for
    appellate interference with the motion judges refusal to validate service on
    Rosa.

[12]

Sallese submits this court should
    dispense with service on Rosa because he had undertaken to cap his claim
    against her at the limits of her policy. Although there was not clear agreement
    between counsel that such an undertaking had been given before the motion
    judge, we accept that Salleses counsel did give an oral undertaking. However,
    that was not the appropriate way in which to provide a formal undertaking to
    the court. Such an undertaking should be reduced to writing, preferably by way
    of an affidavit or, at a minimum, should be included in the recitals to the
    resulting order.

[13]

In any event, we are not persuaded
    that in the circumstances of this case the motion judge was required to
    conclude such an undertaking was sufficient, in itself, to dispense with
    service. Salleses counsel advised that Sallese had also orally undertaken to
    B. OMarra J. to cap his claim against Rosa at the limits of her policy. The
    order of B. OMarra J. nonetheless required that Sallese effect personal
    service on Rosa. That order was not appealed. Although it lay within Salleses
    power to place admissible evidence before the motion judge about his efforts to
    serve Rosa, he failed to do so. Nor did Sallese seek leave on this appeal to
    file fresh evidence that contained admissible information demonstrating the
    pleading had come to Rosas attention. Accordingly, we see no basis to
    interfere with the motion judges conclusion that in this case the interests of
    justice do not require dispensing with personal service.

DISPOSITION

[14]

The appeal is dismissed. However,
    if Sallese is later able to demonstrate on fresh, cogent and admissible
    evidence that he has located Rosa, the dismissal of this appeal does not
    prejudice his ability to move before the court below for further relief.

[15]

The respondents are entitled to
    their costs of this appeal fixed at $7,500, inclusive of HST and disbursements.

"Alexandra
    Hoy A.C.J.O."

"E.E.
    Gillese J.A."

"David
    Brown J.A."


