IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120329

Docket: 11-2800

Registry:
Victoria

Between:

Lisa
Ann Field

Plaintiff

And:

Leonard
Joseph Harvey and Independent Concrete Ltd.

Defendants

Before:
The Honourable Mr. Justice Bracken

Reasons for Judgment

[1]            
In this action the plaintiff seeks damages for injuries she claims she
suffered as a result of a motor vehicle accident on August 22, 2008. The
defendants apply for summary dismissal of the plaintiff’s claim against them on
the ground the action is barred by the expiration of the two year limitation
period provided by the Limitations Act, R.S.B.C. 1966, c. 266.

Facts

[2]            
The plaintiff says she sustained injuries when her vehicle was in
collision with a cement truck owned by the defendant Independent Concrete Ltd.
and operated by the defendant Leonard Joseph Harvey. She alleges the collision
was caused by the negligence of Mr. Harvey. At the time of the collision
the plaintiff was seven and one-half months pregnant and her two year old
daughter was a passenger in her vehicle. The plaintiff’s husband reported the
collision to the Insurance Corporation of British Columbia (“ICBC”) the same
day.

[3]            
A few days later, on August 25, 2008, an adjuster with ICBC
telephoned the plaintiff to discuss the matter and the same day the adjuster
emailed two ICBC forms and an insurance claim application to the plaintiff. The
plaintiff signed and returned the insurance application form to the adjuster.
The form was received by ICBC on September 16, 2008, signed by the plaintiff
and dated August 27, 2008.

[4]            
The adjuster telephoned the plaintiff on October 31, 2008, and left
a message to call back but she did not receive a reply. She called again on
December 9, 2008, and left a message but, once again, she did not receive
a call back.

[5]            
ICBC had been paying Part 7 benefits to the plaintiff and the last
payment was made on December 15, 2008. The adjuster wrote to the plaintiff
the same day to advise that a bill for massage treatment would not be paid by
ICBC because it was past the eight week period that ICBC typically pays for
massage therapy. The adjuster suggested the plaintiff retain the bill and “… we
can discuss this at the time of settlement.” In reply she received a note that
was written on her letter to the plaintiff of December 15, 2008, advising the
expense was in fact incurred within the eight week period. The note was
received by ICBC on January 14, 2009.

[6]            
There was no further activity on the matter until July 31, 2009,
when an ICBC adjuster telephoned the plaintiff’s home and left a message
inquiring about her injuries. No response was received to that message.

[7]            
As she had heard nothing further from the plaintiff, the adjuster closed
her file on October 2, 2009. The next time the plaintiff contacted ICBC
was not until November 24, 2010, almost sixteen months later. As the
limitation period had expired by that point, the adjuster advised the plaintiff
of the provisions of the Limitations Act and reminded her of the
attempts to contact her. The plaintiff advised the adjuster that she had been
too busy to return the calls. The plaintiff was advised to contact the
adjuster’s manager to discuss matters further.

[8]            
The plaintiff did contact the adjuster’s manager and he referred the
matter to an internal review committee but the matter was not resolved and ICBC
continued to deny her claim. She wrote to the customer service department of
ICBC on December 6, 2009, to explain why she felt ICBC had not handled
her claim properly. She said she was unaware of any limitation period. She
explained that in two earlier accidents she had successfully dealt with ICBC to
negotiate settlements and no one had ever told her there was a limitation
period.

[9]            
On June 16, 2011, the plaintiff and her husband met with the
adjuster. At that time ICBC presented a without prejudice offer to settle that
was open for acceptance until June 30, 2011. The plaintiff declined the
offer by letter on June 21, 2011. Counsel agree that the offer had no
effect on the limitation period.

[10]        
On June 30, 2011, the plaintiff filed a notice of civil claim. The
defendants filed a response on July 22, 2011, and alleged that the action
was commenced outside the limitation period.

[11]        
The defence seeks to have the action dismissed on the basis that it was
not commenced within the two year limitation period provided by s. 3(2) of
the Limitation Act. The plaintiff submits that the December 15,
2008 letter from the adjuster led her to believe that her claim would
eventually be settled. The plaintiff argues the defendants are therefore estopped
from relying on the Limitation Act defence.

Position of the Plaintiff

[12]        
The plaintiff submits that the defendants are estopped from relying upon
the Limitation Act defence. She raises three forms of estoppel in her
submission. I will deal with each form of estoppel in turn.

Estoppel by Representation

[13]        
The plaintiff relies on Canadian Superior Oil Ltd. v. Paddon-Hughes
Development Co., [1970] S.C.R. 932, at para. 19, where the court
stated the essential factors giving rise to estoppel as:

(1)        A
representation or conduct amounting to a representation intended to induce a
course of conduct on the part of the person to whom the representation is made.

(2)        An act
or omission resulting from the representation, whether actual or by conduct, by
the person to whom the representation is made.

(3)        Detriment to such person as a
consequence of the act or omission.

[14]        
The plaintiff relies on the case of Revell v. Litwin Construction
(1973) Ltd., [1991] 6 B.C.A.C. 243 (“Revell”), which held at p. 15
that “there is no requirement that the conduct, which was relied upon by the
person who seeks to raise an estoppel, has been intentionally designed to
induce that reliance.” The plaintiff also relies on Revell for the court’s
ruling that:

… The issue is not so much
whether the reliance was based on unequivocal conduct, as it is whether the
conduct, when viewed through the eyes of the party raising the doctrine, was
such as would reasonably lead that person to rely upon it [page 16].

… What is important is whether
his conduct, active or passive, could reasonably have led Litwin to believe
that he intended to complete his investment contract, as a consequence of which
Litwin was induced substantially to perform its obligations under that contract
[page 19].

[15]        
Finally, the plaintiff relies on Williston v. Canada (Minister of
Indian Affairs and Northern Development), 2005 FC 829, which held at para. 15
that:

… The perspective from which
the application of the doctrine must be viewed is that of the person who seeks
to rely on it and the issue is whether the conduct, when viewed through the
eyes of the party raising the doctrine, was such as would reasonably lead that
person to rely upon it. The underlying concept is that of unfairness or injustice.

[16]        
The plaintiff argues that the December 15, 2008, letter where the
adjuster stated: “…all matters herein set out are written without prejudice and
for the purpose of negotiating terms for settlement,” and suggesting that the
plaintiff retain the massage therapy bill to be discussed “… at the time of
settlement” clearly suggested that ICBC, on behalf of the defendants, intended
to settle the matter at some time in the future.

[17]        
The plaintiff argues that, based on this representation, she was reasonably
entitled to assume that no further legal action was necessary.

[18]        
In the alternative, the plaintiff relies on estoppel by convention.

Estoppel by Convention

[19]        
The plaintiff argues that the defendants are estopped by convention from
relying on the Limitation Act defence.

[20]        
The plaintiff relies on the criteria for estoppel by convention set out
in Ryan v. Moore, 2005 SCC 38, as follows at para. 59:

1.         The parties’ dealings must have
been based on a shared assumption of fact or law: estoppel requires manifest representation
by statement or conduct creating a mutual assumption. Nevertheless, estoppel
can arise out of silence (impliedly).

2.         A party must have conducted
itself, i.e. acted, in reliance on such shared assumption, its actions
resulting in a change of its legal position.

3.         It must also be unjust or
unfair to allow one of the parties to resile or depart from the common
assumption. The party seeking to establish estoppel therefore has to prove that
detriment will be suffered if the other party is allowed to resile from the
assumption since there has been a change from the presumed position.

[21]        
The plaintiff argues that the parties were under the shared assumption
that her claim would be settled. This assumption is argued to be based on her
prior history with ICBC (having previously settled two unrelated claims) and
shared by ICBC as indicated in the December 15, 2008, letter. The plaintiff
argues that she acted in reliance on that shared assumption by not pursuing
legal action and it would now be unfair or unjust for the defendants to rely on
the limitation period.

Promissory Estoppel

[22]        
The plaintiff advances an alternative argument that the defendants are
prevented from relying on the Limitation Act defence by promissory
estoppel.

[23]        
The plaintiff relies on the requirements for promissory estoppel as set
out in Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50,
which states:

… The party relying on the
doctrine must establish that the other party has, by words or conduct, made a
promise or assurance which was intended to affect their legal relationship and
to be acted on. Furthermore, the representee must establish that, in reliance
on the representation, he acted on it or in some way changed his position … [para.
13].

[24]        
The plaintiff argues that the statements made in the December 15,
2008, letter provided assurance that her matter would proceed to settlement.
The plaintiff argues that she genuinely believed the limitation period had been
waived or extended and that no further legal action was necessary.

Position of the Defendants

[25]        
The defendants argue that pursuant to ss. 3 and 9 of the Limitation
Act, the plaintiff’s right to commence an action on her claim for injuries
expired on August 22, 2010.

[26]        
The defendants submit that the adjuster’s letter of December 15,
2008, cannot be construed as representing or promising, by convention or
otherwise, an extension or waiver of the applicable limitation period.

[27]        
Finally, the defendants argue that ICBC does not have any duty, statutory
or otherwise, to inform potential claimants of the specific date on which the
right to commence an action upon a claim will expire.

[28]        
Relevant case law indicates that insurers do not have a duty to warn the
insured that a limitation period has commenced or will soon expire. As noted by
the British Columbia Court of Appeal in Recchia v. Co-operators Life
Insurance Co., 2003 BCCA 643, an insured is not at the mercy of the insurer
for knowledge of applicable limitation periods (para. 13). Although, as
noted by Huddart J.A. in Balzer v. Sun Life Assurance Co. of Canada,
2003 BCCA 306, while there is no duty to advise of an approaching expiry of a
limitation period, the preferred course of action is to include an alert in the
correspondence drawing the insured’s attention to applicable limitation
periods.

[29]        
In the more recent case of Esau v. Co-operators Life Insurance Co.,
2006 BCCA 249, and the companion case of Pekarek v. Manufacturers Life
Insurance Co., 2006 BCCA 250, the British Columbia Court of Appeal once
again indicated that the insurer is not required to give notice to the insured
that the limitation period has commenced and will soon expire.

[30]        
It is clear from the case law that ICBC was under no obligation to warn
the plaintiff that the limitation period had commenced, was not postponed, and
would soon expire. It also clear that ICBC abided by the “preferred course” of
action, as articulated by Huddart J.A. in Balzer, by including the
following notification in their correspondence with the plaintiff:

Nothing herein contained is or shall be construed as either
an admission of liability on the part of the insured or a waiver or extension
of any applicable limitation period. It is evident that the plaintiff received
this notification, given her handwritten reply on the letter in question and
this statement should have alerted the plaintiff to the existence of the
limitation period.

It is evident that the plaintiff received this notification
given her hand written reply on the letter. The content of the letter should
have alerted the plaintiff to the possible existence of a limitation period
that might affect her claim.

[31]        
There is no argument that the commencement of the limitation period was
postponed in this case on any of the grounds set out in s. 6 of the Limitation
Act.

[32]        
Absent the application of s. 6 of the Limitation Act, I am
not convinced that this Court has inherent equitable jurisdiction to relieve
against a statutory limitation period (see Macdonald v. Macdonald, [1996]
21 B.C.L.R. (3d) 375; Totovic v. Insurance Corp. of British Columbia, 61
A.C.W.S. (3d) 789; Chan v. Lee Estate, 2004 BCCA 644).

[33]        
While Newbury J.A. in Chan v. Lee at para. 29 expressed
general agreement with the principle that estoppel may be applicable to the six
month limitation period in the Wills Variation Act, R.S.B.C. 1996, c. 490, s. 3(1)(a),
she declined to comment on the application of the defence of estoppel to the Limitation
Act.

[34]        
This issue was discussed by Bower in his text Estoppel by
Representation, 4th ed., 2004, where he said:

[T]he doctrine may also extend to
prevent a party from asserting that a contract is unenforceable for the failure
to comply with any statutory formalities although it will not extend to prevent
a party from doing so where the estoppel would render the relevant statute
nugatory.

[35]        
To allow the plaintiff to defeat a limitation period on the basis of an
estoppel would arguably render the applicable portion of the Limitation Act
meaningless. However, on the facts of this case I do not need to decide that
issue. As, in my view, even if the doctrine of estoppel is available, the
criteria necessary in order to satisfy the three variations of estoppel advanced
by the plaintiff have not been met.

[36]        
The plaintiff relies solely on the December 15, 2008, letter for
her argument that the defence of estoppel can be applied as a defence to the
provisions of the Limitation Act. That letter explicitly states:
“[n]othing herein contained is or shall be construed as either an admission of
liability on the part of the insured or a waiver or extension of any applicable
limitation period.”

[37]        
A reasonable interpretation of this letter in no way evidences a
representation or promise, by convention or otherwise, to waive or extend the
applicable limitation period. In my opinion, it does quite the opposite by
warning the plaintiff that, although all claims are negotiated toward the goal
of settlement, time is still running.

[38]        
Limitation periods exist, in part, to encourage plaintiffs to bring
their actions in a timely manner. The plaintiff has failed to bring her action
in a timely manner and has not satisfied this court that there exists a lawful
reason for her failure to comply with the provisions of the Limitation Act.

[39]        
The plaintiff’s cause of action is therefore dismissed,
pursuant to s. 9 of the Limitation Act, as having been commenced
after the expiry of the applicable limitation period.

           “J.
K. Bracken, J.”                     
The Honourable Mr. Justice Bracken