Fridays with Rogers Partners

At our weekly meeting, Jaaron Pullenayegem discussed the recent decision in Harrigin v. Clarke, 2024 ONSC 6130. This decision addressed a plaintiff’s motion to extend the deadline to serve a statement of claim on the defendant Clarke, stemming from a 2019 motor vehicle accident. The statement of claim was issued in November 2021, giving the plaintiff until May 2022 to serve Clarke. However, service was only attempted in October 2023. The plaintiff provided two main reasons for the delay: an incorrect motor vehicle search, and staffing disruptions due to COVID-19.

The court considered Tookenay v. O’Mahony Estate, 2024 ONSC 709 which sets out factors to be considered when determining whether the court should exercise its discretion to grant an extension of time to a serve a statement of claim including:

1. the length of the delay,
2. the evidence filed that explains the delay,
3. whether the evidence regarding the explained delay is sufficient,
4. whether or not the plaintiff moved promptly for an extension of time after the period expired,
5. whether or not the delay in serving the claim resulted from the direction, participation, or involvement of the plaintiff personally in the service of the claim,
6. the extent to which the defendant, themselves, bears some or all of the responsibility for this delay,
7. whether or not it was reasonable for a defendant to infer from all the circumstances that the plaintiff had abandoned his claim,
8. whether the applicable limitation period for the action has already expired,
9. whether the defendant had notice before the expiry of the limitation period that the plaintiff was asserting a claim against the defendant, and
10. whether the defendant would suffer prejudice if the motion is granted.

The Court found that neither the motor vehicle search error nor COVID-19 issues adequately explained why Clarke was not served within the initial six-month period or in the 17 months afterward.

The associate judge highlighted that the plaintiff’s firm had Clarke’s address from the start, making a simple process server request feasible within the deadline. While COVID-19 was disruptive, the court noted that limitations were lifted in Ontario by September 2020, a full year before the claim was filed. Additionally, the plaintiff did not file the motion to extend time until August 2024—further indicating a lack of prompt action.

Clarke argued that the delay in service prevented a timely investigation, which is essential for defending a claim, particularly as memories fade and witnesses become harder to locate over time. Clarke never received an affidavit of documents nor a notice letter. The court agreed that this constituted significant prejudice.

Ultimately, the court decided not to grant the extension, citing insufficient explanations for the delay and the prejudice caused to Clarke. The motion was dismissed, and Clarke was awarded $10,000 in costs.