The appellants sought to restore a motion order extending the time for service of a statement of claim issued within the limitation period but not served before the service deadline expired.
The court held that the controlling question was whether the respondent would suffer prejudice caused by the delay, and confirmed that while the onus remained on the plaintiffs, a defendant asserting prejudice had at least an evidentiary obligation to provide some particulars.
The court further held that a defendant could not manufacture prejudice by failing to take reasonable steps earlier to preserve evidence, and that prejudice unrelated to the delayed service was irrelevant.
The appeal was allowed, the Divisional Court order was set aside, and the original extension order was restored.
