Sbihat v. Nasar

Sbihat v. Nasar

The motion judge properly refused to admit the supplementary affidavit because counsel had agreed not to file further materials, but erred in (1) finding the explanation for the delay inadequate when unchallenged evidence showed counsel's inadvertence and (2) in the prejudice analysis by failing to account for the insurer's actual and constructive notice (via the Motor Vehicle Accident Report). Given counsel's inadvertence and insurer notice, the appellant met his onus and service of the statement of claim was validated and time for service extended with terms.

Citation
2021 ONCA 701
Parties
Plaintiff/appellant: Sameh Sbihat; Defendant/respondent: Loay Abu Nasar; Defendant/respondent: Darshan Singh Toor; Defendant/respondent: Carmel Transport International Ltd.; Defendant/respondent: AJM Toor Group Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
8 October 2021
Procedural Posture
Civil (motor Vehicle Tort) / Appeal From Motion Judge (superior Court of Justice)
Outcome
Appeal allowed in part: motion to admit fresh evidence dismissed; order of motion judge set aside; late service validated and time for service extended; specified terms on prejudgment interest and costs awarded to appellant.
Legal Topics
Service of Process, Extension of Time for Service, Prejudice Analysis, Admission of Fresh Evidence, Agreement Between Counsel, Validation of Service
Source Language
English
Civil Procedure Tort Insurance Law Motor Vehicle Claims Service of Process Extension of Time for Service Prejudice Analysis Admission of Fresh Evidence +2 more

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Parties

Sameh Sbihat

Plaintiff/appellant

Loay Abu Nasar

Defendant/respondent

Darshan Singh Toor

Defendant/respondent

Carmel Transport International Ltd.

Defendant/respondent

AJM Toor Group Inc.

Defendant/respondent

Procedural Posture

Civil (motor Vehicle Tort) / Appeal From Motion Judge (superior Court of Justice)

Legal Issues

  1. 1 Whether to admit supplementary/fresh affidavits filed on the motion
  2. 2 Whether to validate service and extend time for service of statement of claim under r.14.08(1)
  3. 3 Whether the motion judge erred in findings of fact and prejudice analysis

Ratio Decidendi

The motion judge properly refused to admit the supplementary affidavit because counsel had agreed not to file further materials, but erred in (1) finding the explanation for the delay inadequate when unchallenged evidence showed counsel's inadvertence and (2) in the prejudice analysis by failing to account for the insurer's actual and constructive notice (via the Motor Vehicle Accident Report). Given counsel's inadvertence and insurer notice, the appellant met his onus and service of the statement of claim was validated and time for service extended with terms.

Court Disposition

Appeal allowed in part: motion to admit fresh evidence dismissed; order of motion judge set aside; late service validated and time for service extended; specified terms on prejudgment interest and costs awarded to appellant.

Orders

  • Motion to admit fresh evidence dismissed
  • Order of the motion judge dated November 10, 2020 set aside