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Started a Lawsuit? Don't Forget to Serve the Defendant

Written by admin on . Posted in Civil Procedure, Uncategorized.

When you start a lawsuit in the BC Supreme Court you need to serve the filed Writ of Summons on all Defendants within one year.  Failure to do so could result in a dismissal of your claim and reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, demonstrating this.
In today’s case (Mackie v. McFayden) the Plaintiff was involved in a 2005 BC Car Crash.  The Plaintiff was allegedly injured in this crash and he sued the owner and driver of the other vehicle.
After the lawsuit was started the Plaintiff served the driver of the other vehicle.  However, the Plaintiff never served the Writ of Summons on the Defendant owner.   Some two years passed and still service was not affected.  The Defendant owner brought a motion to dismiss the Plaintiff’s lawsuit.  The Plaintiff brought a counter motion to renew the now expired Writ of Summons seeking permission to serve the document if renewed.
Master Bouck refused to renew the expired Writ of Summons and ordered that the lawsuit against the other vehicle owner be dismissed for “want of prosecution“.  In doing so the Court summarized and applied the law relating to renewing an expired writ of summons as follows:

[19]        The law regarding the renewal of the writ is relatively straightforward. Five factors are to be considered:

1. Whether the application to renew was made promptly;

2. Whether the defendant had notice of the claim before the writ expired;

3. Whether the defendant is prejudiced;

4. Whether the failure to effect service was attributable to the defendant; and

5. Whether the plaintiff, as opposed to his solicitor, is at fault.

Imperial Oil Ltd. V. Michelin North America (Canada) Inc. (2008), 81 B.C.L.R. (4th) 99 (C.A.).

…

[22]        In this case, the application for renewal of the writ was not made promptly. The writ expired in April 2008; the application for renewal was made eighteen  months later.

[23]        There is no evidence to suggest that Ms. McFayden has had notice of this claim.

[24]        Mr. Klear submits that there is prejudice to Ms. McFayden. While ICBC will defend the claim, it may seek indemnification for damages paid to the plaintiff.

[25]        Whether or not that is the case, prejudice may be presumed simply by the passage of time without the defendant McFayden having to prove actual prejudice: Mountain West Resources Ltd. v. Fitzgerald (2005), 37 B.C.L.R. (4th) 134 (C.A.). In this case, the writ has been outstanding for nearly three years.

[26]        There is no evidence that the failure to renew the writ is the fault of the defendant McFayden.

[27]        On the other hand, it would appear that the plaintiff’s solicitors (as opposed to the plaintiff) neglected to proceed with the application to renew the writ. Importantly, no explanation whatsoever is offered for this delay. The plaintiff may have his own remedy in these circumstances: Skolnick v. Wood, [1981] 2 W.W.R. 649. However, given the defendant Olson’s position that there is no cause of action against Ms. McFayden, the plaintiff may not need to seek such relief.

[28]        Balancing all of these factors, I am persuaded that the writ should not be renewed. Thus, the plaintiff’s motion is dismissed in its entirety.

The Court went on to hold that, even if this decision was wrong, the lawsuit against the vehicle owner should be dismissed for want of prosecution.  In doing so Master Bouck noted as follows:

[34]        The plaintiff has known since July 2007 that he required an order for substitutional service in order to proceed with the action. He did not pursue such an order for more than two years. Admittedly, the plaintiff attempted service (thanks to the defendant Olson’s information) in early 2009. However, by that time, the plaintiff (or at least his solicitor) should have been well aware that any application for renewal of the writ (and an order for substitutional service) must be pursued forthwith. Instead, such an application did not occur for another ten months. It is reasonable to infer  that the plaintiff’s application for this relief is merely reactive to the defendant’s motion.

[35]        There is no explanation or excuse offered for the delay.

[36]        Prejudice is presumed. No evidence is presented to rebut that presumption.

[37]        In the result, the action against Ms. McFayden is dismissed for want of prosecution.

The lesson to be learned from today’s case is that just because a lawsuit is filed within the appropriate limitation period doesn’t mean that the Plaintiff’s right to proceed with the lawsuit will continue indefinitely.  If the  lawsuit does not move forward with reasonable diligence a Plaintiff runs the risk of having their case dismissed.

Now to cross reference.  As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010.  Under the New Rules the “writ of summons” has been abolished.  However, the originating document in a personal injury lawsuit still needs to be served on Defendants within one year and the Court’s ability to renew the document and to dismiss a claim for want of prosecution remain intact.  Accordingly this case will likely retain its value as a precedent after the new rules come into force.

dismissing a lawsuit, Mackie v. McFayden, Master Bouck, renewal of a writ of summons, renewing a writ, want of prosecution

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