2013 ONSC 5910, 2013 ONSC 5910

CITATION : Bearss v. Scobie, 2013 ONSC 5910 COURT FILE NO.: 10-49139 DATE: 2013/09/19 SUPERIOR COURT OF JUSTICE - ONTARIO RE: ANDREW BEARSS and JENNIFER BEARSS, Plaintiffs AN D: JAMES SCOBIE c.o.b. as SCOBIE HEATING, BLUWAVE ENERGEY LLP. c.o.b. as THERMOSHELL and R.H. THOMSON & SONS LTD. BEFORE: MASTER MACLEOD COUNSEL: Stephen S. Appotive for the plaintiffs Vernon Rogers, for Blaney, McMurtry LLP Anne Tardif for James Scobie HEARD: August 20 th , 2013 ENDORSEMENT [ 1 ] These are motions to repair a number of errors concerning the proper parties to this litigation and their legal representation.

The court has the jurisdiction to make the necessary remedial orders but the question is whether it is reasonable and just to do so. [ 2 ] To summarize the issue briefly, this is a subrogated claim arising out of a 2008 oil leak on property owned by the plaintiffs. An oil fired stove and 909 litre oil tank was installed on the premises in 2006 and the leak occurred in October of 2008. The action was commenced in August of 2010.

For reasons I will come to the names of the parties have become confused. [ 3 ] It is alleged that the leak resulted from the negligence of the person who supplied, installed or inspected the oil tank and related equipment in 2006. Apparently James Scobie installed the tank and his cousin Kenneth (Ken) Scobie inspected it. The involvement of Ken Scobie came to light only at the time of discoveries. The claim names “James Scobie c.o.b. Scobie Heating” as a defendant.

The plaintiff now seeks to add Kenneth Scobie as a defendant and that relief is not contested. [ 4 ] The complication arises because James Scobie was never served personally. Rather the claim was served on Ken Scobie who then proceeded to contact his insurer and to file a defence. That defence was nominally filed on behalf of James Scobie but in fact Blaney, McMurtry now realizes that Kenneth Scobie and not James Scobie is their client. Blaney, McMurtry therefore seeks to be removed as counsel for James.

Kenneth Scobie does not object to being added as a party but the motion is opposed by counsel for James Scobie. It is argued that the effect of the relief sought by the plaintiff is in reality to join James Scobie to the action when the limitation period has expired.

[ 5 ] For the reasons that follow I disagree with this analysis. The plaintiff always intended to sue James Scobie and only later learned of the existence and involvement of Ken Scobie. With respect to James Scobie this is not a case of adding a defendant after the limitation period has expired, it is at best a case of extending the time for service. The court cannot ignore the fact that the plaintiff was led to believe that James Scobie had defended the action.

While that may have been due to actions by Ken Scobie and of Blaney, McMurtry and not of James Scobie himself, in the absence of real prejudice, relief should be granted. Background [ 6 ] In order to understand the issue as argued and my reasons for decision, it is probably best to start with the cast of characters. The facts and allegations are unproven of course and besides the fundamental issue of whether any of the defendants were at fault, there will be conflicting evidence about who contracted with whom.

For purposes of the motion, however, the facts may be taken as follows. [ 7 ] Andrew Bearss and Jennifer Bearss are the plaintiffs. They own the premises at 7219 Third Line Road, in Kars which was the site of the oil leak which gives rise to this litigation. Robert Vergette is not a party to this proceeding but is Jennifer Bearss’ father and at the time in question he owned a heating and air conditioning business known as Associate Air. James Scobie lives in North Gower and works installing heating equipment. At the time in question he may have worked as an employee or sub-contractor for Associate Air.

Ken Scobie is a cousin of James Scobie and also works in the heating business. Ken Scobie carries on business as “Scobie Heating” but has never registered the name. [ 8 ] Shortly after purchasing the property in 2006 the plaintiffs decided to install an oil heating system to service the rental unit which is part of the garage. It is Andrew Bearss’ evidence that he asked his father-in-law about someone to install an oil burning stove and tank. According to that evidence, Mr. Vergette recommended James Scobie to do the installation because he lived in the area and had done some sub-contracting work.

The plaintiffs then contacted James Scobie and arranged for him to install the equipment. [ 9 ] Apparently at the time of the installation, James Scobie contacted Ken Scobie to do the inspection on the installed equipment and subsequently paid him for the service. As a consequence, both James Scobie and Ken Scobie were involved in the installation – one as installer and one as inspector. It is now apparent that it is Ken Scobie’s signature on the inspection reports for the oil burning stove and external oil tank. [ 10 ] The tank was installed on a concrete pad outside the garage.

In 2008 there was an oil leak which is said to have been the result of faulty installation or workmanship. It appears the leak occurred at the valve where the tank supplied the feeder tube leading to the stove. [ 11 ] From the evidence before me on the motion, the plaintiffs have always believed they contracted directly with James Scobie to do the work. They knew nothing of the involvement of Ken Scobie and had no contact with him. The litigation and the confusion [ 12 ] When this action was commenced, the plaintiff told his lawyer that he had contracted with James Scobie of North Gower to install the equipment.

The lawyer drafting the pleadings then tried to locate James Scobie in North Gower and did a Google search which located a “Bizvine” listing for “Scobie Heating” which seemed to be associated with an address in North Gower. There is no evidence before me about the reliability of the “bizvine

Canada Business Directory” or whether James Scobie had any idea that this information was on the internet. Relying on unofficial sources of information on the internet to establish the identity of a party is of course inherently unreliable and in this case it was the start of a chain of events which would be comical were it not for the serious consequences. [ 13 ] Assuming Scobie Heating was James Scobie’s business name counsel then drafted a statement of claim naming “James Scobie c.o.b. Scobie Heating” as one of the defendants.

James Scobie was the correct defendant but there is no evidence he ever carried on business as “Scobie Heating”. The assumption that Scobie Heating was his business name was an unfortunate one and in the context of this action entirely unnecessary. On the other hand, as I will come to, it was hardly fatal. Reading the statement of claim it is readily apparent that James Scobie is the defendant. [ 14 ] Plaintiff’s counsel then hired a process server who ultimately found Ken Scobie at what is apparently his address in Arden, Ontario. At the time he was sitting in a truck on which the name “Scobie Heating” appeared.

The process server then served Ken Scobie on behalf of “James Scobie c.o.b. Scobie Heating”. According to the evidence at the discovery Ken Scobie advised James Scobie that he had just received a claim in connection with 7219 Third Line Road but though the claim named James, Ken contacted his own insurer. Blaney McMurtrey was then appointed as counsel for Scobie Heating and subsequently delivered a statement of defence on behalf of “James Scobie c.o.b. Scobie Heating”. [ 15 ] This was the second error.

Defence counsel simply assumed that the claim was against Scobie Heating, the sole proprietorship operated by Ken Scobie and assumed that James Scobie was an error but he took no steps to bring the presumed inaccuracy to the attention of the plaintiff. The defence was not, for example, delivered on behalf of “Kenneth Scobie incorrectly named James Scobie” nor on behalf of “Kenneth Scobie c.o.b. Scobie Heating”. It was a defence on behalf of the named defendant, that is “James Scobie c.o.b.

Scobie Heating”. [ 16 ] Nothing was done to deny that James Scobie had been properly served and nothing was done to identify the fact that Kenneth Scobie had independent and separate involvement in the project. From the point of view of the plaintiff the named defendant had been served as a sole proprietor and had defended accordingly. [ 17 ] All of this became clear at the time of the discovery. Plaintiff’s counsel had served a notice requiring “James Scobie c.o.b. Scobie Heating” to attend for discovery. It was not James Scobie who appeared but Ken Scobie.

During the discovery Ken Scobie revealed that both he and James had worked on the installation but they were not partners and did not work together. Rather Ken Scobie had been a subcontractor on the job. He believed that James Scobie worked for Associated Air and did not carry on business himself.

[ 18 ] Mr. Appotive now seeks to untangle this. He seeks an order adding Kenneth Scobie as a defendant. This is not contested. Blaney, McMurtry however seeks an order removing it as counsel for James Scobie so that it can put in a defence on behalf of Ken Scobie. Counsel for James Scobie appears and opposes the motion on the basis that is unfair to James Scobie. They want the defence struck out nunc pro tunc and for the action to proceed as if James Scobie had never been served.

The question of service and delivery of a defence [ 19 ] The first question is whether there is any doubt that the statement of claim names James Scobie? This is in doubt only because of the apparently erroneous addition of “c.o.b. Scobie Heating” to James Scobie’s name. I say erroneous because there is no evidence that James Scobie ever carried on business under the name Scobie Heating and certainly it is not a registered business name.

The only reason for thinking he operated as Scobie Heating is the internet search done by counsel. [ 20 ] It is clear in law that an individual carrying on business in Ontario does so in his or her personal capacity whether or not they use a business name and whether or not the name is registered. The legal world consists of individuals and artificial legal entities such as corporations, partnerships and limited partnerships.

Though a sole proprietorship may adopt a business name and may in some instances sue and be sued in the business name it is still ultimately the individual sole proprietor who carries all legal liability. A sole proprietorship is not a separate legal entity from the owner. [ 21 ] A sole proprietor who adopts a business name is supposed to register it under the Business Names Act R.S.O. 1990, c. B.17. Scobie Heating is not registered as a sole proprietorship by either James Scobie or Ken Scobie.

Subsection 2 (2) of the Act makes it an offence to carry on business under a business name without registering it and also renders an individual who carries on business in violation of the Act incapable of maintaining an action in connection with that business except with leave of the court. The reality of course is that many people are either ignorant of the Act, ignore the requirement, or in the case of a name like “Scobie Heating” which utilizes the surname of the proprietor, may believe that it does not apply.

So it is common for individuals to have unregistered business names. [ 22 ] The Rules of Civil Procedure recognize this fact. The prohibition in the Business Names Act prevents the proprietor who has not registered from suing in the name of the unregistered business but it does not protect such a business from being sued. Rule 8.07 permits a sole proprietor who uses a business name other than his or her own name to be sued using the business name.

The main purpose of this is to ensure that if a person has a claim against a business it may sue the business and obtain judgment against the individual as well as any assets held in the business name. As a consequence if James Scobie had been carrying on business as Scobie Heating then pursuant to Rule 8.07 he could have been sued as Scobie Heating or as James James Scobie c.o.b.

Scobie Heating but in any of those instances it would have remained a claim against him in his personal capacity. [ 23 ] In the case at bar, paragraph 3 of the original statement of claim states that “James Scobie (hereinafter “Scobie”) is an individual carrying on business as Scobie Heating in the Province of Ontario and at all material times was engaged in the business of installing oil burning equipment”. There follow claims in negligence and in breach of contract against “Scobie”.

That is against the individual named James Scobie who was responsible for installing the oil tank and burner in the subject premises. In terms of the claim, the reference to carrying on business as Scobie Heating is essentially gratuitous. None of the allegations hang on the question of whether or not James Scobie ever used an unregistered business name. [ 24 ] I conclude that the plaintiff always intended to sue James Scobie in his personal capacity and that a close reading of the statement of claim would have made it clear that the James Scobie who installed the tank and burner was a proper defendant.

The “litigation finger” was and is pointed at James Scobie. Ken Scobie was never named in the claim and is to be added now only because it is now known that the inspection was subcontracted to him. [ 25 ] Accordingly the addition of “c.o.b. Scobie Heating” to the name of James Scobie was a gratuitous and unnecessary addition though it gave rise to the cascade of errors that only came to light in the fall of 2012. If the intention had been to sue Scobie Heating and James was incorrectly named instead of Ken then this would have been a case of misnomer but that is not the case.

James was always the intended defendant. The evidence is entirely clear that the plaintiff did not know of the existence of Ken Scobie or his separate involvement in the project until the time of the discovery. [ 26 ] The assumption that Scobie Heating was a sole proprietorship operated by James gave rise to an error in service. Rule 8.07, contains a special provision for service on sole proprietorships. Individual defendants must be served by personal service or by an alternative to personal service unless on proper grounds the court makes an order permitting service by another means.

The usual means of alternative service is to attempt service at the residence of the individual and then to leave a copy of the statement of claim with an adult at the residence while mailing a second copy (Rule 16.03 (5). A sole proprietorship however may be properly served by leaving a copy of the claim with the sole proprietor or with a person at the principal place of business of the proprietorship who appears to be in control of the place of business. (Rule 16.02 (n)).

Thus had James Scobie been the sole proprietor of Scobie Heating and Ken Scobie been in charge of the place of business of Scobie Heating – as he appeared to be to the process server – service on Ken Scobie would have been good service on James Scobie. [ 27 ] On that basis, Jenny Dunslow, the process server swore the affidavit of service which appears at tab 2b of the motion record. This deposes that “James Scobie c.o.b.

Scobie Heating” was served with the statement of claim by leaving a copy with Ken Scobie “a person who appeared to be in control of the place of business at 1074 Blue Heron Ridge, Arden, Ontario” [ 28 ] Having erroneously concluded on the basis of the internet search that James Scobie operated as Scobie Heating and having served Ken Scobie in his Scobie Heating truck, the process server and the plaintiff’s counsel had every reason to think they had effected service on James Scobie, sole proprietor.

They were not disabused of this notion. [ 29 ] Ordinarily a person served inappropriately with a statement of claim naming someone else would either advise the plaintiff that they had not effected proper service or perhaps would have ignored it on the assumption it did not apply to them. Things would have

unfolded differently had Ken Scobie or his lawyer contacted Hamilton Appotive to advise that Ken Scobie operated as Scobie Heating and James Scobie did not or if they had advised then and there that Ken Scobie had no authority to accept service on behalf of his cousin James. That is not what occurred. [ 30 ] Apparently Ken Scobie did call his cousin James to tell him there was a claim in connection with the installation at 7219 Third Line Road but according to his evidence he did not send him a copy of the claim.

What he did instead was to report the claim to his own insurer and his insurer then appointed counsel. Mr. Hatch has deposed in an affidavit that he simply assumed that “James Scobie” named in the claim was really “Ken Scobie” who carried on business as Scobie Heating because Ken Scobie c.o.b. Scobie Heating was the insured. He therefore prepared a statement of defence and delivered it.

Although his draft affidavit of documents sent on June 9 th , 2011 contained reference to a privileged “handwritten statement of Kenneth Holmer Scobie” dated September 14, 2010 and taken by Crawford Adjusters, nothing was made of that name at the time. [ 31 ] Service rules are not ends in themselves of course. The purpose of those rules is to bring the claim to the attention of a defendant, permit the defendant time to defend and to start the clock running on default proceedings. Service and deficiencies in service if they exist normally become irrelevant once a statement of defence is delivered.

Rule 16.01 (2) provides that a party that has not been served with a statement of claim and delivers a defence is deemed to have been served as of the date of the defence. Thus when the plaintiff received a statement of defence on behalf of “James Scobie c.o.b. Scobie Heating” the plaintiff would no longer have had any reason to question the name of the party or whether service was properly effected. The delivery of a defence on behalf of James Scobie thus perfected service and compounded the original error made by plaintiff’s counsel. [ 32 ] Mr.

Hatch’s affidavit makes it clear that he always received instructions from Ken Scobie or his insurer and never had any dealings with James Scobie. He simply assumed the name was wrong and that James Scobie and Kenneth Scobie were the same person. He did not title the defence as on behalf of Ken Scobie or even just on behalf of Scobie Heating.

Though he did deny the existence of a contract between the parties and denied that the defendant installed the equipment in question, he erroneously did so on behalf of James Scobie. [ 33 ] The existence of Kenneth Scobie as a separate actor in this proceeding only came to light at the time of discovery. Mr Appotive served notice of examination on “James Scobie c.o.b. Scobie Heating” but it was Ken Scobie who attended for discovery. During the examination the facts which form the backdrop to this motion came to light. It was then for the first time that Mr.

Hatch understood he had defended on behalf of someone who was not his client and that Mr. Appotive understood that James Scobie had arranged for his cousin to do the inspection. Mr. Hatch deposes that the existence of James Scobie as a separate individual from his client came to his attention for the first time on November 5, 2012 when he received a copy of the cheque made out to “J. Scobie” and discussed it with his client.

The discovery took place on November 6 th , 2012 at which time Ken Scobie provided the particulars of his involvement as a sub- contractor performing inspection of the work done by James Scobie. [ 34 ] The net result is that Blaney, McMurtry defended on behalf of the defendant James Scobie but without having authority from James Scobie to do so. From the plaintiffs’ point of view, however, the plaintiff sued James Scobie in his personal capacity, served him as a sole proprietorship and received a defence.

The plaintiffs had no reason to sue Ken Scobie as they did not know that he existed nor that he had played any role in the matters forming the subject of the litigation. They had no reason to believe that the action was not properly defended by James. The position of James Scobie [ 35 ] Counsel for James Scobie takes no position on the addition of Ken Scobie as a defendant and counsel for Ken does not oppose the motion. James Scobie takes the position however that the reality that he has never been served and never authorized the defence should be recognized.

In that case counsel argues that the correct approach would be to expunge the defence nunc pro tunc and to deem the claim never to have been served on James Scobie. Of course they then argue it would be unjust to extend the time for service of the statement of claim. James Scobie would then have the benefit of the limitation period. [ 36 ] With respect, notwithstanding that it was an erroneous assumption on the part of the plaintiff that began this series of cascading mistakes. I cannot see how that is fair to the plaintiff.

Had the plaintiff been made aware of the misnomer in a timely manner then the problem would have been easily rectified before the expiry of the limitation period. There was never any intention to sue Scobie Heating other than as a trade name of James Scobie and the plaintiffs have always believed that James Scobie was the person who was hired to do the work. [ 37 ] James Scobie may be blameless in this fiasco or he may not.

He did not swear an affidavit in support or opposition to the motion and so it is unclear when he may have become aware that he was named in the claim and whether he ever knew that Ken had defended in his name. Presumably Ken Scobie could read both the claim and the defence and should have realized James was mentioned. Whether James has been prejudiced by the actions of Ken or of Blaney, McMurtry remains to be seen. It is Ken’s evidence that he told James about the claim and that it involved the subject installation. James may or may have not known more than that. Mr.

Hatch spoke with James Scobie for the first time on February 26, 2013 and advised him of the situation. James then retained counsel. [ 38 ] Counsel for James Scobie advises that it will be James Scobie’s evidence that he performed the installation as an employee of Associate Air. It is also Ken Scobie’s recollection that Robert Vergette was at the site when James installed the oil tank and he assumed it was an Associated Air job. The evidence is in conflict on both of these points.

Andrew Bearss denies that his father in law was present when the oil tank was installed and has been consistent that he contracted with James Scobie. He testifies that he paid James Scobie directly by giving him a personal cheque after the work was done. Though he acknowledges that the payee was blank, the cancelled cheque shows that “J. Scobie” was written in and the cheque deposited. I mention this only to note that I am alert to the possibility that James Scobie may third party Mr. Vergette and further complicate the matter.

The capacity in which James Scobie performed the work may be in issue but it seems clear he was the installer and was paid for the job. Analysis and remedy

[39] The position taken by counsel for James Scobie ignores the fact that an apparently valid defence has been tendered on behalf ofJames Scobie. From the point of view of the plaintiff, this was then a defended action. But it is now clear that Blaney, McMurtry madean error in defending. By doing so they appeared to remedy any defect in service and led the plaintiff to believe that they representedJames Scobie. [40] There is actually no motion before the court to withdraw the defence on behalf of James. This may be because counsel for Jamesthought Blaney, McMurtry would seek to withdraw the defence but Mr.

Hatch has not asked for that relief. He only asks to be removedas counsel for James. This would leave James with a defence which he did not authorize and his (new) counsel would then have to seekleave to amend. I agree this is not the optimal way to proceed. It would be better to strike the defence as a term of the relief. [41] A statement of claim must ordinarily be served within six months of the commencement of the action. That is the time for service would originally have expired on February 9th, 2011.

The statement of defence was delivered on January 6th, 2011. [42] The court may extend the time for serving the claim either before or after the expiry date. The authority to do so falls under thegeneral authority to extend any time prescribed by the rules under Rule 3.02 (1) & (2). Of course such an order should not be made if itis unjust to do so and in any event the court may impose terms. The point is that the court has jurisdiction to do so. It would thereforebe possible to strike the defence as filed in error, remove Blaney, McMurtry from the record, extend the time for service and add KenScobie as a party.

Ken and James would then both have time to file a pleading. [43] This is the proper way to proceed. To remove the erroneous defence, add Ken Scobie and permit both James and Ken time todefend makes sense but that is only appropriate if it is not unjust to James Scobie. Ken of course has been defending the action since2011. It is now seven years since the installation took place, five years since the leak and three years since the action was commenced. To proceed in this manner essentially resets the clock on the litigation.

Though there has been some documentary production anddiscovery, James has not had an opportunity to participate. [44] The governing authority for extending the time for service is Chiarelli v. Wiens (2000) (ON CA), 46 O.R.(3d) 780 (C.A.) in which the Court of Appeal confirms that the court should be concerned mainly with the rights of the litigants and notwith the conduct of counsel. More importantly the court states that exercise of discretion should be granted if it will advance the justresolution of the dispute without unfairness to the parties.

The plaintiff has the onus of showing that there is no prejudice to thedefendant or at least that there is not prejudice that can easily be remedied. In Chiarelli the defendant had been served some seven yearsafter the claim was commenced within the limitation period but the court concluded the defendant was not prejudiced by the delay. Inpart this was because the insurer had been on notice of the claim but more significant was the fact that the delay had not apparentlyresulted in any inability to access the evidence necessary to make a full and fair defence.

The court at paragraph 14 states thatnotwithstanding the onus on the plaintiff, a defendant that is serious in claiming prejudice because of an extension must put forwardsome evidence. At paragraph 16 the court is clear that the prejudice must be prejudice that arises from the delay and not from the fact ofthe action itself. [45] Orders under Rule 3.02 to permit service of a statement of claim beyond six months are routinely given where there has beendifficulty with service. They are of course sought ex parte.

Thus it is not unusual for a statement of claim to be served many monthsafter the action has been started and occasionally more than a year later. Late service if authorized by the court does not give rise to alimitation defence because the operative date for purposes of the Limitations Act, 2002 is the date on which the action is commenced.

The act provides that an action “shall not be commenced in respect of a claim after the second anniversary of the date on which the claimwas discovered”. (s. 4) Here there is no question that the action was commenced in time and had James Scobie been served by February 11th, 2011 or such later date as authorized by order he could not have benefitted from the expiry of the limitation period. [46] I conclude that any prejudice to James in being served after the expiry of the limitation period must arise not from the fact of suchservice which is normal but from the extraordinary extension of time that is now necessary.

If I accept that the first time James wasspecifically aware he was a defendant was when he was called by Mr. Hatch in February of this year that is two years after the date onwhich the statement of claim would ordinarily have been required to be served and at least 18 months beyond the kind of extension thatmight have been ordinarily granted [47] It is possible to argue for a presumption of prejudice once the time for service has expired and it is beyond the limitation period.

The principle of certainty and finality has been recognized as creating a right to reliance when an action has been dismissed and a motionto set aside dismissal is not brought promptly. (See Habib v. Mucaj 2012 ONCA 880 and Wellwood v. Ontario 2010 ONCA 386 asexamples) In cases where actions have been dismissed the presumption arises at the time of the dismissal and speaks with increasingforce with the passage of time. It is far from clear under these circumstances however that the defendant can rely only on apresumption.

There is no dismissal order and there is no evidence James Scobie actually thought he was protected or did anything inreliance on such a presumption. The prejudice to the plaintiffs if they cannot pursue the action against the installer by contrast will betotal as they lose the right of action. [48] The plaintiff has explained the delay. There was no apparent need to seek an extension of time once a defence was received. Infact on the date the motion was argued the defence remains in place. It is only if I strike it, relief requested by James Scobie, that theneed for an extension of time to serve him arises.

It appears that most of the evidence was preserved and the loss investigated by anindependent adjuster. Documents appear to be available. All of the principal actors are available as witnesses. James Scobie tenderedno evidence concerning failing memory or other prejudice. I conclude it is not unjust to grant an extension of time on the basis of theprinciples set out in Chiarelli, supra. [49] Even if I am in error in applying the principles applicable to extensions of time and I accept that this is a case of misnomer, itwould be possible to rectify it.

The law in respect of adding a correct party who has not been properly named after the limitation periodhas expired was succinctly summarized by Kenneth Campbell J. in Stekel v. Toyota Canada Inc. 2011 ONSC 6507. Misnomer may becorrected by adding or substituting the proper party even after the expiry of the limitation period if it is apparent that the plaintiffintended to name the defendant and if the intended defendant knew it was the intended defendant though misdescribed. There is noproblem with the first branch of the test. The second is more problematic. The evidence shows that James Scobie knew there was

litigation about the installation shortly after Ken Scobie was served. It stops short of demonstrating that he knew he was actually the named and intended defendant. I would however be prepared to draw a negative inference from his failure to file an affidavit. It seems improbable that Ken Scobie did not realize that James was named in the statement of claim and in the defence and that he would not have communicated that to his cousin at some point before Mr. Hatch called James in February of this year. Conclusion and Disposition [ 50 ] There remains the question of terms.

I will grant the order to add Kenneth Scobie and I will allow Blaney, McMurtry to withdraw as counsel of record for James. Although it was not requested in the notice of motion, I will also deem the defence tendered on behalf of James to be withdrawn. The time for serving the statement of claim will be extended to the date of the motion and James will be deemed to have been served as of that date. James and Kenneth will have time to defend.

James will have a right to full production and discovery notwithstanding the discoveries already conducted and Ken may have additional discovery if there are issues raised by the new pleadings that were not previously canvassed. Leave is also granted to amend the claim as set out in the motion record to reflect the addition of Ken Scobie as a party. [ 51 ] In addition, because this action is already more than two years old, I will extend the time under Rule 48.14 so that the plaintiff is not immediately faced with a status notice.

The plaintiff will have one further year to set the action down for trial. [ 52 ] Nothing in this extension of time or in these reasons will prejudice the rights of any of the defendants should they be able to demonstrate real prejudice for delay in prosecution of the action and wish to bring a motion under Rule 24 to dismiss for delay. [ 53 ] Finally, though the plaintiff and Blaney, McMurtry were both successful in their motions, this is not a case for costs. None of the other defendants took a position or appeared on the motion. ___________________________ Master MacLeod