Court of Appeal for Ontario
BEFORE: Rosenberg, MacPherson and LaForme JJ.A.
BETWEEN
Ellen Boivin
Plaintiff
and
Malkit Gotara and Kulwinder Gotara
Defendants
COUNSEL:
Kirk F. Stevens, for the plaintiff Boivin
Robert S. Franklin and Stacey Iordanis, for the defendants Gotara
HEARD: November 2, 2010
On appeal from the order of Justice David L. Corbett of the Superior Court of Justice, dated October 19, 2009.
APPEAL BOOK ENDORSEMENT
1The appellant appeals the decision of Corbett J. dated 19 October 2009 dismissing the plaintiff’s action for non-compliance with the governing limitation period.
2The appellant’s essential submission is that in the absence of a finding of actual prejudice to the defendant, which the motion judge did not make, the plaintiff’s action should have been permitted to proceed even though the statement of claim was served more than two years outside the limitation period.
3We disagree. In our view, the motion judge considered the relevant factors set out in the governing case law. In particular, his discussion of the defendant’s prejudice and his careful consideration of the complete lack of explanation for the two-year delay by the appellant’s solicitor, support his conclusion to not extend the time to serve the claim to dismiss the action.
4The appeal is dismissed.
5No costs.