Civil procedure

Service

Personal Service  Rule 4-3 – p.14

Rule 4-3(1) – A notice of civil claim needs personal service

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  Service is effected when you give it to the Defendant
  
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  Service is required for pleadings & petitions b/c parties need to be aware of potential claim against them
  
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  Service is also important b/c it starts the clock  in 21 days there needs to be a response
  
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  Response - After receiving the service, the defendant can respond in multiple ways. Note that the defendant MUST respond otherwise they risk having default judgment entered against them.
  

Examples of Personal Service RULE 4-3(2) – p.13

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  Individuals – by leaving a copy with them
  
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  Corporations: Leave it with their record office or at home headquarters. Must be left with an official/employee who has the capacity to receive service for that entity
  
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  Municipality: Left with clerk or mayer
  
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  Partnership: Leave it with a partner or their records office
  
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  Mentally Incompetent: Left with person in charge of their legal affairs (committee or agent)
  
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  First Nations: Serve to band leader or at band headquarters (contentuous)
  

Ordinary Service  Rule 4-2

Anything not requiring to be served by personal service can be served by ordinary service.

Example - Posting at courthouse, posting at door of residence, publishing ad, serving someone in contact with the person
Alternate Service Rule 4-4 (1) – p.15

Court may waive the requirement of personal if the following legal test is met:

1. 
   Personal service is impracticable under the circumstances
   
2. 
   The person to be serviced cannot be located after a diligent search (lol @ posting the service on 4 corners of BC or some shit like that)
   
3. 
   The person is evading service
   

Examples of valid & non-valid services

Not Valid

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  Throwing a copy of the writ on the ground, holding it up as D flees
  
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  Handing the D a writ enclosed in an envelope, and he wasn’t informed of its contents
  

Valid

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  Thrusting a document into an inner fold of D’s coat after the D refused to accept doc
  
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  Giving doc to the D, explaining what it is, but accepting it when D hands it back after he reads
  

Renewal – Has the NoCC have gone for 12 mths w/o being served?

Rule 3-2 – p.5

(1) Original notice of civil claim remains in force for only 12 months

If original NoCC not served  If a D has not been served, the court, on application by P made before or after the expiration of the 12 months, may order the original NoCC be renewed for a period of not more than 12 months (application for renewal)

Amending Pleadings

Rule 6-1 – p.19

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  Historically when a writ of summons was done it was final and could not be amended.
  
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  Now errors in pleadings are rarely a serious problem because amendments are allowed
  
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  Amendments to pleadings may even be allowed during trial
  
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  Justification = Rule 1-3(1)  merits clause, we need to allow the real issues to be determined – technical issues should not be so important
  

*Note on Costs – If the pleadings are so dreadful and the judge does not allow amendments, the losing party may be subjected to paying special costs for the application.

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  Why? Your pleadings are so shit, the other party shouldn’t have to pay for your incompetence. Rebuking inappropriate conduct and wasting of judicial resources.
  

Problem of Variance and Amendment of Pleadings

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  Since pleadings are intended to give notice to opposing party of case they need to meet – fairness will generally dictate that a party will not be permitted to raise new issues at trial or to call evidence not relevant to the issues as pleaded.
  
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  Problem of variance  difference b/w that which is pleaded and that which can be proven
  
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  Generous rules regarding amendments may assist parties in curing the problem of variance by permitting changes in pleading to accord with the evidence.
  

Hanson v Sharma

[Court can allow amendment of pleadings if it’s in the interest of justice, and it’s just & convenient]

FACTS

P seeks to amend NoCC by filing a further amended NoCC. D opposes application b/c of delay; prejudice & new cause of action being raised after the limitation period

ISSUE & HOLDING - Should P allowed to file a new (further amended) NOCC? YES.
RULE

Rule 6-1(1) allows a party to amend a pleading with leave of the court.

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  The court must exercise its discretion to give leave if it is in the interest of justice to do so and if it is just and convenient to the parties to order the amendment.
  

Prejudice Test

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  Consider the relevant prejudice to each party
  
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  Consider the length of delay in seeking the amendment
  
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  Consider the reasons for why the delay occurred
  

ANALYSIS

Here, no delay b/c case is still in front of the Court. Not many steps have been taken in the litigation process. They don’t have to re-examine witness, if they change now it’s not so bad.