Executive Summary: Key Legal and Evidentiary Issues

• Adequacy of the plaintiff’s explanation for the delay in serving the statement of claim on the defendants.

• Whether the defendants would suffer prejudice or unfairness due to the delay in service.

• Application of the Rules of Civil Procedure regarding extension and validation of time for service.

• Determination of misnomer and appropriateness of substituting the correct defendant’s name.

• Extension of the set down date for trial and the need for a timetable for further proceedings.

• Allocation of costs in light of the parties’ conduct regarding the motion.

Facts of the case

Osbourne Jacob Roach, as plaintiff, brought a motion against Boyce Stewart (to be corrected to Stewart Boyce) and ERB Transport Limited, as defendants, before the Ontario Superior Court of Justice. The plaintiff sought an order validating and extending the time to serve each of the defendants with the statement of claim, an order substituting the named defendant “Boyce Stewart” for the proper defendant “Stewart Boyce” with leave to amend the claim, and an order extending the set down date from 19 June 2025 to 19 June 2027. The action was commenced within the relevant limitation period. The parties agreed that the six-month period to serve the statement of claim expired on 19 December 2020. ERB Transport was served on 9 November 2022, the insurer for Boyce was served on 11 November 2022, and Boyce himself was personally served on 21 October 2025.

Explanation for the delay

The court found that the plaintiff adequately explained the delay in serving the defendants. The delay was caused by the departure of the lawyer who had carriage of the file and a misunderstanding about responsibility for the file thereafter. In April 2022, the plaintiff’s firm realized the claim may not have been served and conducted Ministry of Transportation searches to obtain addresses for ERB and Boyce. ERB’s address was received on 26 October 2022, and ERB was served on 8 November 2022. The insurer for ERB and Boyce received a copy of the statement of claim on 11 November 2022. Efforts to locate Boyce continued, including attempts to obtain a police report and requests to the insurer, but Boyce’s address was not obtained until ERB provided it on 9 October 2025. Boyce was then served on 21 October 2025.

Policy terms and rules at issue

The court referenced the Rules of Civil Procedure, specifically rules 1.04(1), 2.01(1), and 3.02(1)-(2), which allow for liberal construction of the rules, permit amendments and relief for irregularities, and allow the court to extend or abridge time periods. The court also cited Chiarelli v. Weins, 2000 CanLII 3904, as the leading authority on motions to extend time for service of a statement of claim, emphasizing that each case should be decided on its facts and focusing on whether the defence is prejudiced by the delay.

Prejudice to the defendants

The court concluded that the defendants would suffer no prejudice or unfairness as a result of the delay in service. The parties, through their insurers, exchanged information about the accident and the plaintiff’s alleged damages within days of the June 2018 motor vehicle accident and continued to do so for about two years before the claim was issued. By 3 July 2018, the plaintiff’s insurer had provided the defendants’ insurer with details of the accident and its position on fault. The defendants’ insurer investigated and opened files, and by April 2024 had sufficient information to set a reserve. ERB’s accident report form required Boyce to provide a detailed statement, which he did on 21 June 2018. Boyce also spoke to ERB on 25 June 2018. The court found that the loss of dashcam evidence and police notes was not caused by the delay in service, as these would not have been available even if service had been timely. There was no evidence of other witnesses, and the plaintiff’s medical records were available and served. The plaintiff did not assert a loss of income claim.

Misnomer and amendment of the defendant’s name

The court granted the plaintiff’s request to substitute the named defendant from “Boyce Stewart” to “Stewart Boyce” on the basis of misnomer. Counsel for the defendants confirmed there would be no objection if the motion was granted.

Extension of set down date and costs

The court granted the plaintiff’s request to extend the time to set the action down for trial from 19 June 2025 to 19 June 2027, requiring the parties to confer and agree on a timetable for productions, discoveries, and mediation. If they could not agree, they were to arrange a case conference. On costs, the court found it was not unreasonable for the defendants to contest the motion given its timing, and ordered that each party bear its own costs.

Ruling and outcome

The plaintiff’s motion was granted. The time to serve the statement of claim on ERB was extended to 9 November 2022 and validated as of that date. The time to serve the statement of claim on Boyce was extended to 21 October 2025 and validated as of that date. The defendant’s name was amended to “Stewart Boyce.” The set down date for trial was extended to 19 June 2027. Each party was ordered to bear its own costs. No specific monetary amount was awarded, as the relief was procedural and costs were not ordered in favor of either party.