Extending the Counter Claim Deadline

Extending the Counter Claim Deadline | Disinherited Vancouver

Syukur v Yeh 2018 BCSC 1826 deals with the time dead lines to file a counterclaim and the rules of court relating to the exercising of the court’s discretion to extend the time for filing.

Pursuant to rule 3-4(1) the counterclaim should have been filed within 21 days of service of the notice of claim.

The application in this case was for an extension of time pursuant to rule 22-4(2)

The considerations to guide the court in the exercise of its discretion are set out in Raven v A&W Ranching LTD 2014 BC SC 1359 at paragraph 31:

1) What was the length of the delay between receiving the notice of civil claim and proposing the draft counterclaim/

2) what were the reasons for the delay-if it was an oversight the court is more likely to grant the extension of time;

3) with the counterclaim be time barred but for section 22 of the limitation act? The basic limitation period of two years running from the time the cause of action was discoverable, however pursuant to section 24 of the limitation act the basic limitation period may be extended by an acknowledgment of liability in respect of the claim.

4) The connection between the proposed counterclaim and the plaintiffs claim

5) will there be prejudice to the defendants, such as preventing them from making full answer and defense to the claim brought against them?

6) Will there be prejudice to the plaintiff?

The court found that the counterclaim simply sought to form relies the claim made by the plaintiff for rectification or variation of the will. The proposed counterclaim did not give rise to factual issues that were not already addressed in the pleadings and on the evidence.

The defendant’s counsel conceded that there was of it nothing different that he would have done differently had the counterclaim been advanced earlier.

The court granted the extension of time finding that while there had been inordinate delay, in the absence of actual prejudice to the defendants, the plaintiff should not be prevented by counsel’s oversight from obtaining whatever relief they may be entitled to on the merits of the litigation. While a limitation defense will be lost, it is only a partial defense. The court should not have its hands tied to the determination of a remedy. To refuse the application would not be in the interests of justice.

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