IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110722

Docket: M044391

Registry:
Vancouver

Between:

Telus Corporation

Plaintiff

And

Anthony Frank Araneda

Defendant

And

Insurance Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

[1]            
The third party, I.C.B.C., seeks dismissal of the plaintiff’s action
with costs.

[2]            
Telus’ claim is for damages to a stationary installation containing
telephone exchange equipment located at 102nd
Avenue and East Whalley Ring Road in Surrey, British Columbia. It
alleges that the equipment was struck by a motor vehicle operated by the
defendant, Anthony Frank Araneda.

[3]            
The incident occurred on October 12, 2002. Damage to the installation is
estimated by Telus to amount to some $43,000.

[4]            
When Telus became aware that the installation had been damaged, it sent a
technician, Dale Summers, to inspect it. Mr. Summers filled out an
internal damage report that afternoon. It noted that the probable cause of the damage
was a motor vehicle accident. The shift manager at a nearby A & W
restaurant had told him that the police had dealt at the scene with the person
who had hit the installation and had opened a file under #02-111130.

[5]            
The report was sent to Telus’ claims department, which opened a file on
October 24, 2002. Mr. Summers’ report noted that “people were caught by police
at time”.

[6]            
On November 6, 2002, Helen Horvath, the Telus employee handling the claim,
received a copy of a police report under the wrong file number. She attended
the Surrey RCMP Detachment to clear up the confusion, and had a copy of the
correct police report (#02-111074) by November 8, 2002.

[7]            
The Writ of Summons was filed on October 21, 2004, nine days after the two-year
limitation period expired.

[8]            
I.C.B.C. submits that the Writ is, on its face, out of time.

[9]            
In defending the application, Telus invokes section 6(4) of the Limitation
Act, which reads as follows:

Time does not begin to run against a plaintiff or claimant
with respect to an action referred to in subsection (3) until the identity of
the defendant or respondent is known to the plaintiff or claimant and those
facts within the plaintiff’s or claimant’s means of knowledge are such that a
reasonable person, knowing those facts and having taken the appropriate advice
a reasonable person would seek on those facts, would regard those facts as
showing that

(a) an action on the cause of
action would, apart from the effect of the expiration of a limitation period,
have a reasonable prospect of success, and

(b) the person whose means of knowledge is in question
ought, in the person’s own interests and taking the person’s circumstances into
account, to be able to bring an action.

[10]        
Telus submits that it ought to have the benefit of this postponement because
it did what it was “reasonably possible” to do in the circumstances. It says it
was aware that the police were investigating the matter and reasonably waited
for the police to deliver the incident report which was in hand by November 8,
2002.

[11]        
Telus describes the issue as a matter of “due diligence”, adjusted for
the fact that Telus is a big company; that it has its own procedures; and that it
moved as fast as an entity of its kind can be expected to move.

[12]        
In the alternative, Telus suggests that even if it had acted immediately
to ascertain the name of the defendant, it would not have known for something
like 18 days.

[13]        
Telus has tendered a series of medical malpractice cases relating to
postponement where the issue was the discoverability of damages. It also
tendered a non-medical case, Shaw Cable Systems Ltd. v. Victoria Industrial Contractors
Ltd., (unreported) File No. 0728984, Prince George Registry (December 17,
2007).

[14]        
I do not think that malpractice cases have any application to the facts.
This is a property damage case and all the damage was evident from the day of
the accident. There was no question of when the plaintiff perceived an action
having “a reasonable prospect of success.”

[15]        
In the Shaw Cable case an installation belonging to Shaw
was apparently damaged by a defendant which was doing construction work in the
area of the installation. It took several days, however, to ascertain whether
the defendant’s activities were the cause of the damage. The Writ was filed
three days beyond the two limitation periods. The court, per Gray J. ruled
the limitation was extended on that basis.

[16]        
The only question in the present case was the identity of the defendant.
In this regard, the observations of Taylor J.A. in Krusel v. Firth
(1991), 58 B.C.L.R. (2d) 145 (C.A.) are pertinent. There, after quoting the relevant
limitation section, the court, per Taylor, J.A., observed:

It will be seen that the subsection creates two different
tests. The first relates to discovery of the identity of a potential defendant,
the second to discovery of facts from which it may be concluded that there is a
reasonable possibility that an action against that potential defendant would
succeed.

The second test requires that the court determine when facts
from which it could be concluded that a successful action could be brought
against the potential defendant were first within the plaintiff’s means of
knowledge–that is to say when the plaintiff could reasonably have
discovered such facts: Karsanji v. Rocque, [1990] 3 W.W.R. 612
(B.C.C.A.). The first test requires the court to decide when that potential
defendant’s identity was first known to the plaintiff. Time for
commencement of action runs from the latest of these dates.

Appearing as it does in the very same sentence, the use of
such different language would ordinarily suggest that the legislature must have
intended a different meaning to attach to each, so that “diligence” on the part
of the plaintiff, which is plainly contemplated by the second test, should not
be taken to be contemplated by the first. But if with respect to identity of
the potential defendant time starts to run only when that person’s identity is
actually known to the plaintiff–rather than when that person’s
identity is within the plaintiff’s “means of knowledge”– it would
follow that so long as a plaintiff made no inquiry with respect either to cause
of action or the identity of the person against whom action might lie, time
would not start to run. On this view, a plaintiff who takes no steps to
discover whether he or she has a cause of action, even though the necessary
facts are within his or her means of knowledge, nevertheless enjoys continuing
postponement of the running of time, for so long as he she also chooses to make
no effort to discover the name of the person against whom the action may lie.

If this were the proper
interpretation to place on the section, a plaintiff who “sleeps” on his or her
rights may, by reason of such inaction, gain extension of the two-year period
even to the end of the “ultimate” limitation period of 30 years provided by
Section 8(1), notwithstanding that the existence of a right of action had at
all time been within his or her means of knowledge. The protection intended to
be afforded to a potential defendant by the second test against want of
diligence by a plaintiff with means of knowledge would be removed.

[17]        
The Court found this to be untenable:

It is in my view apparent in the present case that an
anomaly, absurdity or incongruity would result were the language of this unfortunately-worded
sub-section applied according to its natural meaning, and that this can be
avoided only by “reading into” the first test a “due diligence” requirement
consistent with that which is created by the second.

I find that it is not sufficient
that a plaintiff does not in fact know the identity of a potential defendant in
order to delay the running of time under Section 6(3), but necessary that the
plaintiff could not with reasonable diligence have been expected to
discover that person’s identity.

[18]        
In Meeker v. Charlie, [1994] B.C.J. No. 1965 (B.C.S.C.), this Court,
per Blair J. applied Krusel in the context of a motor vehicle
collision in Merritt, B.C. on August 29, 1991. The plaintiff had minor pain in
the shoulder to begin with, but her condition worsened and she sought medical
attention beginning on September 3, 1991. She first went to see a lawyer in
February of 1992. The plaintiff’s state of knowledge respecting the other
driver was described as follows:

In February 1992 she retained a
Kamloops lawyer to pursue her claim against the defendant. The plaintiff
advised the solicitor that the driver of the other vehicle was named Charlie.
The defendant deposes he gave his name to Rose Seegerts, the driver of the
vehicle in which the plaintiff was a passenger. The plaintiff deposed she
talked to Ms. Seegerts about the accident following the incident, but had no
contact with Ms. Seegerts after the evening of the accident. I conclude from
those comments that the plaintiff learned the name of the defendant on August
29, 1991, immediately following the accident.

[19]        
For some reason, counsel missed the two-year limitation date. In his
consideration of the issue of postponements, Blair J. observed:

The Court of Appeal in Krusel, p.149, noted that
Section 6(3) created two different tests, the first relating to the date of the
discovery of the identity of a potential defendant and the second relating to
the date of discovery of facts from which it may be concluded that there is a
reasonable possibility that an action against that potential defendant would
succeed. The limitation period commences from the latest of these two dates.
The Court found there to be a due diligence requirement imposed on the
plaintiff with regard to both tests.

With regard to the first test, that of the identification of
the defendant, I conclude that on the day of the accident the plaintiff
actually knew the defendant to be named Charlie and that she obtained that
information from Ms. Seegerts. That in itself is sufficient to satisfy the
first test. However, due diligence by the plaintiff would have had her identify
the defendant directly by asking him when he came over to the Seegerts vehicle
immediately following the accident or, alternatively, by her obtaining the information
from the R.C.M.P.

With regard to the second test, at p. 155 in the Krusel
decision the court states:

“Time starts to run as soon as
facts indicating the existence of a cause of action against a potential
defendant are within the plaintiff’s means of knowledge even though the
plaintiff has not discovered those facts.”

The plaintiff here knew immediately she was involved in a
motor vehicle accident which occurred when the defendant drove through a stop
sign and collided with the vehicle in which the plaintiff was a passenger. The
plaintiff knew she suffered an injury in the accident, although the full extent
of her injuries were unknown to her at the time. There is the immediacy of an
intersection collision present which relates to the injuries suffered in the
accident.

I find that on August 29, 1991, the plaintiff knew the
identity of the defendant and had within her means of knowledge facts
indicating that she had a claim against the defendant which had a reasonable
prospect of success and that in her own interest and circumstances ought to
have been able to bring action against the defendant.

The application is allowed. The
plaintiff’s case is dismissed.

[20]        
The present case is materially indistinguishable. On the day of the
accident, Telus, through its employee Dale Summers, knew it had a claim for
property damage and knew the name of the tortfeasor was immediately
ascertainable from a reliable source, the RCMP.

[21]        
In saying so, I reject Telus’ argument that a large enterprise should be
judged on its “ individual circumstances” and that its step-wise approach to
the management of its legal claims is akin to the situation in Strata Plan
LMS 2940 v. Quick as a Wink Courier, 2010 BCCA 74. There the Court of
Appeal upheld a judge of this Court who had found that an action brought by a
strata corporation against an individual one day outside the limitation period
was not statute-barred because the strata corporation was obliged to pass a
resolution before it could initiate the action, and doing so took some time.

[22]        
Telus was not impeded by a statutory prerequisite, and there is no
reason in principle why a large organization should be judged by a more
accommodating standard than would apply to any competent individual. As in Meeker,
Telus knew on the first day of the accident that it had suffered actionable
harm and that the name of the person involved was ascertainable.

[23]        
It is regrettable that the limitation period went by in this case. As
some of the case law demonstrates Courts frequently go some distance to ensure
that cases are tried on their merits. The policy inherent in limitation
periods, however, must also be respected. Applying the relevant legal
principles to the present case, Telus has not established that it is entitled
to postponement, and the action must be dismissed.

[24]        
Costs will follow unless there are circumstances counsel wish to bring
to the court’s attention.

“T.M. McEwan”

_______________________________

The Honourable Mr. Justice McEwan