Executive Summary: Key Legal and Evidentiary Issues

• Timeliness and sufficiency of the plaintiff’s efforts to serve the Statement of Claim on defendant May Southon, including compliance with Rule 14.08(1) of the Rules of Civil Procedure.
• Court’s discretionary power under Rule 3.02(1) to extend the time for service despite a lengthy delay and limited explanation from the plaintiff’s side.
• Adequacy of evidence regarding prejudice to the defendant, particularly the insurer’s bare assertion of prejudice without concrete particulars and the court’s reliance on Chiarelli v. Wiens.
• Threshold for substituted service under Rule 16.04, including whether it was truly impractical to effect prompt personal service given the minimal investigative steps taken to locate the defendant.
• Role and conduct of insurers (Desjardins/Certas and Cumis) in acknowledging coverage, refusing to accept service, and communicating about limitation period defences.
• Procedural distinction between extending time for service and granting substituted service, and the impact of insufficient factual foundation for relief on the latter.

Background and facts of the case

This case arises from a motor vehicle accident that occurred on September 22, 2019, in which the plaintiff, Ahmed Awad, alleges that defendant, May Southon, was the other driver involved. The plaintiff commenced a civil action for damages arising from this collision and issued a Statement of Claim on April 28, 2022. The claim also named Cumis Insurance Company, the plaintiff’s own insurer, on the basis that the defendant driver might be underinsured or uninsured. The litigation therefore straddles personal injury and insurance law, framed within civil procedure in the Ontario Superior Court of Justice. After the accident, the plaintiff attended a collision reporting centre and completed a Self Reporting Collision Report, which was later filed in support of the motion. That document recorded, among other things, the plate number of the other vehicle, which became central to the plaintiff’s attempts to trace the defendant’s whereabouts.
Following issuance of the claim, the plaintiff’s counsel attempted to involve the insurer believed to be connected to the defendant. On June 28, 2022, and again on August 15, 2022, counsel faxed the Statement of Claim to Desjardins General Insurance Company but received no acknowledgement or response. In November 2022, counsel followed up by email, referring to a specific policy number and asking for the adjuster’s contact details, policy limits, and coverage issues, thereby signalling an intention to proceed through the insurer as the practical point of contact for the defendant. Desjardins responded on November 21, 2022, saying it could not locate a claim with the policy number provided and requested a copy of the Statement of Claim, which was promptly supplied the same day together with a renewed request for the adjuster’s identity.
In early 2023, the insurance landscape clarified somewhat. On January 12, 2023, Cumis advised the plaintiff’s counsel that its investigation showed there was valid insurance coverage through Desjardins and sought a discontinuance of the action against Cumis. Shortly thereafter, an email dated February 2, 2023, from Desjardins to the plaintiff’s counsel acknowledged receipt of an email sent the previous day and stated that for privacy reasons Desjardins could not release information about its client. Desjardins also asserted that the incident was “well past the limitation period” and provided an email address for further communication. On February 17, 2023, the plaintiff’s counsel sent what was termed a “courtesy copy” of the Statement of Claim to Desjardins’ claims representative, insisting that the insured’s address was disclosable and requesting an address for service or confirmation that service would be accepted, while warning that a motion for substituted service would be pursued, with costs, if cooperation was not forthcoming.

Procedural history and attempts to locate the defendant

The plaintiff’s motion was eventually brought to seek (1) an extension of time to serve the Statement of Claim on defendant Southon by an additional 90 days from the date of the order, and (2) an order permitting substituted service of the claim on Desjardins, as the alleged insurer for the defendant. On the defence side, counsel for Desjardins appeared and opposed the motion, while counsel for Cumis appeared only to observe and indicated that Cumis took no position.
The plaintiff’s supporting affidavit was sworn by a law clerk from plaintiff’s counsel’s office. It set out a limited investigative record concerning efforts to serve or locate the defendant. The law clerk stated that she had attempted a search on Facebook for the defendant but could not confirm the identity of the profile located, noting that the last post was in May 2022 and that it gave no indication of the defendant’s whereabouts. The affidavit also referred to a search of the licence plate number recorded in the collision report. That search, annexed as an exhibit, was dated April 29, 2025—almost three years after issuance of the claim and more than two years after Desjardins had made it clear that it would not disclose client information or accept service. There was no explanation for why this plate search was delayed so long or why similar steps had not been taken earlier.
Beyond these two efforts—the late plate search and the unproductive Facebook search—there was no evidence that other routes were explored, such as hiring a skip tracer, conducting broader database searches, or making systematic inquiries to locate the defendant’s residential address. The affidavit nonetheless asserted that it was “impracticable to effect prompt personal service” of the claim and that the law clerk was unaware of any prejudice to the defendants if the motion were granted, but these assertions were largely conclusory and not anchored in detailed factual investigation.

The defendants’ response and prejudice arguments

The defendants, through counsel for Desjardins, filed a responding affidavit that added critical context regarding coverage and the timing of the insurer’s knowledge of the claim. It was disclosed that at the time of the accident the defendant was in fact insured by Certas Direct Insurance Company and that Certas first became aware of the Statement of Claim on February 17, 2023, when it received the “courtesy copy” forwarded by a claims advisor. The defendants also filed copies of the Statement of Defence, Crossclaim, and Jury Notice delivered on behalf of Cumis in November 2024, which had been served on the defendant, and acknowledged receiving some of the plaintiff’s medical records in June 2024.
On the issue of prejudice, the responding affidavit stated in general terms that the defendant’s ability to defend had been prejudiced by the delay since the Statement of Claim should have been served, but it offered no specific particulars of how that prejudice manifested—no evidence of lost witnesses, unavailable records, faded memories tied to specific facts, or compromised investigation steps. The defendant’s submissions drew on prior authorities such as Graff v. Sacrey and Noori v. Grewal, where motions to extend time for service were dismissed due to deliberate inaction or “continued and studied disregard” of the Rules and proven actual prejudice. They argued that, similarly here, notice of the claim only came to the insurer’s attention years after the accident, depriving it of an early opportunity to investigate.

Legal framework: extension of time to serve and role of prejudice

The court analysed the motion through the lens of two main procedural rules. First, Rule 14.08(1) of the Rules of Civil Procedure requires that a Statement of Claim be served within six months of issuance. Since the claim was issued on April 28, 2022, it ought to have been served by October 28, 2022, but had not been served at all by the time of the motion. Second, Rule 3.02(1) gives the court general discretion to extend or abridge time limits prescribed by the Rules “on such terms as are just.”
The leading authority cited by both parties, Chiarelli v. Wiens, shaped the court’s approach. Chiarelli emphasizes that on motions to extend time to serve, the court must focus primarily on the rights of the litigants, not merely the conduct of counsel, and that the key question is whether the defendant will suffer prejudice if an extension is granted. While the onus remains on the plaintiff to show that the defendant will not be prejudiced, the Court of Appeal has held that where the defence simply alleges serious prejudice in general terms, it bears an evidentiary obligation to provide some details; otherwise, the plaintiff cannot reasonably be expected to negate speculative prejudice involving unknown witnesses or documents. Chiarelli also cautions that prejudice sufficient to defeat such a motion must be caused by the delay and cannot be manufactured by the defence’s own failure to act on information it receives.
Applying those principles, the court recognized that the plaintiff’s evidentiary record on prejudice was sparse and that the explanation for the delay—especially in conducting the plate search and bringing the motion—was weak. However, it also noted that the defendant had in fact become aware of the claim as of February 17, 2023, had received some medical documentation, and had been engaged with the plaintiff in discussions over examinations for discovery. Furthermore, the defendant’s assertion of prejudice was itself general and unparticularized, closely resembling the kind of bare allegation rejected as insufficient in Chiarelli.

Analysis and ruling on the extension of time to serve

In considering whether to extend time for service, the court weighed the lack of a robust explanation for delay against the absence of concrete evidence of prejudice to the defence. It distinguished the present case from Graff and Noori, where there had been deliberate decisions not to pursue certain defendants, clear non-compliance with the Rules, and actual, documented prejudice. Here there was no indication that the plaintiff had intentionally chosen not to serve the defendant; rather, there was a pattern of inadequate and belated efforts to locate her address coupled with repeated attempts—albeit misdirected—to secure cooperation from Desjardins or to have it accept service.
The court ultimately found that the central concern must remain the parties’ substantive rights. Given that the defendant had known of the claim for some time, that certain medical documentation had been exchanged, and that the case was progressing at least to the stage of discussions around discovery scheduling, it could not be said that granting an extension would, on the evidence, inflict prejudice arising solely from delay. Accordingly, the court exercised its discretion under Rule 3.02(1) and granted an extension of time to the plaintiff to serve the Statement of Claim on defendant Southon for an additional 90 days from the date of the order. This preserved the plaintiff’s ability to move the personal injury claim forward rather than see it fail purely on a procedural deadline, while still insisting that service be effected within a defined and relatively short period.

Analysis and ruling on substituted service

The more demanding part of the plaintiff’s motion concerned substituted service. Under Rule 16.04, substituted service is available where it appears to the court that it is impractical for any reason to effect prompt personal service of an originating process or other document required to be served personally, and where the court can be confident that the method proposed will bring the document to the attention of the person to be served. Courts have repeatedly emphasized that there is no automatic entitlement to substituted service merely because a party encounters some difficulty, delay, or inconvenience in locating a defendant; rather, the moving party must show that reasonable steps to effect personal service have been exhausted.
Drawing on cases such as Laframbois v. Woodward and more recent authority, the court reiterated that the inability to serve personally is proved by demonstrating that all reasonable steps have been taken considering the nature of the case, the relief claimed, the amounts at stake, and the overall circumstances. On the record before it, the court found that the plaintiff’s efforts fell short of that threshold. The only concrete attempts to locate the defendant’s address since issuance of the claim were a licence plate search—significantly delayed until April 2025—and a superficial Facebook search that did not yield confirmable identity or location. There was no evidence of other investigative steps such as hiring a skip tracer or leveraging other publicly accessible databases or investigative tools that are common in locating individuals for service.
Given these limited efforts, the court held that it could not conclude that it was truly impractical to effect prompt personal service as required by Rule 16.04. It therefore dismissed the plaintiff’s request to serve the Statement of Claim substitutionally on Desjardins. Importantly, however, the court left the door open for future relief: it indicated that the plaintiff would not be precluded from bringing another motion under Rule 16.04 if, after making reasonable and more thorough efforts to locate the defendant, service still could not be accomplished. This approach balanced the need for procedural rigour and proper evidence with recognition that substituted service may ultimately be appropriate if diligent efforts still fail.

Costs, outcome, and implications of the decision

On costs, the court noted that the defendant had filed a bill of costs while the plaintiff had not. Rather than fixing costs in the endorsement, the court invited both parties to provide written submissions of no more than five pages, to be delivered to the trial coordinator by a specified date. As a result, no costs amount was set out in this decision, and there was no determination of damages for the underlying personal injury claim. The endorsement therefore remains limited to procedural relief, leaving the quantum of any costs or eventual damages to be determined in subsequent steps of the litigation.
Overall, the outcome of the motion is mixed but procedurally favourable to the plaintiff. Ahmed Awad succeeded in obtaining a 90-day extension to serve his Statement of Claim on defendant May Southon, thereby preserving his claim and his ability to pursue damages for the motor vehicle accident. At the same time, the plaintiff did not convince the court that reasonable efforts had been made to locate the defendant and thus failed to secure an order for substituted service on Desjardins. The court explicitly allowed the possibility of a renewed substituted service motion if further, more robust investigative steps prove fruitless. As no damages or costs were quantified in this endorsement and costs remain subject to written submissions, the successful party for purposes of this motion is the plaintiff on the extension issue, with no determinable total monetary award or costs amount ordered in his favour at this stage.