Insured provided explanation for failure to serve notice of action and statement of claim on time

Extension of time. Insured suffered water damage and immediately notified insurer of loss. Insurer attended premises to assess loss, requested documents from insured and advised of one-year limitation period. Insured brought motion for order extending time for service of notice of action and statement of claim nunc pro tunc. Motion granted. Insured provided explanation for failure to serve notice of action and statement of claim on time. Insured explained it did not want to upset settlement negotiations, and there was inadvertence in counsel’s failure to diarize or enter dates in tickler system. Insured rebutted presumption of prejudice because delay in serving originating process was only two months, and insured had access to property early on and had resolved contents claim. Outstanding equipment and business interruption claim was founded largely on documents, which were still available. There was no evidence insurer was prejudiced by delay.

Bargain Club Inc. v. Co-Operators General Insurance Company (2018), 2018 CarswellOnt 11310, 2018 ONSC 3402, Trimble J. (Ont. S.C.J.).