IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150312

Docket: M116252

Registry:
Vancouver

Between:

Jessica Sandra
Brandt

Plaintiff

And

Volkswagen Group
Canada Inc., Volkswagen Aktiengesellschaft,

NQ Enterprises
Ltd., Citrus Nightclub,
298856 British Columbia Ltd.,

Brock Caissie and
Township of Langley

Defendants

And

NQ Enterprises
Ltd., Citrus Nightclub,

298856 British
Columbia Ltd., Brock Caissie
and Township of Langley

Third
Parties

– and –

Docket: M114772

Registry:
Vancouver

Between:

Brock Caissie

Plaintiff

And

Jessica Sandra
Brandt, TheTownship of Langley,
NQ Enterprises Ltd. doing business as Citrus Nightclub/Rock Sugar,
298856 British Columbia Ltd.,
Jane Doe #1, Jane Doe #2, Jane Doe #3,
Jane Doe #4, Jane Doe #5
John Doe #1, John Doe #2, John Doe #3,
John Doe #4 and John Doe #5

Defendants

And

Insurance
Corporation of British Columbia

Third Party

And

Jessica Sandra
Brandt,
NQ Enterprises Ltd. doing business as Citrus Nightclub/Rock Sugar,
298856 British Columbia Ltd.,
Jane Doe #1, Jane Doe #2, Jane Doe #3,
Jane Doe #4, Jane Doe #5,
John Doe #1, John Doe #2, John Doe #3,
John Doe #4 and John Doe #5

Third Parties

Before:
The Honourable Mr. Justice G.C. Weatherill

Oral Reasons for Judgment

In
Chambers

I.              
background

[1]           
THE COURT: The trial of this matter is looming, so I am
going to give you my decision now.

[2]           
These two related proceedings arise out of a motor vehicle accident that
occurred on December 6, 2009, when a vehicle being driven by Jessica Brandt
(“Brandt”) and in which Brock Caissie (“Caissie”) was a back seat passenger,
left the road and struck a concrete barrier.  Both Brandt and Caissie were
injured in the collision.

[3]           
These proceedings have been ordered to be tried together.  The liability
portion of the trials is scheduled to commence before me on April 13, 2015
for four weeks.

[4]           
The applications before me today, in summary form, are as follows:

a)            
an application by
Brandt in the Brandt v. Volkswagen Group Canada Inc., Vancouver Registry
M116252 action (the “Brandt action”) to further amend her claim to plead that
Caissie supplied alcohol to her and then encouraged or allowed her to operate
the vehicle;

b)            
an application in
both the Brandt action and the Caissie v. Brandt, Vancouver Registry
M114772 action (the “Caissie action”) by NQ Enterprises Ltd. and 298856 British
Columbia Ltd., whom I will collectively refer to as the “nightclub
defendants”, granting leave to them to amend their respective responses to
civil claim by adding further particulars of negligence against Caissie,
alleging that he purchased and supplied alcohol to Brandt when she was a minor,
failed to prevent Brandt from driving, and, indeed, encouraged her to drive a
vehicle by riding with her as a passenger;

c)            
an application by
the Township of Langley to amend or further amend its response to civil claim in
each of the Brandt and the Caissie actions by adding a claim of negligence and
breach of statutory duty by Caissie, alleging that he purchased and supplied
alcohol to Brandt when she was a minor, failing to prevent Brandt from driving,
and, indeed, encouraged her to drive a vehicle by riding with her as a
passenger;

d)            
an application in
the Brandt action by the Township of Langley for leave to file third party
notices against the nightclub defendants and Caissie.  The nightclub defendants
have consented to this application in respect of the claim against them; and

e)            
an application by
the Township of Langley in both actions for a certificate pursuant to the Subpoena
(Interprovincial) Act, R.S.B.C. 1996 c. 442, requiring that one of the
other passengers in the vehicle at the time of the accident,  Cameron Haarsma,
be required to attend as a witness at the trial.

[5]           
Only Caissie opposes the applications to add claims or allegations of
negligence and breach of statutory duty against him.  However, his counsel
conceded at the hearing this morning that he consents to all proposed
amendments in the Caissie action, to the extent they amend pleadings that
already allege contributory negligence against him.

[6]           
No party opposed the Township of Langley’s application under the Subpoena
(Interprovincial) Act and, accordingly, that application was
granted at the opening of this hearing.

II.            
background

[7]           
Caissie stated on his examination for discovery in July 2013 that
he has no recollection of the accident or of the events leading up to it.

[8]           
Brandt deposes that she was in a coma for a period of time after the
accident and had no recollection of the accident or of the events leading up to
it until May 27, 2014 when, during her examination for discovery, she was
able to recall some of the events leading up to the accident.

[9]           
She recalled that Caissie had purchased alcohol for her at a liquor
store; that Caissie had invited her to his dorm room at Trinity Western
University where they both consumed the alcohol that he had purchased; that she
and Caissie then travelled to various nightclubs, and that Caissie told her he
would and he did purchase alcohol for her in the nightclub.

[10]       
In late 2014, counsel for Insurance Corporation of British Columbia (“ICBC”),
a third party in the Caissie action, circulated to all counsel an amended response
to civil claim seeking to add allegations that Caissie had negligently supplied
Brandt with alcohol.  All parties consented to those amendments, including
Caissie.  ICBC filed its amended response on February 12, 2015.

[11]       
The allegations sought to be made against Caissie in the applications
before me are, in all material respects, identical to those that are now raised
by ICBC in its amended response to civil claim.

III.          
discussion

[12]       
The determination of whether to allow an amendment to pleadings is
discretionary: Letvad v. Fenwick, 2000 BCCA 630 at para. 29.

[13]       
Amendments to pleadings should be permitted as necessary to determine
the real questions in issue between the parties using a “generous approach”. 
Where a new cause of action is proposed, judicial discretion is wide with a
view to the court determining what the interests of justice demand in the
circumstances and to give effect to what is just and convenient to the parties:
Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996),
19 B.C.L.R. (3d) 282 at para. 42 (C.A.) [Teal Cedar Products], Chouinard
v. O’Connor, 2011 BCCA 161 at paras. 18 and 21 [Chouinard], as well
as Jones v. Lululemon Athletica Inc., 2008 BCSC 719 at para. 35 [Jones].

[14]       
The following factors are to be considered in such applications:

a)    the delay in
bringing the application;

b)    the reason for
the delay;

c)    the expiry of a
limitation period;

d)    the connection
between the existing claims and the proposed new cause of action; and

e)    any prejudice to
the parties.

See: Chouinard
and Teal Cedar Products.

[15]       
Caissie submits that he ought not to be imputed with knowledge from ICBC’s
proposed amended response to civil claim that the proposed claims would be made
against him because there is a difference between the allegation of
contributory negligence being made by ICBC, where it is stated that Caissie breached
a duty of care to his own safety and an allegation that he breached a duty of
care for Brandt’s safety.

[16]       
Caissie says that he consented to the ICBC’s proposed amendment because
it merely further particularized the allegations of contributory negligence
already pleaded by ICBC.  It did not add any claim.  During the hearing of
these applications, counsel for Caissie made the same concession with respect
to the responses to civil claim that had been filed by the Township of Langley
and the nightclub defendants, to the extent that the amendments relate to allegations
of contributory negligence already pleaded.

[17]       
Caissie opposes today’s applications on the basis that they allege a new
cause of action against him for social host liability after the expiry of the
applicable limitation period at a point in time when it will be impossible for
him to properly defend the new claim.  He says that he will be prejudiced if
the amendments are allowed because the deadline for service of expert reports
has passed and he has not served any reports from alcohol analysts or experts
on the recovery of memory years after a head injury.

[18]       
Caissie also submits that witnesses may have relocated or are otherwise
unavailable at this point, employees of the involved establishments are likely
to have moved on from their positions at the time of the accident, and the
memories of witnesses whose evidence would be material to a defence against
these allegations have likely continued to fade.

[19]       
He says that the delay in bringing the applications to amend has
prevented him from investigation or further investigation of the allegations
and that the trial is now only one month away.

[20]       
Caissie has not provided any specifics of these assertions.  Potential
prejudice is insufficient to preclude an amendment: Langret Investments S.A.
v. McDonnell (1996), 21 B.C.L.R. (3d) 145 at para. 43 (C.A.) as well
as Jones.

[21]       
Caissie argues that the amendments proposed by Brandt raise for the
first time after the expiration of the applicable limitation period a claim
against him of social host liability, and that the legal test in the social
host liability claim is very much different from the legal test relating to the
defence of contributory negligence.

[22]       
The applicants submit that the limitation period was postponed because
the role eventually played by Caissie was not discovered and could not
reasonably have been discovered due to Brandt’s head injury until she recovered
her memory of the events of the night in question in or about May 2014.

[23]       
The applicants say that there is a live issue as to whether the
limitation period has, in fact, expired or whether it was postponed.  They
submit further that, regardless, the pleadings as they currently exist allege
that Caissie’s conduct was negligent.  Indeed, the defendants have sought to
apportion liability between all responsible persons pursuant to the Negligence
Act, R.S.B.C. 1996 c. 333.

[24]       
The applicants argue that Caissie’s conduct has already been placed in
issue.  They say he has known since, at least, November of 2014, when ICBC
circulated its amended third party notice, and when Mr. Delaney, counsel
for Brandt sent him a letter advising that he intended to raise these new
issues in his pleadings.  They say that Caissie, accordingly, had ample notice
that he would have to confront these very issues that the other parties now
wished to plead against him.

[25]       
In KPMG v. IMO Industries (Canada) Inc., 2008 BCCA 317 [KPMG],
the Court of Appeal dealt with a similar issue.  This is in reference to the
decision of Master Joyce in Britco (Guardian ad litem of) v. Wooley (1997),
15 CPC (4^th) 255.  At paras. 40 and 41 of KPMG, Justice Bauman,
as he then was, stated as follows:

[40] The learned Master dealt with a number of factual
scenarios involving the possibility of an accrued limitation defence in respect
of the new defendant.

[41] With respect to scenario 3 the learned Master said (at para. 11):

If the defendant alleges that there is an
accrued limitation defence and the plaintiff denies that fact and the court
cannot determine that issue on the interlocutory application, then the court
should proceed by asking this question:  assuming that there is a limitation
defence, would it nonetheless be just and convenient to add the party even
though by doing so the defence is taken away?   If the answer to that question
is yes then the order should be made.   In that event it does not matter
whether or not, in fact, a limitation period has expired because in either case
it would be just and convenient to add the party and any limitation defence
will be gone.

[26]       
At paras. 47 and 48 of the same decision, Justice Bauman goes on to
state:

[47] Accordingly, I conclude that a chambers judge faced
with an application to amend (which is otherwise proper), under Rule 24(1), and
the possible expiration of a limitation period in respect of the cause of
action raised in the new pleading in circumstances where it would be
inappropriate to decide that issue summarily, should ask herself this question:

Assuming that
the limitation period has expired, in the exercise of my discretion under
s. 4(4) of the Limitation Act would I nevertheless permit the
amendment?

[48] If the answer is “yes”, the
proposed amendment should be allowed, pursuant to the reasoning in Brito,
supra.

[27]       
After considering all of the evidence before me, including, that the
two-year limitation period may not have expired; that Brandt was not able to
recall the relevant events until her examination for discovery in May 2014;
the explanation of the applicants for the delay thereafter in bringing their
respective applications; the substantial connection between the existing claims
and the proposed amendments; and the alleged prejudice raised by Caissie, it is
my view that it is just and convenient that the amendments be allowed.

[28]       
Accordingly, the answer to the question I am obliged to ask myself
pursuant to the KPMG decision is yes.  The amendments, in my view, are
necessary to resolve the real issues between the parties, namely, whether
Brandt was intoxicated at the time of the accident, whether Caissie contributed
to her intoxication and her inability to safely operate a vehicle.

[29]       
I do not agree that the amendments constitute a “fundamental shift in
the nature of the actions,” as submitted by counsel for Caissie.  Brandt’s
level of intoxication has always been a live issue in these actions.  I agree
with Mr. Delaney that they particularize the proposed pleadings; particularize
that Caissie played an active role in Brandt’s alcohol consumption rather than
a passive role.  Indeed, both the nightclub defendants and the Township of
Langley pleaded contributory negligence against Caissie from the outset and are
merely seeking to further particularize those allegations.  Moreover, in my
view, any prejudice to Caissie can easily be remedied.

[30]       
Accordingly, I am granting all applications to amend pleadings.  I am
also granting the Township of Langley leave to file its third party notices
against Caissie and the nightclub defendants.

[31]       
I am persuaded by and accept the arguments set out in Part 3 of the
Township of Langley’s notice of application filed on March 4, 2015.

[32]       
Caissie submitted that, in the event the amendments were allowed, he
should be entitled to conduct further examinations for discovery of each of
Brandt and the nightclub defendants for a maximum of two hours each on or
before April 3, 2015.  He also submitted that he should be granted leave
to commission and rely upon further expert evidence related to the issue of
social host liability, including opinions from an alcohol analyst and experts
on memory recovery, and that Brandt should be required to submit to a physical
examination or examinations in order to facilitate those opinions.

[33]       
Caissie was alive and should have been alive to a claim in negligence
being made against him for supplying alcohol to Brandt while she was a minor
when he received ICBC’s proposed amendments to its response to civil claim in
the fall of 2014.  Indeed, it is likely that he was well aware of those allegations
in July 2014 when the defendant, Volkswagen De Mexico, S.A. de C.V. circulated
its pleadings in the third related action (Brandt v. Volkswagen De Mexico,
S.A. de C.V., Vancouver Registry action S137244).

[34]       
In my view, the argument that the claim against him was for contributory
negligence in respect of his own safety rather than the negligence in respect
of Brandt is, in this case, a distinction without a difference.  I do,
however, agree with counsel for Caissie that he ought to be entitled to conduct
additional examinations for discovery on the issue raised in the new amendments.
I am, therefore, ordering that Brandt make herself available for an
additional examination for discovery by Caissie on or before April 3, 2015
for no more than two hours.  I am not restricting the scope of that
examination for discovery.

[35]       
I am also ordering that a representative of the nightclub defendants
make himself or herself available for an additional examination for discovery
by Caissie on or before April 3, 2015, again for no more than two hours.  I am
cognizant of the submission in reply of Mr. Newnham, counsel for the
nightclub defendants.  However, Caissie’s examination for discovery of the
nightclub defendants took place prior to the revelations by Brandt in her
discovery in May 2014.

[36]       
I am also ordering that Caissie has leave to serve the report of an
alcohol analyst on or before the beginning of trial, April 13, 2015.  I am
not making any order relating to an expert on memory recovery as, in my view,
that application is no longer extant given my ruling in this case.

[37]       
THE COURT:  All right, ladies and gentlemen, is there anything else?

[38]       
MR. DELANEY:  Nothing from my perspective, My Lord.

[39]       
THE COURT:  Costs of the applications will be in the cause.

[40]       
MR. DELANEY:  In the causes.

[41]       
THE COURT:  In the causes.  Quite right.

[42]       
MR. DELANEY:  Thank you, My Lord.

[43]       
THE COURT:  All right.  Good luck.  I will see you all on April 13
at ten o’clock, if not earlier.

“G.C. Weatherill J.”