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Motion to extend time for service of a statement of claim dismissed due to unexplained delay and actual prejudice from the loss of key witnesses.
The plaintiffs, Vincent and Rosemary Tookenay, brought a motion to extend the time for service of their statement of claim in a medical malpractice action against the Estate of Dr. Michael O’Mahony and others, and to validate irregular service.
The statement of claim was issued in April 2021 but not properly served until January 2023, well beyond the six-month deadline.
The plaintiffs attributed the delay to a "miscommunication" within their lawyers' office.
The defendant Estate opposed the motion, arguing significant and uncompensable prejudice due to the unavailability of two key witnesses: Dr. O’Mahony, who suffered severe cognitive decline and later passed away, and nurse practitioner Melissa Georgiou, who died of cancer.
The court dismissed the plaintiffs' motion, finding an unexplained one-month delay after the plaintiffs' lawyers realized the claim had not been served, and actual prejudice to the defendant Estate due to the loss of crucial witness testimony.
Action restored to trial list where delay was caused by former lawyer's inaction and no prejudice to defendants.
The plaintiffs brought a motion to restore their personal injury action to the trial list after it was struck off due to the inaction of their former lawyer, who was subsequently suspended by the Law Society.
The defendants brought a cross-motion to dismiss the action for delay.
The court found that the plaintiffs had an acceptable explanation for the delay, as they had constantly inquired about the status of their file and were failed by their former lawyer.
The court also found no non-compensable prejudice to the defendants, as liability had been admitted and relevant evidence preserved.
The plaintiffs' motion was granted and the defendants' cross-motion was dismissed.
