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Renewal of a Notice of Claim

Gill v Basic 20212 BCSC 875 dealt with the renewal of a Notice of Claim without notice to the defendants.

In Gill the Notice of Claim had expired 8 months prior through inadvertence and the defendant had not been served as they could not be located.

The court renewed the Notice of Claim for a further 3 months finding there was no prejudice to the defendants but there would be substantial prejudice to the plaintiffs if they could nor proceed with their claim.

Rule 3-2(1) requires the plaintiff to serve the original NOCC on the named defendant(s) within 12 months of filing. This 12-month period can be extended if the defendants have not been served with the NOCC in the requisite period of time. In such case, the plaintiff must bring an application to renew the NOCC. The NOCC can be renewed for a period of not more than 12 months at a time.

In Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216 [Fast Fuel] at para. 9, the Court set out the factors to consider in such applications. These are:

1) Whether the application to renew was made promptly;
2) Whether the defendant had notice of the claim before the notice of civil claim expired;
3) Whether the defendant was prejudiced;
4) Whether the failure to effect service was attributable to the defendant; and
5) Whether the plaintiff, as opposed to the plaintiff’s solicitors, was at fault.

The promptness of the application and the prejudice to the parties are measured as of the date of the discovery of the error: Fast Fuel at para. 17.

In determining whether to grant a renewal, courts should primarily be concerned with: (1) the rights of the litigants, and not with the conduct and failures of their solicitors; and (2) ensuring that the outcome would not create a substantial injustice to either the plaintiff or the defendant: Sutherland v. McLeod, 2004 BCCA 653 at paras. 28-29; see also Stuart v. Patterson, 2010 BCSC 1236 at para. 13.

The plaintiff has a high duty of disclosure, and a failure to provide full and frank disclosure may result in the setting aside of the order made: Politeknik Metal San ve Tic A.S. v. AAE Holdings Ltd., 2015 BCCA 318.

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