What are the duties of the court in renewing a writ of summons?

British Columbia, Canada


The following excerpt is from Barlow v. Anastasia Holdings Ltd., 1983 CanLII 414 (BC SC):

On these facts what are my duties? I quote from the judgment of Culliton C.J.S. in Simpson v. Sask. Govt. Ins. Office, supra [at p. 750], and quoted and approved by McIntyre J.A. in the Bearhead case, supra [at p. 384]: In an application to renew a writ of summons, I think the basic fact which the court must keep in mind is that it is primarily concerned with the rights of litigants and not with the conduct of solicitors. Noncompliance with the Rule requiring service of a writ of summons within 12 months of its issue is an irregularity. Under R. 11 the court is given a wide and unfettered power to relieve against that irregularity by renewal of the writ. I know of no reason why the same principles should not govern the court in the exercise of its discretion under that Rule as governs it in the exercise of its discretion under other Rules where it may relieve against an irregularity … In an application to renew a writ of summons the basic question which faces the court is, what is necessary to see that justice is done? That question must be answered after a careful study and review of all the circumstances. If the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant's defence, then the writ should be renewed. This should be done even if the only reason for non-service is the negligence, inattention or inaction of the plaintiff's solicitors and notwithstanding that a limitation defence may have accrued if a new writ was to be issued. If the non-service of the writ was due to the personal actions of the plaintiff, that, of course, would be a fact to be considered by the court. Each case should be considered in the light of its own peculiar circumstances and the court, in the exercise of its judicial discretion, should be determined to see that justice is done.

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