IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130910

Docket: L041495

Registry:
Vancouver

Between:

Joseph Brownrigg

Plaintiff

And

Stephen Tamburri
and
Squamish Tugboat Co. (1972) Ltd.

Defendants

Before:
The Honourable Mr. Justice Wong

Oral Reasons for Judgment
In Chambers

[1]            
THE COURT: This is an application to add two defendants under
Rule 6‑2(7).  This involved a boating accident in 2002, when one of the
present named defendants, Stephen Tamburri, was operating a jet boat, and his
friend, the plaintiff, Mr. Brownrigg, was a passenger on the boat. 
Apparently the jet craft crashed into a tree, resulting in rather severe
injuries to Mr. Brownrigg.

[2]            
At the time, it was thought that the owner of the boat was a corporate
defendant, Squamish Tugboat Company (1972).  It turns out there was another
corporate defendant associated with that company, because of Mr. Stephen
Tamburri, his brother Chris Tamburri and their mother as owners or operators of
both corporate companies, and that corporate company was Squamish Marine.

[3]            
In any event, within the limitation period, counsel for Mr. Brownrigg
at that time commenced an action.  I need not go through all of the details of
documents going back and forth, but there was a general denial in the statement
of defence.  There were discussions between counsel as to whether there was
adequate insurance and there was, at that time, seemingly no communication from
the defence that the correct corporate defendant was Squamish Marine.  I
attribute that in part maybe to the fact that defence counsel was getting her
information from the insurers.

[4]            
In any event, it was not until 2009 that defence counsel in fact wrote
and notified counsel for the plaintiff that Squamish Marine together with one
Peter Leveque were owners at the time of the accident.

[5]            
There will likely be an issue during the trial as to whether or not, at
the material time, aside from being an owner, Squamish Marine was using that
particular boat for a commercial purpose.

[6]            
Counsel for this application to join has indicated that there may be an
argument of a joint venture, leaving aside any commercial purposes, and if they
can establish that there was knowledge that it was being used recreationally,
there may well be implied consent.

[7]            
However, there was a request for confirmation from counsel for the
plaintiff with respect to documents as to the actual owner.  It seems that
defence counsel did in fact fax the appropriate documents in 2010; however, it
never got to the attention of counsel for the plaintiff, and there is no
explanation for that, other than an affidavit from then‑counsel that it
never came to his attention and he did not take any further action.  He might
be properly criticized as being dilatory in not moving at that point and he
frankly admitted that.

[8]            
As a result, there was a change in counsel, Mr. Cotter, and when he
came on the scene, realizing that the appropriate defendants that should be
added were Squamish Marine and Mr. Peter Leveque, he then retained counsel
who argued the point of joining those two proposed defendants.

[9]            
There is no question that with this delay, the delay was certainly much
longer than even the limitation period, but it seems to me I have to weigh that
delay also correspondingly as to whether there is any prejudice to Squamish
Marine and Mr. Peter Leveque.

[10]        
It is quite clear that the main defence that will likely be raised by
the corporate defendants is that Mr. Tamburri and Mr. Brownrigg were
on a recreational frolic on their own.  If Mr. Stephen Tamburri (there is
some evidence that his present location cannot be located) is not available for
trial, clearly the only witness will be the plaintiff.  The trial judge can
take that into account in assessing any potential prejudice as to whether there
can be a fair trial on this action.

[11]        
With respect to defence counsel at this application stating that the
medical records are insufficient, namely the MSP records have been purged after
this length of time, there are still other records that can be available,
namely hospital records and any pre‑accident medical records, provided
they are relevant, would still be available, and the records of the treating
physicians also would be available.

[12]        
So under these circumstances, on balance, I do not see any preliminary
prejudice to the proposed defendants, if they were added at this point.  As a
matter of fact, I think in the ends of justice, the plaintiff should have his
day in court and any delay after 2010 should not be laid at the plaintiff’s
feet through any shortcomings of his counsel.

[13]        
Accordingly, I am going to make the order that Squamish Marine Services
Ltd. and Peter Leveque are added as defendants, and there will be amendments in
a draft proposed by counsel with some modifications that were discussed
earlier.

[14]        
I also make the observation that counsel for the defence has liberty to
argue the delay element, provided that there is demonstrated prejudice at
trial.

[15]        
With respect to costs of today’s application, that will go with the
result of the cause.

“Wong
J.”