Gerry Falletta

The defendant brought a motion to dismiss the action for delay because the plaintiff failed to serve the statement of claim within the prescribed six-month period.

The claim arose from a 2015 motor vehicle accident and was issued in 2017, but was not properly served until 2022.

The court found the delay to be inordinate, inexcusable, and entirely the fault of the plaintiff.

Presumed prejudice to the defendant was not rebutted, leading the court to grant the motion and dismiss the action.

The tenant appellants appealed an eviction order and a subsequent LTB order denying their request for a review.

The tenants had attended the LTB for their hearing but left during a lunch break because the elevators broke down, and they could not climb 18 flights of stairs due to a disability.

The LTB member dismissed their review request without a hearing, finding they should have telephoned the Board.

The Divisional Court allowed the appeal, holding that the LTB denied the tenants natural justice by failing to hold a review hearing to consider their evidence regarding their inability to participate.

The matter was remitted to the LTB for a review hearing.