IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121116

Docket: M113397

Registry:
Vancouver

Between:

Paul Michael
Bedoret

Plaintiff

And

Jaswinder Badham

Defendant

Before:
Master B.M. Young

Reasons for Judgment

[1]            
By notice of application filed June 5, 2012, the plaintiff applies to
court almost three years after the collision to add the Insurance Corporation
of British Columbia (“ICBC”) as a nominal defendant to this action and for
leave to amend its notice of civil claim.

[2]            
This application is being made pursuant to s. 24(1) of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231, and Supreme Court Rule 6-2(7) to
(10). Those sections are reproduced below.

[3]            
Section 24(1) of the Insurance (Vehicle) Act:

Remedy for damage in hit and run accident

24 (1) If
bodily injury to or the death of a person or damage to property arises out of
the use or operation of a vehicle on a highway in British Columbia and

(a) the names of both the owner and
the driver of the vehicle are not ascertainable, or

(b) the name of the driver is not
ascertainable and the owner is not liable to an action for damages for the
injury, death or property damage,

any person who has a cause of action

(c) as mentioned in paragraph (a),
against the owner or the driver, or

(d) as mentioned in paragraph (b),
against the driver,

in respect of the bodily injury,
death or property damage may bring an action against the corporation as nominal
defendant, either alone or as a defendant with others alleged to be responsible
for the injury, death or property damage, but in an action in which the names
of both the owner and the driver of the vehicle are not known or ascertainable,
recovery for property damage is limited to the amount by which the damages
exceed the prescribed amount.

[4]            
Supreme Court Rule 6-2(7) to (10):

Change
of Parties

Adding, removing or substituting parties by order

(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.

[am. B.C. Reg. 119/2010, Sch. A, ss. 12 and 13.]

Procedure if party added, removed or substituted by order

(8)     Unless
the court otherwise orders, if an order is made under subrule (7) adding,
removing or substituting a party,

(a) the originating pleading or
petition must be amended in accordance with these Supreme Court Civil Rules, a
reference to the order must be endorsed on that amended pleading or petition
and Rule 6-1 (4) to (7) applies,

(b) no further steps may be taken
against a person added or substituted as a party under this subrule until a
copy of the filed amended originating pleading or filed amended petition and a
copy of the entered order adding or substituting the party are served on the person,
and

(c) if a person is made a party
under the order,

(i) the person may apply to the
court to vary or discharge the order within 21 days after the date on which the
order is served on the person under paragraph (b) of this subrule, and

(ii) unless the court orders, in an application under
subparagraph (i) of this paragraph or otherwise, that the person not be added
as a party, these Supreme Court Civil Rules apply in relation to that added
party as if the amended originating pleading or petition were a new originating
pleading or petition.

If case plan order in effect

(9)     If an
order is made under subrule (4) or (7) in an action in which a case plan order
has been made,

(a) if a person is removed as a
party, the case plan order remains in effect, and

(b) if a person is added or substituted as a party and that
person becomes a party of record, no step may be taken by or against the added
or substituted party until the case plan order is amended to apply to the added
or substituted party.

General

Consent required

(10)   A person must not be added or
substituted as a plaintiff or petitioner without the person’s consent.

[5]            
The relevant section of the Limitation Act, R.S.B.C. 1996,
c. 266, is s. 4(1)(d) which is set out below:

Counterclaim or other claim or proceeding

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

…

(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.

[6]            
In Weinlich v. Campbell, 2005 BCSC 1865, Madam Justice Martinson
discusses the applicable legal principles the court must consider when adding a
party to an action. First, she reviews the then applicable Rule 15(5)(a)(iii)
of the Rules of Court, which is virtually the same as Supreme Court
Civil Rule 6-2(7)(c). She also considers s, 4(1)(d) of the Limitation Act
set out above. At paras. 43 and 44 Her Ladyship says:

[43]      Judicial discretion is fettered to the extent that
it must be exercised judicially, in accordance with the evidence adduced and
such guidelines as may appear from the authorities. The five factors to
consider in determining whether to add a party pursuant to Rule 15(5)(a)(iii)
are:

a) the extent of the delay;

b) the reason for the delay;

c) any explanation put forward to
account for the delay;

d) the degree of prejudice caused
by delay; and

e) the extent of the connection, if
any, between the existing claims and the proposed new cause of action.

[44]      In the absence of a clear evidentiary basis for
doing so, no single factor is necessarily determinative or given overriding
importance. No factor should be considered in isolation: Letvad; Teal
Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R.
(3d) 282, 46 C.P.C. (3d) 183, 71 B.C.A.C. 161 [Teal].

[45]      In McIntosh, the Court of Appeal made two
important points. First, at para. 7., they confirmed the following
statement of McKenzie J. from Honeywell v. Latimer et al. [1982] 1
W.W.R. 606 at 614 (B.C.S.C.):

…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.

[46]      Second, the Court
confirmed that no explanation is required with respect to delay within the
period available in a normal situation, the normal situation being the limitation
period plus the one year period for service of the writ (paras. 7 – 8).

FACTS

[7]            
This is a motor vehicle action. The collision occurred on July 9, 2009,
in Vancouver. The plaintiff was driving a motorcycle westbound on 49th Avenue
in Vancouver. When the traffic signal light turned green, he proceeded through
the intersection. A white Honda Accord driving southbound on the intersecting
street continued through the intersection after the traffic signal red light
came on and turned right onto West 49th Avenue directly in front of the
plaintiff. The driver of the white Honda stopped suddenly, and this sudden stop
allegedly caused the plaintiff to brake so suddenly that he flew off his
motorcycle and was injured.

[8]            
The person driving the white Honda did not stop at the scene of the
accident. The plaintiff made efforts to identify the person driving the white
Honda. He put up posters to try to identify the driver of the car, and on two
occasions when he returned to the location around the same time of day as when
the accident occurred, he saw a white Honda Accord turning right at the
intersection onto West 49th Avenue. On July 21, 2009, the plaintiff
met with the ICBC claims adjuster and provided this information, including the
license number of the white Honda that he observed on the two occasions after
the accident. At that meeting, the adjuster completed and had the plaintiff
sign a hit-and-run claim form.

[9]            
On March 1, 2010, ICBC wrote a letter to counsel for the plaintiff which
said:

This claim will shortly be
assigned to another adjuster within our office and handling will be based on
the points outlined below.

Third Party:

Registered Owner
& Driver:    Jaswinder Badhan of 4330 Boundary Rd, Burnaby BC

Vehicle Plate No:                    658CXN

Description:                             1992 Honda Accrd
(sic)

Please find enclosed a copy of the following:

·       
Copy of your client’s signed statement;

·       
Signed Accident Benefits Claim form and Authorizations.

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.

[10]        
On July 4, 2011, the plaintiff commenced an action against Jaswinder
Badhan (incorrectly spelling the defendant’s surname as “Badham”) for
negligence relying on the advice in the March 1, 2010, letter from ICBC.

[11]        
On July 29, 2011, a response to civil claim was filed claiming that Mr. Badhan
was not involved in the accident.

[12]        
The application to add ICBC as a nominal defendant was filed on June 5,
2012, which is less than three years after the collision. The delay in hearing
this application is without prejudice to either party and was as a result of
counsel having difficulty coordinating their schedules. The relevant time
period for the purpose of assessing whether there was inordinate delay would be
the lapse of time between when the plaintiff knew or ought to have realized
that the named defendant was not the driver of the vehicle and the filing of
this application.

[13]        
The original adjuster handling this claim has sworn an affidavit in
response to this application. He acknowledges that he did consider this claim
to be a hit-and-run. On July 21, 2009, he advised the plaintiff among other
things that ICBC would conduct an investigation to see who the driver of the
vehicle was, but if there was no evidence from other witnesses, they may not
have enough evidence against the driver and the claim would have to proceed
under the hit-and-run Legislation. At the adjuster’s request, the plaintiff
completed the Section 24 hit-and-run form.

[14]        
After conducting the investigation, the adjuster spoke directly to the
plaintiff who was not yet represented by counsel. He advised him that there was
no evidence to link the suspect driver to this accident and that his claim will
likely be handled as a hit-and-run/unidentified motorist claim.

[15]        
On February 25, 2010, ICBC was advised that the plaintiff had hired
legal counsel. In response to that advice, the adjuster sent the March 1, 2010
letter to plaintiff’s legal counsel, which indicates that the claim would be
handled on the basis that the third party was Jaswinder Badhan. There is
nothing in the letter to advise counsel that ICBC had decided that they did not
have enough evidence against Mr. Badhan and had decided to treat the case
as an unidentified motorist claim.

[16]        
ICBC takes the astonishing position in this application that plaintiff’s
counsel should not have relied on the March 1, 2010 letter setting out the
third party particulars. If that letter cannot be relied on by the plaintiff’s
counsel, then I wonder what the purpose of sending the letter is. The plaintiff’s
counsel submits, and I accept, that it is standard practice in the
personal injury bar to send an introductory letter asking ICBC for particulars
and for copies of statements. It is common practice to wait for the reply
letter before issuing a notice of civil claim. No letter was ever sent to the
plaintiff’s counsel advising him that the contents of the March 1, 2010 letter
were incorrect. It was not until the response to civil claim was filed after
the expiry of the limitation period that ICBC informed the plaintiff that the
named third party was not the driver of the vehicle that caused the accident.

[17]        
Now ICBC opposes the application to be added as a nominal defendant. It
submits that the plaintiff knew or ought to have known that ICBC was handling
this file as an unidentified motorist case despite the fact that the official
letter from ICBC to his lawyer said exactly the opposite.

[18]        
In Kerpan v. Higginbotham, 2003 BCSC 1220, Mr. Justice
Bauman (as he then was) dealt with a similar fact pattern. In that
case, the driver of a vehicle identified himself as Mr. Higginbotham, but ICBC
later became aware that Mr. Higginbotham’s vehicle had been stolen and the
driver misrepresented his identity.

[19]        
The plaintiff was asked to identify the driver out of a photo lineup but
was never advised of the results of the lineup.

[20]        
After the line up, ICBC responded to the standard letter from the
plaintiff counsel advising of his involvement. In ICBC’s letter, it advised as
follows (para. 13):

TP Insured:                 GMAC Leaseco Limited

TP Driver                     Ian Higginbotham

 [address
provided]

TP Plate #                   APH 998

Location of MVA: Columbia Street, Vancouver

Date of MVA:   March 22, 2000

[21]        
Bauman J. said at para. 14:

[14]      This can only be seen
as a positive representation to counsel by ICBC that indeed Higginbotham was
the driver.

[22]        
I make the same conclusion in the case before me. ICBC asserted to
counsel for the plaintiff in the official first letter that Jaswinder Badhan
was the driver of the vehicle. This was long after any discussions with the
unrepresented plaintiff and in response to the standard letter sent at the
commencement of all motor vehicle accident cases. Plaintiff’s counsel was
entitled to rely on the information contained in the letter. If ICBC later
learned that it was in error, it had a responsibility to correct that error so
as not to mislead the plaintiff. Failing to do so until after the expiry of the
limitation period and then opposing the amendment to the claim is unreasonable.

[23]        
I will now deal with the five factors to consider in determining whether
to add a party pursuant to Rule 6-2.

(a)  The extent of the delay;

(b)  The reason for the delay;

(c)  Any explanation put forward
to account for the delay;

(d)  The degree of prejudice
caused by delay; and

(e)  The extent of the
connection, if any, between the existing claims and the proposed new cause of
action.

(a), (b) and (c) DELAY- extent, reason and explanation

[24]        
I find the time period started once the plaintiff became aware that the
advice contained in ICBC’s March 2010 letter was wrong. That would be the date
that the response to civil claim was filed. Plaintiff’s counsel corresponded
with ICBC in October 2011, sending it a consent order to add ICBC as a nominal
defendant. A three-month delay is not inordinate. On October 25, 2011, ICBC
agreed to be added as a party to the litigation as long as a notice of discontinuance
was filed in favour of Mr. Badhan.

[25]        
I was advised by counsel for the defendant that he wished to examine the
defendant, Mr. Badhan, before agreeing to discontinue the action against him.

[26]        
Under the circumstances, I find the reason for the delay in filing this
application to be reasonable. ICBC has decided to deal with this claim as an unidentified
motorist claim because they could not find enough evidence to link Mr. Badhan
to this accident. They may be correct but the plaintiff is entitled to conduct
his own investigation. If after his investigation he concurs, then the action
against Mr. Badhan will be discontinued. In the meantime, he wishes to file a
claim in the alternative against ICBC as the nominal defendant. Perhaps this
should have been done at the beginning, but the March 10, 2010 letter was
unequivocal and that is the reason why a claim against ICBC was not commenced.

[27]        
In any event, no explanation for the delay is required if the
application is made within the time that would have been allowed for service of
the writ: Kean v. Blue Boy Motor Hotel Ltd., [1988]
B.C.J. No. 1653 (S.C.), aff’d [1989]
B.C.J. No. 2242 (C.A.).

(d) Prejudice

[28]        
In Weinlich v. Campbell, Madam Justice Martinson reviews the
authorities on the issue of prejudice:

[56]      With respect to actual prejudice, the onus is on
the proposed added party to show actual prejudice: West Fraser Mills Ltd. v.
Chouinard (1993), 79 B.C.L.R. (2d) 321 at para. 19, 15 C.P.C. (3d) 1, 27
B.C.A.C. 311, citing Daco Developments Ltd. v. Norman Lewis Co. [1982] 2
W.W.R. 277, 33 B.C.L.R. 273 (C.A.); Endale v. Peters (1997), 47 C.C.L.I.
(2d) 307 at para. 16 (B.C.S.C.); Sun at para. 26.

[57]      This is because the facts or circumstances that
make it either unjust or inconvenient to add a potential defendant are within
the knowledge of that defendant, and he or she is in a position to advance
them. See, for example, Endale at para. 16.

[58]      Prejudice means
prejudice associated with the delay itself. The fact that an opposing party is
affected negatively by such an amendment does not mean that he or she is
prejudiced. The prejudice must affect the party’s ability to respond to the
amended claim: Bel Mar Developments Inc. v. North Shore Credit Union,
2001 BCSC 388 at para. 9.

[29]        
The plaintiff will be severely prejudiced if he cannot proceed against
ICBC as nominal defendant if his investigation confirms ICBC’s conclusion that
there is insufficient evidence to link Mr. Badhan to this accident. His claim
will be dismissed.

[30]        
ICBC on the other hand says that it has been dealing with this claim as
a hit‑and‑run from the beginning. If it suffers any prejudice, it
is the cause of it.

(e) Extent of connection between the existing claim
and the proposed new cause of action

[31]        
There is a direct connection between the existing claim and the proposed
cause of action.

DECISION

[32]        
I find that it is just and convenient to add ICBC as a nominal defendant.
I do not find the delay in applying to court to be inordinate. I will not order
that the action against Mr. Badhan be discontinued. I will order that the
misnomer be corrected.

COSTS

[33]        
As a result of the unreasonable position taken by ICBC in this case, I
find that Scale B costs do not adequately compensate the plaintiff, and I order
that the proposed defendant, ICBC, pay costs to the plaintiff in any event of
the cause at Scale C.

“B.M.
Young”

Master
B.M. Young