Tuesday, 18 October 2011

Renewal of Pleadings: Notice to Insurer may be Notice to the Defendant

The rules for the exercise of the court's discretion to  renew a writ or a Notice of Civil Claim under R. 3-2, are well known. For example, see Mackie v. McFayden, 2010 BCSC 399.  One of the factors that the court considers is whether the defendant had notice of the claim before the time for service expired.

In Ruskey v. Haggerty, 2011 BCSC 1387, the plaintiff was not able to locate the defendant driver, but did serve the Writ on ICBC, who, "from the earliest days ...  took an interest in the case, dealt with the plaintiff, and subsequently dealt with counsel with respect to this claim. "  Moreover, ICBC appeared, as agent for the defendant, to oppose an application to renew the writ.  Although being careful not to establish any general rules, McEwen J. found that, in these circumstances, notice to the defendant of the claim was established via notice to ICBC:
[18] If, on the other hand, they identify with the defendants in important respects, including who has to pay if a claim is made out, it is hard to see how they are not also effectively agents for the defendants with respect to whether they have notice and whether the defendants are prejudiced.
[19] I want to be clear that I do not make the mistake of suggesting that, because the defendants are insured, it is not important that they be served. The action is not engaged until the defendants are in fact served. But if that is actually the position, one would expect this matter to have been brought on an ex-parte basis, not on the basis that someone identified as agent appeared and made the strong argument in favour of the defendants' situation.
[20] I do not feel I have to reconcile that, except to say that it seems to me that, if the defendants' insurer has taken that much of an interest in this case, it is hard for them to maintain, except in the technical sense that the defendants have not had notice, or that the defendants are prejudiced.