IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120627

Docket: M135327

Registry:
New Westminster

Between:

Michael Joseph
Alamdar-Saadati

an infant by and
through his litigation guardian

Zoleikha Alamdar

Plaintiff

And

Yung Chiu Lee also
known as Yung Lee

Defendant

Before:
Master Keighley

Reasons for Judgment

[1]            
The infant plaintiff’s claims arise out of a motor vehicle accident
which is alleged to have occurred on September 11, 2009 at or near the 1500 block
of Pinetree Way, Coquitlam, B.C.

[2]            
The infant plaintiff was six years old at the time of the accident and
had been travelling alone on a transit bus. Upon leaving the bus at his stop he
attempted to cross the street in front of the bus and was struck by a motor
vehicle owned and driven by the defendant, Lee.

[3]            
The police report relating to the accident is concise and instructive.
It reads in part as follows:

At approx 15:20 hours on this date Cst. HALEWOOD attended a 6
yr old pedestrian struck in the 1500Blk of Pintree Way. On arrival a grey BMW being
BCL 668-LCV was in final position facing southbound on Pinetree Way, a small
boy was on the sidewalk being tended to by EHS. The driver of the BMW
identified through valid BCDL as Yung Chiu LEE stated that the boy ran out in
front of a parked bus, causing him to slam on the brakes. The boy then went up
on the hood and rolled twice down the street…The driver of the transit bus
provided the police with a statement indicating the same as LEE…

DRIVER OF VEHICLE #1 [Lee] SAYS: I was driving south on Pinetree
Way when this boy ran out in front of me. I slammed on my brakes and he went up
on the hood of my car and rolled twice down the street…

INFORMATION FROM WITNESS(ES): The boy ran down the stairs of
the bus outside, down the sidewalk and straight across the street without
looking. the BMW tried to stop but it was too late.

[4]            
As a result of the impact with the vehicle, the young plaintiff suffered
lacerations to his forehead which required stitching, facial bruising, and a
blow to the head which, it is alleged, has resulted in some lasting
difficulties. This action was commenced by and through his litigation guardian,
Zoleikha Alamdar, his mother, on June 3, 2011.

[5]            
Prior to assuming the role of litigation guardian, Ms. Alamdar was, of
course, obliged to complete a “Consent to Act as Litigation Guardian” which
required that she certify that she had no interest in the proceeding adverse to
that of her son. That document was completed April 5, 2011. On May 31, 2011,
Mr. Spraggs, counsel for the infant plaintiff, completed a Certificate of
Fitness which required, again of course, certification that he had been
informed by Ms. Alamdar that she had no interest in this litigation adverse to
that of her son. The defendant’s Response to Civil Claim was filed January 4,
2012. With respect to the potential responsibility of the infant’s parents for
the accident, the response alleges as follows:

12.       The
particulars of the negligence of Zoleikha Alamdar (the Infant Plaintiff’s
mother) with respect to the Infant Plaintiff’s personal safety are:

(a)        At
the time of the motor vehicle accident of September 11, 2009 the Infant
Plaintiff was under the care and guidance of his mother, Zoleikha Alamdar;

(b)        At
the time of the Accident, the Infant Plaintiff was an infant, six (6) years of
age, whose date of birth is November 26, 2002;

(c)        Zoleikha
Alamdar was at all material times the responsible party for the care and
supervision of the Infant Plaintiff at the time of the Accident;

(d)        Zoleikha
Alamdar had a duty as the guardian of the Infant Plaintiff at the time of the
Accident to properly supervise and protect the Infant Plaintiff, as he was
then;

(e)        Failing
to provide adult supervision to the Infant Plaintiff while riding in the bus;

(f)         Failing
to teach the Infant Plaintiff the safety principles of riding the bus and look
out for traffic while crossing the streets;

(g)        Failing
to oversee and safeguard the Infant Plaintiff when the Zoleikha Alamdar knew or
ought to have known that the Infant Plaintiff was incapable of riding the bus
alone and crossing the streets;

(h) Failing to protect and allowing the Infant Plaintiff to ride on the
bus without adult supervision;

(i)         Failing
to take reasonable steps to travel with the Infant Plaintiff on the bus when
she ought to have known that the Infant Plaintiff was to [sic] young to ride
the bus alone;

13.       The
particulars of the negligence of Mohsen Saddati [sic] (the Infant Plaintiff’s
father) with respect to the Infant Plaintiff’s personal safety are:

(a)        At
the time of the motor vehicle accident of September 11, 2009 the Infant
Plaintiff was under the care and guidance of his father, Mohsen Saddati [sic];

(b)        At
the time of the Accident, the Infant Plaintiff was an infant, six (6) years of
age, whose date of birth is November 26, 2002;

(c)        Mohsen
Saddati [sic] was at all material times the responsible party for the care and
supervision of the Infant Plaintiff at the time of the Accident;

(d)        Mohsen
Saddati [sic] had a duty as the guardian of the Infant Plaintiff at the time of
the Accident to properly supervise and protect the Infant Plaintiff, as he was
then;

(e)        Failing
to provide adult supervision to the Infant Plaintiff while riding in the bus;

(f)         Failing
to teach the Infant Plaintiff the safety principles of riding the bus and look
out for traffic while crossing the streets;

(g)        Failing
to oversee and safeguard the Infant Plaintiff when the Mohsen Saddati [sic] knew
or ought to have known that the Infant Plaintiff was incapable of riding the
bus alone and crossing the streets;

(h)        Failing
to protect and allowing the Infant Plaintiff to ride on the bus without adult
supervision;

(i)         Failing
to take reasonable steps to travel with the Infant Plaintiff on the bus when he
ought to have known that the Infant Plaintiff was to [sic] young to ride the
bus alone;

The Application

[6]            
By this application the defendant seeks leave to file a Third Party Notice
in this proceeding naming the parents as Third Parties in the form attached as
Schedule “A” to the application. The defendant does not seek costs. The Statement
of Facts set out in the proposed Third Party Notice reads as follows:

1.         The
Plaintiff’s claim against the Defendant, as set out in the Notice of Civil
Claim, is for general damages, special damages and costs, alleged to have been
suffered by the Plaintiff as a result of a motor vehicle accident which
occurred on September 11, 2009, at or near the 1500 block of Pinetree Way, in
the City of Coquitlam, in the Province of British Columbia, when the vehicle
operated by the Defendant was involved in a collision with the infant
Plaintiff, a pedestrian (hereinafter "the Accident").

2.         At
all material times, the Plaintiff, Michael Joseph Alamdar-Saadati, was an
infant, six (6) years of age, whose date of birth is November 26, 2002.

3.         At
all material times, the infant Plaintiff was under the care and guidance of his
mother, the Third Party, Zoleikha Alamdar (hereinafter "Alamdar"),
and/or under the care and guidance of his father, the Third Party, Mohsen
Saddati [sic] (hereinafter "Saddati" [sic]).

4.         The
Third Parties, Alamdar and/or Saddati [sic], were responsible for the care and
supervision of the infant Plaintiff at the time of the Accident and had a duty
as parents and guardians of the infant Plaintiff, to properly supervise and
protect the infant Plaintiff.

5.         If
the infant Plaintiff was injured as alleged in the Notice of Civil Claim, or at
all, all of which is not admitted but specifically denied, the Defendant days
[sic] that the injuries were caused or contributed to by the negligence of the
Third Parties, Alamdar and/or Saddati [sic], particulars of which are as
follows:

(a)        Allowing
the infant Plaintiff to travel alone on a transit bus, and/or attempt to cross
the street, while unaccompanied and without the supervision of a responsible
adult;

(b)        Failing
to take reasonable steps to travel with the infant Plaintiff on the bus, and/or
across the street, when they knew or ought to have know that the Plaintiff was
incapable of doing so at the age of 6, or alternatively, making adequate
arrangements for another responsible adult to supervise the infant Plaintiff on
his way to school;

(c)        Failing
to oversee the infant Plaintiff and safeguard the infant Plaintiff when they
knew or ought to have known that the infant Plaintiff was incapable of safely
travelling on and disembarking from a transit bus, and/or crossing the street,
when they knew or ought to have known that the infant Plaintiff was incapable
of doing so at the age of 6;

(d)        Failing
to oversee the infant Plaintiff and safeguard the infant Plaintiff when they
knew or ought to have known that the infant Plaintiff was incapable of
following the safe principles of crossing the street;

(e)        Failing
to oversee the infant Plaintiff and safeguard the infant Plaintiff by teaching
him the safety principles of riding the bus and/or being aware of vehicle
traffic on the roadway when crossing the street;

(f)         Failing
to provide adequate or any instruction to the infant Plaintiff that he should
not cross in the middle of the street and/or at any point other than a corner
or marked crosswalk;

(g)        Failing
to provide adequate, or any supervision, instruction, or warning to the infant
Plaintiff with respect to him crossing in the middle of the street.

6.         The
Defendant has denied the claims against him in the Response to Civil Claim
filed herein.

[7]            
The relief sought in the Third Party Notice is as follows:

1.         In
the event that the Defendant is held liable to the infant Plaintiff, the
Defendant claims and is entitled to contribution and indemnity from the Third
Parties, and/or each of them, for any liability that the said Defendant may be
under to the infant Plaintiff.

2.         A
declaration that the Defendant is entitled to contribution and indemnity from
the Third Party for any liability the Defendant may be under to the infant
Plaintiff, including costs that may be ordered to be paid to the infant
Plaintiff.

3.         Judgment
for any amount that may be found due from the Defendant to the infant
Plaintiff.

4.         Judgment
for the amount of any costs that the Defendant may be liable to pay to the
infant Plaintiff, and for the Defendant’s own costs of defending this action.

5.         Costs of bringing this proceeding
against the Third Parties.

6.         Interest
pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79 and
amendments thereto.

7.         Such
further and other relief as this Honourable Court may deem meet.

Legal Basis for the Application

[8]            
Rule 3-5(4) of the Rules of Court reads as follows:

(4)        A party may file a third party notice

(a)        at any time with leave
of the court, or

(b)        without
leave of the court, within 42 days after being served with the notice of civil
claim or counterclaim in which the relief referred to in subrule (1) is
claimed.

[9]            
As the same principles apply to applications to strike a Third Party Notice
and applications for leave to file a Third Party Notice, decisions on the
former issue are equally applicable to the latter.

[10]        
Normally, a plaintiff lacks standing to bring an application under Rule
3-5(8) to have a Third Party Notice set aside: Hopegain International
Holdings Inc. v. Buxton, [2002] B.C.J. No. 4, 97 B.C.L.R. (3d) 98 (SC). Is
the situation any different, where, as here, a proposed Third Party is also the
plaintiff’s litigation guardian?

[11]        
Ultimately, I have reached the conclusion that Ms. Alamdar’s status as
litigation guardian does not impact the outcome of this case. She is, however,
as a proposed Third Party, entitled to object to the issuance of the notice.

[12]        
The authorities indicate that a Third Party Notice should not be set
aside on a motion under Rule 3-5(8) unless the applicant is able to establish
beyond doubt that the pleadings disclose no cause of action. This test is
identical to that applied on an application under Rule 9-5(1)(a) and, as a
result, it has been held that a Third Party Notice should only be set aside if
there is no serious question or issue to be determined, the question or issue
raised by the Third Party Notice is not substantially the same as a question or
issue in the original action or the question or issue should not properly be
determined in the original action: Northmark Mechanical Systems Inc. v. King
(Estate), [2009] B.C.J. No. 1812, 2009 BCSC 1237.

[13]        
The Courts should only exercise its discretion in striking out a Third Party
Notice where the question of whether the notice is founded is perfectly clear.
If the issue is in doubt the Third Party proceedings should be allowed to
proceed to trial for final resolution: Wade v. Marsolais, [1949] B.C.J.
No. 14.

[14]        
The facts pleaded in the Third Party Notice do not have to be supported
by evidence and the Court, in considering an application to strike a Third Party
Notice, will proceed on the assumption that all the facts pleaded in the Third Party
Notice are true: McNaughton v. Baker, [1988] B.C.J. No. 515, 25 B.C.L.R.
(2d) 17 (C.A.).

[15]        
Zoleikha Alamdar has filed an affidavit in response to this application.
It is brief, and reads in its entirety as follows:

1.         I am
the Guardian Ad Litem of the Plaintiff in this action and as such have
personal knowledge of the facts and matters hereinafter deposed to.

2.         I
retained Spraggs & Co. Law Corporation to act for my infant son, Michael
Joseph Alamdar-Saadati’s (“Michael”) behalf with respect to an action, M135327,
which arises as a result of the injuries sustained in a motor vehicle accident
which occurred on September 11, 2009 (“the Accident”).

3.         Currently,
Mr. Mohsen Saadati, Michael’s father, and I are divorced and no longer live
together. At the time of the Accident, we had separated, but he was living in
the basement suite of our house.

4.         On the
day of the Accident, I was busy at work and was unable to pick up Michael from
school.

5.         On the
day of the Accident, I spoke with Mr. Saadati and he stated he would walk to
Michael’s school, pick up Michael and then walk home together with him.

6.         Mr.
Saadati was responsible for the care and supervision of Michael at the time of
the Accident.

7.         I was
later informed that Mr. Saadati placed Michael on public transit alone and
without supervision instead of walking home together with him.

8.         I was
not aware that Mr. Saadati intended to place my son on public transit alone and
without supervision. He did not discuss the decision with me at any time. I
would not have approved of this course of action, had I known at the time.

9.         At no
time did I approve of Michael riding on public transit without supervision.

10.       The day
of the Accident was Michael’s first time travelling by public transit alone.

11.       I am
swearing this affidavit in response to the Defendant’s Notice of Application
dated May 11, 2012.

[16]        
On this basis, Ms. Alamdar says that she cannot possibly be negligent and
as a result the Court should decline to exercise its jurisdiction in favour of granting
the order sought.

[17]        
As an alternative submission, Ms. Alamdar says that the application
should be adjourned for perhaps three months or so in order that an examination
might take place which would resolve the issue of culpability once and for all.

Conclusion

[18]        
But that is not the test. The defendant is entitled to the order sought
if he is able to demonstrate that the pleadings reasonably disclose a cause of
action against the proposed Third Parties connected to the relief sought
against him in this action by the infant plaintiff. While I may consider Ms.
Alamdar’s affidavit, not as a representative of the plaintiff, but as a
proposed Third Party, I am not satisfied that it is determinative of the issue
as to whether she bears any responsibility for this accident vis-à-vis the
defendant. It may well yet be successfully argued by the defendant that
notwithstanding any proven arrangement between herself and her husband she
nonetheless bears some responsibility for the occurrence of the accident and
her son’s loss.

[19]        
I am well aware that granting the order sought will disqualify the
mother from continuing to act as her son’s litigation guardian. In all
fairness, this is a matter which she ought to have considered at the outset. If
not she, then surely her counsel should have considered that there was a
possibility that a Third Party claim might be advanced against her by virtue of
the circumstances of this accident.

[20]        
The infant plaintiff will not lose his claim but an alternate litigation
guardian will have to be found.

[21]        
The father, I should have mentioned earlier, did not oppose the
application to add him as a Third Party.

[22]        
In the result, an order will go granting the defendant leave to file a Third
Party Notice naming Zoleikha Alamdar and Mohsen Saadati as third parties in the
form attached as Schedule “A” to the application with the addition of these
parties as third parties in the style of cause thereof.

[23]        
I make no orders as to costs.

“Master
Keighley”