IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110208

Docket: S067885

Registry:
Vancouver

Between:

Joseph Esprit
Chouinard

Plaintiff

And

Thomas
O’Connor, Rory McDade, Ray Guze, Chris Bryde, Scott MacDonald, Brent Wynn, the
Surrey Stickmen Junior “A” Lacrosse Club, the British Columbia Lacrosse
Association, the British Columbia Junior “A” Lacrosse League, Al Lang, John
Does 2 and John Doe Company 1 and 2

Defendants

And

Aviva
Insurance Company of Canada

Third
Party

Before:
The Honourable Mr. Justice Silverman

Oral Reasons for Judgment

[1]            
These are oral reasons.  If the transcript is ordered, I reserve the
right to edit. That process will not involve a change in the decision or a
change in the reasoning.

[2]            
The plaintiff applies to amend his pleadings to incorporate a new cause
of action and to incorporate the factual foundation for the new cause of
action.  The defendants oppose, as does the third party.  The battleground for
this argument will be the legal concepts and principles that are traditionally
considered where amendment applications are made.  There is no dispute about
what those principles are, only about how they should be applied in the
circumstances of this case.  There have been previous applications of various
sorts in these proceedings where findings have been made which it is common
ground bind me to a certain extent and in particular with respect to several
findings that I will refer to during the course of these reasons.

[3]            
The existing statement of claim alleges that the plaintiff was injured
as the result of an assault committed on him during the course of a supervised
lacrosse match.  The named defendants, who I will refer to by category rather
than name, include:

1.       the player on the other team who allegedly
committed the assault;

2.       three coaches from the other team;

3.       two referees;

4.       the other team itself;

5.       the allegedly relevant Lacrosse Association;

6.       the allegedly relevant Lacrosse League; and

7.       the
president and commissioner of that League. 

There is
also a third party which is an insurance company.

[4]            
Against the two referees, the tort of negligence is alleged as is the
factual foundation for it.  Against all of the other defendants, neither the
tort of negligence nor the factual foundation for it is alleged; what is
alleged against them is the intentional tort of battery.

[5]            
The plaintiff now applies to amend the statement of claim to plead and
allege against those other defendants the tort of negligence and the factual
foundation for it.  The two referees, who are not impacted by the application,
take no position.  The proposed amendments themselves are long and detailed. 
Argument by all parties proceeded on the basis that I did not have to consider
the proposals on a line-by-line basis, and I have not done so.  Rather, this
application will stand or fall on the more general question of whether
amendments will be allowed with respect to the tort of negligence.

[6]            
A partial chronology is necessary.  The incident occurred June the 5th
of 2005.  On June the 5th of 2006, the Association was advised that the
plaintiff intended to commence an action against the Association, the
officials, the coaches and the person on the other team.  In a time period
around that date, there was correspondence to various parties from counsel for
the plaintiff where there was no mention of negligence or any factual basis for
negligence.  On July the 18th of 2006, an insurance company wrote to counsel
for the plaintiff denying negligence.  The plaintiff did not respond to that. 
On December the 6th of 2006, the writ and statement of claim were filed.  On
January the 15th of 2007, an appearance for certain defendants was entered.  On
June 1st of 2007, the pleadings were amended to substitute various of the
personal defendants who are now included in the style of cause.  In March of
2008, several of the defendants filed statements of defence.  Several of the
defendants were not served before the writ expired.

[7]            
In January of 2010, at the latest, plaintiff’s counsel became aware that
the defendants were taking the position that negligence was not before the
court by virtue of the stated pleadings.  That awareness, being no later than
January of 2010, is described in a subsequent finding of fact by one of my sister
judges, which I will refer to later.  On April the 9th of 2010, the writ which
had not been served on all of the parties was renewed.  I was the judge who sat
on that application and made that order.  There was six months within which to
serve it.  In May of 2010, one of the other defendants filed a statement of
defence.  In October of 2010, a third party notice with respect to the
insurance company was filed.  By November the 12th of 2010, there had been a
trial date set.  That date was set for March the 7th of 2011, that is, one
month from now.  On November the 12th of 2010, the plaintiff applied to adjourn
that trial date before my sister Holmes.  The defendants opposed that.  The
application to adjourn was denied.  On November the 29th of 2010, plaintiff’s
counsel wrote to one of the defendants advising that there were allegations in
negligence and that he should seek insurance coverage.  There was an
application to have pleadings struck brought by one of the defendants in
December of 2010 which was dismissed by Master Scarth on the basis of her
finding that there was a reasonable cause of action with respect to the
intentional tort which was pled.  As a result, she considered that it was not
necessary for her to address the question of whether or not the pleadings
disclosed a claim in negligence.  On December the 16th of 2010, Master Taylor
ordered that various summary trial applications which the defendants intended
to bring would go ahead on January the 13th and 14th of 2011.  On December 23rd
of 2010, there was another defence filed.

[8]            
On January the 5th of 2011, particulars of general negligence in the
form of a letter were provided by plaintiff’s counsel to the defendants.  On
January the 13th and 14th, the dates which had been set for the summary trial
applications, there were two applications made on two different bases before my
sister Judge Fenlon to adjourn those summary trial applications.  They took, I
am told, as much as two days for those applications to adjourn to be heard.

[9]            
In the course of determining that question, Judge Fenlon found it
necessary to decide whether or not the pleadings disclosed a sufficient factual
basis to found the issue of negligence at trial and at summary trial
applications, and she concluded that it did not.  I consider myself bound by
that finding of fact.  Her reasons are regrettably not available yet; however,
counsel are not in disagreement that she made that finding.  As I referred to
earlier, she also found a few days later that plaintiff’s counsel had known for
at least a year prior to January of 2011 that the defendants were taking the
view that negligence was not in issue as a result of the state of the
pleadings.  On January the 17th, plaintiff’s counsel, recognizing that there
was a problem, self-reported to the Lawyers Insurance Fund.  This application
to amend was brought shortly thereafter.  There is no suggestion of any sort of
a delay in that regard, and it was brought on the advice of and argued by
independent counsel.  The March 7th trial date remains intact.

[10]        
I turn to the law.  The parties agree that this case is one where the
proposed amendments plead a new cause of action.  The defendants agree that
that circumstance is not automatically fatal to the application to amend.  This
is because of s. 4(4) of the Limitation Act and various cases
which have considered it and related sections.  In such cases, I am satisfied
that the law indicates that prejudice to the defendants will be presumed;
however, that presumption of prejudice is not conclusive to a determination of
the application to amend and that all relevant factors must be considered in
light of what is ultimately just and convenient: G.A.D. v. British Columbia
Children’s Hospital, 2003 BCSC 443.

[11]        
The factors to be considered in all amendment applications are
applicable in this case as well.  General principles are these:

1.       amendments should be permitted as necessary
to determine the real question and issues between the parties;

2.       the party is not required to deduce evidence
in support of a pleading before trial;

3.       on an application to amend, the facts alleged
are taken as established; and

4.       the
discretion is to be exercised judicially in accordance with the evidence
adduced and the guidelines of the authorities. 

[12]        
It is clear that the discretion is not an unfettered one and must be
exercised in accordance with the following guidelines, to which I am required
to have regard:

1.       the extent of delay;

2.       the reasons for the delay;

3.       the degree of prejudice caused by the delay;
and

4.       the
extent of the connection if any between the existing claims and the proposed
new cause of action.

[13]        
I turn to a consideration of those various factors.  First, the extent
of the delay.  The plaintiff argues as follows, that with the event occurring
on June the 5th, 2005, and the writ being issued on December the 6th of 2006,
the delay begins at the earliest at the time that the limitation period
expires, which would be June the 5th of 2007.  Add to that an additional year,
the time within which a writ can be served, and at the earliest, the delay
begins June the 5th of 2008, the plaintiff argues. Amezcua v. Taylor, 2010
BCCA 128.

[14]        
The plaintiff goes on to argue, however, that in this case the delay begins
even later because, while counsel is unaware of any case which has considered
the issue where a writ has expired or it has been renewed, the principles
extended logically, the plaintiff argues, should extend the time period before
which the delay begins to after what in this case is the six-month period,
after that writ was renewed.  Since it was renewed in April of 2010, the delay
would begin six months after that, in other words, October the 9th, 2010, just
a few months ago.

[15]        
Having said that, the plaintiff concedes that even if it is the earlier
period which must be considered (three years), that delay, while present, is
nevertheless tempered by a number of factors which I have to take into
account.  Those include that there were, early on, full investigations
conducted by the Lacrosse Association and by an independent adjustor on behalf
of the Association, by the president and commissioner and by the RCMP.  There
is actually a video of the game, which means that in the plaintiff’s view,
memories of the witnesses become less important. There are numerous statements
which the defendants have from numerous witnesses about the events.  There is a
large amount of material existing that the defendants have access to.  In any
event the move by the plaintiff to bring this application upon learning of
Judge Fenlon’s decision about the absence of a proper claim for negligence was
virtually without delay and brought almost immediately after that decision.

[16]        
The plaintiff argues that there is no prejudice from any documents which
may have been destroyed.  Any such destruction likely occurred prior to the
expiration of the original three-year period.  There is no evidence to suggest
that they were destroyed at any time after that.  The plaintiffs argue that the
apparent death of a particular witness cannot be considered as prejudice
because that person died apparently, again, before the limitation period
expired.  In addition, there is no evidence suggesting that that person might
even have given any evidence which might have been helpful to the defendants.

[17]        
Finally, there are currently two witnesses who are out of the
jurisdiction, and, again, the plaintiff argues that the evidence suggesting
they are out of the jurisdiction is deficient in its form and that it is not at
all clear that they would have any evidence to give which would help the
defendants.  Further, the evidence does not indicate that they are unable to
return to assist any of the parties with respect to this matter.

[18]        
I turn to the second factor of the reasons for the delay, and it is
simply this, that this is the lawyer’s fault, not the plaintiff’s fault. 
Counsel for the plaintiff believed that the pleadings properly set out
negligence as an issue.  There is an affidavit to that effect from counsel, that
he did not realize his error until Judge Fenlon’s decision just a few weeks
ago, and he relies on the principle that a party should not be blamed for
counsel’s mistakes.  In G.E.D., para. 44, I quote from the middle of the
paragraph:

… counsel’s view that the claim
as originally drafted encompassed this cause of action is incorrect, in my
view.  However, an honest error on the part of the solicitor has been accepted
as a reasonable explanation for delay in seeking to amend to allege a new cause
of action.

And Moldovan v. ICBC, 2009 BCSC 1551, at para. 21:

Inadvertence on the part of the
lawyer has been accepted as a reasonable explanation for delay.

Case given and citation given,
para. 22:

An honest error in judgment has also been accepted as a reasonable
explanation for delay.

[19]        
Case and citation given.  And one more, Weinlich v. Campbell,
2005 BCSC 1865, at para. 53:

A person who turns his or her
mind to an issue should not be worse off than one who misses that issue
altogether.

[20]        
I turn to the question of prejudice, and the plaintiff argues as
follows, that if the amendments are not permitted, the plaintiff will lose the
opportunity to pursue the defendants in the real issue between these parties,
that is, negligence.  A brain injury is what is alleged here; the plaintiff
should be permitted to pursue his claim.  The plaintiff notes correctly that
the defendants have the onus of proving actual prejudice; that means prejudice
associated with the delay itself.  The fact that the defendants may be affected
negatively by an amendment does not automatically mean that he or she is
prejudiced; the prejudice must affect the party’s ability to respond to the
amended claim or is not an appropriate consideration of prejudice in this
context.  Consequently, such matters as stress, expense, cost of litigation,
the fact that the case may, if the amendments are allowed, be made more strong
against the opposing party; all of those are not proper considerations for
prejudice. So the plaintiff argues.

[21]        
And finally, the connection to the action.  The plaintiff argues that
this is the same incident whether you call it battery, assault or negligence;
there is no surprise here whatsoever; there is a videotape of it; everybody has
been talking about the same thing since the beginning.  The same investigative
materials are involved, and the connection between the existing action and the
proposed amendments is therefore extraordinarily close. Considering all of
those and balancing them in the context of what is ultimately just and
convenient, the plaintiff argues that this application should be allowed.  To
not allow it would not be just and convenient in the sense that it would not
allow for the determination of the real issue which is at stake between the
parties.

[22]        
I am satisfied on a consideration and balancing of all of the foregoing
that the plaintiff’s application should not be allowed, and I come to that
conclusion for the following reasons.  First, the issue of delay.  I refer to
the same time-line that I have already referred to.  I reject the argument that
the period of delay should begin after the writ was renewed plus an additional
six months.  Rather, in my view it should begin three years after the incident
in the traditional sense.  It may well be that in some circumstances the writ
renewal and expiry period would be the appropriate period, but in this
particular case, that order was entirely a concession to the plaintiff so that
the case could continue, and the defendants were utterly blameless in the
necessity for that to be brought on.  At the time of that application, it was
not clear to me that the defendants would suffer prejudice as a result;
however, for the reasons I will mention later when I discuss prejudice, I am
satisfied that they have now suffered prejudice, and it started after the
original three-year period which passed.  Therefore, the delay begins in this
case on June the 5th of 2008, that is, three years after the incident and
roughly two-and-a-half years ago.  Now, this of course is not determinative one
way or the other, and in my view it is merely a rather neutral factor.

[23]        
I turn to the reasons for the delay.  The defendants argue that this
application is really just a ruse to adjourn the pending trial date of March
7th, the trial date for which an adjournment application has previously been
turned down.  I reject that notion.  I am satisfied that Mr. Maryn was not
dealing with this case with the level of competence that one expects from
counsel.  I certainly do not make that comment about him generally; I only make
it about this particular case.  However, I am also satisfied that the
application before me is not motivated by any ruse; rather, it is motivated by
Judge Fenlon’s decision of a few weeks ago about negligence and the
determination that the plaintiff’s lawyer had made an error about believing
negligence had properly been pleaded.  I accept the notion that this particular
finding, that this is counsel error, is certainly not fatal to the plaintiff’s
claim; in fact jurisprudence is to the contrary.  On the other hand, I am also
satisfied that it cannot be totally disregarded in my ultimate consideration of
what is just and convenient.  Judge Fenlon found, again just a few weeks ago,
that counsel was aware of the defendants’ position at least a year ago, and in
that regard, I find the words of Mr. Justice Lambert to be apt in the case of McIntosh
v. Nilsson Brothers, 2005 BCCA 297, and I quote from paragraph 10 starting
in the middle:

It is important not to be
diverted from the conduct of the parties to the conduct of their lawyers except
to the extent that the conduct of the lawyers may be at the heart of real
prejudice to the other side.  In this case the plaintiffs were neither the
cause of the failure to add Bavaria in the first instance nor the cause of the
delays.  They should not be prejudiced by conduct on the part of their lawyer
unless that conduct was the cause of the irremediable prejudice to the other
side.

[24]        
In my view, those words are apt, and the lawyer’s conduct in the sense
of his serious, serious error is at the heart of the prejudice.  However, once
again, given the clear dictates from jurisprudence that errors on the part of
the lawyers are not fatal to such applications, I consider this to be, at best,
a neutral factor.

[25]        
This case turns rather on the issue of prejudice to the defendants,
which I am satisfied is present to a much greater extent than any prejudice to
the plaintiffs, by not having the application allowed.  I am satisfied that
there are two witnesses who are out of the jurisdiction who might assist the
defendants.  I am satisfied that there were documents destroyed which were
unimportant and utterly unimportant on the question of the intentional tort but
which may well be important on the question of negligence, and I refer to
League policy, League rules, League suspensions, how previous matters of that
sort were dealt with.  It is true it is not clear when they were destroyed, but
that is not the fault of the defendant.  They were destroyed in the ordinary
course.  The evidence is that they are kept for several years and then
destroyed regularly.

[26]        
The real prejudice arises because the defendants in this case have spent
several years focusing on defending the intentional tort in the existing
pleadings.  Now, with the trial two months away, they are going to have turn
their ship 180 degrees, put their minds to defending what ultimately is an
entirely different tort and it will be an entirely different trial with a great
deal more and different issues and evidence.  It will be impossible, in my
view, for the defendants to be prepared for a March 7th trial.  It is
inevitable that, if these amendments were permitted, either the defendants
would not be prepared for trial or they will be cornered into the position of
having to ask for an adjournment, an adjournment which the plaintiff kindly
acknowledges would not be opposed; however, the difficulty is the plaintiff has
already applied to adjourn just a few months ago.  The defendants did oppose
successfully.  They want to go to trial.  This is prejudice, in my view.

[27]        
The connection to the action is the last category.  There is no question
that it is the same incident, but surely the negligence engages much more than
that in terms of the conduct of the association, the League, the policies, the
procedures, the training that goes into not only this team and this incident,
but all manner of similar kinds of things that the League and the Association
deal with.  Connected, yes.  Close to being the same in terms of what will happen
at trial, the answer is no.  Considering all of the foregoing, then, and
balancing the various considerations and the overriding consideration of what
is just and convenient, this application is dismissed.  That is the judgment.

“Silverman J.”

_______________________________

The
Honourable Mr. Justice Silverman