IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130913

Docket: S18824

Registry:
Chilliwack

Between:

Tarsem Singh Brar

Plaintiff

And

City of
Abbotsford, James Ernest Olson, Smithrite Disposal Ltd. (Lessee) and WS Leasing
Ltd. (Lessor)

Defendants

Before:
The Honourable Mr. Justice Weatherill

Reasons for Judgment

Introduction

[1]            
This action involves a motor vehicle accident that took place on
December 4, 2007 (the “accident”).

[2]            
The plaintiff applies pursuant to R. 6-2(7) of the Supreme Court
Civil Rules to add his wife, the owner of the vehicle, as a defendant long after
the limitation period for bringing an action against her expired.

Background

[3]            
At the time of the accident, the plaintiff was driving with his son in a
2000 Ford Explorer vehicle (the “Explorer”) owned by the plaintiff’s wife, Inderjeet
Kaur Brar (“Mrs. Brar”).  The accident occurred in Abbotsford, British
Columbia, on a major four lane roadway, two lanes in each direction.  The City
of Abbotsford had plowed the roadway but had allegedly left a furrow of snow
and slush on one of the lanes in the plaintiff’s direction of travel.  As the
plaintiff was passing a slow moving vehicle, the Explorer hit the slush, the
plaintiff lost control and the Explorer slid into the path of oncoming vehicles
travelling in the opposite direction.  The Explorer collided with a garbage
truck owned and/or operated by the other defendants.  The plaintiff sustained
several injuries including a closed head injury.

[4]            
On March 11, 2008, the plaintiff’s and Mrs. Brar’s son, Jeevan Singh
Brar, commenced an action against them as well as against the other defendants
in this action in respect of the injuries he sustained during the accident (the
“Jeevan Action”).  The claim against Mrs. Brar in the Jeevan Action is limited
to her alleged vicarious liability (as owner of the vehicle) for the negligence
of the plaintiff.  No allegation is made in the Jeevan Action against Mrs. Brar
regarding a failure to maintain the Explorer in a road worthy condition.

[5]            
The plaintiff commenced this action on April 16, 2008.  Mrs. Brar was
not named as a defendant.

[6]            
On April 22, 2008, plaintiff’s then counsel, Mr. Brown, and a legal
assistant met with the plaintiff.  The evidence (albeit hearsay) is that Mr.
Brown recalls no concerns about the plaintiff’s capacity to provide
instructions to him.

[7]            
A copy of the police report prepared in respect of the accident was
provided to counsel for the plaintiff on July 9, 2008.  It disclosed that a
contributing factor in the cause of the accident may have been that the tires
on the Explorer were severely worn.

[8]            
On July 30, 2008, Mr. Brown was appointed to the bench.  On October 8,
2008, Ms. McLeod of the firm of Robertson, Downe & Mullally (“RDM”) was
retained to represent the plaintiff in place of Mr. Brown.

[9]            
On October 17, 2008, Ms. Fredette, a paralegal employed by RDM, identified
a potential claim against Mrs. Brar on the basis of a failure to maintain the
Explorer.

[10]        
On November 26, 2008, Ms. McLeod, together with Ms. Fredette and Mr. Dhami,
an RDM associate lawyer fluent in the plaintiff’s native language, met with the
plaintiff at his home.  A memorandum was prepared the following day by Ms.
Fredette memorializing the meeting.  It states, in relevant part:

After some discussion with [the plaintiff] it was evident
that he understood the process.  Nevertheless we are giving some thought to
appointing litigation guardian to assist.

All maintenance was performed at Lou Isfeld in Abbotsford. 
[The plaintiff] remembers that the tires were changed once but he doesn’t
remember where.

[The plaintiff] advised that his
wife was the primary driver of the Exploer (sic) and that he did not drive the
vehicle very often.  His wife made arrangements for the vehicle to be serviced
– we need to get receipts and documents with respect to servicing.

[11]        
On December 10, 2008, a second memorandum was prepared regarding the
November 26, 2008 meeting.  It was authored by Mr. Dhami.  It states, in
relevant part:

I would note that the Statement of Claim was not all that
well drafted and we may wish to amend it, thoroughly, when we move to add
the Plaintiff’s wife as a Defendant.

His wife was in charge of scheduling and taking the truck for
regular maintenance.

TO DO

 1. Amend Pleadings.

[Emphasis added.]

[12]        
On January 26, 2009, RDM received a copy of a report prepared for the
Insurance Corporation of British Columbia (“ICBC”) Rehabilitation Department by
Alisa Ferdinandi of Columbia Speech & Language Services Inc. in which the
following capacity issues were raised regarding the plaintiff:

a)     difficulty
processing and remembering conversations with friends and family;

b)     difficulty
relaying a message to others due to expressive impairments;

c)     problems
following complex instructions to carry out an unfamiliar task at home;

d)     difficulty
with social interactions, due to expressive and comprehension impairments,
which could affect personal relationships; and

e)    
difficulty starting and participating in conversations with others due
to cognitive language difficulties such as poor verbal initiation, poor ability
to generalize ideas and poor verbal recall.

[13]        
In a report dated July 25, 2009, Dr. Bailey, a neuropsychologist
appointed by ICBC, opined that the plaintiff was experiencing “significant,
generalized neuropsychological impairment, which is undoubtedly a reflection of
the severity of the brain injury he sustained”.

[14]        
On June 8, 2009, Mrs. Brar provided plaintiff’s counsel with the service
history reports for the Explorer that she had been able to obtain from the
dealership that had serviced it.

[15]        
On October 8, 2009, Mr. Dhami and Ms. Fredette attended a meeting with the
ICBC Rehabilitation Department.  Dr. Bailey was also present and advised that,
in his opinion, the plaintiff was not capable of understanding the complexities
of the law suit or providing his counsel with instructions.

[16]        
Thereafter, Ms. McLeod initiated steps to have the Public Guardian and
Trustee appointed as litigation guardian.  She deposed that she did not take
steps to add Mrs. Brar as a defendant because she was having difficulty
obtaining instructions from the plaintiff due to his disability and was waiting
for a response from the Public Trustee.  She deposed that this decision was not
a strategic one and that she did not believe there would be any prejudice
because Mrs. Brar was already participating in the litigation as a defendant in
the Jeevan Action.

[17]        
The limitation period for commencing an action against Mrs. Brar expired
on December 4, 2009.

[18]        
In April 2010, the Public Guardian and Trustee advised Ms. McLeod that
it required a “Referral Form” before any decision regarding the plaintiff would
be made.  The form was provided.

[19]        
On April 30, 2010, Ms. McLeod retired from the practice of law.  The
plaintiff’s file was assumed by Ms. Avram of RDM.

[20]        
On October 18, 2010, the Public Guardian and Trustee advised Ms. Avram
that it was not prepared to become involved on behalf of the plaintiff.

[21]        
An examination for discovery of Mrs. Brar in the Jeevan Action took
place on February 10, 2011.  Ms. Avram was present during the examination for
discovery.  Mrs. Brar gave evidence that she was responsible for maintaining
the Explorer the majority of the time.

[22]        
As a result of the evidence Mrs. Brar gave during her examination for
discovery, Ms. Avram concluded that she needed to be added as a defendant in
this action.  She was concerned that she might be in a conflict given her
firm’s extensive dealings with Mrs. Brar as part of its representation of the
plaintiff.

[23]        
On April 3, 2012, Ms. Avram received a report from the plaintiff’s
physician to the effect that the plaintiff was competent and able to provide
instructions to her.  She concluded that she and her firm were in a conflict
and that new counsel should be appointed to represent the plaintiff.

[24]        
On April 27, 2012, the plaintiff’s present counsel, Mr. Cope, was
appointed in place of Ms. Avram.

[25]        
The notice of application currently before this Court was filed on
September 4, 2012.  The proposed amended statement of claim alleges negligence
against Mrs. Brar for failure to maintain the Explorer in a road worthy
condition and, in particular, that she failed to replace worn tires in a timely
manner and failed to warn the plaintiff that the tires were in need of
replacement.

[26]        
The plaintiff filed the affidavit # 1 of Crescent McCallum sworn August 23, 2012
in support of the application.  Ms. McCallum is a paralegal in plaintiff’s
counsel’s firm.  She deposed, inter alia, as follows:

6.         I am informed by the
Plaintiff that the question of vehicle maintenance was never, to his knowledge,
ever raised with him by Neill Brown or the lawyer that followed him.  The
Plaintiff was a commercial truck driver, and each lawyer probably assumed that
he would be the person who handled the maintenance and repairs of his wife’s
2000 Ford Explorer.

[27]        
This was the only explanation for the delay in bringing the application
to add Mrs. Brar as a defendant that was proffered at that time.

[28]        
The application was heard by Master Caldwell on October 29, 2012.  The
application was adjourned to allow the plaintiff an opportunity to obtain more
fulsome evidence explaining the delay.

[29]        
That more fulsome evidence was obtained in the form of affidavits from
Ms. McLeod and Ms. Avram.  The thrust of their evidence is that Mrs. Brar
was not added as a defendant prior to expiry of the limitation period because first,
the extent of her responsibility for maintaining the Explorer had to be
determined and second, they were unable to obtain instructions from the
plaintiff due to his disability.

[30]        
Ms. McLeod’s and Ms. Avram’s affidavits make no mention of the November
and December 2008 memoranda prepared by their paralegal, Ms. Fredette, and
their associate, Mr. Dhami, respectively.

[31]        
The plaintiff knew at the time of the accident that the Explorer was
owned by his wife and that she was the principal operator of the vehicle.

[32]        
Mrs. Brar no longer has her original maintenance records relating to the
Explorer.  She has no independent memory regarding the details of the
maintenance and servicing of the Explorer.  The entity that carried out the
maintenance and servicing of the Explorer was acquired by others in March
2009.

[33]        
The trial of this action is currently scheduled to commence in April
2015.

Analysis

[34]        
The leading case dealing with adding a defendant after a limitation
period has expired is Strata Plan No. VIS3578 v. Canan Investment Group Ltd.,
2010 BCCA 329.  The principles set out therein were recently summarized by Mr.
Justice Macaulay in Whiskey Dock Developments Ltd. v. Ucluelet (District),
2012 BCSC 1170 at para. 10 as follows:

[10] The Court of Appeal summarized the test
for joinder when a proposed defendant maintains that a limitation defence has
expired in The Owners, Strata Plan No. VIS3578 v. Canan Investment Group
Ltd., 2010 BCCA 329 at paras. 43-48. The aspects of the test that apply in
the present circumstances are:

1.         Section
4(1)(d) of the Limitation Act, R.S.B.C. 1996, c. 266, is the starting
point; the lapse of a limitation period is “no bar” to adding a defendant “with
respect to any claims relating to or connected with the subject matter of the
original action”;

2.         Rule
15, virtually identical to present Civil Rule 6-2, permits the court to
order the addition where there exists, as between the person to be added and
any party, a “question or issue related to or connected” with any relief
claimed or with the subject matter of the proceeding “which in the opinion of
the court it would be just and convenient to determine as between the person
and the party.” This requires the applicant to demonstrate two things:

(a) A real issue
between the plaintiff and the proposed defendant that is not frivolous or that
the plaintiff has a possible cause of action against the proposed defendant.
Evidence is not required for this purpose; and

(b) It would be
just and convenient to decide the issue between the parties in the proceeding.
The court must exercise its discretion judicially in deciding this issue in
accord with the evidence and the authorities. The essential question is, “what
is just and convenient in the circumstances of the particular case” (Owners
at para. 46).

3.         The
existence of a limitation defence is a relevant, but not a determinative,
factor in deciding whether to permit adding a defendant….

47.       …

…

2. If it is clear there is an
accrued limitation defence, the question is whether it will nevertheless be
just and convenient to add the party, notwithstanding it will lose that
defence. The answer to that question will emerge from consideration of the
factors set out in Letvad.

[Emphasis in
original.]

The reference in
step no. 2 immediately above is to Letvad v. Finley, 2000 BCCA 630. In
that decision, Esson J.A. adopted the list of factors to be considered, in
determining whether it is just and convenient to add a party, from Teal
Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. [citation omitted].
The factors include the extent of any delay, the reasons and explanation for
the delay, any prejudice arising from the delay, and the degree of connection
between the existing action and the new parties and proposed claims (Owners
at para. 46).

[35]        
No one single factor is necessarily determinative or given overriding
importance in the absence of a clear evidentiary basis for doing so.  No factor
should be considered in isolation.  A plaintiff’s explanation need not
necessarily exculpate him or her from all fault or culpability before the court
can exercise its discretion in his or her favour.  However, the plaintiff’s
dilatory conduct is a consideration: Teal Cedar Products (1977) Ltd. v. Dale
Intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282, at paras. 41, 45, 67.

[36]        
Prejudice is presumed where there has been a long delay.  The loss of
evidence during the delay may be evidence of actual rather than presumed
prejudice: Letvad v. Finley, 2000 BCCA 630 at para. 30; Whiskey Dock,
at para. 21.

[37]        
There must be a reasonable explanation for the delay: Canan, at
para. 88; Letvad, at paras 33-34.  An explanation that is contradicted
by the evidence should be rejected:  Spitale v. ICBC, 2003 BCSC 1168 at
paras. 26-28.

[38]        
The role of the plaintiff’s counsel in providing an explanation for the
delay is a consideration.  Fault or culpability in the sense of intentional but
mistaken conduct is not a decisive factor.  The initial advice provided by
counsel may be a sufficient explanation: Teal, paras. 67-68; Canan,
at paras. 92-93.

(A) Extent of the Delay

[39]        
The delay in this case is significant.  The cause of action arose on
December 4, 2007.  The limitation period for commencing an action against Mrs.
Brar expired on December 4, 2009.  Despite the fact that RDM contemplated
adding her as a defendant as early as December 10, 2008, no step was taken in
that regard until this application was filed on September 4, 2012, three years
and nine months later and two years and nine months after the limitation period
expired.

(B) Explanation for the Delay

[40]        
Counsel for Mrs. Brar, Ms. Murray, submits that this is not a case in
which there was an evolution of the evidence or an analysis of the case which
only allowed plaintiff’s counsel to identify a potential cause of action after
the limitation period expired.  Rather, she submits that there was a conscious
decision not to sue Mrs. Brar prior to the expiry of the limitation
period.

[41]        
She points out that plaintiff’s counsel was in possession of and was
alive to all of the information necessary to consider whether the plaintiff had
a potential claim against Mrs. Brar well within the limitation period, namely:

a)     the police
report received by plaintiff’s counsel in July 2008 which clearly raised an
issue regarding the tire treads and the possibility that they contributed to
the accident; and

b)    
knowledge in November 2008 that Mrs. Brar was responsible for
maintenance of the Explorer.

[42]        
Ms. Murray further submits that the December 10, 2008 memorandum shows
plaintiff’s counsel was contemplating adding Mrs. Brar as a defendant one full
year before the expiry of the limitation period.  She submits that plaintiff’s
counsel made a strategic decision not to sue Mrs. Brar.

[43]        
Mr. Cope responds that there was no such strategic decision.  Rather, he
submits that the plaintiff’s previous counsel were legitimately concerned about
the plaintiff’s mental capacity to properly instruct them regarding whether or
not to add his wife as a defendant.

[44]        
He points to the affidavit of Ms. McLeod in which she deposes:

10.       As a result of the meeting of November 26, 2008, I
concluded that a litigation guardian would have to be appointed on Tarsem
Brar’s behalf.  As a result of the discussions, family members were canvassed
for their willingness to act as litigation guardian.  In addition, I decided I
needed more information before I could conclude that Inderjeet Brar, Tarsem
Brar’s spouse, should be named as a Defendant for failing to maintain the
Vehicle.

21.       I did not name Inderjeet Brar as a Defendant before
the limitation period expired on December 4, 2009.  I was not able to obtain
instructions from my client due to his disability.  I also felt I did not have
sufficient evidence at that time to name Inderjeet Brar, and I was having
difficulty obtaining instructions from my client due to his disability.  I was
also waiting for a response from the Public Guardian and Trustee at this time
and anticipated that it would agree to act for Tarsem Brar and instruct me to
name Inderjeet Brar as a Defendant.  In the meantime, I continued to look for
documentation to assist in identifying who was responsible for the maintenance
of the Vehicle.  In retrospect, it may have been an error in professional
judgment on my part.

22.       My decision not to name
Inderjeet Brar at this point was not a strategic attempt to gain an advantage
over her or any of the other Defendants.  I did not think that Ms. Brar would
be prejudiced by the delay because she was already participating in the
litigation as a Defendant in the [Jeevan] Action.

[45]        
He also points to the affidavit of Ms. Avram in which she deposes:

8.         I did not bring an
application to add Inderjeet Brar upon assuming conduct of the file.  This was
not a strategic decision to gain advantage over Ms. Brar, but rather was due to
the fact that I was unable to obtain instructions form Tarsem Brar due to his
disability and the fact that we were still awaiting a response from the Public
Guardian and Trustee.  It was also due to the fact that we needed to get
evidence from Ms. Brar about who was responsible for maintaining the vehicle
and my reliance on her to communicate with Tarsem Brar.

[46]        
Mr. Cope argues that this is not a case where the file was ignored by plaintiff’s
counsel.  Rather, they dealt with it actively, although incorrectly.  He
submits that counsels’ concern regarding the plaintiff’s capacity to provide
instructions was justified by the report of Ms. Ferdinandi and by ICBC’s
neuropsychologist who reported first on July 25, 2009 that the plaintiff was
“experiencing significant, generalized neuropsychological impairment” and second
on October 8, 2009 that the plaintiff was not capable of understanding the
complexities of the law suit or providing his counsel with instructions.  Mr.
Cope submits that the delay in taking steps to add Mrs. Brar as a defendant was
due to the fact that she was the only person who was prepared to act as
litigation guardian for the plaintiff pending the decision of the Public
Guardian and Trustee.

[47]        
Ms. Murray counters by pointing out significant unexplained discrepancies
in the evidence in support of the plaintiff’s application.

[48]        
First, Ms. McLeod’s affidavit evidence that: “[a]s a result of the
meeting of November 26, 2008, I concluded that a litigation guardian
would have to be appointed” on behalf of the plaintiff should be contrasted
with the November 27, 2008 memorandum prepared by Ms. Fredette which states
that “… we are giving some thought to appointing litigation guardian to
assist”.

[49]        
Second, both Ms. McLeod and Ms. Avram deposed they needed to determine
who was responsible for maintaining the Explorer when, in fact, Ms. McLeod had
known since the meeting with the plaintiff in November 2008 that Mrs. Brar was
responsible.

[50]        
Ms. Murray points out that, at the hearing before Master Caldwell, the
only explanation for the delay was set out at para. 6 of Ms. McCallum’s
affidavit to the effect that none of the plaintiff’s previous lawyers had
raised with him the issue of who had the responsibility to maintain the
Explorer.  Ms. McCallum’s affidavit left the impression that this information
was not known until Mrs. Brar gave evidence during her examination for
discovery in February 2011.  Moreover, the implication of para. 21 of Ms.
McLeod’s affidavit is that she and members of her firm attempted to obtain
information from the plaintiff regarding responsibility for maintenance of the
Explorer but could not obtain that information.

[51]        
In fact, as was subsequently disclosed, Ms. McLeod was told by the
plaintiff during the November 26, 2008 meeting that Mrs. Brar had
responsibility for the maintenance of the Explorer.  It is obvious that is the
reason the December 10, 2008 memorandum states Mrs. Brar should be added as a
defendant.

[52]        
Ms. Murray contends the foregoing demonstrates at best, that the evidence
of Ms. McLeod and Ms. Avram has been coloured by the present circumstances.  At
worst, that evidence amounts to a misleading attempt after the fact to construct
a legitimate rationale for not adding Mrs. Brar as a defendant in a timely way. 
Regardless, Ms. Murray submits that the court should give their evidence little
if any weight.

[53]        
I note that the record is devoid of any evidence from the plaintiff
himself, despite his primary care physician’s opinion dated April 3, 2012 stating
the plaintiff “is competent and able to understand and provide [his counsel]
with the proper instructions to advance his claim”.

[54]        
In my view where, as here, there has been a significant delay in
applying to add a party to an action, there is an obligation on the applicant
to clearly and in a detailed and straightforward manner, explain the delay. 
Vague and inconsistent attempts at justification are insufficient.

[55]        
On the evidence as a whole it is clear that, as early as October 2008,
counsel for the plaintiff knew that Mrs. Brar was responsible for the
maintenance of the Explorer and believed that there was claim to be made
against her.  Certainly by December 2008 RDM had all of the information
necessary to identify any potential claim against her.  Rather than address
this evidence, plaintiff’s previous counsel chose instead to provide what in my
view can only be described as a misleading explanation for the delay, namely
that she needed to determine who had responsibility for maintenance of the
Explorer and that she was unable to obtain instructions from her client.  There
was no attempt on the part of RDM to explain the statement in the December 10,
2008 memorandum that RDM was moving to add Mrs. Brar as a defendant.

[56]        
The evidence of Ms. McLeod and Ms. Avram regarding their need to determine
who was responsible for maintenance of the Explorer can be given little weight
in the absence of evidence explaining why that was so when the plaintiff told
RDM in November 2008 that Mrs. Brar was responsible.

[57]        
With respect to the plaintiff’s capacity to provide them with
instructions, while both Ms. McLeod and Ms. Avram clearly had concerns in this
regard, no attempt to appoint a litigation guardian was made until November
2009, approximately one year later.  No attempt was made to explain Ms.
Fredette’s statement in the November 27, 2008 memorandum that the plaintiff
“understood the process” or, for that matter, why it took as long as it did for
plaintiff’s counsel to receive a response from the Public Guardian and Trustee
and why it took as long as it did for counsel to determine that the plaintiff
was, in fact, competent and able to provide instructions.

[58]        
While Ms. McLeod and Ms. Avram were considering the appointment of a
litigation guardian, in my view they were not as handcuffed as they have
suggested.  On the evidence as a whole, I find that the failure to add Mrs.
Brar as a defendant was not the result of an oversight or an inability to
obtain instructions. Rather, I find RDM came to the conclusion before the
expiry of the limitation period that she would not be added as a defendant.  It
was only upon Mr. Cope’s retainer that RDM’s decision was reconsidered.

[59]        
In summary, the plaintiff has failed to adequately explain the delay.

(C) Whether there is prejudice arising from the delay

[60]        
Mr. Cope submits that Mrs. Brar has been represented throughout by
counsel in the Jeevan Action and that her interests have been protected
thereby.  Attempts have been made from the outset to locate the Explorer’s
maintenance records.  He argues that all maintenance records ground has been
fully tilled, with care and that there is no prejudice to Mrs. Brar.

[61]        
Ms. Murray rightly points out that there is nothing in the Jeevan Action
that would or should have alerted Mrs. Brar to a potential claim against her in
negligence for failure to maintain the Explorer in a roadworthy condition.  The
claim made against her in that other action is solely a vicarious liability
claim arising from her ownership of the vehicle.  While it is true that Mrs.
Brar took steps to obtain the Explorer’s maintenance records, her doing so was
relevant to why the plaintiff lost control of the vehicle, not to allegations
of negligence against her.

[62]        
Moreover, Mrs. Brar’s evidence that it is hard for her to remember the
details of the Explorer’s maintenance over six and one-half years after the accident
is compelling evidence of prejudice.  It could well have been that the
dealership which performed the maintenance and repairs to the Explorer advised
Mrs. Brar of the condition of the tires.  That dealership has since been taken
over by another and a diligent search for maintenance documents uncovered only
marginally relevant computer records still in existence.  It is apparent that
the passage of time has resulted in Mrs. Brar’s inability to access maintenance
and to recall specific details regarding the maintenance of the Explorer.

(D) The degree of connection with the existing action

[63]        
Plainly there is the requisite connection between the proposed claim
against Mrs. Brar and the subject matter of the action.

Conclusion

[64]        
On the bases of the inordinate length of the delay in bringing this
application, the fact that all of the information necessary to identify a claim
against Mrs. Brar was known by plaintiff’s counsel well within the limitation
period and the unsatisfactory explanation for the delay, I conclude that it
would not be just and convenient in the circumstances of this case to exercise
my discretion in favour of allowing the application to add Mrs. Brar as a
defendant.  I decline to do so.

[65]        
The application is dismissed.  Mrs. Brar is entitled to her costs at
Scale B.

“Weatherill
J.”