DATE: 20060206

DOCKET: C43478

COURT OF APPEAL FOR ONTARIO

RE:

BRYAN COOK (Plaintiff (Appellant)) – and – AXA INSURANCE (CANADA), carrying on business as AXA INSURANCE (Defendant (Respondent))

BEFORE:

GOUDGE, LANG AND MACFARLAND JJ.A.

COUNSEL:

Paul R. Sweeny

for the appellant

Linda Matthews

for the respondent

HEARD & RELEASED ORALLY:

January 30, 2006

On appeal from the order of Justice Patrick Joseph Flynn of the Superior Court of Justice dated April 6, 2005.

E N D O R S E M E N T

[1] In our view the motion judge erred in not extending the time for service of the statement of claim. Perhaps understandably, he appeared motivated in some considerable measure by his frustration at the conduct of plaintiff’s counsel (not Mr. Sweeny). That cannot be allowed to displace the assessment of prejudice if any to the defendant Moreover, part of his concern in this regard, namely his view that the letter of January 29 1998 was not sent, appears to have been ill founded.

[2] Secondly, the motion judge’s view that the plaintiff had no case also appears to have improperly coloured his conclusion and his assessment of prejudice to the defendant.

[3] Finally, in our view, there appears to be little if any prejudice to the defendant here. There is no showing that the records sought are in fact unavailable. While the passage of time may affect medical memories, it appears that the clinical notes of the doctors are all available to refresh memories, if necessary.

[4] In the circumstances, we would therefore allow the appeal and order the time for service of the statement of claim extended to February 10, 2006. Given the conduct of plaintiff’s counsel below, we would order no costs to the appellant here or below.

“S. T. Goudge J.A.”

“S. E. Lang J.A.”

“J. MacFarland J.A.”