IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131025

Docket: S130339

Registry:
New Westminster

Between:

Belal Nour

Plaintiff

And

City of Surrey and
Young Men’s Christian Association of Greater Vancouver, Inc. doing business as
Tong Louie Family YMCA

Defendants

And

Brunswick
Corporation doing business as Life Fitness and StretchMate Inc.

Third
Parties

Before:
Master Caldwell

Reasons for Judgment

[1]            
This is an application brought on behalf of the plaintiff to add
Brunswick and Stretchmate as defendants in this action.

[2]            
The plaintiff alleges that he was exercising at the Tong Louie Family
YMCA in Surrey on December 14, 2009 when the piece of equipment he was using
broke and fell on him; that equipment was allegedly manufactured by Stretchmate
and distributed by Brunswick.

[3]            
The Notice of Civil Claim was issued on September 29, 2010 and named as
defendants the City of Surrey and the Tong Louie Family YMCA. Stretchmate was
mentioned in the claim but was not named as a party. The claim against the City
of Surrey has been discontinued.

[4]            
The Tong Louie Family YMCA filed an Amended Response on May 31, 2011
wherein it referred to Stretchmate as the manufacturer and to Life Fitness as
the distributor; Life Fitness is, for purposes herein, Brunswick. The defendant
denied liability and alleged that the plaintiff had been using the equipment
improperly, negligently and not in the fashion directed by the instructions
located on the equipment.

[5]            
In late 2011, the defendant brought application for leave to file a
Third Party Notice as against Brunswick; that application was not opposed by
Brunswick, who had notice of the application, and leave was granted. The Third
Party Notice was filed on January 19, 2012 and on March 5, 2012 Brunswick filed
a Response alleging numerous defences including allegations that Stretchmate
and the plaintiff were responsible for the incident and the injuries which
arose from it.

[6]            
Concurrent with the filing of the Response Brunswick filed a further
Third Party Notice against Stretchmate.

[7]            
It does not appear that Stretchmate has filed any response to that
notice or taken any part in this litigation.

[8]            
All of the above-noted steps were taken within three years of the
original incident, i.e., within the two year limitation period plus the allowed
one year to serve the original process.

[9]            
This application is brought well outside of that period, some three-and-a-half
years after the cause of action arose and a similar period after the plaintiff
knew, or reasonably should have known, the identity of the possible appropriate
defendants, including Stretchmate and Brunswick.

[10]        
The Rule relied upon by the applicant is Rule 6-2(7)(b) which provides
as follows:

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

(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.

[11]        
Rule 6-2 (7)(b) is similar to the previous Rule 15 (5)(a)(ii) in that it
refers to a party who ought to have been joined as a party or whose
participation in the proceeding is necessary to ensure that all matters in the
proceeding may be effectually adjudicated upon.

[12]        
No application is before me regarding Rule 6-2(7), the “just and convenient”
sub-rule, which was previously contained in Rule 15 (5)(a)(iii).

[13]        
Most of the authorities cited to me dealt only with the “just and
convenient” sub-rule and accordingly had little or no application to the
question before me. The exception was the familiar case of Letvad v. Fenwick,
2000 BCCA 630 which dealt expressly with both Rule 15(5)(a)(ii) and (iii). Regarding
sub-rule (ii), being that most applicable to the matter before me, the Court
said at paras. 14-18 inclusive:

14 The chambers judge found that the plaintiff’s
application succeeded on both subrule (ii) and subrule (iii). With respect to
subrule (ii), her conclusion was stated thus:

[25] That is, Vancouver Hospital
has indicated that it will be taking the position at trial that the proposed Defendants
are not its employees; that even if in some circumstances a hospital can have a
non-delegable duty of care to a patient when a doctor is employed by it, those
circumstances do not exist in this case, and that therefore it is insulated
from liability for the incompetence, if any, of the proposed Defendants. See:
Yepremian et al v. Scarborough General Hospital et al (1980), 28 O.R. (2d) 494
(Ont. C.A.).

[26] Given the nature of the
claims, and the role that the proposed Defendants had in the medical care of
the Plaintiff, the adjudication of the claims against these doctors will
naturally arise in the course of this trial. In other words, their
participation "may be effectually adjudicated upon" in the trial of
this action. Furthermore, given the position of Vancouver Hospital the claims
against the proposed Defendants can only be adjudicated upon if they are added
as parties.

15 I take that to be a finding that Drs. Fenwick and
Evans could properly have been joined in the action at the outset and that
their presence as defendants would be potentially useful to the plaintiff. With
respect to the last sentence in the passage it is, of course, true that the
claims against the proposed defendants can only be adjudicated upon if they are
added as parties. That truism cannot assist in establishing that they should be
added as parties.

16 Whatever the exact meaning of the passage, it
demonstrates in my view that the chambers judge erred in principle in failing
to have regard to the fundamental limitation on subrule (ii) which is that it
is intended only to remedy defects in the "proceeding" as it stood
prior to the application to add parties. The source of the judge’s error may be
that in quoting subrule (ii) in her reasons, she omitted the words "… or
whose participation in the proceeding is necessary to ensure that all matters
in the proceeding …" She made no reference in her reasons to the concept
of necessity embodied in those words.

17 The leading authority on this rule is Enterprise
Realty Ltd. v. Barnes Lake Cattle Co. Ltd. (1979), 13 B.C.L.R. 293 (C.A.),
which settled the question whether the rule should be given a broad or a narrow
construction. Lambert J.A. for the court held that the narrow construction must
continue to prevail. In so doing, he applied the reasoning of Devlin J. (as he
then was) in Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357. Lambert
J.A. said at 298:

I propose to turn first to the
English cases. In Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357,
[1956] 1 All E.R. 273, in a most thorough historical analysis of the
jurisprudence, Devlin J. concluded that the first condition, "ought to
have been joined", had its origin in common law, with its relatively
simple remedies, and applied to cases such as joint contractors and that the
second condition, "necessary that all matters in the proceeding be
effectually adjudicated", had its origin in equity, with its more complex
remedies, and that it covered cases where a remedy such as specific performance
could not be awarded without additional parties being added to make the remedy
effective. Devlin J. then traced the two lines of authority and decided that
the narrow construction was to be preferred. He did so for what I consider to
be five reasons. …

That passage illustrates the kind of issues which may be
taken into account in deciding whether the application is within subrule (ii).
The gist of the matter is that the plaintiff must establish either that the
persons sought to be added "ought to have been joined as a party" or
that their "participation in the proceeding is necessary" in order to
permit the issues between the existing parties to be effectually adjudicated.
Here, the issues to the point of the application were, as between the plaintiff
and Dr. Finley, whether the latter had been negligent and, as between the
plaintiff and the Hospital, whether it was vicariously liable for that
negligence and perhaps for the negligence of others. Those issues could have
been effectually adjudicated between the original parties.

18 That is not to say that
if Drs. Fenwick and Evans had been joined as defendants at the outset, that
would have been an improper joinder. But that is an entirely different question
from that as to whether they ought to have been joined or whether their joinder
was necessary in order for the issues between the original parties to be
adjudicated upon. The chambers judge having erred in holding that subrule (ii)
applied, no element of discretion arises. That finding must be set aside on the
basis that there was no jurisdiction to add the parties under subrule (ii).

[14]        
 As noted in para. 17 of the above excerpt, the plaintiff must
establish either that the persons sought to be added ought to have been joined
as a party or that their participation in the proceeding is necessary; should
the plaintiff fail to meet this requirement, no element of discretion arises.

[15]        
There is nothing in the material, particularly the affidavit material
provided in support of the plaintiff’s application, which expressly or
otherwise addresses either of these two requirements. This is particularly the
case with respect to the issue of why the addition is necessary to ensure that
all maters in the proceeding may be effectually adjudicated on and thus no
element of discretion arises in the present case.

[16]        
If I am wrong on that and a discretion does arise under Rule 6-2 (7)(b)
then I am of the view that the decision in Letvad (supra) also
provides guidance on the issue of the exercise of that discretion in cases
where a limitation period has expired. At paras. 28 and 29 the Court deals
with what is meant by the phrase “unfettered discretion” and says that it must
be exercised judicially and in accordance with the evidence adduced regarding,
among other things, the extent of the delay, the reasons for the delay, any
explanation put forward to account for the delay, the degree of prejudice
caused by delay and the extent of the connection, if any, between the existing
claims and the proposed new cause of action, or as here, defendant.

[17]        
Again, there is absolutely no evidence before me, in affidavit form, to
address any of these issues. Absent such evidence there is no basis upon which
I can exercise my discretion in a judicial or judicious manner.

[18]        
The plaintiff’s application is dismissed without prejudice to his right
to re-apply on the basis of further and proper materials and evidence. The
application respondent Brunswick is entitled to its costs of this application
in any event of the cause. While this decision relates also to Stretchmate,
they did not appear at the application or file responding materials and thus
they are not entitled to costs.

“Master Caldwell”