Seel v. Stephenson

2009 BCSC 319 Seel v. Stephenson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Seel v. Stephenson, 2009 BCSC 319 Date: 20090311 Docket: 05/4227 Registry: Victoria Between: Geordie Seel Plaintiff And James Barry Stephenson Defendant And Insurance Corporation of British Columbia Third Party Before: Master McCallum Reasons for Judgment Counsel for the Plaintiff K.L. Simmons Counsel for the Third Party S.P. Casey Date and Place of Trial/Hearing: 29 January 2009 Victoria, B.C.

INTRODUCTION [1] The plaintiff and defendant were involved in a motor vehicle accident on February 4, 2005 and the plaintiff retained counsel immediately following the accident. An endorsed writ of summons was issued in this proceeding on August 31, 2005. The writ has never been served on the defendant and the plaintiff applied to renew the writ and effect service substitutionally. [2] For the reasons that follow, I have concluded that the plaintiff's application must be allowed and the writ renewed.

BACKGROUND [3] The plaintiff claims to have suffered soft tissue injuries in the accident that he says resulted from the defendant's vehicle striking his vehicle from the rear. He says the defendant was charged with the offence of impaired driving as a result of police investigation of the accident. [4] Following the motor vehicle accident, the plaintiff retained counsel ("PW") who communicated with the Insurance Corporation of British Columbia ("ICBC") which was the defendant's insurer. PW and the ICBC adjuster corresponded in the immediate post accident period leading up to the filing of an endorsed writ of summons on August 31, 2005 and thereafter. [5] In May of 2006, PW says he decided to serve the writ of summons but, in accordance with his self-described usual practice, he sent the writ only to ICBC. PW says he did not make an effort to effect personal service on ICBC insured defendants unless instructed to do so by the ICBC adjuster. PW made no effort to have the defendant in this proceeding served personally in May of 2006. [6] On July 12, 2006 defence counsel was appointed by ICBC and wrote to PW advising of his appointment. On September 11, 2006 ICBC appointed a new adjuster on the file. The adjuster wrote to PW confirming various details of the plaintiff's claim and raised the possibility of settlement of the plaintiff's claim. [7] On December 12, 2006 the adjuster

wrote to PW again about details of payment for a medical report. She said in the correspondence that "you will need to personally serve the defendant, James Stevenson " PW acknowledges receipt of that correspondence and says he did not attend to service or renewal of the writ then for reasons that are not entirely clear. [8] PW says he believed that ICBC was requiring personal service for purposes related to a potential breach of coverage by the defendant. PW also says he believed that various correspondence and payments made by ICBC would have the effect of extending any limitation period to sometime in 2008. [9] In the early part of 2007, PW took various steps to have the defendant located and personally served. All of those steps were unsuccessful and would, in any event, have been fruitless as the writ had expired and no application had been made to renew it prior to the attempted service. [10] During the balance of 2007, PW continued his efforts with the adjuster to resolve the plaintiff's claim and made no further efforts to renew or serve, believing as he did, that there were no limitation problems. [11] On April 8, 2008 counsel for ICBC wrote to PW advising that ICBC was not in a position to resolve the plaintiff's claim given that personal service had not been made, the writ had expired in September 2007 and that no statement of claim had been filed. PW made no effort

to remedy those issues believing, as he did, that there were no limitation issues. [12] By August 2008, PW had resolved to attempt personal service of the writ on the defendant in October 2008 when he understood that the defendant would be involved in a trial at the courthouse in Victoria. He learned then that the defendant would not be attending an October trial. PW was able to obtain an address for the defendant and sent a process server there but the address did not exist. The writ had not been renewed in any event. [13] On September 4, 2008 PW commenced a second action on behalf of the Plaintiff against the current Defendant.

DISCUSSION [14] Rule 9(1) of the Rules of Court permits the court to make an order renewing a writ of summons before or after the writ has expired. The test to be applied in deciding a renewal application is succinctly set out in Wilder Estate v. Davis & Co. [1994] B.C.J. No. 560 where the court said at paragraph 46: The factors I refer to were first stated by the chambers judge in Bearhead v. Moorhouse (1977), 3 B.C.L.R. 81 (B.C.S.C.) at pp. 83-84: 1. Was the application brought promptly?

2. Did the defendant have notice of the claim?

3. Has the defendant suffered prejudice?

4. Is the failure to serve the writ attributable in any respect to the actions of the defendant?

5. Was the failure to serve the writ attributable to the plaintiff? [15] It is clear from the authorities that the test has to taken in the context of what is referred to as the ultimate question: What is necessary to see justice done? [16] In the case at bar, in applying the factors listed above, I conclude as follows: 1. The application was not brought promptly. For reasons of his own, that are not entirely understandable, PW elected not to apply to renew for 2 years after he was first notified by ICBC of the requirement for personal service. He was advised again in April 2008 by counsel for ICBC of the need for service and came to the same conclusion that the step was not necessary.

2. The defendant has no notice of the claim although his apparent insurer had notice of the claim throughout the history of this proceeding.

3. There is no evidence of actual prejudice to the defendant but he, of course, has not been served and took no part in this application. As has been said on many occasions, prejudice is to be presumed from the mere passage of time: Minter v. Reeves (1979), 9 B.C.L.R. 275 (B.C.C.A.).

4. The failure to serve the writ was not attributable to the actions of the defendant. Although unsuccessful efforts were made to serve the defendant at various addresses provided for him, all of the attempts at service were made after the writ had expired and would have come to naught in any event. It could not be said that the obtaining of apparently invalid addresses was the fault of the defendant. If the writ had been renewed, it would have been possible to apply for substituted service on the basis of the evidence of inadequate addresses. That was not done.

5. There is no doubt that the solicitor was at fault. Although PW maintains throughout his affidavit that he believed the limitation period had not expired, there is no other explanation offered for the failure to renew and serve when the issue first arose in 2006. That course of action was clearly more cost effective and expeditious than proceeding to commence a new action that would, inevitably, have to be served on the defendant. The commencement of a new proceeding did not solve the problem of service. The evidence is also clear that the plaintiff was not at fault. He says he instructed PW to proceed with the action and understood that the necessary steps had been taken. [17] The ultimate question is what is necessary to see justice is done. The authorities make it clear that, where possible, the parties should not be prejudiced by the action or inaction of their lawyers where they have not contributed to the delay or prejudice. That is the case here but the delay and the lack of a coherent explanation for the delay are factors to be considered. In Bearhead supra, the court allowed the renewal but the delay was a matter of a few months after expiry, the action had effectively been settled and the defendant had actual notice of the claim. The defendant there could not demonstrate prejudice. [18] In Lowe v. Christensen, [1984] B.C.J. No. 3140 (B.C.C.A.) the writ was issued in

July 1980, plaintiff's counsel was advised of the need for service in January 1982 and the renewal application was made in March 1983. The court found that the plaintiff there had been "badly served by the profession" and that the delay was shocking. The court allowed the renewal finding that the defendants there were aware of the claim through their insurer and that they had not been prejudiced by the delay. I could not conclude in this case that the defendant is aware of the proceeding through his insurer given the possibility of a coverage breach. Because the defendant did not participate in the proceeding, there is no evidence on the issue of prejudice to him. [19] There are many decisions on the issue of renewal of a writ. Each turns on its own peculiar facts in the context of the factors set out earlier in these reasons. The court has often been anxious to avoid having parties bear the brunt of their lawyers' shortcomings but that must be viewed in the context of the factors set out. In many of the authorities the defendants participated in the renewal applications or appeals thereof. That is not the case here since counsel appeared only for the plaintiff and the statutory third party, ICBC. [20] In the case at bar, the failure of plaintiff's counsel cannot be laid at the feet of the plaintiff through loss of his cause of action. The defendant will have liberty to apply to set this order aside once the renewed writ has been served upon him and the issue of prejudice may be addressed directly then.

CONCLUSION [21] The writ is renewed for a further period of 3 months. [22] The defendant may be served by publication of a notice of the proceeding in 2 editions of a newspaper circulating in the Capital Regional District. The time for appearance shall be 21 days after the last publication. [23] The plaintiff is certainly not entitled to costs. The Third Party appeared at the hearing only to raise certain issues with respect to delivery of the material and is not directly affected by the order and is not entitled to costs. "Master S. Scarth"" for Master William McCallum