Service of filed tort claim
This page provides information about serving the defendants, and ICBC, with the tort claim documents that are filed in court by the claimant.
Claim to be served on defendants
After filing a tort claim, the next step is to serve it on the defendants.
The purpose of serving the defendants is so that they know about the claim against them and can file documents in court stating their position with respect to the claims made against them:
It has long been recognized the purpose of service is fulfilled once notice has been received. The following statement was made by the Lord Chancellor in the mid-nineteenth century in the case of Hope v. Hope (1854), 43 E.R. 534 (H.L.) at 539-540:
The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.
(Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216 at para. 20).
The whole purpose of service is to apprise, and give a party notice of, proceedings intended to be taken against him, and if that object has been satisfied, and the process has actually reached the party, the precise manner in which that has occurred should not be of concern.
(Rupertsland Mortgage Investment Limited v. The City of Winnipeg (1981), 23 C.P.C. 208 (Man. Co. Ct.) cited in Balla v. Fitch Research Corp., 1999 CanLII 6605 at para. 24 (BCSC), aff’d on this point Balla v. Fitch Research Corp., 2000 BCCA 448 at para. 18).
Different methods of service are permitted depending on who is being served. Individuals (i.e. regular people) must generally be served by physically handing them a copy of the claim document. Claimants offer hire process servers to locate and serve defendants. Serving a company (also called a corporation) is easier and a claim document can simply be mailed by registered mail to the address of the registered and records office for the company, and that address information is publicly available for all companies. The rule allowing service on companies by registered mail is stated in the Business Corporations Act, S.B.C. 2002, c. 57:
Service of records in legal proceedings
9 (1) Without limiting any other enactment, a record may be served on a company
(a) unless the company’s registered office has been eliminated under section 40, by delivering the record to the delivery address, or by mailing it by registered mail to the mailing address, shown for the registered office of the company in the corporate register,
(b) if the company's registered office has been eliminated under section 40, in the manner ordered by the court under section 40 (4) (b), or
(c) in any case, by serving any director, senior officer, liquidator or receiver manager of the company.
(2) Without limiting any other enactment, a record may be served on an extraprovincial company
(a) by delivering the record to the delivery address, or by mailing it by registered mail to the mailing address, shown for the head office of the extraprovincial company in the corporate register if that head office is in British Columbia, or
(b) by serving any attorney for the extraprovincial company or, without limiting this, by delivering the record to the delivery address, or by mailing it by registered mail to the mailing address, shown for any attorney for the extraprovincial company in the corporate register.
(Business Corporations Act, S.B.C. 2002, c. 57, s. 9, emphasis added).
Section 29 of the Interpretation Act, RSBC 1996, c. 238 includes the following definition of “record” which makes it clear that a claim filed in court would be a “record” as that term is used in the above quoted sections of the Business Corporations Act, S.B.C. 2002, c. 57:
“record” includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by any means whether graphic, electronic, mechanical or otherwise…
(Interpretation Act, RSBC 1996, c. 238, s. 29).
The above confirms that individuals should be served by handing a copy of the claim document to the individual, but corporations may be served by mailing a copy of the court document, by registered mail, to the records office of the corporation.
Tort claims to be served on defendants within one year of filing
Tort actions filed in the British Columbia Supreme Court are initially valid for one year after filing and should be served before that year expires (i.e. they must generally be served within 3 years of the accident):
An original notice of civil claim does not remain in force for more than 12 months, but if a defendant named in a notice of civil claim has not been served, the court, on the application of the plaintiff made before or after the expiration of the 12 months, may order that the original notice of civil claim be renewed for a period of not more than 12 months.
(Supreme Court Rule 3-2(1)).
As indicated by the above, if a British Columbia Supreme Court claim has not been served within one year after filing the claimant can apply for a renewal of the claim.
Similar rules apply for tort claims filed in Small Claims Court:
If a notice of claim has not been served within 12 months after it was filed it expires, but the claimant may apply to have it renewed (see Rule 16 (3)).
(Small Claims Court Rule 2(7)).
A renewal of a claim filed in court to allow it to be served more than one year after filing will not be granted automatically and generally the plaintiff will have to establish that there is a reasonable explanation for the claim not being served within the one year period after filing. The factors the court will considered have been stated as follows:
As set out in the seminal authority of Bearhead v. Moorhouse, Ben Lease Limited and Ayers (1977), 3 BCLR 81 (S.C.), aff’d (1978), 5 BCLR 380 (C.A.), the court has to consider five factors in the application [to renew a Notice of Civil Claim]:
Was the application brought promptly?
Did the defendant have notice of the claim from sources other than the writ?
Has the defendant suffered prejudice?
Was the failure to serve the writ attributable to the actions of the defendant?
Was the plaintiff or his solicitor at fault?
(Jackson v. Nightingale, 2009 BCSC 715 at para. 18).
The safest approach is for the claimant to take steps to serve the defendant well in advance of expiration of the one year period for service to avoid the risk of the one year service deadline being missed and an application to renew the Notice of Civil Claim having to be made.
Tort claim to be served on ICBC as well
Because in most cases the defendants in a motor vehicle accident injury claim will be insured by ICBC, there is a statutory requirement that ICBC be served with a copy of the claim document and that no further steps be taken by the claimant until 8 days after ICBC has been served:
22(1) Every person commencing an action for damages caused by a vehicle in British Columbia must
(a) serve the corporation with a copy of the notice of civil claim in the manner provided for serving a defendant in the action, and
(b) file proof of the service in the court in which the action is pending.
(2) A further step in the action must not be taken until the expiration of 8 days after the filing.
(Insurance (Vehicle) Act, RSBC 1996, c. 231, s. 22).
As is the case for claims that are not served on defendants within one year of being filed, if the claim is not served on ICBC within 1 year after being filed the claimant can apply for a renewal:
Section 22 subsection (1) [of the Insurance (Vehicle) Act, RSBC 1996, c. 231] does not provide any remedy for the failure to serve the Corporation with a copy of the originating process in the action. The defendant argues that the appropriate remedy is for the dismissal of the plaintiff’s action.
The defendant’s application must fail on two grounds. First, had the Masters been fully aware of the lack of service on I.C.B.C. of the first Writ of Summons or the lack of service on I.C.B.C. with regard to the second Writ of Summons, or the plaintiff's failure to attend the two I.M.E.s, I do not see that their decision to renew the Writ of Summons would have changed. Writs of Summons are routinely renewed in these courts where service has not been effected.
Second, I.C.B.C. has been involved in this case from early on, had been paying Part 7 benefits and was certainly fully aware of the risks that they would face a law suit.
(Briscoe v. Mitchell, 1999 CanLII 6053 at paras. 9 -11 (BCSC)).
ICBC can be served by sending the filed claim document to the Claim Handling Department at Suite 800, 808 Nelson Street, Vancouver.
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