Anthony J. Potestio

The insurer appealed a trial judgment that awarded the insured household and attendant care expenses for a pre-judgment period, regardless of whether they were actually incurred.

The Court of Appeal found the trial judge erred by not applying the statutory definition of "incurred" under s. 3(7)(e) of the SABS-2010 and by misapprehending evidence regarding the insurer's delay in assessing benefits for the purpose of deeming expenses under s. 3(8).

The Court allowed the appeal, set aside the relevant parts of the trial judgment, and ordered a new trial on the issue of whether the insurer unreasonably withheld or delayed payments.

The plaintiffs brought a motion for substitute service of a statement of claim and an extension of time for service under Rules 16.04 and 3.02 of the Rules of Civil Procedure.

The action arose from a fatal pedestrian motor vehicle accident, but the defendants had not been served within the required six‑month period after issuance of the claim.

The court found the plaintiffs had made minimal efforts to locate and serve the defendants and had not demonstrated due diligence.

Applying the principles in Chiarelli v. Weins and considering prejudice arising from the delay, the court held that both presumed and actual prejudice existed, including the loss of key witnesses and impaired ability to pursue claims against other potentially liable parties.

The plaintiffs failed to rebut the presumption of prejudice.

The motion for substitute service and extension of time was therefore dismissed.