The plaintiffs brought a motion seeking an order extending the time for service of a Statement of Claim nunc pro tunc nearly four years after issuance and several years after the expiration of the service deadline under Rule 14.08(1) of the Rules of Civil Procedure.
The court applied the factors from Chiarelli v. Weins, including notice to the defendant before expiry of the limitation period, the promptness of the motion, the reasonableness of any inference that the claim had been abandoned, the plaintiff’s role in the delay, and prejudice to the defendant.
The court found that the defendant had no notice of the claim until after the limitation period expired, the plaintiffs failed to act promptly to seek an extension, and the explanation of solicitor inadvertence amounted to prolonged neglect rather than a mere slip.
The delay created presumptive and actual prejudice, including jeopardizing the defendant’s ability to bring a third party claim.
The motion to extend time for service was therefore dismissed.
