Tag: Rule 9(1)

Renewing a Lawsuit and the New BC Supreme Court Civil Rules


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying Rule 3-2(1) of the New BC Supreme Court Civil Rules.  This rule permits the Court to renew a Notice of Civil Claim before or after it expires.  Today’s case is the first I’m aware of applying this new rule.
In today’s case (Stuart v. Patterson) the Plaintiff was injured in two consecutive instances while engaging in exercises known as “dead-lifts”.  These exercises were apparently being supervised by the Defendant.  The Plaintiff started two separate lawsuits against the Defendant alleging that he was at fault for her injuries.  The Plaintiff’s lawyer failed to serve the Writ of Summons within the first year after filing.  The Plaintiff brought an application to renew the lawsuit relying on Rule 3-2(1) of the New Rules of Court.
Madam Justice Fitzpatrick found that the Plaintiff’s lawyer acted reasonably in taking steps to renew  the lawsuit after learning it expired and that there was little prejudice to the Defendant and accordingly renewed the filed documents for a further two months permitting them to be properly served on the Defendants.  In doing so the Court seemed to accept that Rule 3-2(1) reads almost identically to the old Rule 9(1) and that the precedents developed under the old rule remain in force.   Madam Justice Fitzpatrick summarized the applicable law as follows:

[10]         The leading case on the test to be applied on this application is Bearhead v. Moorhouse, [1977] B.C.J. No. 1324, (1977), 3 B.C.L.R. 81 (S.C.), upheld on appeal (1978), 5 B.C.L.R. 380. The test adopted by the Court of Appeal at that time requires the court to ask itself the basic question of “what is necessary to see that justice is done?”  In considering that question, the following factors are to be considered:

1.               Was the application to renew brought promptly?

2.               Did the defendants have notice of the claim before the writ expired?

3.               Did the defendant suffer prejudice?

4.               Was the failure to serve the writ attributable to the actions of the defendants?

5.               Was the failure to serve the writ attributable to the actions of the plaintiff?

[11]         Recent considerations of these factors are found in our Court of Appeal decisions of Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, and Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216.

[12]         It is clear from the authorities cited to me by both counsel that each case is to be decided on its particular facts.

[13]         Further, counsel for Ms. Stuart refers me to the statements from the Saskatchewan Court of Appeal in Simpson v. Saskatchewan Government Insurance Office (1967), 61 W.W.R. 741, at p. 750, 65 D.L.R. (2d) 324, to the effect that failure to renew a writ is an “irregularity” and that “if the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant’s defence, then the writ should be renewed”: see Bearhead, BCCA at para. 8; Lowe v. Christensen (1984), 54 B.C.L.R. 88 (C.A.) at para. 13; Sutherland v. McLeod, 2004 BCCA 653, at paras. 28-29.

[14]         I accordingly consider the Bearhead factors:

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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.

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