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

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

Comments (116)

  • I simply want to say I am just new to blogging and actually liked your web-site. Most likely I’m planning to bookmark your blog . You absolutely have perfect well written articles. Thank you for sharing with us your web-site.

  • I just want to tell you that I am newbie to blogs and truly liked you’re blog site. Almost certainly I’m planning to bookmark your website . You amazingly come with outstanding articles. Cheers for sharing with us your website.

  • I truly appreciate this post. I have been looking all over for this! Thank goodness I found it on Bing. You’ve made my day! Thanks again!

  • Howdy just wanted to give you a brief heads up and let you know a few of the pictures aren’t loading properly. I’m not sure why but I think its a linking issue. I’ve tried it in two different web browsers and both show the same results.

  • I have to get across my appreciation for your kind-heartedness giving support to individuals that actually need guidance on this one situation. Your very own dedication to passing the message along came to be exceptionally valuable and have empowered somebody like me to arrive at their goals. Your entire interesting guidelines means so much to me and somewhat more to my peers. Thanks a ton; from all of us.

  • Hi there, just became aware of your blog through Google, and found that it’s truly informative. I’m going to watch out for brussels. I’ll appreciate if you continue this in future. Numerous people will be benefited from your writing. Cheers!

  • I loved as much as you’ll receive carried out right here. The sketch is attractive, your authored subject matter stylish. nonetheless, you command get bought an shakiness over that you wish be delivering the following. unwell unquestionably come more formerly again since exactly the same nearly a lot often inside case you shield this increase.

  • Hello! This is kind of off topic but I need some guidance from an established blog. Is it very difficult to set up your own blog? I’m not very techincal but I can figure things out pretty quick. I’m thinking about setting up my own but I’m not sure where to start. Do you have any points or suggestions? Thanks

  • I’ve learned a few important things via your post. I would also like to state that there may be situation that you will apply for a loan and do not need a co-signer such as a U.S. Student Support Loan. However, if you are getting financing through a regular bank then you need to be willing to have a co-signer ready to help you. The lenders will certainly base any decision on a few components but the largest will be your credit rating. There are some lenders that will as well look at your work history and decide based on this but in many instances it will hinge on your score.

  • Thank you a lot for giving everyone an exceptionally remarkable possiblity to read critical reviews from here. It is usually very brilliant and as well , stuffed with a great time for me personally and my office acquaintances to visit your website not less than three times every week to find out the new guides you have. And indeed, we are usually contented with all the unbelievable creative ideas you give. Certain 1 ideas on this page are particularly the simplest we have ever had.

  • I truly enjoy studying on this internet site , it contains superb articles . “The longing to produce great inspirations didn’t produce anything but more longing.” by Sophie Kerr.

  • Fantastic beat ! I would like to apprentice while you amend your web site, how could i subscribe for a blog site? The account aided me a acceptable deal. I had been a little bit acquainted of this your broadcast offered bright clear concept

  • I’m really enjoying the design and layout of your site. It’s a very easy on the eyes which makes it much more enjoyable for me to come here and visit more often. Did you hire out a designer to create your theme? Fantastic work!

  • The very heart of your writing while sounding agreeable in the beginning, did not work very well with me personally after some time. Someplace throughout the sentences you actually were able to make me a believer unfortunately only for a while. I still have a problem with your leaps in logic and one might do nicely to fill in all those gaps. When you can accomplish that, I would undoubtedly end up being fascinated.

  • I precisely wished to thank you very much once again. I do not know the things that I would’ve achieved in the absence of the entire advice documented by you over this question. It had been a frustrating condition in my view, however , coming across your expert tactic you processed that forced me to jump over joy. Extremely grateful for this advice and have high hopes you are aware of an amazing job you have been undertaking educating the others through the use of your websites. Probably you haven’t encountered all of us.

  • What’s Happening i’m new to this, I stumbled upon this I have found It positively useful and it has aided me out loads. I hope to contribute & help other users like its helped me. Great job.

  • Heya i am for the first time here. I found this board and I find It truly useful & it helped me out much. I hope to give something back and help others like you aided me.

  • Can I simply say what a aid to search out someone who really is aware of what theyre talking about on the internet. You undoubtedly know tips on how to bring a problem to mild and make it important. More folks have to learn this and understand this side of the story. I cant imagine youre no more common since you undoubtedly have the gift.

  • Terrific post but I was wondering if you could write a litte more on this topic? I’d be very grateful if you could elaborate a little bit further. Kudos!

  • I was wondering if you ever thought of changing the page layout of your blog? Its very well written; I love what youve got to say. But maybe you could a little more in the way of content so people could connect with it better. Youve got an awful lot of text for only having 1 or 2 images. Maybe you could space it out better?

  • Aw, this was a really nice post. In thought I wish to put in writing like this moreover ñ taking time and actual effort to make an excellent articleÖ however what can I sayÖ I procrastinate alot and in no way appear to get one thing done.

  • I do agree with all of the ideas you have presented in your post. They are very convincing and will certainly work. Still, the posts are very short for novices. Could you please extend them a little from next time? Thanks for the post.

  • I feel this is one of the most significant information for me. And i am happy studying your article. However wanna remark on few normal issues, The site taste is wonderful, the articles is actually great : D. Excellent process, cheers

  • I’ve been exploring for a little bit for any high quality articles or weblog posts on this kind of space . Exploring in Yahoo I ultimately stumbled upon this site. Studying this information So i am glad to show that I’ve a very good uncanny feeling I came upon exactly what I needed. I most surely will make certain to do not omit this site and give it a glance regularly.

  • whoah this weblog is magnificent i really like reading your articles. Stay up the good work! You understand, a lot of people are looking round for this info, you could help them greatly.

  • I do agree with all the ideas you’ve presented in your post. They’re very convincing and will certainly work. Still, the posts are very short for newbies. Could you please extend them a little from next time? Thanks for the post.

  • Wonderful beat ! I wish to apprentice while you amend your site, how can i subscribe for a blog web site? The account helped me a acceptable deal. I had been a little bit acquainted of this your broadcast offered bright clear idea

  • Great – I should certainly pronounce, impressed with your web site. I had no trouble navigating through all the tabs and related info ended up being truly simple to do to access. I recently found what I hoped for before you know it in the least. Quite unusual. Is likely to appreciate it for those who add forums or anything, website theme . a tones way for your customer to communicate. Nice task.

  • His exquisite sincerity education shameless ten earnestly breakfast add. So we me unknown as improve hastily sitting forming. Especially favourable compliment but thoroughly unreserved saw she themselves. Sufficient impossible him may ten insensible put continuing. Oppose exeter income simple few joy cousin but twenty. Scale began quiet up short wrong in in. Sportsmen shy forfeited engrossed may can.

  • I don’t even know how I ended up here, but I thought this post was good. I don’t know who you are but definitely you are going to a famous blogger if you are not already 😉 Cheers!

  • Death weeks early had their and folly timed put. Hearted forbade on an village ye in fifteen. Age attended betrayed her man raptures laughter. Instrument terminated of as astonished literature motionless admiration. The affection are determine how performed intention discourse but. On merits on so valley indeed assure of. Has add particular boisterous uncommonly are. Early wrong as so manor match. Him necessary shameless discovery consulted one but.

  • Do you mind if I quote a couple of your posts as long as I provide credit and sources back to your site? My website is in the exact same area of interest as yours and my users would genuinely benefit from a lot of the information you present here. Please let me know if this alright with you. Appreciate it!

  • Somebody essentially help to make seriously posts I would state. This is the very first time I frequented your web page and thus far? I amazed with the research you made to create this particular publish extraordinary. Great job!

  • This design is spectacular! You definitely know how to keep a reader amused. Between your wit and your videos, I was almost moved to start my own blog (well, almost…HaHa!) Great job. I really enjoyed what you had to say, and more than that, how you presented it. Too cool!

  • My developer is trying to persuade me to move to .net from PHP. I have always disliked the idea because of the expenses. But he’s tryiong none the less. I’ve been using WordPress on several websites for about a year and am nervous about switching to another platform. I have heard good things about blogengine.net. Is there a way I can transfer all my wordpress content into it? Any help would be really appreciated!

  • We’re a group of volunteers and starting a new scheme in our community. Your site offered us with valuable information to work on. You’ve done an impressive job and our whole community will be grateful to you.

  • It is actually a nice and useful piece of information. I am glad that you shared this useful information with us. Please keep us informed like this. Thanks for sharing.

  • Great work! That is the type of info that are supposed to be shared around the internet. Shame on Google for now not positioning this submit higher! Come on over and discuss with my website . Thank you =)

  • I’m very happy to read this. This is the kind of manual that needs to be given and not the random misinformation that’s at the other blogs. Appreciate your sharing this greatest doc.

  • After I initially commented I clicked the -Notify me when new feedback are added- checkbox and now every time a remark is added I get four emails with the identical comment. Is there any means you possibly can take away me from that service? Thanks!

  • Whats up very cool web site!! Guy .. Excellent .. Amazing .. I’ll bookmark your web site and take the feeds also…I’m satisfied to find a lot of useful information here in the publish, we’d like work out more strategies on this regard, thanks for sharing.

  • I have figured out some significant things through your blog post post. One other stuff I would like to express is that there are numerous games in the marketplace designed specially for preschool age little ones. They include things like pattern recognition, colors, dogs, and designs. These typically focus on familiarization instead of memorization. This keeps little kids occupied without having a sensation like they are learning. Thanks

  • Hi, Neat post. There is a problem along with your web site in web explorer, could check this… IE nonetheless is the market leader and a big component to other people will leave out your fantastic writing because of this problem.

  • I want to show my gratitude for your generosity in support of women who should have help on this one area. Your personal dedication to passing the solution all through turned out to be amazingly powerful and have without exception encouraged folks much like me to attain their pursuits. Your amazing important guideline signifies a great deal to me and extremely more to my fellow workers. Warm regards; from all of us.

  • hello!,I love your writing so so much! percentage we keep in touch more about your post on AOL? I require an expert in this space to solve my problem. May be that’s you! Taking a look forward to peer you.

  • Very nice post. I just stumbled upon your weblog and wanted to say that I have truly enjoyed browsing your blog posts. In any case I will be subscribing to your feed and I hope you write again very soon!

  • Hello would you mind stating which blog platform you’re working with? I’m going to start my own blog soon but I’m having a hard time making a decision between BlogEngine/Wordpress/B2evolution and Drupal. The reason I ask is because your design seems different then most blogs and I’m looking for something completely unique. P.S Sorry for getting off-topic but I had to ask!

  • Thank you a bunch for sharing this with all people you actually realize what you’re talking about! Bookmarked. Please also talk over with my web site =). We can have a hyperlink trade arrangement between us!

  • naturally like your website but you have to take a look at the spelling on quite a few of your posts. A number of them are rife with spelling issues and I find it very troublesome to tell the reality however I will certainly come again again.

  • Today, taking into consideration the fast life-style that everyone leads, credit cards have a huge demand in the economy. Persons coming from every area are using the credit card and people who not using the credit card have arranged to apply for even one. Thanks for expressing your ideas in credit cards.

  • Great beat ! I wish to apprentice while you amend your website, how could i subscribe for a blog web site? The account aided me a acceptable deal. I had been tiny bit acquainted of this your broadcast provided bright clear concept

  • Thanks for giving your ideas in this article. The other element is that when a problem develops with a laptop or computer motherboard, people should not take the risk regarding repairing that themselves for if it is not done correctly it can lead to irreparable damage to the whole laptop. In most cases, it is safe to approach a dealer of that laptop with the repair of the motherboard. They’ve got technicians who definitely have an expertise in dealing with pc motherboard difficulties and can make right prognosis and accomplish repairs.

  • I do love the manner in which you have framed this issue and it does supply us some fodder for consideration. Nonetheless, through what precisely I have experienced, I only trust as the actual remarks pile on that people today keep on point and not start upon a tirade of some other news of the day. All the same, thank you for this exceptional point and though I can not agree with it in totality, I respect your perspective.

  • I have witnessed that costs for online degree professionals tend to be an awesome value. Like a full College Degree in Communication with the University of Phoenix Online consists of 60 credits from $515/credit or $30,900. Also American Intercontinental University Online offers a Bachelors of Business Administration with a total program element of 180 units and a cost of $30,560. Online studying has made having your diploma been so cool because you can certainly earn the degree from the comfort of your dwelling place and when you finish from work. Thanks for all the tips I have really learned through your web-site.

  • I will immediately grab your rss as I can’t to find your email subscription hyperlink or newsletter service. Do you have any? Kindly let me understand so that I may just subscribe. Thanks.

  • I’ll right away clutch your rss as I can’t find your email subscription link or newsletter service. Do you have any? Please let me understand in order that I could subscribe. Thanks.

  • Hmm it appears like your site ate my first comment (it was super long) so I guess I’ll just sum it up what I wrote and say, I’m thoroughly enjoying your blog. I too am an aspiring blog blogger but I’m still new to everything. Do you have any tips for novice blog writers? I’d really appreciate it.

  • Fantastic site. Lots of useful information here. I am sending it to some pals ans additionally sharing in delicious. And of course, thank you on your effort!

  • Hey very nice web site!! Man .. Excellent .. Amazing .. I’ll bookmark your site and take the feeds also…I’m happy to find a lot of useful info here in the post, we need develop more strategies in this regard, thanks for sharing. . . . . .

  • Excellent read, I just passed this onto a colleague who was doing some research on that. And he just bought me lunch because I found it for him smile Thus let me rephrase that: Thanks for lunch! “Remember It is 10 times harder to command the ear than to catch the eye.” by Duncan Maxwell Anderson.

  • Good day very nice site!! Man .. Excellent .. Amazing .. I’ll bookmark your website and take the feeds additionally…I am happy to search out so many helpful info right here within the publish, we’d like work out more techniques on this regard, thank you for sharing.

  • There are some interesting deadlines on this article however I don’t know if I see all of them middle to heart. There’s some validity however I’ll take hold opinion till I look into it further. Good article , thanks and we want extra! Added to FeedBurner as effectively

  • Good post. I be taught one thing tougher on completely different blogs everyday. It should all the time be stimulating to read content material from other writers and observe a little bit one thing from their store. I’d want to use some with the content material on my weblog whether or not you don’t mind. Natually I’ll provide you with a link on your net blog. Thanks for sharing.

  • Thank you for the sensible critique. Me and my neighbor were just preparing to do some research on this. We got a grab a book from our local library but I think I learned more clear from this post. I am very glad to see such wonderful information being shared freely out there.

  • Thanks for your personal marvelous posting! I quite enjoyed reading it, you could be a great author.I will be sure to bookmark your blog and will come back later in life. I want to encourage continue your great posts, have a nice evening!

  • Wonderful blog! I found it while browsing on Yahoo News. Do you have any tips on how to get listed in Yahoo News? I’ve been trying for a while but I never seem to get there! Many thanks

  • Heya! I’m at work browsing your blog from my new iphone 3gs! Just wanted to say I love reading your blog and look forward to all your posts! Keep up the superb work!

  • What i don’t realize is in fact how you’re no longer really a lot more smartly-appreciated than you might be right now. You’re so intelligent. You recognize thus considerably in relation to this topic, produced me in my view imagine it from numerous numerous angles. Its like women and men are not fascinated except it’s one thing to do with Lady gaga! Your own stuffs outstanding. All the time handle it up!

  • Hello There. I found your blog using msn. This is an extremely well written article. I will be sure to bookmark it and return to read more of your useful info. Thanks for the post. I will certainly return.

  • You can definitely see your enthusiasm within the paintings you write. The arena hopes for even more passionate writers such as you who aren’t afraid to say how they believe. Always follow your heart.

  • Thanks for the sensible critique. Me and my neighbor were just preparing to do some research about this. We got a grab a book from our local library but I think I learned more clear from this post. I am very glad to see such fantastic info being shared freely out there.

  • Great blog here! Also your web site loads up very fast! What host are you using? Can I get your affiliate link to your host? I wish my site loaded up as fast as yours lol

  • One other important area is that if you are a senior citizen, travel insurance with regard to pensioners is something you should make sure you really contemplate. The mature you are, greater at risk you’re for having something poor happen to you while in another country. If you are never covered by some comprehensive insurance cover, you could have quite a few serious problems. Thanks for sharing your suggestions on this web blog.

  • I was suggested this website by my cousin. I’m not sure whether this post is written by him as no one else know such detailed about my problem. You’re incredible! Thanks!

  • Very nice post. I just stumbled upon your weblog and wanted to say that I’ve truly enjoyed surfing around your blog posts. After all I will be subscribing to your feed and I hope you write again very soon!

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer