Situations can arise where, despite a Notice of Civil Claim being filed within two years after a Plaintiff suffered personal injuries, the Notice of Civil Claim is not served within the required one year time period after the date of filing. This is usually attributable to counsel error. The Court has the power to renew the Notice of Civil Claim, even after the year period has expired. The Court will look at many factors, such as whether the application to renew was brought promptly, whether the Defendant or Defendants had notice of the claim before it expired, whether the Defendant will suffer prejudice if the application to renew is granted, whether or not the delay was attributable to the Defendant in any way, and whether or not the delay was attributable to the Plaintiff in any way.
In Stuart v. Patterson, the Plaintiff was injured while weightlifting under the supervision of the Defendant. An action was started within two years from the date of the accident, however counsel for the Plaintiff did not serve the initiating legal document within one year after filing. Counsel for the Plaintiff, relying on Rule 3-2(1) of the Supreme Court Rules, brought an application for renewal of the initiating legal document. The Court ruled that counsel for the Plaintiff had acted reasonably and promptly upon realizing that the initiating legal document had expired, and further that there would no prejudice to the Defendant in granting the Plaintiff‘s application. The Court allowed a further two months for the Defendant to be properly served.
[17] In the circumstances, I find that the application was brought reasonably promptly.
[29] I am not able to determine that there has been any relevant prejudice suffered by Mr. Patterson or Crossfit arising from the delay in service of the writ of summons. Mr. Patterson and Crossfit’s counsel stated in submissions that there “could” be prejudice but was not able to point to anything specific in that regard.
[30] In any event, I accept the submissions of Ms. Stuart’s counsel that even if any prejudice had been suffered, it is not comparable to the significant prejudice that Ms. Stuart will suffer if she is unable to proceed with her action. In accordance with the test adopted in Bearhead, my conclusion is that there is no “substantial injustice” to Mr. Patterson and Crossfit in renewing the writ of summons in relation to Mr. Patterson’s and Crossfit’s ability to mount a defence to this claim.
[38] Ms. Stuart and her counsel took reasonably prompt steps to apply to renew the writ of summons once it came to their attention in May and June 2009 that the writ had not been properly served. While Mr. Patterson was not specifically apprised of the claim prior to service of the writ, I also find that Ms. Stuart did take steps to alert him of the potential for the claim and therefore he was afforded some opportunity to weigh his position. It is my conclusion that there is little, if any, prejudice arising during the time from the expiry of the writ in January 2009 until service in May 2009, that would negatively affect Mr. Patterson and Crossfit’s ability to defend this action. Finally, I do not find any contribution to this state of affairs on the part of either Ms. Stuart or Mr. Patterson and Crossfit; the failure to serve can only be laid at the feet of Ms. Stuart’s counsel. Ms. Stuart will suffer significant prejudice if her claim is not allowed to proceed. In all of the circumstances, I would exercise my discretion to renew the writ of summons for a period of two months from the date of this order.
