The plaintiffs brought a motion to validate service of the Statement of Claim on one of the defendants in an assault action arising from a 2015 incident that resulted in the death of the decedent.
The defendant opposed and brought a cross-motion to dismiss the action for delay under r. 24.01.
The court declined to validate service, finding the claim did not come to the defendant's notice within the prescribed time and the defendant was not evading service.
The court also declined to extend time for service under r. 3.02, finding presumed and actual prejudice to the defendant.
Applying the test for dismissal for delay, the court found the over-8-year delay to be inordinate, inexcusable, and prejudicial, creating a substantial risk that a fair trial would not be possible.
The action was dismissed as against the moving defendant.
