IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120807

Docket: M112542

Registry:
Vancouver

Between:

Barbara Anne Glenn

Plaintiff

And

Seair
Seaplanes Ltd., Francois St. Pierre,
Victoria Air Maintenance Ltd., ABC Corporation, XYZ Corporation,
John Doe, Jane Doe, and the Attorney General of Canada

Defendants

And

Viking
Air Ltd., Victoria Air Maintenance Ltd.
and The Attorney General of Canada

Third
Parties

– and –

Docket: S113276

Registry:
Vancouver

Between:

Barbara
Anne Glenn in her own right,
as personal representative of Thomas Glenn, Deceased,
and as Executrix of the Estate of the said Thomas Glenn,
Dorothy Glenn, by her Litigation Guardian, Donna Poole,
Matthew Kristen Glenn and Hayley Morgan Glenn (nee Glenn)

Plaintiffs

And

Seair
Seaplanes Ltd., Francois St. Pierre,
Victoria Air Maintenance Ltd., ABC Corporation, XYZ Corporation,
John Doe, Jane Doe and The Attorney General of Canada

Defendants

And

Viking
Air Ltd., Victoria Air Maintenance Ltd.
and The Attorney General of Canada

Third
Parties

Before:
The Honourable Mr. Justice Kelleher

Reasons for Judgment

[1]          
This is an application by the plaintiff, Barbara Anne Glenn, in both
Action No. M112542 and Action No. S113276, for an order substituting
Viking Air Ltd. (“Viking Air”) in the place of the defendant, ABC Corporation,
or in the alternative, an order adding Viking Air as a defendant.

[2]          
The action arises from a plane crash at Saturna Island on November 29,
2009.

[3]          
There were eight occupants – the pilot, six adult passengers and one
infant passenger. The only survivors were the pilot and one adult passenger,
Barbara Glenn.  Ms. Glenn’s husband perished.  So did Dr. Carrie
Telford-Morrissey and her baby.  All claims arising from this tragedy have been
settled except three:

1.         Ms. Glenn’s
action for personal injuries (Action No. M112542);

2. Family Compensation Act action
respecting the death of Mr. Thomas Glenn (Action No. S113276); and

3. Family
Compensation Act action respecting the death of Dr. Telford-Morrissey
and Sarah Grace Morrissey (Action No. S113450).

[4]          
The defendant, Seair Seaplanes Ltd. (“Seair”) is the owner and operator
of the seaplane, a DHC-2 de Havilland Beaver.  The defendant, Francois St.
Pierre, was the pilot of the seaplane.  The defendant, Victoria Air Maintenance
Ltd. (“Victoria Air Maintenance”) maintained and serviced the seaplane.  Viking
Air holds the aircraft Type Certificate for the seaplane.  The Attorney General
of Canada regulates commercial aviation in Canada.

[5]          
Viking Air became a party to both of these actions on June 29, 2011,
when it was served with a third party notice filed on that date by the
defendants, Seair and Francois St. Pierre.  Viking Air is also a defendant and
third party in the third action, Patrick Morrissey v. Seair Seaplanes Ltd.,
Action No. S113450.  Viking Air was added as a defendant in that case in
November 2011.

[6]          
The addition or substitution of parties is governed by Rule 6-2(7) of
the Supreme Court Civil Rules:

(7)        At any stage of a proceeding, the court, on
application by any person, may, subject to subrules (9) and (10),

(a)        order that a person
cease to be party if that person is not, or has ceased to be, a proper or
necessary party,

(b)        order that a person be
added or substituted as a party if

(i)         that person ought to
have been joined as a party, or

(ii)        that
person’s participation in the proceeding is necessary to ensure that all
matters in the proceeding may be effectually adjudicated on, and

(c)        order that a person be
added as a party if there may exist, between the person and any party to the
proceeding, a question or issue relating to or connected with

(i)         any relief claimed in
the proceeding, or

(ii)        the subject matter of
the proceeding

that, in the opinion of the court, it would be just and
convenient to determine as between the person and that party.

[7]          
The Limitation Act, R.S.B.C. 1996, c. 266, also addresses
the addition and substitution of parties.  Section 4 of that act provides:

4(1)      If an action to which this or any other Act applies
has been commenced, the lapse of time limited for bringing an action is no bar
to:

(a)        proceedings by
counterclaim, including the adding of a new party as a defendant by
counterclaim,

(b)        third party proceedings,

(c)        claims by way of set
off, or

(d)        adding or substituting a
new party as plaintiff or defendant,

under any applicable law, with respect to any claims relating
to or connected with the subject matter of the original action.

(2)        Subsection (1) does not operate so as to enable
one person to make a claim against another person if a claim by that other
person

(a)        against the first
mentioned person, and

(b)        relating to or connected
with the subject matter of the action,

is or will be defeated by pleading a provision of this Act as
a defence by the first mentioned person.

(3)        Subsection (1) does not operate so as to interfere
with any judicial discretion to refuse relief on grounds unrelated to the lapse
of time limited for bringing an action.

(4)        In any action the
court may allow the amendment of a pleading, on terms as to costs or otherwise
that the court considers just, even if between the issue of the writ and the
application for amendment a fresh cause of action disclosed by the amendment
would have become barred by the lapse of time.

[8]          
The style of cause in both actions includes defendants which are, in the
plaintiff’s words, “advertently misnamed corporate placeholder defendants”.  Paragraph
11 of the Notice of Civil Claim in Action No. S113276 provides:

11.       The pseudonymous corporate Defendants ABC
Corporation and XYZ Corporation, whose identities are not known to the
Plaintiffs, are companies or entities which:

a)         performed maintenance and
servicing on the Seair Beaver; or,

b)         provided
labour, operational, management or other services to Seair Seaplanes or
Victoria Air;

under the direction or control
of, or employment by, the said Defendants.

[9]          
The identical wording is found in paragraph 7 of the Notice of
Civil Claim in Action No. M112542.

[10]       
Thus, the plaintiff argues, Viking Air would identify itself as one of
those placeholder defendants.

[11]       
But, as Viking Air points out, Viking Air did not do either of the tasks
alleged in sub-paragraphs a) and b).  They did not perform maintenance and
servicing on the Beaver and did not provide labour, operation, management or
other services to Seair Seaplanes or Victoria Air.  Rather, it is the Type Certificate
holder for the DH-2 Beaver aircraft. It published the Aircraft Flight Manual
and Maintenance Manuals for the DH-2 Beaver aircraft.

[12]       
Viking Air argues that the limitation date passed two years after the
accident and that this application should be dismissed.  It relies on Happy
Investments Management Ltd. v. Dorio (1988), 23 B.C.L.R. (2d) 245 (S.C.).

[13]       
In that case, there were two separate actions arising from an apartment
fire which occurred in December 1983.  The two writs of summons were issued
June 21, 1984, and March 15, 1985.  The limitation expired on December 27,
1985.

[14]       
In January 1988, the plaintiffs applied to add or substitute Melvin
Robinson as a defendant.  Mr. Robinson apparently inspected the building
during construction.

[15]       
Southin J., as she then was, refused the application.  She reasoned that
the plaintiffs could have determined Mr. Robinson’s identity before the
expiry of the limitation period.  She ruled that if the limitation period had
“accrued”, the leave should not be granted.  (Whether the limitation date had
accrued depended on whether the identity of Mr. Robinson was reasonably
known to the plaintiff before the expiry of the limitation period).

[16]       
In Happy Investments, the application to add the defendant was
made over two years after the limitation period had expired.

[17]       
Different considerations arise when, as here, the application is made
during the year following the limitation period.

[18]       
The Court of Appeal put it this way in Amezcua v.Taylor, 2010
BCCA 128:

[33]      The scope of applications to add parties in
circumstances where a limitation period has expired was discussed in McIntosh
v. Nilsson Bros., Inc., 2005 BCCA 297, where this Court adopted at para. 7
the reasoning in Honeywell v. Latimer, [1982] 1 W.W.R. 606 at 614:

It seems clear that limitation defences
must now be defeated whenever a claim against a person who would otherwise have
had protection of the statute involves questions or issues connected with the
relief sought in, or the subject matter of, an existing action brought within
the limitation period against others, provided that joinder would be just and
convenient. The only questions for the court are whether there is such a
connection and whether joinder would in the circumstances, be just and
convenient between the proposed parties.

[34] McIntosh also
stands for the proposition that, when assessing prejudice, the period from
which prejudice is assessed is the length of the limitation period plus one
year for the service of the writ (para. 8).

[19]       
In Bukmeier v. Creyke (1998), 19 C.P.C. (4^th) 31
(S.C.), Master Joyce, as he then was, set out the factors to be considered in
determining whether the court should exercise its discretion to allow the
addition of a defendant:  the length of delay, the reasons for the delay, the
expiry of the limitation period, the prejudice to the proposed defendant and
the degree of connection between the existing claims and the proposed new cause
of action.

[20]       
There is no satisfactory explanation for the delay but it is not lengthy.
The limitation period has expired but as the Court of Appeal explained in Amezcua
that is not a significant factor and prejudice to the proposed defendant need
not be considered.

[21]       
There is a high degree of connection between the existing claims.  Viking
Air is already a third party in these actions and a defendant in the third
action.

[22]       
It is obviously just and convenient that the proposed defendant be added
in both actions.

[23]       
It is so ordered.

“S. Kelleher, J.”

The
Honourable Mr. Justice S. Kelleher