Court File and Parties
DIVISIONAL COURT FILE NO.: 759/02 COURT FILE NO.: 00-CV-191475 DATE: 20031006
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: NATHAN GLASROTH and IREENA MILEEVSKY Plaintiffs (Appellants)
- and -
ALISON LEE CAPELL, LEON HOFFMAN, MARK GLATT and NORTH YORK LEASING LTD. Defendants (Respondents)
BEFORE: Mr. Justice Gravely
COUNSEL: A.J. Esterbauer, for the Appellants Chris G. Paliare, for the Respondents
HEARD at Toronto: October 2, 2003
E N D O R S E M E N T
In dismissing the motion the Master in my respectful opinion failed to apply the correct principles. Instead of considering the central issue which was whether the defence was prejudiced he focused entirely on the length of delay and the expiry of the limitation period before service.
As outlined in Chiarelli v. Wiens (2000), 46 O.R. (3d) 780 (C.A.), the onus is on the plaintiff to show that the extension will advance the just resolution of the dispute, without prejudice or unfairness to the parties.
By reason of the delay are the defendants less able to defend? All the evidence on this motion is to the contrary. Solicitors for State Farm Insurance were involved very early on for Capell and Hoffman. Copies of the Statement of Claim were mailed to all defendants. Medical reports were provided to the solicitors. There are no particulars from the defendants as to how they may be prejudiced by the delay.
The delay in bringing the motion is excessive but as mentioned in Chiarelli v. Wiens the court “should be concerned mainly with the rights of litigants, not with the conduct of counsel”.
The appeal is allowed. The order of Master Cork dated November 19, 2002, is set aside. An order will issue in the terms set out in paragraph 46(a), (b), (c) and (d) of the appellant’s factum.
There will be no costs of the motion before the Master or of this appeal.
GRAVELY, J.
DATE: 20031006