IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151019

Docket: M153013

Registry:
Vancouver

Between:

Catherine Trina
Graydon

Plaintiff

And

Catherine Neal

Defendant

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application by the plaintiff to add
Rodolfo Spatzner as a defendant in this action, and for costs which the
plaintiff claims at Scale C, and of course, leave to amend the notice of civil
claim in the form which is attached to the notice of application.

introduction

[2]            
The matter arises out of a motor vehicle accident that occurred on May 6,
2013 (the “accident”). The plaintiff’s vehicle was rear ended and then her
vehicle was pushed into the vehicle in front of her.

[3]            
When the Insurance Corporation of British Columbia (“ICBC”) was advised
by Ms. Kornfeld that she had been retained as counsel for the plaintiff and
third party information was requested, the ICBC claims adjuster at the time
responded with a letter dated July 17, 2013, but not received by Ms. Kornfeld
until September 2013, indicating that the present defendant, Catherine
Neal, was the other motorist involved in the accident. Hence, Ms. Kornfeld
drafted the notice of civil claim, which was filed on April 29, 2015, naming
Ms. Neal as the only defendant.

[4]            
There was no indication from ICBC in the meantime that there had been
any change to the responsible party or parties.

[5]            
When the notice of civil claim was served on ICBC, its counsel responded
with a letter in May 2015, advising that there had been another vehicle
involved in the accident and that the driver of that vehicle was Mr. Spatzner.

[6]            
Once that was brought to Ms. Kornfeld’s attention, she took
immediate steps to bring Mr. Spatzner into the action as a defendant. Counsel
for Mr. Spatzner resists the application.

analysis

[7]            
The relevant caselaw is certainly clear that, when we are looking at
issues like what we have here today, we have to be mindful of the extent of the
delay of adding a party to an action, the explanation for the delay, prejudice
to the parties, and, the interests of justice, taking into consideration a
balancing of the prejudice.

[8]            
The relevant periods for consideration of prejudice are that of the two
year limitation period for filing a lawsuit from the date of the accident and
the one year period for service of the notice of civil claim. The three year
period has not expired, and will not expire until May 2016.

[9]            
Counsel for the plaintiff pointed out that it was within days of the expiry
of the actual limitation period that they advised they would seek to add Mr. Spatzner
as a defendant to the action and, hence, submits that there is no relevant
delay in this case.

[10]        
As the application to add Mr. Spatzner as a defendant to the action
was brought within the three years, no explanation for the delay is required. However,
counsel for the plaintiff submits she was misled by the letter from ICBC as to
who was the proper defendant party.

[11]        
Counsel for Mr. Spatzner points out that there is evidence that the
plaintiff herself was aware that Mr. Spatzner was involved in the accident.
He submits that, the plaintiff knew that her vehicle was hit from behind and
that she was pushed into the vehicle in front of her. In addition, there is
also an email from June 2013 where the plaintiff, in dealing with the ICBC
claims adjuster, asks whether Mr. Spatzner has accepted responsibility for
the accident, and then in a response from ICBC to her, it was indicated that Mr. Spatzner
did accept responsibility for the accident.

[12]        
 Mr. Spatzner’s counsel submits that the plaintiff herself was
aware that there was another party involved in the accident and there is,
therefore, no adequate explanation for the delay here.

[13]        
Although plaintiff’s counsel does admit that the June 2013 email
was contained in a batch of documentation that was attached to the letter from
ICBC, setting out Ms. Neal as the appropriate defendant, she says she did
not review the attached information.

[14]        
Plaintiff’s counsel submits that she is entitled to rely on ICBC’s letter
and that puts the case on-all-fours with the case in Bedoret v. Badham, 2012
BCSC 1713, a decision of Master Young (as she then was).

[15]        
In Bedoret, there was a similar letter and the learned master
found that the position taken by ICBC in resisting the application was
unreasonable, and awarded the plaintiff costs at Scale C.

[16]        
Although there are some differences in this case from that of Bedoret,
certainly, here, the extent of the delay as far as I can see is minimal. The
proposed defendant was given notice within days literally after the expiry of
the actual limitation period of the plaintiff’s intent to seek to join him as a
defendant.

[17]        
The explanation for the delay is either to be laid at the feet of ICBC
for their letter setting out that Ms. Neal was the appropriate defendant,
or in plaintiff’s counsel’s error, either of which on the caselaw are wholly
adequate explanations. There can be no prejudice here and, indeed, no prejudice
is advanced other than the prejudice of being joined into the lawsuit.

[18]        
Mr. Spatzner is already named as a defendant in an action commenced
by the front vehicle, and so even if that was an argument of prejudice, I would
conclude there was none.  It is not, however, as on the cases there is no
prejudice in being joined into a lawsuit, there must be prejudice in the actual
maintenance of a defence in order for such prejudice to be relevant to my
decision here today.

conclusion

[19]        
As a result, I am satisfied that, first of all, the interests of
justice are overwhelmingly in favour of joining Mr. Spatzner as a
defendant in this application, and, secondly, I am of the view that the
cases are so overwhelmingly in favour of Mr. Spatzner being added as a
defendant that I accept the plaintiff’s submission that this application should
not have been necessary, and I agree that costs should be awarded to the
plaintiff at Scale C.

“Master Muir”