Court of Appeal for Ontario

CITATION: Boivin v. Gotara, 2010 ONCA 743

DATE: 20101104

DOCKET: C52151

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

[1] The appellant appeals the decision of Corbett J. dated 19 October 2009 dismissing the plaintiff’s action for non-compliance with the governing limitation period.

[2] The 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.

[3] We 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.

[4] The appeal is dismissed.

[5] No costs.