Renewing an Un-Served Notice of Claim

 

renewal of action Renewing an Un-served Notice of Claim

Olson v Kurz Estate 2013 BCSC 1026

A court action was commenced in 2001 and the court process was not served on the defendant.The plaintiff served an amended statement of claim is September 0f 2002, but did not renew the writ of summons ( now Notice of Claim), within the one year he had to do so, without valid reasons.

[13] Rule 3(2) of the Supreme Court Civil Rules provides the court with jurisdiction to renew an original notice of civil claim for a period of not more than 12 months, where the defendant named in the notice of civil claim has not been served within the 12 months in which the original notice of civil claim was in force. The present Supreme Court Civil Rules came into effect July 1, 2010. Rule 3-2(1) applies to renewal of the writ of summons filed in accordance with the former Supreme Court Rules, pursuant to the current transitional pleadings rule, Rule 24-1.

[14] Rule 9(1) governed renewal of an original writ of summons under the former Supreme Court Rules. The terms of Rule 9(1) of the former rules are substantially the same as the terms of Rule 3-2(1) of the current Supreme Court Civil Rules. Accordingly, principles relating to the former Rule continue to apply.

[15] In an application to renew a writ of summons, the basic question facing the court is: what is necessary to see that justice is done? If 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 to the defendant’s defence, then the writ should be renewed: Bearhead v. Moorhouse (1978), 87 D.L.R. (3d) 52 (B.C. C.A.), quoting Culliton C.J.S. in Simpson v. Sask. Govt. Insur. Office (1967), 65 D.L.R. (2d) 324 (Sask. C.A.).

[16] In Bearhead, the Court of Appeal affirmed the chambers decision of McTaggert L.J.S.C., in which the learned judge set out five factors relevant to the exercise of discretion, within the context of the overall issue:

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 has been prejudiced;

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

5. Whether the plaintiff, as opposed to his solicitors, was at fault.

[17] These factors were repeated and affirmed in the more recent decision of the Court of Appeal in Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216, at para. 9.

[18] These factors will be considered in turn.

B. Was the application to renew made promptly?

[19] The plaintiff argues that it cannot be said that he did not make the application to renew promptly, as he was not aware that the writ of summons he served in September 2002 had expired until he received the defendant’s May 3, 2012 application to dismiss his claim. He brought his application to renew the writ on May 28, 2012. Thus he argues that he acted promptly. In making this argument the plaintiff relies upon the comments of Lowry J.A. for the Court, in Fast Fuel Services Ltd. at para. 16:

That said, the relevant time in considering delay on an application to renew a writ, brought after the writ has expired, is the time elapsed from the date the plaintiffs learned the writ had not been served to the date of the application.

[20] However, in my view, in the circumstances of this case the plaintiff himself is responsible for the fact that he was not aware that the writ was expired at the time he served it.

[21] According to the plaintiff, about a month after he filed the claim in August 2001, a lawyer, Mr. Macaulay, offered to review the filed claim for him. Mr. Macaulay advised him that the claim required amending in order to properly plead the claims, and he agreed to prepare an amendment for the plaintiff, without charge. The plaintiff says that he did not receive the amended statement of claim until about one year later. He then filed the document and served it. He recalls that when he attended Mr. Macaulay’s office to pick up the amended statement of claim, Mr. Macaulay said, “I had to do something with the amended claim before I could serve it on Mimi. I now recall that I was supposed to renew the amended claim before I could serve Mimi.”

[22] There is no direct evidence from Mr. Macaulay on these matters. However, what is clear on the plaintiff’s evidence is that he was advised by Mr. Macaulay that there was something he had to do with respect to the “amended claim” before it was served. The plaintiff did not make further inquiries then, or at any time since then.

[23] Moreover, when the defendant did not file an appearance or statement of defence, the plaintiff could have applied for default judgment. Had he done so, in the circumstances, the defendant would have moved to set aside the judgment on the basis of the expired writ. Thus, the plaintiff would have learned of the expiry of the writ many years ago. Instead, the plaintiff allowed the claim to languish for 9 ½ years.

[24] In the circumstances, therefore, the plaintiff ought to have known long ago that the writ of summons had expired prior to its service. The law favours a party who acts promptly. However, in my view, it cannot fairly be said that the plaintiff’s application to renew the writ of summons was made promptly, in any real sense.

C. Did the defendant have notice of the claim before the Writ expired?

[25] There is conflicting affidavit evidence on this question. The plaintiff contends that after he filed the claim, he telephoned the defendant and told her that he had filed the claim. He says that “she told me that she never wanted to see or hear from me again.” The defendant says that she did not become aware of the proceedings until the plaintiff delivered the writ of summons and amended statement of claim to her in September 2002. She denies that he advised her by telephone or otherwise that he had filed or intended to file a claim in relation to the estate.

[26] Unsurprisingly, there is no corroborative evidence one way or another. I am however skeptical about the plaintiff’s assertion. It is made for the first time in his affidavit sworn May 28, 2012, more than 10 years after the alleged phone call. The assertion is made in response to the application of the defendant filed with the Court May 3, 2012, which asserted that the writ of summons and statement of claim expired prior to service. The plaintiff’s evidence about the telephone call seems convenient.

[27] Even if I accept that the plaintiff said something in a telephone conversation about a claim being made, the content of the notice that the defendant received is questionable. The plaintiff asserts only that he “told her that he had filed the claim.” He does not indicate what, exactly, “the claim” was. This was not a situation where a defendant has received a draft or unfiled pleading, or a letter from a solicitor setting out the substance of proposed claims. On the plaintiff’s evidence, all the defendant would have known is that a claim, presumably relating to the estate, was being made. In my view, the circumstances are somewhat akin to those in Davies v. Bakk,2002 BCSC 1605, where the plaintiff alleged he was injured by the defendant in a cross check in a hockey game. While both parties were being restrained by linesmen, the plaintiff told the defendant he was going to sue him, and he repeated the comment to the defendant’s teammates later on, in the dressing room. Master Bolton held that in the circumstances there was no reason why the defendant should have taken this as anything more than an idle threat made in the heat of the moment.

[28] For the purposes of this application, and on the evidence available, I am not prepared to find that the defendant had notice of the claim before the writ expired.

[29] However, the defendant had knowledge of the claim in September 2002, within a month of the expiry of the original writ of summons.

D. Has the defendant suffered prejudice?

[30] The relevant delay is the delay which impairs the defendant’s ability to mount an adequate defence: Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582. The basic objective is to see that justice is done: Seeliger at paras. 37-39.

[31] The defendant argues that she has been severely prejudice by the delay.

[32] I find that there is actual prejudice by the delay, as measured from September 2002, when the plaintiff ought to have been aware, if he was not actually aware, that the writ of summons had expired, to May 28, 2012, when he filed his application to renew the writ of summons.

[33] In this context, I observe that the claims of the plaintiff primarily relate to events taking place from 1993 to 2001, when Waldtraut died. Some evidence material to the plaintiff’s claims would relate to the period prior to 1993. Some significant events were already well in the past as of 2002.

[34] In 2008, the defendant disposed of some of the deceased’s papers, because she could not think of any reason to hold onto them.

[35] More significantly, a material witness has died. Mr. Erik Unheim was the deceased’s financial advisor and confidant from 1980 until 2010, when he died. The defendant deposes that Mr. Unheim was aware of the many requests for money made by the plaintiff to the deceased and the stress that it caused her. She deposes that he would have been a key witness for the defence, and would have been able to testify to the deceased’s financial holdings, the nature and amounts of loans made by her to the plaintiff, the deceased’s relationship with the plaintiff, and the deceased’s intentions as regards what should happen to her assets on her death. Mr. Unheim’s role is in fact mentioned in the original statement of claim that the plaintiff drafted and filed in August 2001. The plaintiff, in his responding affidavit, does not deny that Mr. Unheim would have been a material witness.

[36] The defendant alleges that she and other material witnesses would have significantly faded memories. In that respect she refers to the deceased’s lawyer, Mr. Larry Flater, who assisted the deceased with the transfer of the Langley property in joint names, the sale of the Langley property, the acquisition of the Princeton property, and the deceased’s will. Mr. Flater is now retired. The defendant refers to two other witnesses who also would be able to testify regarding the deceased’s intentions, but who could be expected to have faded memories. In response, the plaintiff argues that based upon the defendant’s own affidavit, it is apparent that she continues to have a good memory, and access to at least some relevant documents.

[37] On the evidence, I accept that the defendant has established actual prejudice arising out of the delay in the application to renew the writ of summons. In particular, as noted Mr. Unheim would have been a material witness and he is now deceased. I accept as well that other witnesses, including the defendant herself, may have faded memories with respect to the material circumstances.

E. Was the failure to effect service attributable to the defendant?

[38] That plaintiff concedes that the failure to effect service was not attributable to the defendant.

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

[39] In my view, the plaintiff is at fault for failing to effect service within the year in which the writ of summons was in effect. It was the plaintiff’s decision to wait to have an amended statement of claim prepared by Mr. Macaulay before serving the writ of summons. In his first affidavit, the plaintiff contends that he phoned Mr. Macaulay every so often to find how the amendment of the claim was coming along. He says that Mr. Macaulay indicated to him that he had been very busy and had not started it yet. However in his subsequent affidavit, the plaintiff says that although he did not hear from Mr. Macaulay for several months, and he did not want to bother him because he was not charging him for the work. As noted, there is no direct evidence from Mr. Macaulay about the matters in question. Even if I accept the evidence of the plaintiff, although he did not appreciate its significance, nonetheless he was content to allow a year to go by without serving the writ of summons. Moreover, on the plaintiff’s evidence, when he obtained the amended statement of claim from Mr. Macaulay, he was told that there was something that he needed to do before he could serve it. He says, “I now recall that I was supposed to renew the amended claim before I could serve Mimi.” Although he says that he did not understand Mr. Macaulay’s advice, it would have been a simple matter to ask Mr. Macaulay what was meant. Mr. Macaulay would certainly have told him that what was required was an application to court to renew the writ.

[40] In the circumstances, the plaintiff has not established that any fault on the part of his solicitor led to the writ of summons not being served within time.

G. What is necessary to see that justice is done?

[41] It cannot be said that refusal to renew the writ would do an obvious and substantial injustice to the plaintiff. He has been dilatory, in the extreme. As I will set out in greater detail below, I do not accept the excuses he offers for his dilatory conduct. In my view, in these circumstances the plaintiff is fully at fault for creating the circumstances that presently exist. The plaintiff simply delayed making his claims until many years had gone by, until it suited him to advance them. It also cannot be said that permitting the amendment is not going to work any substantial injustice to the defendant, or prejudice the defendant’s defence. The defendant is prejudiced with respect to answering the claims, on the merits, and is also prejudiced in simply having to face claims relating to her property after such a long delay.

H. Conclusion regarding application to renew writ of summons

[42] The application of the plaintiff to renew the writ of summons is denied.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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