The failure to serve the statement of claim promptly led to the loss of significant evidence: court
The Ontario Superior Court of Justice has dismissed a motion seeking an extension of time for the service of a statement of claim in a medical malpractice lawsuit.
In Tookenay v. O’Mahony Estate, 2024 ONSC 709, the plaintiff, Dr. Vincent Tookenay, claimed his leg amputation was a result of the negligence of the late defendant, Dr. Michael O’Mahony. However, the court found that the delay in serving the statement of claim caused “significant and uncompensable prejudice” to the defendant's estate.
Dr. Tookenay alleged that negligence in medical care led to the amputation of his right leg below the knee. The statement of claim, filed in April 2021, was not served until August 2022 due to a "miscommunication" within the plaintiff's legal team. The court noted that the service occurred well beyond the six-month deadline mandated by the Rules of Civil Procedure.
Dr. O’Mahony passed away on May 2, 2023, after suffering from Parkinson’s Disease, which resulted in a complete loss of capacity before his death. Nurse practitioner Melissa Georgiou, another important witness, died of cancer in April 2022.
The Ontario Superior Court of Justice scrutinized the plaintiffs' request for an extension of time to serve the statement of claim and to validate the irregular service effected in August 2022. The court emphasized the principles regarding the extension of time for service, noting that an extension should not be granted if it would cause prejudice to the defendant. In this case, the court pointed out that the delay led to the loss of crucial evidence from Dr. O’Mahony and Nurse Georgiou, significantly impacting the defendant estate's ability to defend the action.
Ultimately, the court dismissed the plaintiff’s motion, highlighting the importance of adhering to procedural timelines in litigation. The court underscored that the plaintiffs' failure to serve the statement of claim promptly resulted in the loss of significant evidence, thus causing actual prejudice to the defendant estate.
