IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110825

Docket: S097276

Registry:
Vancouver

Between:

Teresita Iezzi

Plaintiff

And

Her Majesty the
Queen in Right of
the Province of British Columbia

Defendant

Before: The Honourable Mr. Justice
Burnyeat

Oral Reasons for Judgment
In Chambers

[1]          
This is an application pursuant to Rule 9-7 of the Supreme Court
Civil Rules that the action  commenced by the plaintiff be dismissed on the
basis that the limitation period had expired by the time the action was
commenced on October 5, 2009.  The Action is set for Trial on
October 31, 2011.

BACKGROUND

[2]          
In the mid-1980s, Ms. Iezzi
began to use her home to take foster children.  It is described that she took
on high risk teens.  Ms. Iezzi
was accidentally stuck with a hypodermic syringe and now suspects or knows that,
as a result of that, she became infected with Hepatitis C.  After the Hepatitis C
had been diagnosed, Ms. Iezzi
concluded that it would not have been possible for her to have become infected
as a result of her regular life.  It was not until 2002 or 2003 when she had a
chance sighting of a former foster child (MW) that she recalled that MW stuck
her accidentally with a syringe in 2001.  MW was placed in the Plaintiff’s care
during the period January 29, 2001 through February 23, 2001.  Ms. Iezzi now believes that
she was struck in the left leg with a needle following an altercation with MW.

[3]          
Ms. Iezzi
did not advise the Ministry of Children and Family Development (“Ministry”)
regarding her Hepatitis C infection because she feared that the Ministry
would take steps to remove foster children from her home.  This would have had a
devastating economic and emotional effect on her.

[4]          
However, Ms. Iezzi
did advise her resource worker with the Ministry in January or February 2006 but
on the basis that he was not to advise anyone else in the Ministry.  He was
prepared to accept that condition.  The resource worker checked the Ministry
records and advised Ms. Iezzi
about the Hepatitis C positive status of MW and that the Ministry was
aware of that status when MW was placed with her.  This information was made
available to Ms. Iezzi
in February through April of 2006.  At the time, the resource worker did
not provide copies of the Ministry records verifying what he told her.

[5]          
Not because of matters in any way connected with her discovery that she
was infected with Hepatitis C, the Ministry took steps in the Summer of
2006 to cancel the ability of Ms. Iezzi
to receive foster children.  On August 2, 2006 Ms. Iezzi sent a letter to the
Ministry advising that she was infected with Hepatitis C and, during the
Fall of 2006, there were discussions not only about the possible cancellation
of her licence but also about her Hepatitis C infection.  Those
discussions led to an offer being made for $15,000 damages for the cancellation
of her licence and for $15,000 for the Hepatitis C.  Those offers were not
accepted by Ms. Iezzi.

[6]          
Ms. Iezzi
spent time during 2007 and 2008 attempting to track down and verify the information
provided to her.  Her resource worker, who was about to retire from the
Ministry, advised that there were documents indicating that the Ministry was
aware of the Hepatitis C status of MW.

[7]          
In an April 16, 2008 letter to the Ministry, Ms. Iezzi referred to the
April 1, 2008 meeting that she had had with an official in the Surrey
Regional Office of the Ministry where she advised him that the “very minimal
compensation for my Hepatitis C infection” was “unacceptable and I deserve
better than that”.  In the letter, she states:  “At this point, he informed me
that I had best seek a lawyer as this is what he would do.  I had no desire to
go to a lawyer.  I had hoped to resolve this locally but I have been left with
no other choice.”  On August 1, 2008, Ms. Iezzi received a letter from the Ministry
urging her to accept the offer of settlement that had been made.

[8]          
Ms. Iezzi
made a Freedom of Information (“FOI”) application on May 5, 2008 to get
the information.  A number of months after the FOI request had been made,
Ms. Iezzi was
advised that the Government needed an extension of time to reply.  On
September 17, 2008, Ms. Iezzi
received a response from her FOI request.

[9]          
In her April 28, 2011 Affidavit, Ms. Iezzi states:

Sometime between … April 2008
and September 2008, I obtained proof that the foster child did have Hep C
at the time when the pin prick occurred, and that the Ministry had known this
and failed to forewarn me.  I got the document from my former social worker
…  This is the Placement History of the Foster Child who is referred to as
MW.  I subsequently received through FOI a number of records including the
medical records of the foster child in question (one MW) which show that on
April 20, 1999, MW testified [sic] [tested] positive for Hep C.  The
Ministry had this record in their possession since at least 1999.

DISCUSSION AND CASE AUTHORITIES

[10]       
Section 3(2)(a) of the Limitation Act, R.S.B.C. 1996, c. 266
(“Act ”), provides for a limitation period of two years.  Section
6(4) of the Act provides for the postponement of the running of the
limitation period 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.

[11]       
It is the submission of the Defendant that the limitation period would
have begun to run no later than August of 2006 when Ms. Iezzi advised the Ministry
of her Hepatitis C status.  It is the submission of by Ms. Iezzi that the limitation
period began to run in the Spring or Fall of 2008 as it was only then, pursuant
to the Act that it was reasonable for her to conclude that she should
commence an action.

[12]       
The onus is on Ms. Iezzi
to prove that a postponement of the limitation period has occurred.  On the
question of whether postponement can be established, Lambert J.A., in Perron
v. R.J.R. MacDonald Inc. (1990), 43 B.C.L.R. (2d) 178 (C.A.), stated:

The second point is that the determination of whether there
should be a postponement has both objective and subjective elements.  The
objective elements are introduced by the concept of the “reasonable man” which
forms an explicit part of the test established by the legislation.  And see Bera
v. Marr (1986), 1 B.C.L.R. (2d) 1, (B.C.C.A.), particularly the reasons of Mr. Justice
Esson at pp. 26-27.  But there is also a subjective element in the test. 
It is embodied in the words “those facts within his means of knowledge”.  Those
words may well have an objective aspect in the determination of what the
plaintiff might be thought to have the means of knowing, but they must also
have a subjective aspect in relation to the plaintiff’s own circumstances as
those circumstances affect his actual knowledge and, perhaps in combination
with objective factors, as those circumstances affect his means of knowledge.
(at para. 30)

The fifth point is about the meaning of the words a
reasonable prospect of success” in sub-para. 6(3)(i).  Those words cannot mean
any particular absolute percentage chance.  The chance of success that is to be
regarded as reasonable must vary from case to case.  I think the words should
be given a meaning to the effect that the action would have such a chance of
success that a reasonable person in the position of the plaintiff, and guided
only by factors relevant to the litigation, including its costs and
tribulations, but not including such things as the age or moral outlook of the
particular plaintiff, would bring the action with a determination to push it to
a conclusion.

The sixth point also relates to the words “a reasonable
prospect of success”.  It is possible for such things as the overruling of a
previous decision to change a lawyer’s or a layman’s perception of whether an
action has a reasonable prospect of success.  An action may, on undisputed
facts, be thought to have no reasonable prospect of success when the cause of
action arises.  But ten years later it may, for the first time, be considered
to have had, when it arose, a reasonable prospect of success.  On the basis of
the present wording of the postponement provisions, there is, in my opinion, no
alternative but to conclude that in those circumstances the limitation period
would be postponed throughout the period when the action was reasonably thought
to have no reasonable prospect of success, and to start to run only when the
action was reasonably thought to have a reasonable prospect of success. 
Changes in general knowledge about the significance of relevant facts might
have a somewhat similar effect.

(at paras. 34-35)

[13]       
In Bond v. Novak, [1999] 1 S.C.R. 808, McLachlin J., as she
then was, stated:

The scheme and purpose of the Act leads me to conclude that
the appropriate test is a variant of the second approach.  … it is my view
that the proper interpretation of s. 6(4)(b) may be summarized as follows:

Section 6(4)(b) requires the court
to adopt the perspective of a reasonable person who knows the facts that are
within the plaintiff’s knowledge and has taken the appropriate advice a
reasonable person would seek on those facts.  Time does not begin to run until
this reasonable person would conclude that someone in the plaintiff’s position
could, acting reasonably in light of his or her own circumstances and
interests, bring an action.  The question posed by s. 6(4)(b) therefore
becomes: “in light of his or her own particular circumstances and interests, at
what point could the plaintiff reasonably have brought an action?” The
reasonable person would only consider that the plaintiff could not have brought
an action at the time the right to do so first arose if the plaintiff’s own
interests and circumstances were serious, significant, and compelling.  Purely
tactical concerns have no place in this analysis.

This approach recognizes the special problems injured persons
may encounter and the intense stresses and strains involved in litigation.  It
recognizes that in some cases, the plaintiff’s own circumstances and interests
may be so compelling that it cannot be reasonably said that he or she could
bring an action within the prescribed limitation period.  Finally, it makes
practical sense.  People ought to be encouraged to take steps short of
litigation to deal with their problems.  They should not be compelled to sue
when to do so runs counter to a vital interest, such as the need to maintain
their health in the face of a life-threatening disease.

(at paras. 39-40)

[14]       
In Brooks v. South Fraser Health Region (2009), 310 D.L.R. (4th) 564 (B.C.C.A.), Tysoe J.A. on behalf of the Court
made these statements:

The wording of s. 6(4), which was described by Chief
Justice McEachern (dissenting) in Karsanjii Estate v. Roque, [1990] 3
W.W.R. 612 at 616, 43 B.C.L.R. (2d) 234 (C.A.), as “mysterious, obscure and
inartistic”, has been broken down into the following four components:

(i)  the identity of the defendant
is known to the plaintiff;

(ii)  the plaintiff has certain facts
(including the facts set out in s. 6(5)(b)) within her means of knowledge;

(iii)  a reasonable person,
knowing those facts and having taken the appropriate advice a reasonable person
would seek on those facts, would regard the facts as showing that an action
would have a reasonable prospect of success; and

(iv)  a reasonable person, knowing
those facts and having taken the appropriate advice a reasonable person would
seek on those facts, would regard the facts as showing that the plaintiff
ought, in her own interests and taking her circumstances into account, to be
able to bring an action.

See Vance v. Peglar (1996), 138 D.L.R. (4th) 711, 22
B.C.L.R. (3d) 251 (C.A.), and Ounjian v. St. Paul’s Hospital, 2002 BCSC
104, [2002] B.C.T.C. 104.

Each of the first, third and fourth of these components is a
condition precedent to the commencement of running of time in the limitation
period.  If any of these three components has not been satisfied, the running
of time will not have commenced.  The second component is not a condition
precedent to the commencement of running of time, and it deals with the facts
known to, or within the means of knowledge of, the plaintiff for the purposes
of the third and fourth components. In accordance with s. 6(6), the burden
is on the plaintiff to prove that one of the three conditions precedent has not
been satisfied before the critical date (which is the date determined by
subtracting the length of the applicable limitation period from the date on
which the action is commenced).

(at paras. 17-18)

[15]       
I am satisfied that there was a postponement of the limitation period to
sometime between the Spring of 2008 and the Fall of 2008 as a result of a
number of factors.  There were negotiations with the Ministry during 2006 and
until April 2008 regarding a possible settlement of damages flowing from the Hepatitis C
infection and from the breach of contract.  It would have been unwise to
interrupt those by the commencement of an action.  While negotiations were
ongoing and while there was still a hope that a settlement could be reached, a
reasonable person would believe that it was not necessary to commence an action
for damages flowing from the Hepatitis C infection.  It was not until the
April 1, 2008 meeting with a Ministry representative that the final
position of the Ministry regarding a possible settlement was received.  Even then,
Ms. Iezzi
advised the Ministry that she had “no desire to go to a lawyer” although she
also did advise that “I have been left with no other choice”.  It was only at
that point that negotiations came to a conclusion and that Ms. Iezzi was left with no
other alternative.

[16]       
It was not until sometime between April 2008 and September 2008 that Ms. Iezzi obtained the actual
documentation relating to the Hepatitis C status of MW.  Before commencing
an action, a reasonable person would first ascertain the exact knowledge the Ministry
had about the Hepatitis C status of MW when she was placed as a foster
child.  A reasonable person would not want to rely on the unsubstantiated
information that was available from an employee of the Ministry.  A reasonable
person would first wish to see the actual documentation before proceeding.  That
documentation was not available to Ms. Iezzi
until she ascertained in a document that was made available to her that the Ministry
was aware that MW had Hepatitis C when MW was placed with her because the
Ministry was in possession of the records available from the Juvenile Detention
Centre.

[17]       
Until that information was available, it would have been foolhardy and
unreasonable for a person to conclude that an action should be commenced and
that there was a reasonable or any possibility of success.  Until the actual
documentation was available to her, Ms. Iezzi
had only the hearsay statements from her resource worker.  It was reasonable
not to proceed until a determination could be made that there was a reasonable
prospect of success and that there was a reasonable prospect of there being
sufficient funds available if an action was successful to justify the action
being commenced in the first place.

[18]       
I also consider that Ms. Iezzi
was under intense stress.  I am satisfied that I should take into account a number
of circumstances in dealing with whether the running of the limitation period
should be postponed.  First, she had lost her house.  Second, she had lost her
health as a result of the Hepatitis C infection.  Third, she had lost her
livelihood because she could no longer take foster children.  At the same time to
require her to face the intense stresses and strains involved in suing the
Province is unrealistic.

[19]       
Taking into account all of the circumstances surrounding the
commencement of this action in October 2009, I am satisfied that the
application of the Defendant should be dismissed.  I am also satisfied that an
award of costs should be made and that it should not be merely costs in the
cause.  In order to avoid a reference to the Registrar for an assessment of
those costs, pursuant to the Rules I will set the amount of the
costs inclusive of fees, disbursements and government taxes today at $675.  Not
because of the alleged impecuniosity of Ms. Iezzi,
but because I am satisfied that it would be appropriate, the amount will be
payable forthwith.

___________ “Burnyeat J.”_______________
Mr. Justice Burnyeat