DATE: 20040120
DOCKET: C40532
COURT OF APPEAL FOR ONTARIO
RE:
MARCO DIMARCO and EVA DIMARCO (Plaintiffs/Appellants) –and – SHIRLEY MOSS, JOSEPH SYVRET and BELAIR DIRECT (Defendants/Respondents)
BEFORE:
CATZMAN, LASKIN and BORINS JJ.A.
COUNSEL:
Lawrence Hatfield
for the appellants
Owen J. Thompson
for the respondents
HEARD:
January 15, 2004
On appeal from the order of Justice Margaret Eberhard of the Superior Court of Justice dated July 29, 2003.
E N D O R S E M E N T
Released orally: January 15, 2004
[1] This is an appeal by the plaintiffs from the dismissal of a motion to extend the time for the service of their statement of claim in respect to damages claimed as a result of a motor vehicle accident.
[2] In dismissing the appellants’ motion, the motion judge erred in law in concluding that were she to grant the order greater prejudice would be sustained by the defendants than by the plaintiffs should the order be refused. The prejudice that the motion judge concluded the defendants would sustain was that they would have to personally pay any damages awarded to the plaintiffs because the defendants’ motor vehicle insurance had been cancelled prior to the motor vehicle accident.
[3] The record is clear that the delay in serving the statement of claim had nothing to do with the cancellation of the defendants’ motor vehicle insurance. Nor has the delay caused prejudice to the defendants in maintaining a defence on the merits to the plaintiffs’ claim. Thus, the prejudice relied on by the motion judge was not caused by the plaintiffs’ delay in serving the statement of claim and did not provide a proper reason to deny the plaintiffs’ motion.
[4] Therefore, the appeal is allowed. Paragraphs 1 and 2 of the order of the motion judge are set aside. In substitution, there will be an order extending the time for service of the statement of claim to February 15, 2004. The appellants will have their costs of the motion and the appeal, each fixed at $500 all inclusive.
“M. A. Catzman J.A.”
“John I. Laskin J.A.”
“S. Borins J.A.”