Murchinson v. S & D Smith Central Supplies Ltd.

Murchinson v. S & D Smith Central Supplies Ltd.

The application to revoke the renewals and to dismiss the action was dismissed because, although there was inordinate delay primarily attributable to the plaintiff's counsel, a substantial portion of the delay was attributable to the defendant's adjuster and some acquiescence by the defendant's counsel; the defendant did not demonstrate likely serious prejudice sufficient to outweigh the plaintiff's right to litigate, and the renewals were justified by unsettled settlement discussions; accordingly the plaintiff must effect service by December 15, 2008 and costs are in the cause.

Citation
2008 NSSC 362
Parties
Plaintiff / Respondent: Jamie Murchison; Defendant / Applicant: S & D Smith Central Supplies Limited (carrying on business as Central Building Supplies); Defendant / Applicant: Black & Decker (U.S.) Inc.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
26 November 2008
Procedural Posture
Personal Injury; Product Liability; Civil Procedure / Interlocutory Application to Revoke Renewals and to Dismiss for Want of Prosecution
Outcome
Application dismissed. Renewals not revoked. Plaintiff granted opportunity to effect service and proceed.
Legal Topics
Service of Process, Renewal of Originating Notice, Want of Prosecution, Dismissal for Delay, Abuse of Process, Prejudice/loss of Co Defendant
Source Language
English
Civil Procedure Product Liability Personal Injury Evidence Procedure Costs Service of Process Renewal of Originating Notice Want of Prosecution +3 more

Case Brief

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Parties

Jamie Murchison

Plaintiff / Respondent

S & D Smith Central Supplies Limited (carrying on business as Central Building Supplies)

Defendant / Applicant

Black & Decker (U.S.) Inc.

Defendant / Applicant

Procedural Posture

Personal Injury; Product Liability; Civil Procedure / Interlocutory Application to Revoke Renewals and to Dismiss for Want of Prosecution

Legal Issues

  1. 1 Whether renewals of the Originating Notice and Statement of Claim should be revoked for failure to personally serve the Defendant
  2. 2 Whether the renewals met the requirements of Civil Procedure Rule 9.07
  3. 3 Whether the renewals and the supporting information amount to an abuse of process

Ratio Decidendi

The application to revoke the renewals and to dismiss the action was dismissed because, although there was inordinate delay primarily attributable to the plaintiff's counsel, a substantial portion of the delay was attributable to the defendant's adjuster and some acquiescence by the defendant's counsel; the defendant did not demonstrate likely serious prejudice sufficient to outweigh the plaintiff's right to litigate, and the renewals were justified by unsettled settlement discussions; accordingly the plaintiff must effect service by December 15, 2008 and costs are in the cause.

Court Disposition

Application dismissed. Renewals not revoked. Plaintiff granted opportunity to effect service and proceed.

Orders

  • Application dismissed
  • Service of the Originating Notice and Statement of Claim to be effected no later than December 15, 2008