Cardenas v. Toronto (City), 2017 ONCA 237

Defendant brought Third Party claim against home owner, but failed to serve the Third Part Claim. Defendant’s motion to validate service was dismissed. Court was not satisfied that statement of claim came to third party’s attention. Motion judge found personal service was important because third party’s potential liability far exceeded limits of her policy. Defendant appealed and this appeal was dismissed as the interests of justice did not require dispensing with service.

Released March 23, 2017 | Full Decision [CanLII]

In June 2008, the plaintiff was struck when riding his bicycle by a car driven by the appellant, Eugenio Sallese. The plaintiff sustained catastrophic injuries. An action was commenced by the Cardenas family in February 2012 against Sallese. In June 2012, Sallese issued a Third Party Claim against Rosa Cavallo and the estate of her late husband, alleging that trees on their property blocked the view of the bicycle. The Third Party Claim was not served. 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 were unknown.

By order dated June 19, 2014, B. O’Marra J. set aside the defence and permitted Sallese six-months to attempt personal service of the Third Party Claim on Rosa. 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 judge dismissed the motion. He decided he was not satisfied that the statement of claim had come to the attention of Rosa Cavallo. The motion judge also refused to dispense with personal service on Rosa. The trial judge found that personal service was important because of Rosa’s potential liability far exceeded the limits of per policy. Sallese appealed.

The appeal was dismissed. The motion judge did not err in reaching his decision. Firstly, the affidavit filed by Sallese on the motion did not identify the source of key facts and contained second and third hand hearsay. Sallese did not adduce evidence to support an argument of necessity that required admission of impermissible hearsay evidence. Second, Sallese submitted that service on Rosa should be dispensed with because he had undertaken to cap his claim against her to the limits of her policy. The Court of Appeal found that the motion judge did not err 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. Though Sallese’s counsel did give an oral undertaking, 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. In any event, the Court was 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.

Although Sallese had the 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 his appeal to file fresh evidence that contained admissible information demonstrating the pleading had come to Rosa’s attending. As such, the Court of Appeal found no basis to interfere with the motion judge’s conclusion that the interests of justice did not require dispensing with service.

Read the full decision on CanLII
Einav Shlomovitz
Written by

Einav practices exclusively in civil litigation. Her practice focuses on motor vehicle accident, accident benefits, occupier’s liability, slip/trip and falls, dog bites, medical malpractice, solicitor negligence, class action, employment and sexual assault claims.

During her free time, Einav takes improv and Spanish lessons. She enjoys being active, traveling, and spending time with family and friends.