Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff sought to renew an expired notice of civil claim arising from two promissory notes totalling $170,000, secured by a guarantee from defendant Pamela Hoekstra.
   
• Renewal of a notice of civil claim under Rule 3-2 of the BC Supreme Court Civil Rules is discretionary, guided by the overall interests of justice as between the parties.
   
• Significant delay in bringing the renewal application — either 11 or 20 months depending on the benchmark date — was found to be inexcusable and attributable to both counsel error and the plaintiff's own inattention.
   
• Ms. Hoekstra had no notice of the claim prior to receiving a letter in September 2025, was not involved in the business after July 15, 2016, and took no steps to evade service.
   
• Prejudice to the defendant arose from her inability to obtain accounting records needed to challenge the amount owing, compounded by the business ceasing operations after Mr. Lindgren's 2021 bankruptcy.
   
• Robert Lindgren's bankruptcy further compromised Ms. Hoekstra's potential indemnity claim against him, whether under the share purchase agreement or s. 34 of the Law and Equity Act, R.S.B.C. 1996, c. 253.

Facts of the case

In 2015, Nanaimo Athletic Club Ltd. ("NAC") entered into an agreement to purchase the assets of an athletic centre from the plaintiff, 0939558 B.C. Ltd. ("093"). The purchase price was partially funded through vendor takeback financing secured by two promissory notes totalling $170,000. Both Robert Lindgren and Pamela Hoekstra guaranteed the notes. At the time, Lindgren and Hoekstra were in both a romantic and professional relationship. In 2016, that relationship broke down, and Hoekstra's share interest was bought out by Lindgren. At the time of her departure, payments under the promissory notes were current. A share purchase agreement was entered into between Lindgren and Hoekstra, which the court noted contained mutual releases and, by inference, indemnity provisions — though s. 34 of the Law and Equity Act, R.S.B.C. 1996, c. 253 independently provides an equitable right to seek indemnity from a co-surety.

In 2021, Lindgren made an assignment in bankruptcy. Prior to that, a demand letter had been issued dated December 16, 2020, addressed only to NAC, with Lindgren and Hoekstra listed in the attention line at the company's registered office. The demand letter was never directly served on Ms. Hoekstra. A notice of civil claim was ultimately filed on March 23, 2023 — within the limitation period as extended by COVID emergency regulations — but the notice expired on March 23, 2024 without being served on Ms. Hoekstra. She first became aware of the claim only upon receiving a letter in September 2025.

Policy, legislative, and procedural provisions at issue

The renewal application was governed by Rule 3-2 of the Supreme Court Civil Rules. Under Rule 3-2(1), an original notice of civil claim does not remain in force for more than 12 months, but the court may order renewal for a period of not more than 12 months on application by the plaintiff, whether before or after expiry. The court applied the framework from Bearhead v. Moorhouse, 1978 CanLII 360 (BC CA), which directs courts to assess the overall interests of justice between the parties, weighing whether to allow renewal to avoid obvious and substantial injustice to the plaintiff while not imposing substantial injustice or prejudice on the defendant. The relevant discretionary factors — confirmed in Stuart v. Patterson, 2010 BCSC 1236 — include whether the application was brought promptly, whether the defendant had prior notice of the claim, whether the defendant suffered prejudice, whether failure to serve was attributable to the defendant, and whether the plaintiff or their solicitor was at fault. Section 34 of the Law and Equity Act was also engaged as the statutory basis for Hoekstra's potential indemnity claim against Lindgren as a co-surety.

Reasoning and analysis

Associate Judge Robertson had no hesitation finding that Ms. Hoekstra bore no fault for the failure to effect service. She had not been evasive; her address was publicly discoverable through the manufactured home registry. By the time the demand letter was sent and the claim filed, she had been well removed from the company and from Mr. Lindgren for years, making it entirely plausible that any service on the company did not come to her attention.

The delay, however, was squarely attributable to the plaintiff and its counsel. The notice of civil claim expired in March 2024. Counsel did not discover the oversight until December 2024, and even then, failed to act diligently — allowing the matter to sit for a further six months before following up with the client in July 2025. The delay from January to July 2025 was not solely attributable to counsel; the plaintiff itself appeared disengaged, initially unaware what action counsel was referring to when the matter was raised, and at one point suggesting the claim may have been in small claims court. The court found no evidence of diligent prosecution through the Supreme Court process.

On prejudice, the court acknowledged that delay alone does not establish prejudice — referring to Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, and Krytskyy v. Canil, 2025 BCSC 2080 — but noted prejudice may be presumed from the passage of time and is rebuttable. The court found that Ms. Hoekstra faced real evidentiary prejudice: the notice of civil claim sought the full amount owed under the promissory notes without specifying the amount claimed, which the court described as unusual for a liquidated debt claim. Lindgren's bankruptcy statement of affairs listed the debt at $130,000, raising doubt about the $170,000 figure. Ms. Hoekstra had no access to the company's accounting records, had no independent authority to compel their production, and the business had ceased operating following Lindgren's 2021 bankruptcy. The passage of time further diminished the likelihood that records still existed. With the onus having shifted to the plaintiff to demonstrate no prejudice, the court found the plaintiff offered no evidence — only submissions from counsel and staff.

Ruling and overall outcome

Associate Judge Robertson dismissed the application. Weighing the totality of the circumstances — the inexcusable and largely unexplained delay by both the plaintiff and its counsel, the absence of any fault on the part of Ms. Hoekstra, and the real and demonstrated prejudice she would face in defending a claim of uncertain quantum without access to supporting records — the court found that the interests of justice favoured the defendant. The application to renew the notice of civil claim was dismissed, with no monetary award specified in the decision.