[13] Up until November 8, 2013, some 4 years after the accident, the defendant, Gabriel Uribe-Valez had no knowledge that the plaintiffs were asserting a claim against him. This of course falls well outside of the parameters of Rule 14.08(1) of the Rules that requires that a statement of claim be served within 6 months after it is issued.
[14] The plaintiffs offer almost no explanation for the delay, except that they were unable to locate the defendant Gabriel Uribe-Valez, which is the basis for the motion for substitute service. There was one unsuccessful attempt to serve the defendant on August 31, 2011 at his Burlington address two years after the accident. Following that, there was a driver’s licence/address search on July 30, 2013, almost 4 years after the accident. I am mindful that Gabriel Uribe-Valez has, since the time of the accident, resided at the Burlington address. I find that the defendant could have, if any real effort had been made, been notified, and served with the statement of claim. There seems to have been no effort or steps taken to advance the plaintiffs’ claim for at the very least almost two full years after it was issued. I do not know what they were doing because there is no affidavit evidence filed, nor were there any arguments made orally.
[19] I further find that the defendants ability to bring claims against potentially liable non-parties has been comprised and prejudiced. I find this to be a live issue given the circumstances under which the accident took place.
[20] I am also mindful that the onus remains on the plaintiffs to prove the lack of prejudice and rebut allegations of prejudice as put forth by the defendants. A bald statement that there is no prejudice falls short of meeting that onus: Noori v. Grewal, 2011 ONSC 5213 (CanLII), 2011 ONSC 5213.
[21] I find that the plaintiffs have not demonstrated due diligence in their attempts to locate and serve the defendants. As such, the motion for substitute service is dismissed.
[22] Further, I find that granting the extension of time for service would result in real prejudice and unfairness to the defendants. As such, that motion is dismissed.