Date: 19981117
Docket: T-1419-97
BETWEEN:
IN A MATTER pursuant to section 88(2) of the
Excise Tax Act, R.S.C. 1985, c. E-14
- and -
IN A MATTER of a 1977 GMC Pick-up truck
bearing vehicle identification number
TKH2471514500 with Manitoba licence
plate number 043 ZAS
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY,
[1] Mr. Gross, whom I also refer to as the Plaintiff, seeks, by a Statement of Claim filed in these proceedings on 1 August 1997, the return of his pick-up truck, seized by the Crown, also referred to as the Defendant. These reasons arise out of a motion, brought by the Plaintiff for an Order extending the time within which to serve his Statement of Claim upon the Defendant.
SUMMARY
[2] A motion for an extension of time within which to serve a writ or, in this Court, a Statement of Claim, on an accessible defendant, has usually been a painful one to bring, to oppose, and to decide for the emphasis has usually been upon the conduct of solicitor who overlooked service, rather than upon any particular justice to litigants. The material, under Rule 306 of the pre-1998 Rules, had to disclose a sufficient reason for extending time but, as the Court of Appeal pointed out in May & Baker (Canada) Ltd. v. The "Oak", [1979] 1 F.C. 401 at 404, "... when the defendant was available for service and the plaintiff was not inhibited from serving or induced by the defendant not to serve, it is almost impossible to think of a 'sufficient reason' for not serving within the time fixed for serving." And thus, the outcome was often hardship and embarrassment.
[3] Under the 1998 Rules there is no requirement that a plaintiff show a sufficient reason. In the absence of a requirement that a plaintiff show a sufficient reason, I have the discretion to look at the particular circumstances of the case and then determine what ought to be done in the interests of justice.
[4] This is an appropriate instance in which I allow an extension of time for service. I will now consider this in more detail.
CONSIDERATION
[5] The Plaintiff's Statement of Claim, seeking relief from forfeiture of a 1977 pick-up truck valued at $5,000, found with 1400 pouches of non-duty paid Natural Canadian Blend tobacco aboard, is some 15 months old. Under the Rules of Court in force when the Statement of Claim was issued it should have been served by the 1st of August, 1998.
[6] The Plaintiff, in support of this motion in writing, deposes that he did not intend to ignore his own action, or to abandon it, but was preoccupied dealing with charges that had been laid under the Excise Tax Act and under the Tobacco Tax Act. The Plaintiff was, on 12 March 1998, acquitted. There is an appeal pending. The Plaintiff says that once the Crown's appeal has been decided he intends to pursue this present action. The Plaintiff submits there is generally no prejudice to the Defendant and particularly no prejudice in that physical evidence and the testimony of witnesses has been identified and given in the Provincial Court proceedings and that the outcome of the appeal may in fact enable both parties to better determine their course of conduct with respect to this present action.
[7] As I have noted, the test that a plaintiff had to satisfied under the Rules in effect when the Statement of Claim was issued, was that there be "any sufficient reason" for failing to serve the Statement of Claim within one year (Rule 306). I do not see that the Crown, as a Defendant, has any vested substantive right to have this motion determined under the former rules of procedure. The application of the 1998 Rules does no injustice. The present Rule for service, Rule 203, requires service within 60 days, but does not deal with time extensions for service. Present Rule 8 allows an extension of time, however it does not specify the factors to take into consideration.
[8] That the people drafting the new Federal Court Rules left out the requirement that a plaintiff show sufficient reason in order to obtain an extension of time within which to serve a statement of claim is a factor to which I must give some consideration, for it would clearly seem to allow an exercise of discretion going beyond that circumscribed by the Court of Appeal in May & Baker.
[9] Not long ago, the British Columbia Rules of Court underwent a transition similar to ours. The 1974 case of Cropp v. Moreton, [1975] 1 W.W.R. 637 a decision of the British Columbia Court of Appeal, is typical of the traditional hard line. There the Court looked not only for reasonable efforts to effect service, but also at whether there were very special circumstances which might justify depriving a defendant of a statutory limitation. The Court applied that test on the basis of what was then Rule 1 of Order 8, Marginal Rule 45, which required an applicant applying for renewal of a writ to show either that reasonable efforts had been made to serve the defendant or that there was some other good reason by which the renewal ought to be made.
[10] Currently in British Columbia renewal of a writ of summons, under Supreme Court Rule 9(1) is permissive. The Rule does not set a hard and fast standard:
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"(1) No original writ of summon shall be in force for more than 12 months, but where a defendant named therein 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 writ of summons be renewed for a period of not more than 12 months...." |
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This Rule is parallel to the combined effect of the present Federal Court Rules 8(1) and (2) and 203(1).
[11] The Supreme Court, in Bearhead v. Moorhouse (1977), 3 B.C.L.R. 81 dealt with British Columbia Rule 9(1) noting that it did not refer to "reasonable efforts" or "for other good reason". The Court also referred to another new Rule, Rule 1(5):
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"The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits" |
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a rule which is equivalent to Federal Court Rule 3. The headnote sums up the conclusion that Mr. Justice McTaggart, as he then was, reached in Bearhead after considering and analysing the new situation:
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Each application must depend on its own facts; renewal should not be lightly granted but the new r. 9(1) is intended to be more liberal than the old rule. There was no unreasonable delay in this case or prejudice by renewal to either party. It was important to see justice done. |
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In reaching this conclusion, Mr. Justice McTaggart specifically rejected the older line of authorities, including Cropp v. Moreton (supra). He specifically adopted Simpson v. Saskatchewan Government Insurance Office (1967), 61 W.W.R. 741 which dealt with a rule similar to the new British Columbia Rule 9(1). There the Chief Justice of Saskatchewan, delivering the judgment of the Court of Appeal, noted that "... 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." (page 750). The Chief Justice looked upon the expired writ as an irregularity and for that reason noted that the Court should exercise its discretion as it would under any of the other Rules of Court. Then comes the pertinent paragraph adopted by Mr. Justice McTaggart in Bearhead:
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"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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(page 50: emphasis added) |
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The Saskatchewan Court of Appeal clearly looked to determine what was required to see that justice might be done and decided that renewals should be granted 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.". In effect, following this approach, I may look to see that justice be done and in order to make that determination I should look at the particular circumstances.
[12] Bearhead v. Moorhouse has been followed in a number of instances by the British Columbia Courts, for example in Barlow v. Anastasia Holdings Ltd. (1983), 45 B.C.L.R. 300, in which a writ of summons was never served due to the inadvertence of counsel and Lowe v. Christensen (1984), 54 B.C.L.R. 88. In the latter case, the B.C. Court of Appeal reiterated that it was necessary to see that justice be done. The Court pointed out that plaintiff's solicitors had delayed in serving the writ but that the plaintiff had not condoned that delay. Moreover, renewal would not do any substantial injustice to the defendants, who were aware of the proceeding. In Lowe the writ and Statement of Claim had been issued in July of 1980. The application for the renewal was not brought until the end of May 1984. The Court observed that the delay was shocking and that no case had been cited in which a writ had been renewed after such a long time. The Court, in renewing the writ, concluded that:
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If the writ in this case is not renewed, the plaintiff who has neither contributed to nor condoned the delay, will lose his cause of action. If the writ is renewed, there will not be any substantial injustice to any of the defendants. Through their insurer they have been aware that the claim was being presented. They have not, by reason of the delay, been prejudiced regarding evidence or otherwise. In my opinion, granting renewal of the writ is essential in order to see justice done. |
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[13] Returning to the present motion, the affidavit material of the Plaintiff, Mr. Gross, is a little thin. However, it is clear that, unknown to Mr. Gross, the Statement of Claim filed 1 August 1997, challenging the 30 June 1997 seizure of the truck, was not served as a result of an oversight on the part of counsel. Mr. Gross explains that he did not know of this oversight until after the time for service had expired. He also sets out that he always intended to proceed with this action, but was preoccupied with the criminal proceedings brought against him by the Crown.
[14] The trial on the criminal charges resulted in an acquittal in March of 1998. The Crown has appealed that acquittal. Mr. Gross deposes that he intends to pursue this action once the Crown's appeal has been completed.
[15] Counsel for the Crown submits that there is no current intent on the part of Mr. Gross to pursue the action. On balance, I find that there was and is a continuing intent, with actual pursuit of the claim put off until the criminal proceedings have been completed.
[16] Given that under the new Rule an extension of time for service of a statement of claim is similar to other time extensions, I should look not only at whether there is a continuing intention to pursue the claim, but also to see what evidence there might be as to an arguable case. I am prepared to imply an arguable case from the initial acquittal on the criminal charges. Here I recognize that the burdens of proof in the criminal proceeding and in this Federal Court proceeding are quite different. But the Plaintiff does not need to show that he has a certain case, or that he is more likely than not to succeed, but merely that he has an arguable case.
[17] Finally, in order to complete a consideration of the justice of any extension, there is the matter of prejudice. There is no evidence whether the Crown was aware of the existence of the Plaintiff's Statement of Claim until notice of the present motion, yet the Crown does not say there is any element of prejudice by surprise.
[18] As to other varieties of prejudice, I do not believe there are any that cannot be compensated for in costs. The Defendant did not make submissions on this point. The Plaintiff's submission is that:
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The Plaintiff submits that no prejudice to the Federal Crown will result from an extension of time to serve the Federal Crown with the Statement of Claim. Physical evidence which is likely to be relevant to the determination of the claim will have been entered in Provincial Court in the Excise Act and the Tobacco Tax Act proceedings. Similarly, witnesses whose testimony is likely to be relevant to the determination of the claim will have been identified and given evidence in the prior proceedings and in fact may be required to testify again should the appeal result in an order for a new trial. Given that the appeal of the acquittal has not yet been heard, the Plaintiff submits that knowledge of the outcome of the appeal may in fact enable both parties to better determine their course of conduct with respect to the Statement of Claim. |
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(page 2, Plaintiff's Written Representations |
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I do not necessarily accept this analysis in its entirety. However, as I say, I can see no real prejudice to the Defendant in granting an extension.
CONCLUSION
[19] To allow an extension will not work any substantial injustice to the Crown or prejudice the Crown's defence. Looking at all of the circumstances particular to this present failure to serve, a refusal to renew would do an obvious injustice to the Plaintiff. Failure to serve was not due to any neglect or oversight on the part of the Plaintiff himself. As the Chief Justice of Saskatchewan noted, in the Simpson case (supra), a writ (or here the Statement of Claim) should be renewed "... 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 ...." (supra at page 750). Of course, this approach by no means guarantees an automatic extension for service, for each case must depend upon its own circumstances.
[20] The Plaintiff may have 15 days within which to serve the Statement of Claim. The Defendant shall have the costs of this motion, set at $750.00, payable forthwith.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
November 17, 1998
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