IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110601

Docket: 78464

Registry:
Kelowna

Between:

Doris Kotscha

Plaintiff

And:

The Priory of
Canada of the Most Venerable Order of the
Hospital of St. John of Jerusalem,
St. John Society (British Columbia and Yukon),
St. John Ambulance and Dawn Powell

Defendants

Before:
The Honourable Mr. Justice Schultes
(appearing via teleconference)

Oral Reasons for Judgment

In
Chambers
June 1, 2011

INTRODUCTION

[1]            
In this summary trial application pursuant to Rule 9-7 of the Supreme
Court Rules, the defendant seeks to have the action dismissed on the basis
that it was not commenced within the two-year limitation period provided for a
personal injury action by s. 3(2)(a) of the Limitation Act, R.S.B.C.
1996, c. 266.

EVIDENCE

[2]            
The plaintiff was a volunteer for the defendant organization. As is well
known, one of the defendant’s functions is to provide first aid services to the
public at community events. On July 1, 2005, the plaintiff was volunteering for
the defendant at a sports event in Kelowna. She alleges she was injured on that
day when she encountered difficulties removing a stretcher from an ambulance. The
next day, she reported the injury to her supervising officer with the
organization. The supervisor told her to get treatment and keep her receipts. At
the next monthly meeting of her chapter, she discussed her injuries with the
supervisor, who told her that she was satisfied with the information that the
plaintiff had provided and would be submitting the claim.

[3]            
The plaintiff’s understanding was that the defendant carried "no
fault" insurance for volunteers in case they were injured during their
duties. The significance of this, I infer, is that the plaintiff did not
initially consider herself to be in an adversarial relationship with the defendant
about the cause and extent of her injuries or compensation for them. It appears
that the provincial head office of the defendant, which required information
about the claim in order to process it for insurance purposes, never actually
received that information from the supervisor. The plaintiff followed up with
an email to a person at provincial headquarters on May 22, 2006.

[4]            
On June 2, 2006, May Foggo, who was in charge of human resources at the
provincial office, replied to that email, advising the plaintiff that she had
never received any paperwork for this claim. She asked the plaintiff to send
her the information and said she would "contact the insurance company and
see what we can do."  She also advised the plaintiff:

I will try my best, but I cannot
promise anything because it is an insurance company decision.

[5]            
Somewhat surprised by this news, the plaintiff explained to Ms. Foggo
that she had reported the accident the day after it had occurred and had
undergone treatment on the basis of the representation by her supervisor that
it would be covered. Ms. Foggo asked the plaintiff for details of the injury
and a copy of the initial report if she had it. In a subsequent email, she
wrote that:

I look forward to receiving your
report in order that we can proceed with your claim at the earliest.

[6]            
The plaintiff provided a complete report on July 3, 2006. Ms. Foggo
appears to have forwarded the plaintiff’s report to the defendant’s insurance
broker very shortly after she received it. For reasons that are not clear on
the present evidence, the broker apparently did not submit the information to
the insurance provider until October 11, 2006. There is an email from the
broker to Ms. Foggo advising, and the policy itself confirms this, that claims
must have been submitted to the insurer within 365 days of any accident. The
broker advised the insurer that the plaintiff had actually reported the
accident to the defendant within that 365-day period.

[7]            
On October 27, 2006, the defendant wrote to Ms. Foggo for a progress report.
She advised that she also now required back and shoulder surgery as a result of
the injury. On November 1, 2006, Ms. Foggo advised the plaintiff that she had
finally obtained a response. I infer that meant a response from the insurer. The
plaintiff was required to fill out and return two documents: a statement for
preliminary proof of loss and an attending physician’s statement. The plaintiff
received these documents by mail and deposes that she saw her doctor on
November 30, 2006, to have them filled out. She paid a fee to have him complete
and submit them directly to the insurer. Unfortunately, upon more recent
inquiries, her doctor’s office has no record of his having actually done that.

[8]            
That is essentially the extent of the evidence with respect to the
plaintiff’s attempt to obtain injury benefits through the defendant. It is not
clear from the present evidence what the status of her claim actually is. Counsel
for the defendant does not concede that I should find that at this late date no
benefits are available to her or that her claim is in some respect foreclosed.

[9]            
The plaintiff retained counsel on March 19, 2008, and commenced this
action the following day. It is common ground that this is two years and
slightly more than eight months since the incident that is said to have caused
her injury. Her initial statement of claim filed in November 2009, alleged that
her injuries were caused by the negligence of the defendant. I will refer to
this as the “personal injury” claim. In an amended notice of civil claim dated
December 15, 2010, the plaintiff added a claim for breach of contract based on
the allegation that the defendant failed, among other things, to assist her in
obtaining the insurance coverage to which she was entitled as a volunteer. I
will refer to this as the “contract” claim. The plaintiff intends to seek leave
to add a claim of breach of fiduciary duty as well, arising from the
defendant’s manner of dealing with her claim, but obviously I cannot consider
that as a presently existing aspect of her claims.

[10]        
The defendant has pleaded the defence throughout, among others, that the
plaintiff’s claims are barred by the passage of the two-year limitation period
for commencing personal injury actions that is provided by s. 3(2)(a) of the Limitation
Act. In this summary trial, the defendant argues that both the personal
injury and the contract claims are actions "in respect of injury to
person" and thus subject to the two-year limitation period in 3(2)(a),
which the plaintiff concedes had expired when the action was commenced.

[11]        
The plaintiff argues that the harm captured by the contract claim is
"one step removed" from the personal injury, as that term is used in
the case authorities, and that this aspect of her claim is as a result subject
to the six-year limitation period for matters not caught by other specific
provisions of the Act: s. 3(5). In relation to the personal injury
claims, the plaintiff argues that the defendant, in effect, confirmed her cause
of action within the limitation period and that there has also been a
postponement of the running of the limitation period because of the actions of
the defendant in response to her initial application for coverage.

[12]        
In any event, she says that this matter is not appropriate for a summary
trial because she has outstanding document disclosure requests regarding
communications between the defendant employees and its insurers and because she
needs to conduct an examination for discovery of an appropriate representative
of the defendant. The appropriate representative cannot be selected, she says,
without the opportunity to review the outstanding documents. She also says that
the absence of evidence on whether insurance coverage was actually in place for
her precludes a finding of when the limitation period for the personal injury
claim began to run.

ISSUES

[13]        
The issues that must be resolved are:

1.              
what limitation period is appropriate to the contract claim;

2.              
did the defendant confirm the cause of action on the injury claim within
the limitation period;

3.              
has the running of the limitation period for the injury claim been
postponed as a result of the actions of the defendant; and

4.              
is this matter or any particular issues within it suitable for
resolution by summary trial?

THE CONTRACT CLAIMS

[14]        
The relevant portions of Rule 9-7(15) with respect to this matter are
well known:

On the hearing of a summary trial application, the court may

(a)        grant
judgment in favour of any party, either on an issue or generally, unless

(i)         the
court is unable, on the whole of the evidence before the court on the
application, to find the facts necessary to decide the issues of fact or law,
or

(ii)        the court is of the opinion
that it would be unjust to decide the issues on the application

The remaining parts of sub-rule (15) are not relevant to
this application.

[15]        
For reasons that I will discuss further, I have decided that it is
appropriate to consider the suitability for summary trial of these various
issues separately.

[16]        
With respect to the limitation period that is applicable to the contract
claim, the relevant portions of s. 3 of the Limitation Act provide:

(2)        After
the expiration of 2 years after the date on which the right to do so arose a
person may not bring any of the following actions:

(a)        subject
to subsection (4) (k), [which is not relevant to the present application] for
damages in respect of injury to person or property, including economic loss
arising from the injury, whether based on contract, tort or statutory duty

(5)        Any other action not
specifically provided for in this Act or any other Act may not be brought after
the expiration of 6 years after the date on which the right to do so arose.

[17]        
A resolution of this issue depends on a review of the pleadings, the
material facts and the applicable law. It is therefore suitable for summary
trial disposition on the present state of the evidence and material.

[18]        
The cases dealing with which claims are or are not within the definition
in (2)(a) have emphasized that to fall outside its ambit, the conduct
complained of must have been in some respect distinct from the personal injury.

[19]        
An example of a case in which the additional claims of the plaintiff
over and above the tort claims were in substance no more than different ways of
addressing matters arising from the personal injuries was Bush v. Vancouver
City, 2006 BCSC 1207, which is relied on by the defendant. In that
decision, the plaintiff brought an action for injuries resulting from
negligence and breach of statutory duty as well as for breaches of his Charter
rights, arising from his arrest and prolonged detention in police cells. In
concluding that the Charter breaches were also captured by the
limitation period in s. 3(2)(a), Madam Justice Allan emphasized that the
plaintiff could not point to any Charter breach that was independent of
the damage to his person or property as part of the tort claim. The defendant
argues that this is analogous to the present situation.

[20]        
In response, the plaintiff relies on three decisions:  Seibold
Holdings Ltd. v. Wilson and Kofoed Ltd., 90 CanLII 237 (BC SC), Smith v.
Collette, 2009 BCPC 344, and Thurley v. Patrick, 1993 CanLII 2234,
(BC SC).

[21]        
Seibold involved an action against an insurance agent for failing
to obtain sufficient coverage for the plaintiff who suffered loss in a fire. The
defendant sought to argue that the claim was in reality one arising from damage
to property, that is, the fire damage, and thus was caught by the two-year
limitation period. In rejecting this argument, Mr. Justice Murray concluded
that the claim for failure to obtain adequate coverage was one that already
existed before the fire and had independent validity. All the fire had done was
increase the measure of damages because of the absence of adequate coverage. The
defendant’s argument was not successful.

[22]        
Smith dealt with a claim for contribution by the defendant to the
cost of a judgment that had been awarded against the plaintiff, following an
action by the plaintiff’s neighbour for trespass on the neighbour’s property. The
plaintiff said that the trespass had resulted from the boundaries that had been
laid out by the defendant, whom he had hired to clear his property. Judge Bayliff
concluded that the plaintiff’s action was “one step removed” from the damage to
the neighbour’s property, because that damage had been caused by the defendant.
Accordingly, the plaintiff’s action was not caught by s. 3(2)(a).

[23]        
In Thurley, the plaintiff sued doctors and the society that
operated the Forensic Psychiatric Institute. He alleged that he had sought psychiatric
treatment from the defendants and been refused. He had then committed an arson
fire for which he was found not criminally responsible and sent to the Forensic
Institute. He claimed that this loss of liberty would not have occurred if his
initial request for treatment had been followed. Once again, the argument was
raised by the defendant that this was in substance an action relating to damage
to property. Mr. Justice Boyle concluded that the plaintiff’s case was not
based on any direct infliction of damage to property and that the six-year
limitation period applied.

[24]        
Of course, none of these situations is precisely analogous to the
present case. Thurley and Smith are of limited assistance, I
think, because neither involves the question of whether the defendants’
allegedly wrongful acts are all, in essence, personal injury or property damage
related, as is argued in the present case. The Seibold decision is more
directly applicable because it deals with the interrelationship between damage
suffered by the plaintiff and the breach of a duty to maintain insurance, but I
am not sure that it can be said in the present case, in contrast to Seibold,
that the plaintiff’s breach of all of the plaintiff’s contract claims are made
out even in the absence of injury or damage. The present plaintiff’s contract
claim does contain an allegation of failure to provide the agreed-upon
insurance in the abstract, but the other allegations of breach depend on her
having suffered an injury for which insurance is now unavailable.

[25]        
On the other hand, I do not find the Bush decision to be of great
assistance. That case clearly involved one set of tortious events that could be
characterized in different ways, including as breaches of Charter rights.
It is not tenable to argue, in my view, that the contract claims here are just
different ways of attributing legal responsibility for any negligence that led
to the plaintiff’s physical injury.

[26]        
At the end of the day, I am satisfied that the contract claims describe
wrongful actions by the defendant that, while they certainly arise temporally
from the injury that the plaintiff suffered, are fundamentally separate in
nature and engage distinct factual and legal considerations. I find that
failing to maintain insurance for a volunteer employee or failing to assist the
employee in obtaining coverage for an injury suffered during voluntary
employment are not in themselves claims for damage "in respect of injury
to a person," despite the fact that a personal injury was certainly the
antecedent event that led to the contract breaches having significance. The
fact that the contract claims would not have come into being without the
injuries having occurred does not, without more, clothe it with the character
of a personal injury action. Accordingly, I find that the contract claims are
subject to the six-year limitation period in s. 3(5) and are not barred by the
operation of the Limitation Act.

CONFIRMATION

[27]        
Turning then to the injury claims, as I have indicated the plaintiff
concedes that they are barred by the Act unless it is found that the defendant
confirmed the cause of action within the limitation period or that the running
of the period has been postponed.

[28]        
Dealing first with confirmation, the relevant portions of s. 5 of the Act
provide:

(1)        If,
after time has begun to run with respect to a limitation period set by this
Act, but before the expiration of the limitation period, a person against whom
an action lies confirms the cause of action, the time during which the
limitation period runs before the date of the confirmation does not count in
the reckoning of the limitation period for the action by a person having the
benefit of the confirmation against a person bound by the confirmation.

(2)        For the purposes of this section,

(a)        a person confirms a
cause of action only if the person

(i)         acknowledges a cause of
action

(5)        For
the purposes of this section, an acknowledgment must be in writing and signed
by the maker.

(6)        For
the purposes of this section, a person has the benefit of a confirmation only
if the confirmation

(a)        is
made to the person or to a person through whom the person claims, or

(b)        is made in the course of
proceedings

[29]        
Once again, I believe I have the entirety of the evidence relied on by
the plaintiff to support confirmation before me in this application. A
resolution of this issue is a matter of assessing that evidence in light of the
case authorities and the legislation, so I believe it is appropriate for me to
resolve it on the summary trial.

[30]        
A party can only be held to have acknowledged a claim if that party has,
in effect, admitted his or her liability to pay that which the claimant seeks
to recover: Ryan v. Moore, 2005 SCC 38. The acknowledgement in writing
must "admit some liability": Podovinikoff v. Montgomery,
[1984] 58 B.C.L.R. 204, (S.C.). The test is an objective one, whether a
reasonable person receiving and reading the communication would take it that
the defendant was going to settle: Canadian Pacific Railway v. Enderby,
2000 BCCA 319, at paragraphs 3 and 11.

[31]        
I do not think the communications on behalf of the employees of the
defendant can be said to have confirmed the cause of action within the
limitation period. Ms. Foggo’s communications, which would be the substance of
any confirmation, can at best be characterized as expressions of her intention
to facilitate the plaintiff’s claim under the insurance policy, not to concede
the defendant’s underlying liability for her injuries. In fact, at one point,
Ms. Foggo specifically indicated, as I have previously quoted, that the
ultimate authority to determine the viability of the plaintiff’s application was
the insurer. Nowhere in the material is there a statement on behalf of the
defendant that could reasonably be viewed as taking on legal responsibility for
her injuries. Accordingly, I am satisfied that the cause of action has not been
confirmed within the limitation period.

POSTPONEMENT

[32]        
Finally, there is the question of whether the running of the limitation
period has been postponed. The applicable portions of s. 6 of the Limitation
Act provide:

The running of time with respect to
the limitation period set by this Act for any of the following actions is
postponed as provided in subsection (4):

(a)        for personal injury

(4)        Time
does not begin to run against a plaintiff or claimant with respect to an action
referred to in subsection (3) until the identity of the defendant or respondent
is known to the plaintiff or claimant and those facts within the plaintiff’s or
claimant’s means of knowledge are such that a reasonable person, knowing those
facts and having taken the appropriate advice [that] a reasonable person would
seek on those facts [there is no "that" there], would regard th[e]
facts as showing that

(a)        an
action on the cause of action would, apart from the effect of the expiration of
a limitation period, have a reasonable prospect of success, and

(b)        the
person whose means of knowledge is in question ought, in the person’s own
interests and taking the person’s circumstances into account, to be able to
bring an action.

(5)        For the purpose of subsection (4),

(a)        "appropriate
advice", in relation to facts, means the advice of competent persons,
qualified in their respective fields, to advise on the medical, legal and other
aspects of the facts, as the case may require,

(b)        "facts"
include

(i)         the
existence of a duty owed to the plaintiff or claimant by the defendant or
respondent, and

(ii)        that
a breach of a duty caused injury, damage or loss to the plaintiff or claimant

(6)        The burden of proving that the
running of time has been postponed under subsections (3) and (4) is on the
person claiming the benefit of the postponement.

[33]        
A helpful paraphrase of these legislative requirements for postponement
was provided in Ounjian v. St. Paul’s Hospital, 2002 BCSC 104, at
paragraph 21:

1.         The
identity of the defendant is known to the plaintiff.

2.         The
plaintiff has certain facts (including the facts set out in s. 6(5)(b)) within her
means of knowledge.

3.         A
reasonable person, knowing those facts and having taken the appropriate advice
a reasonable person would seek on those facts, would regard the facts as
showing that an action would have a reasonable prospect of success.

4.         A reasonable person, knowing
those facts and having taken the appropriate advice a reasonable person would
seek on those facts, would regard the facts as showing that the plaintiff
ought, in her own interests and taking her circumstances into account, to be able
to bring an action.

[34]        
All four of these components must be satisfied before the limitation
period begins running. With respect to the means of knowledge of sufficient
facts, the plaintiff is deemed to have whatever information to support a claim
that it would have been reasonable for her to seek: Karsanjii Estate v.
Roque (1990), 43 B.C.L.R. (2d) 234, (C.A.).

[35]        
I have concluded that this issue is not suitable for resolution by
summary trial because there is currently insufficient evidence on which to base
a finding about whether it would have been reasonable for the plaintiff to view
herself as being in an adversarial relationship with the defendant and thus to
be alert to the necessity of litigation if the insurance benefits were not
forthcoming. The plaintiff deposes to her understanding that the coverage
available to her was of a no-fault nature, that is, that it did not depend on
her demonstrating negligence or other wrongdoing on the part of the defendant’s
employees. Counsel for the defendant did not contest that characterization.

[36]        
It would be open to a court to find that a reasonable person who was
injured in these circumstances and who understood that she had compensation for
the injuries available through the simple submission of an injury claim would not
view it as being necessary to commence litigation until a point had been
reached at which that avenue of compensation had, for whatever reason,
apparently been closed to her. The problem is that right now, on the state of
the disclosure available to the plaintiff, I do not even know for certain if
the plaintiff was eligible for coverage and, if she was, if and when and why
she later ceased to be eligible. That determination depends in part on the
court having a full picture of all relevant communications, including between
the defendant’s representatives and its insurers, which have not yet been
produced. An examination for discovery of a representative of the defendant
would also be beneficial in illuminating the postponement issue.

[37]        
There is also the question of whether the defendant’s employees,
volunteer or paid, induced the plaintiff, through errors and delays in their
handling of her claim under the insurance policy, to believe that she need not
be vigilant about her potential litigation options. I do not think that
question can be determined accurately on the present evidence either. The
internal processing of her claim and what could or should have been done to
process it or what could or should have been done by her to further it
successfully need to be understood on a full evidentiary record. In my view,
this issue requires a trial based on complete disclosure in order for the issue
to be resolved in a just manner. It is not a situation, I find, in which the
plaintiff is dragging her feet in the litigation in order to frustrate
resolution by summary trial. It just happens that the application arises at a
time when relevant disclosure, for whatever reason, is not complete.

SUMMARY OF FINDINGS

[38]        
To summarize my findings, I conclude that the applicable limitation
period for the contract claims is six years. I also conclude that with respect
to the plaintiff’s personal injury claim, the defendant did not confirm the
cause of action within the limitation period. Finally, with respect to the
question of whether there has been a postponement of the limitation period for
the personal injury claim, I conclude this issue is not suitable for resolution
in a summary trial because of the inadequacy of the current evidence.

DECIDING INDIVIDUAL ISSUES

[39]        
I am mindful of the caution that must be exercised before deciding
individual issues in a summary trial because of the general undesirability of
"litigating in slices"; see Coast Foundation v. Currie Architect
Inc., 2003 BCSC 1781, at paragraphs 13, 15, and 18. I have, exercising that
caution, concluded nonetheless that this approach is beneficial in the present
case, by removing from consideration at any further trial those limitation
issues that are properly dealt with in a summary fashion. I am thus allowing a
court at a full trial or further application to focus its attention on the
issue that requires exploration in greater depth, that is, the question of
postponement.

[40]        
Further, these issues, although all having to do with the applicability
of limitation periods, are not really interwoven either factually or legally,
as that term is used in the cases. Each issue relies on an application of a
discrete section or aspect of the Limitation Act to a discrete set of
facts. Thus, the potential for embarrassing a trial judge in the legal sense of
that term, by my prejudging an issue that is properly part of his or her trial
responsibilities, seems to me to be minimal.

[41]        
It is also worth pointing out that this application is in itself an
issue-focussed and segmented one in that it deals only with the question of
whether the claims are statute-barred and not their underlying merit. Thus,
even dismissing all of the limitation period issues does not avoid a trial on
the merits if one is sought.

CONCLUSION

[42]        
For these reasons and pursuant to 9-7(15), the defendant’s applications
are dismissed. Costs will be in the cause. I wish to express my appreciation to
counsel for their very helpful submissions.

“The
Honourable Mr. Justice Schultes”