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Renewal of a Notice of Civil Claim

Renewal of a Notice of Civil Claim

Rule 3-2 of the Supreme Court rules provide that a notice of civil claim does not remain in force for more than 12 months, but the court may, on application of the plaintiff made before or after the expiration of the 12 months, order that the original notice of claim be renewed for a period of not more than 12 months.

Imperial oil Limited v. Michelin North America Canada  81 BCLR (4th) 99 (BCCA) at paragraphs 9 and 16 discuss five factors governing the exercise of discretion to renew a writ (now notice of claim):

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 was prejudiced;
4) with the failure to effect service was attributable to the defendant;
5) whether the plaintiff, as opposed to his solicitor, was at fault.

Imperial Oil followed Bearhead v. Moorhouse (1977) 3 B.C.L.R. 81 (B.C.S.C.) aff’d (1978)

The relevant time in considering delay relative to whether the plaintiff acted promptly, is the time elapsed from the date the plaintiffs learned the writ had not been served to the date of the application. Where the defendant has notice of an action within the time prescribed by the rules for service of the writ, only a compelling case of prejudice should defeat its renewal, unless the plaintiff’s conduct, in causing the delay is egregious.

The primary fact to keep in mind is that this rule is primarily concerned with the rights of litigants and not the conduct of solicitors. The overarching objective is to see that justice is done. Sutherland v McLeod (2004) , 44 BCLR 265 BCCA

        In Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, the British Columbia Court of Appeal said that it is inappropriate to have an in‑depth review of the merits of the case on a renewal application but that the plaintiff is required to demonstrate that the pleadings disclose a cause of action. If a defendant can make out a case that the action has no hope of success and is bound to fail, then the interest of justice support refusing application on those grounds. The burden is on the defendant to prove that it is plain and obvious that the action has no merit and is bound to fail.

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