The COVID-19 pandemic not only temporarily closed court rooms and businesses, but has forced people all over the world to isolate at home. In a recent British Columbia decision, the court was faced with a situation in which service of a notice of claim could not be served on a defendant as a result of COVID-19.

What Happened?

The plaintiff was injured in a motor vehicle accident in Nelson, British Columbia on July 4, 2017. At the time of the accident, she was a passenger in the vehicle.

On June 24, 2019, the plaintiff filed a notice of civil claim seeking compensation for injuries she suffered in the accident. She named the owners and drivers of both cars as defendants.

The plaintiff served the notice of civil claim on the owner of the other car on May 27, 2020 and on the driver of the car she had been in at the time of the accident on June 23, 2020.

However, on June 17, 2020, the plaintiff became aware that the driver of the other car was deceased. Then, on June 23, 2020, the plaintiff learned that the owner of the car she had been in at the time of the accident had been diagnosed with COVID-19 and was quarantined in the United States. As a result, despite diligent efforts, the plaintiff was unable to serve either of them prior to the expiry of the notice of civil claim on June 24, 2020.

The plaintiff applied by way of written submission for orders renewing the notice of civil claim for twelve months and permitting alternate service on the defendant who was quarantined in the United States.

The Law

Rule 3-2 of British Columbia’s Supreme Court Civil Rules empowers the court to renew a notice of civil claim that has not been served within twelve months of its filing for a period of not more than twelve months.

There are five factors governing the exercise of discretion to renew a writ:

  •      whether the application to renew was made promptly;
  •      whether the defendant had notice of the claim before the notice of civil claim expired;
  •      whether the defendant was prejudiced;
  •      whether the failure to effect service was attributable to the defendant; and
  •      whether the plaintiff, as opposed to his solicitor, was at fault.

The overarching objective is to see that justice is done.

Additionally, Rule 4-4 of the Supreme Court Civil Rules empowers a court to make an order for alternate service if it is impracticable to serve a document by personal service, or if the person to be personally served cannot be found after a diligent search or is evading service.

Decision

The court found that it was a clear case calling for a renewal of the notice of civil claim, stating:

“[The plaintiff] made timely and diligent efforts to serve the notice of civil claim. Her ability to do so was compromised during the pandemic. Further, while endeavouring to serve all of the defendants, she learned that she would be unable to personally serve [the driver of the other car], who had passed away, and [the owner of the car she had been in], who was quarantined in the United States. That was no one’s fault. [The plaintiff] then applied very promptly to renew the notice of civil claim.

On the other side of the ledger, I can think of no prejudice to the defence if the renewal is granted. […]

In all of the circumstances, the interests of justice demand that the notice of civil claim be renewed. If it is not, [the plaintiff]’s ability to pursue full compensation for her injuries will be significantly compromised. If it is, the defence will suffer no prejudice.”

The court concluded that a renewal of the notice of civil claim was necessary to give the plaintiff an opportunity to identify and serve a representative of the two defendants. As a result, the court ordered a renewal of six months.

Regarding the request for alternate service, the court found that the process servers retained by the plaintiff had been able to locate the defendant who was stuck in the United States due to the pandemic. The affidavit evidence also made it clear that the defendant appeared to be cooperative, even offering to contact the process servers when she returned to Canada; the court found that there was no indication that she was evading service.

Given that the court had already renewed the notice of civil claim for six months, it stated that the plaintiff would have plenty of time to personally serve the defendant and there was no need for an order for alternate service. However, the court stated that if it subsequently became apparent that service remained impracticable or the defendant could not be found or was evading service, a further application could be made for alternate service.

As a result, the court ordered that the notice of civil claim be renewed for six months and dismissed the application for alternate service.

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