IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150311

Docket: M142481

Registry:
New Westminster

Between:

Richard Moreau by
his Guardian ad Litem, Ross Moreau

Plaintiff

And

Stephen Tosh Maki
and Anisah Mohammed

Defendants

Before:
Master Keighley

Reasons for Judgment

[1]            
This is an application by the defendants (“Maki” and “Mohammed”) for
leave to add Grosvenor Hospitality Management Ltd. (“Grosvenor”) as a Third
Party in this action, for leave to file a Third Party Notice in the form
provided to the Court and for costs in the cause. The application is opposed by
the plaintiff (“Moreau”) and Grosvenor.

Background

[2]            
This action arises out of a pedestrian/motor vehicle accident which
occurred on October 22 or 23, 2010. Maki, driving a 2002 Pontiac Grand Prix
owned by Mohammed (actually the vehicle’s previous owner, Maki having purchased
it but not yet having completed registration), struck Moreau while the latter
was crossing 40^th Avenue in Langley between 204 and 204A Street.
Evidence at trial may suggest that Moreau ran in front of the vehicle, rolled
up onto the hood, struck the windshield and slid off onto the roadway. Moreau
was unconscious and was, in due course, removed from the accident scene by air
ambulance. There is evidence to suggest that Moreau had been running across 40^th
to join up with three others who were walking on the other side of the road and
with whom he had been drinking earlier.

[3]            
Moreau was severely injured, suffering a left temporal skull fracture,
severe traumatic brain injury, bilateral orbital fractures, C-7 facet fracture,
C6-7 subluxation on the right, injury to the right thigh, right tibular
fracture, C5-6 epidural hematoma with canal stenosis and fracture of the right
superior pubic ramus. Moreau was 30 years old at the time of the accident. As a
result of his injuries, Moreau remains in an unfortunate state and is unable to
manage this litigation without the assistance of his father as litigation
guardian.

[4]            
Maki gave a statement to an independent adjuster working for the
Insurance Corporation of British Columbia, his insurer, on January 19, 2010.
His statement includes the following:

Subsequent to the accident, my mother had been talking to our
neighbour to the immediate north, a fellow named “Nick”. He mentioned that he
knew the injured pedestrian, a fellow identified as Richard Moreau. He
indicated that one of his friends (my mother does not know his name, nor do I) had
been at the bar “Riders” on the evening of the accident and had seen Richard
Moreau and his friends there. Presumably, there were walking home from the bar
when the accident occurred. This friend of Nick’s reported that Richard Moreau
was extremely intoxicated on the evening in question.

[5]            
Liability for the accident has been denied on behalf of both Maki and
Mohammed.

[6]            
One of the three acquaintances, Douglas Johnson, was interviewed by the
RCMP in the immediate aftermath of the accident. He said, in part:

[7]            
Another Joseph Racette, gave a statement which includes the following:

[8]            
Christopher Naples, the ambulance attendant who administered to Moreau
at the scene, said in the course of his police interview:

He had injury to his head, his leg and his left side,
requiring immediate medical treatment, most significantly was putting a tube
down his throat to breathe for him. During that time I was quite close to his
mouth and I could smell a substantial, what smelled like a substantial amount
of alcohol, a very strong smell anyways.

[9]            
A toxicology report prepared from samples taken at 01:45 (the accident
was reported at 00:20) following Moreau’s admission to Royal Columbia Hospital
suggested an ethanol reading of 43.4 which, apparently, may suggest a blood alcohol
level over 2.5 times the legal limit for driving.

[10]        
As at the date of the accident, Grosvenor was the operator of The Riders
Pub at which the defendants allege that Moreau and his companions had been
drinking. The defendants intend to lead evidence indicating that, on the
evening of October 22, 2010, Moreau had been drinking at that establishment
since approximately 7:30 p.m. They allege that, while at the pub, Moreau
consumed one whole “mini” of beer (equivalent to three glasses) and one half of
a second mini. They allege that he was drunk when he left the pub.

[11]        
The Notice of Civil Claim was issued May 18, 2012 and served on the
defendants on May 31. It was amended on June 17, 2012, to introduce Ross Moreau
as Moreau’s guardian ad litem. The Response to Amended Civil Claim filed April 5,
2013, includes the following reference to Moreau’s condition at the time of the
accident:

(m)       he was
impaired by alcohol, drugs or fatigue, or a combination thereof, to such extent
as to be incapable of taking care for his own safety.

[12]        
A List of Documents dated March 26, 2013 and filed on behalf of the
defendants indicates that the defendants had, at that time, copies of the RCMP
and hospital records. In fact, the defendants had a copy of the RCMP file in
their records, since October of 2012.

[13]        
Maki and Mohammed seek to make the following claims against the proposed
Third Party:

The Claiming Parties’ claim against the Third Party

7.         At all
material times, and specifically on or about October 23, 2010, the Third Party
was the owner and operator of the Riders Pub, situate at 4185 208^th
Street, City of Langley, Province of British Columbia (“The Riders Pub”).

8.         At all
material times, and specifically on or about October 23, 2010, The Riders Pub
was a commercial host serving alcoholic beverages.

9.         On the
evening of October 22, 2010, the Plaintiff attended at The Riders Pub from
approximately 7:30 p.m. to shortly before the accident.

10.       Whilst
the Plaintiff was at The Riders Pub, he consumed numerous alcoholic beverages
that were served to him by employees or agents of the Third Party.

11.       Whilst
the Plaintiff was at The Riders Pub, he became intoxicated. Alternatively, any
level of intoxication the Plaintiff was already experiencing when he first
arrived at The Riders Pub was exacerbated.

12.       At the
time that the Plaintiff left The Riders Pub, he was severely impaired and
intoxicated to such an extent that the intoxication greatly affected the
Plaintiff’s ability to walk properly and to control his movements, as well as
his ability to think clearly and to react to what he saw or heard.

13.       The
Defendants say that if the Plaintiff sustained injuries, loss, damage and
expense as alleged in the Amended Notice of Civil Claim, or at all, which is
denied, then such injuries, loss, damage and expense were caused or contributed
to by the negligence of the Third Party through its employees or agents,
particulars of which are:

(a)        It
sold, served or otherwise supplied liquor to the Plaintiff, when it knew or
ought to have known that he was likely to depart from The Riders Pub and to
drive a motor vehicle or proceed on foot on or near a public highway and there
was a probable risk of personal injury if the Plaintiff did so;

(b)        It
permitted the Plaintiff to purchase and consume alcohol on the premises of The
Riders Pub, when it knew or ought to have known that he was intoxicated or
apparently already under the influence of alcohol and when it knew or ought to
have known that he was likely to depart from The Riders Pub and to drive a
motor vehicle or to proceed on foot on or near a public highway and there was a
probable risk of personal injury if the Plaintiff did so;

(c)        It
permitted the Plaintiff to remain in that part of The Riders Pub where liquor
was sold, served or otherwise supplied when it knew or ought to have known that
the Plaintiff was becoming intoxicated, and when it knew or ought to have known
that the Plaintiff was likely to depart from The Riders Pub and to drive a
motor vehicle or to proceed on foot on or near a public highway and there was a
probable risk of personal injury if the Plaintiff did so;

(d)        Knowing
that the Plaintiff was intoxicated, it at all material times failed to warn or
otherwise prevent the Plaintiff from driving a vehicle or from proceeding on
foot on or near a public highway on leaving The Riders Pub when it knew or
ought to have known that the Plaintiff was likely to do so;

(e)        Knowing
that the Plaintiff was intoxicated, it at all material times failed to take
reasonable care to see that others using the highway were not exposed to injury
because of the Plaintiff’s intoxication;

(f)         Knowing
that the Plaintiff was intoxicated, it at all material times failed to take
reasonable care to see that the Plaintiff was not exposed to injury as a result
of his own intoxication;

(g)        It
failed in its duty of care to the Plaintiff by allowing him to proceed on foot
on or near a public highway where there was a probably risk of personal injury
if the Plaintiff did so;

(h)        It
failed in its duty of care to others using the highways, who might reasonably
be expected to be exposed to injury because of the Plaintiff’s intoxication, in
failing to intervene and adopt easily available preventive measures;

(i)         It
failed in its duty of care to the Plaintiff, who might reasonably be expected
to be exposed to injury because of his intoxicated state, in failing to
intervene and adopt easily available preventive measures;

(j)         It
failed to educate and/or train The Riders Pub staff properly or at all, on the
effects of alcohol consumption, on recognizing the effects of intoxication, and
in strategies to prevent and deal with intoxicated persons;

(k)        It
failed to ensure by appropriate measures adherence by The Riders Pub staff to
the provisions of the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267
and/or the Regulations to the Act.

14.       The
Defendants say further that, but for the negligence of the Third Party, the
Plaintiff would not have suffered the injury, loss, damage and expense claimed.

Part 2:             Relief Sought

1.         Contribution
and indemnity for any damages and costs awarded against the Defendants;

2.         Contribution
and indemnity for the actual legal costs and expenses incurred by the
Defendants in defending the Plaintiff’s claim against them;

3.         Interest
pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79 and
amendments thereto; and

4.         Such further and other relief as this Honourable
Court may deem just.

Part 3:             Legal Basis

1.         The Defendants plead and rely upon the provisions
of:

(a)        The Negligence
Act, R.S.B.C. 1996, c. 333 and amendments thereto;

(b)        The Liquor
Control and Licensing Act, R.S.B.C. 1996, c. 267 and/or the
Regulations thereto;

2.         The
Third Party, as a commercial host, owes its patrons who become intoxicated,
with the result that they are unable to look after themselves, and others who
use the highways, a legal duty of care: Jordan House Ltd. v. Menow,
[1974] S.C.R.; Stewart v. Petie, [1995] 1 S.C.R. 131 (S.C.C.).

[14]        
The trial of this matter is scheduled for 19 days before a jury
commencing October 5, 2015.

[15]        
Counsel made their submissions before me on February 11, 2015. At that
time, Ms. Denise Wootton appeared without counsel as a representative of
Grosvenor. I adjourned the matter until February 26, 2015 in order to afford
her an opportunity to consult counsel and to file any material she wished to
file in opposition to the application. I have now had an opportunity to review
Grosvenor’s filed Response to the application and Ms. Wootton’s affidavit
sworn and filed February 24, 2015. The latter is brief enough to reproduce in
its entirety:

1.         On
September 11, 2012 my business, Grosvenor Hospitality Management Ltd dba Riders
Pub, at 4185 208^th Street Langley BC, was seized by bailiffs on
behalf of the Landlord of the property. The bailiff gave me approx 5 hours to
clear out any personal or documents that I need. I was not allowed to take
computers or equipment, that was of value. On such short notice I did my best
to get family and friends to help pack and move as much stuff as we could. I
informed the Bailiff that if he was going to post a sign stating the business
shut down, the criminals in the area would break in that night or any night
afterwards if he did not post security. The property was broken into the next
night and anything left behind was destroyed or stolen.

2.         On
December 17 2014 I was informed by Patrick Yearwood, via telephone, that my
business had been named in a Third Party action. Mr. Yearwood asked for my
address and email address so that I could be properly served. Mr. Yearwood
stated he would forward this information on to Mr. Clavier who would be in
contact with me. Mr. Yearwood then emailed me the application that was
being filed against me. A few hours later I received an email from Mr. Clavier
introducing himself as the lawyer representing the defendants in the action and
that he was only sending me email copies of the action because the registered
office of Grosvenor had been served on November 7, 2014. I never received the
original documents, as they were served on an old address of my business
partner who I have bad blood with due to business dealings.

3.         I then
attempt [sic] to find documentation as to who was the insurance provider at the
time of the accident on October 23, 2010. Searching for this information
provided to be difficult as many of my records were lost, or stolen in the
seizure. I was able to find copies of cashed cheques, as well as a renewal
notice for 2011. I contacted Prosperous Insurance, and found out they had closed
there [sic] office. I was told to contact Dan Poirier, who was my broker at the
time, I contact [sic] Dan on January 19, 2015 and forwarded him the information
necessary for the insurance company to deal with this claim. On January 30,
2015 I was told that they could not find an insurance policy. I have gone back
and forth with the insurance broker showing him the checks [sic] and renewal
notice but they are stating that there was not an active policy at the time of
the incident.

4.         I have
since spoken with a lawyer who advised me that I could try and prove that the
time elapse has been to [sic] great and because of it I am unable to properly
defend this action. He formed me that ICBC had 42 days from the date the action
was filed, May 12, 2012, to add Grosvenor as a third party. In not doing so
they could then ask the courts to add my business, but that, from my
understanding should have been done with in [sic] two years.

Legal Basis for the Application

[16]        
The application is brought pursuant to Rule 3-5 of the Supreme Court
Civil Rules, the relevant portions of which read as follows:

Making a third party claim

(1)        A
party against whom relief is sought in an action may, if that party is not a
plaintiff in the action, pursue a third party claim against any person if the
party alleges that

(a)        the
party is entitled to contribution or indemnity from the person in relation to
any relief that is being sought against the party in the action,

(b)        the
party is entitled to relief against the person and that relief relates to or is
connected with the subject matter of the action, or

(c)        a question or issue
between the party and the person

(i)         is
substantially the same as a question or issue that relates to or is connected
with

(A)       relief claimed in the
action, or

(B)       the subject matter of the
action, and

(ii)        should properly be
determined in the action.

Plaintiff as defendant to counterclaim

(1.1)     Subrule
(1) does not preclude a plaintiff from pursuing a third party claim in his or
her capacity as a defendant to a counterclaim.

[en. B.C. Reg. 119/2010, Sch. A, s. 5 (a).]

Third party need not be party to original action

(2)        A
third party claim may be pursued against a person, whether or not that person
is a party to the action.

Pursuing a third party claim

(3)        Subject
to subrule (4), a party wishing to pursue a third party claim referred to in
subrule (1) must file a third party notice in Form 5 that accords with Rule
3-7.

When leave is required

(4)        A party may file a third party notice

(a)        at any time with leave
of the court, or

(b)        without
leave of the court, within 42 days after being served with the notice of civil
claim or counterclaim in which the relief referred to in subrule (1) is
claimed.

[17]        
As the 42 day period contemplated by s. (4)(b) passed without the
institution of third party proceedings, Maki and Mohammed now seek leave.

The Law

[18]        
The authority to grant the relief sought is discretionary.

[19]        
In the case of Tyson Creek Hydro Corporation v. Kerr Wood Leidal
Associates Limited, 2013 BCSC 1741 Goepel J., (as he then was) provided
some history of the provision and a helpful summary of the principles to be
applied on an application for leave:

HISTORY OF THIRD PARTY RULE

[33]      In MacNaughton v. Baker (1988), 25 B.C.L.R.
(2d) 17 at 21, 28 C.P.C. (2d) 49 (C.A.) [MacNaughton], McLachlin J.A.
(as she then was) discussed some of the history of the rule governing third party
proceedings. She said as follows:

The rules in force in this province
before 1976 required the defendant to obtain leave to issue a third party
notice. Before a third party notice could be issued, the court was required to
decide whether, in the interest of justice and convenience, the defendant
should be allowed to join his claim against third parties to the action against
him, or whether he should be required to bring it as a separate proceeding. In
practice, leave was usually granted, provided the defendant’s proposed
pleadings disclosed a reasonable cause of action against the proposed third
party. Third party notices were commonplace, separate actions for
indemnification and contribution rare.

In recognition of this reality and
in order to facilitate the issuance of third party notice, the framers of the
1976 Rules eliminated the need to apply to issue a third party notice: R.
22(1). A third party notice could be issued as of right. However, the framers
retained a provision that the third party could apply to have the notice
against him struck out: R. 22(4). It may be noted that only in Prince Edward
Island are defendants still required to obtain leave of the court to issue a
third party notice.

[34]      As set out in MacNaughton, before the 1976
Rules were adopted a third party notice could only be issued with leave of the
court. Under the 1976 Rules a party could issue a third party notice at any
time without leave. Rule 22(4) gave the court the power to set aside a third
party notice while Rule 22(12) gave the court the power to impose terms on
third party proceedings in order to prevent a plaintiff suffering prejudice or
unnecessary delay in pursuing their claim.

[35]      Allowing defendants to issue third party notices at
any time proved to be problematic, particularly when a third party notice was
issued on the eve of trial. In 1996, the third party rule was amended (B.C.
Reg. 95/96, section 9) (the “Amended Rule”). Pursuant to the Amended Rule, a
third party notice could only be issued as of right prior to a notice of trial
being delivered or if a notice of trial had been delivered, at least 120 days
before the scheduled trial date. A party seeking to issue a third party notice
less than 120 days before the scheduled trial date was required to seek leave
of the court. The rule required that the notice of application for leave be
served on the proposed third party and delivered to all parties of record.

[36]      Rule 22(6) of the Amended Rule gave the court the
power on application to set aside a third party notice. Pursuant to Rule
22(18), the court could impose terms on any third party procedure to limit or
avoid any resulting prejudice or unnecessary delay that might be suffered by
the plaintiff.

[37]      The New Rule which came into effect on July 1,
2010, further reduced the time in which a third party notice could be brought
without leave. Pursuant to Rule 3-5(4), a party can only file a third party
notice without leave of the court if it is filed within 42 days of that party
being served with the notice of civil claim. After that date, leave of the
court is required. As in the Amended Rule, the New Rule requires that the
notice of application for leave must be served on the third party and all
parties of record (Rule 3-5(6)).

[38]      Under the New Rule, the court retains the power, on
application, to set aside a third party notice at any time. Pursuant to Rule
3-5(14), the court may impose terms on any third party procedure to limit or
avoid any resulting prejudice or unnecessary delay that might otherwise be suffered
by a party.

PURPOSE OF THIRD PARTY PROCEEDINGS

[39]      In Lui v. West Granville Manor Ltd. (1985),
61 B.C.L.R. 315 at 327,18 D.L.R. (4th) 391 (C.A.) [Lui], which was
decided under the 1976 Rules, Lambert J.A. stated that the purpose of third
party proceedings was to avoid the problem of having different results on the
same issue between the same parties and to avoid a multiplicity of proceedings.

[40]      In MacNaughton, McLachlin J.A.
explained, at 21, the purpose of third party proceedings as follows:

Third party pleadings function as a
special type of statement of claim. Indeed, the claim they embody could be
brought by separate action. But to avoid a multiplicity of proceedings, the
rules permit the claim to be made in the action which has been commenced
against the defendant. The object of permitting third party proceedings to be
tried with the main action is to provide a single procedure for the resolution
of related questions, issues or remedies, in order to avoid multiple actions
and inconsistent findings, to provide a mechanism for the third party to defend
the plaintiff’s claim, and to ensure the third party claim is decided before a
defendant is called upon to pay the full amount of any judgment. The avoidance
of a multiplicity of proceedings is fundamental to our rules of civil
procedure. This has been the case since the reforms effected by the Judicature
Acts in the nineteenth century. As Cotton L.J. stated in Searle v. Choat
(1884), 25 Ch. D. 727: "the whole tenor of the Judicature Acts is
to require all proceedings as far as possible to be taken in one action".

EXERCISE OF DISCRETION

[41]      In Lui, Lambert J.A. noted that the court is
given a wide discretion under Rule 22(4), to strike out third party
proceedings. He indicated at 328 that there were a number of factors that
should be considered including:

…What is the fair thing to do? Who
suffers prejudice if the discretion is exercised? How much prejudice? Who
suffers prejudice if the discretion is not exercised? How much prejudice? Have
the parties acted properly and reasonably in their own interests? If a party
has not acted properly and reasonably, should he be relieved from the
consequences of his own behaviour? Is there another course available to one or
other of the parties? Where does the balance of convenience lie? This list is
illustrative, but not exhaustive, of the questions that should be asked with
respect to the parties before the court. But part of the purpose of the Rule is
to avoid multiplicity of proceedings for the benefit of other litigants, so
that congestion in the courts is avoided. So it is proper to ask questions in
that area as well.

[42]      In Clayton Systems 2001 Ltd. v. Quizno’s Canada
Corp., 2003 BCSC 1573 at para. 9 , 27 B.C.L.R. (4^th) 247 [Clayton
Systems], which was decided under the Amended Rule, Allan J. held that in
determining the application the court should consider the following factors in
determining whether or not to exercise its discretion to grant leave:

(a)        prejudice to the
parties;

(b)        expiration of limitation
period;

(c)        the merits of the
proposed claim;

(d)        any delay in
proceedings; and

(e)        the timeliness of the
application.

[43]      In Scott Management at para. 90, the
court framed the question on an application for leave to file a third notice in
this fashion:

[90]      The fundamental question
on the applications should have been whether greater injustice and
inconvenience would arise from allowing the contribution claim to continue as a
third party proceeding, or from striking it and leaving it to be pursued in a
separate future action. The chambers judge erred in failing to address that
question. Had he done so, in my view he would have been compelled to exercise
his discretion in favour of the former course, as the better of two unpalatable
options.

[20]        
Accordingly, it is important to consider, amongst other factors, when
the defendants knew or reasonably ought to have known when they had the basis
for a third party claim against Grosvenor.

[21]        
In this regard, a timeline may assist.

Timeline

Discussion

a)       Delay

[22]        
From the review of the above, it will be apparent that the defendants
had in their possession, by March 26, 2013, at the very latest, both the
hospital records (which confirmed the presence of ethanol in Moreau’s system)
and the police records (which included witness statements suggesting that
Moreau had been drinking at The Riders Pub). Indeed, only a week or so later,
the defendants filed a Response alleging impairment, confirming their knowledge
of this fact prior to the paralegal’s “discovery” of the toxicology screen.
More than a year and a half then passed before this application was brought and
during which the matter was set for trial and a jury notice delivered by the
defendants.

b)       Prejudice to the Plaintiff

[23]        
Moreau says that the defendants, shortly after the accident, should have
been aware from Maki’s statement to the independent adjuster, that he, Moreau,
was “extremely intoxicated” on the evening in question and that he had been
drinking at “Riders”. As such, he says, the defendants have not given a
reasonable explanation for their failure to issue a Third Party Notice within
the 42 days following service of the Notice of Civil Claim. Neither, he says,
have they given a reasonable explanation for their delay in bringing this
application in the period since.

[24]        
Mr. Yearwood describes the 19 day estimate for the trial of this
matter to be very “tight”. He anticipates calling 31 witnesses and
cross-examining another 10 in addition to dealing with jury issues. He says
that the present estimate did not take into account the addition of a further
party who may or may not be represented by an insurer (on which more later). He
says that this trial date will be in jeopardy if a commercial host liability
issue is introduced at this late date. He says that his client, who has
diligently pursued his claim, should not have its resolution delayed as a
result of the defendants’ default.

c)       Prejudice to Grosvenor

[25]        
Grosvenor is out of business. It may or may not be represented by an
insurer.

[26]        
Ms. Wootton says that she (and therefore the company) has no
records relating to the material time, digital or otherwise, as a result of the
seizure by the bailiff of the Company’s assets and subsequent theft/vandalism.

[27]        
Her recollection (unsupported by affidavit material, but not disputed by
the defendants in the interest of avoiding a further adjournment, for which I
am thankful to Mr. Clavier) is that she served Moreau on the night in
question and that he seemed sober when she spoke to him later in the evening.
She is, however, unable to access point of sale or other records which might
assist in establishing how much he was served or by whom else he might have been
served.

[28]        
Mr. Clavier says that Ms. Wootton might be able to take steps
to recover this evidence, perhaps by gaining access to hard drives or other
sources, by speaking to others who might have some recollection of the
evening’s events.

d)       Prejudice to Maki and Mohammed

[29]        
Mr. Clavier says that his clients have made out a prima facie third
party claim against Grosvenor and should have the opportunity to seek
contribution or indemnity from a blameworthy tortfeasor and that the rule is
designed, at least in part, to avoid a multiplicity of proceedings. As matters
presently sit, however, these defendants may gain little from drawing Grosvenor
into the fray. Grosvenor appears to be out of business and without assets. It
appears not to have insurance coverage for this sort of claim if it has
coverage at all.

[30]        
It also seems at least possible that the Moreau will be held to have
contributed to his own loss, with the result that the liability of other
blameworthy parties will be several, rather than joint, meaning that the
blameworthiness of Grosvenor may be taken into account whether Grosvenor is a
party or not: Wells v. McBrine, 1988 CanLII 3087 (CA).

Result

[31]        
In the result, I am satisfied that the defendants’ delay in seeking to
bring this third party claim means that both Grosvenor and Moreau will now be
significantly prejudiced if leave is granted. Almost two years have passed
since the defendants came into possession (perhaps even earlier) of
documentation indicating that Moreau had been drinking and where he had been
drinking. As a result of what I find to be unreasonable delay, Moreau would,
were leave to be granted, likely be facing the adjournment of his long-awaited
trial. Grosvenor would be dragged into this proceeding more than four years
after the accident without access to records or other evidence which might have
assisted in the preparation of its case – evidence which might have been
accessible had it received notice of this claim at an earlier date. In the
circumstances, I have resolved the issue of prejudice in favour of Moreau and
Grosvenor, and the application for leave to issue a third party notice against
Grosvenor is dismissed.

Costs

[32]        
Grosvenor will have its costs from the defendants at Scale B. Moreau
will have his costs against the defendants in the cause at Scale B.

“Master
Keighley”