IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130221

Docket: 11‑3727

Registry:
Victoria

Between:

Ashley Christine
Peters

Plaintiff

And:

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice G.R.J. Gaul

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff seeks an order pursuant to Rule and 6‑1
of the Rules of Court permitting her to amend her notice of civil claim.
She also seeks an order pursuant to Rule 15‑1(6) that this proceeding be
removed from the “fast track” provisions of Rule 15‑1.

Facts

[2]            
The chronology of this matter is important to the determination of the
application before me. Consequently, I will review it in some detail.

[3]            
The plaintiff claims that she was struck by a motor vehicle while she
was walking in a crosswalk at the intersection of Douglas Street and Fisgard
Street on 24 September 2009. The vehicle in question did not stop and
therefore the plaintiff does not know the identity of the driver or the owner
of the vehicle.

[4]            
In the fall of 2009 and in the spring of 2010, the plaintiff met with
and corresponded with an adjuster for the Insurance Corporation of British
Columbia (“ICBC”) regarding her claim and the possibility of reaching a
settlement. The plaintiff says that she was unaware of her obligation under s. 24
of the Insurance (Vehicle) Act, R.S.C.B. 1996, c. 231 (the “Act”)
to make reasonable efforts to locate the driver or owner of the vehicle that
struck her. Moreover, she asserts that no one with ICBC ever advised her of
this obligation under the Act.

[5]            
On 7 September 2011, counsel for the plaintiff filed a notice of civil
claim naming ICBC as the nominal defendant pursuant to s. 24 of the Act.

[6]            
On 9 November 2011, ICBC filed a notice of fast track action placing the
plaintiff’s action under the provisions of Rule 15‑1.

[7]            
The next day ICBC filed its response to the plaintiff’s civil claim. In its
defence, ICBC pleaded, amongst other things, that the plaintiff’s claim was
statute‑barred on account of s. 24 of the Act and her failure
to make all reasonable efforts to determine the identity of the driver or owner
of the vehicle that allegedly struck her.

[8]            
The plaintiff has not filed a reply to ICBC’s response, notwithstanding
that she could have done so pursuant to Rule 3‑6 of the Rules.

[9]            
On 10 January 2012, counsel for ICBC filed a notice of trial setting the
matter down for a three‑day trial commencing 9 October 2012.

[10]        
On 15 February 2012, counsel for ICBC conducted an examination
for discovery of the plaintiff. This examination was conducted, keeping in mind
the matter was proceeding as a fast track action under Rule 15‑1.

[11]        
With the October 2012 trial date approaching, a trial management
conference was held on 28 August 2012. In advance of this conference, both
parties filed trial briefs outlining the issues in dispute and their respective
positions.

[12]        
On the issue of liability, the plaintiff described her position as
follows: "Liability lies solely with the defendant". For its part,
the defendant explains its position on liability as:

Defendant says:

(a) Plaintiff failed to make a reasonable effort to identify
driver and owner; and

(b) Plaintiff is unable to prove negligence on the part of
the unidentified driver.

[13]        
At the conclusion of the trial management conference, the matter
remained as a fast track action and there were no amendments sought or ordered
to any pleadings.

[14]        
The trial did not take place on 9 October 2012, and the matter was
adjourned generally. I am advised that the reason for that was because there
was no judge available to hear the trial. I take that to mean both sides were
prepared to go to trial and had there been a judge available, the trial would
have proceeded.

[15]        
The defendant filed a second notice of trial, again noting that the
matter was subject to Rule 15‑1. The matter was down for a five‑day
trial commencing on 15 July 2013.

[16]        
That brings us to the present, and the plaintiff’s application that was
filed on 11 January of this year.

Argument

Amending the
Plaintiff’s Pleadings

[17]        
The plaintiff wishes to add two new facets to her claim against the
defendant. First, under Part 1 “Statement of Facts”, she wishes to add “loss or
impairment of past earning capacity” to the particularization of her claim for
general damages. Second, under Part 3 “Legal Basis”, she wishes to include a
plea that the defendant is estopped from relying on the statutory defence
provided by s. 24(5) of the Act and, in the alternative, that the
defendant has waived its right to rely upon that section of the Act. She
also wishes to add under Part 1 “Statement of Facts”, two new factual
assertions that she maintains support of her plea of estoppel and waiver.

[18]        
Counsel for the plaintiff has candidly acknowledged that the addition of
the waiver and estoppel pleas to the plaintiff’s notice of civil claim did not
occur to him until he became aware of the obiter dicta of Justice Armstrong
in Springer v. Kee, 2012 BCSC 1210, and had, in light of those
comments, conducted a further review of the documents the plaintiff had
received from the defence.

[19]        
The plaintiff also cites s. 10 of the Law and Equity Act in
support of its argument in favour of permitting the requested amendments. In
support of its position, the plaintiff relies upon Langret Investments
S.A. v. McDonnell, [1996] B.C.J. No. 550 (C.A.) (Q.L.) and Mah
v. City of Vancouver, 2000 BCSC 41.

[20]        
The defendant opposes the proposed amendments, arguing they change the
entire nature of the case it has to meet and will unnecessarily create a more
protracted litigation that has, since shortly after the action was commenced,
been in the fast track stream. The defendant also opposes the proposed
amendment to the plaintiff’s statement of facts and legal basis, arguing that
the facts as pleaded do not support the proposed legal conclusions.

Removing
the case from the “Fast Track” provisions of Rule 15-1

[21]        
The plaintiff argues that as she is now seeking a monetary award of
greater than $100,000, and the trial is set for five days, there is no longer
any justifiable reason to keep the matter within the fast track provisions of
Rule 15-1.

[22]        
The defence objects to this case being removed from Rule 15-1. In
advancing this position, the defence points to the fact that the parties have
pursued this litigation as a “fast track case” for the past three years and
that it has conducted itself and its defence in accordance with the spirit of
the rule.

Decision

Adding a plea
for loss or impairment of past earning capacity

[23]        
Although the proposition is trite, in the present instance it bears
repeating that a party is bound by its pleadings, for they act as the
foundation of its case. Consequently, those pleadings should be crafted with
care.

[24]        
The plaintiff’s claim, when it was filed in November 2011, did not
contain a claim for loss or impairment of past earning capacity. It is not
clear to me why it did not, nor are the reasons for the delay in bringing the
application to add this claim adequately explained. What is clear is that this matter
was set to go to trial in October 2012 and had it done so, this new claim
would not have been advanced.

[25]        
This matter has been set for fast track litigation, discoveries have
taken place pursuant to Rule 15‑1, and the defence has prepared its
defence accordingly. In my view, adding this new claim to the mix at this point
in the litigation would unfairly alter the extent and nature of the case the
defence has to meet. I should add that the proposed changes to the notice of
civil claim are not simply technical or “conceptual” amendments, as counsel for
the plaintiff has argued. In my respectful opinion, the inclusion of this new
claim constitutes a significant alteration to the plaintiff’s lawsuit and entails
a potential for a considerable financial award. Moreover, I agree with the
submission of counsel for the defendant that there is no material before the
court that supports the proposed amendment, and that in any event it is too
late to add this additional claim.

Adding a plea
of estoppel and/or waiver

[26]        
As for the proposed amendments regarding waiver and estoppel, I am of
the view the defence is correct when it argues that the amendments cannot be
made because the proposed new facts the plaintiff seeks to allege do not support
a plea of estoppel or waiver. In other words, even if the amendments are
allowed and the plaintiff is permitted to plead the new facts, they do not
support a claim of estoppel or waiver.

[27]        
The proposed amendments to the notice of civil claim are denied.

Removing
the case from the “Fast Track” provisions of Rule 15-1

[28]        
The plaintiff’s law suit has been in the fast track stream under Rule
15-1 since shortly after it was launched in the fall of 2011. The plaintiff’s
examination for discovery has been completed. The matter was set to go to trial
as a fast track trial in the fall of 2012 and would have but for a lack of
judicial resources. The matter is now set for trial, again under Rule 15-1, for
June of this year. I agree with the defendant’s argument that it is too late at
this point to change tack and to remove the case from the provisions of Rule
15-1.

[29]        
For all of the above reasons, the plaintiff’s application is denied.

[30]        
Those are my reasons. Mr. Kozlick, it was your application. Do you
require  any clarification?

[31]        
MR. KOZLICK:  I don’t believe so, My Lord.

[32]        
THE COURT:  All right, thank you.

[33]        
MS. HARPER:  My Lord, given the success of the defendant’s
position, I ask for costs in any event of the cause.

[34]        
THE COURT:  Any submission?

[35]        
MR. KOZLICK:  With regard to the novel issue of waiver and
estoppel, my submission would be that it would be more appropriate to order
costs in the cause on that.

[36]        
THE COURT:  Okay. I hear what you are saying, counsel, but I am not with
you on that.

[37]        
This is an application brought by the plaintiff. The defendant has
successfully responded to it. The application has been dismissed in its
entirety. I see no reason why costs should not go to the defendant on the
ordinary scale, in any event of the cause, and I so order.

“G.R.J.
Gaul, J.”