IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130418

Docket: M125749

Registry:
Vancouver

Between:

Oliver Sean Simon,

by his Litigation
Guardian Richard Simon

Plaintiff

And

Dylen James Thomas
McKinlay and

Andrew David
Pearson Keen

Defendants

And

Insurance
Corporation of British Columbia

Third
Party

Before:
Master Muir

Reasons for Judgment

[1]            
There are two applications before me:

a)    The application
of the defendant, Andrew David Pearson Keen (“Keen”) and the third party,
Insurance Corporation of British Columbia (“ICBC”), for leave to file a third
party notice, bringing a third party claim against the Corporation of the
Township of Langley (“Langley”).

b)    The application
of the plaintiff to add Langley as a defendant and amending the style of
proceeding accordingly and for leave to amend the Notice of Civil Claim in a
form as provided to me.

Background

[2]            
The plaintiff was a passenger injured in a single vehicle motor vehicle
accident on August 21, 2011 on River Road in Langley. The only witnesses are
said to be those persons in the vehicle at the time. According to the police
report there were three people in the car, the driver, McKinlay, a passenger,
James Kenneth Winterton and the plaintiff. Keen was the owner of the vehicle.

[3]            
The plaintiff, a child, was sitting in the back of the vehicle, a two
seat Nissan 350Z, which left the road and ended up in the ditch. As a result,
the plaintiff suffered serious injuries including a brain injury and I am told
he has no recollection of the accident.

[4]            
The defendant, McKinlay, has been charged criminally with impaired
driving causing bodily harm and is refusing to discuss the accident.

[5]            
Langley contracts with the Royal Canadian Mounted Police (“RCMP”) to
provide policing within its boundaries.

[6]            
The RCMP did an Accident Reconstruction Report dated June 20, 2012 (the
“Accident Reconstruction Report”), which is said to be based on a site
investigation that took place on August 21, 2011, the same day as the accident.

[7]            
The author of the Accident Reconstruction Report concluded, inter alia:

4.         A possible road safety
issue was identified at River Rd. and Armstrong Rd. where asphalt resurfacing
created a void in the road lines. Furthermore, there was no applicable signage advising
motorists of roadwork, and the void preceded an elevation in the roadway that
provided a view obstruction for WB traffic of the roadway ahead. The absence of
road lines and the inability to view the roadway ahead created a hazard and
could suggest that the direction of the roadway deviated without warning
prompting unsuspecting drivers to react adversely. As the lines on the fresh
asphalt were painted following the crash, the primary issue has been addressed
satisfactorily….

[8]            
The report also indicated that the speed of the vehicle at the time of
the crash was approximately 190 km/hour in a 60 km/hour zone.

[9]            
On September 6, 2012 an independent adjuster working on behalf of ICBC
received a letter from the Langley Detachment of the RCMP enclosing the
Accident Reconstruction Report.

[10]        
On September 19, 2012, the plaintiff filed a notice of civil claim.

[11]        
ICBC acknowledged receipt of the notice of civil claim by letter of
September 21, 2012. In that letter they noted:

This office has not received a
report of the circumstances of the accident and the details of the insurance
coverage. By copy of this letter we are requesting the adjuster to forward us a
suit report.

[12]        
Keen and ICBC retained counsel by letter of October 17, 2012. They instructed
that ICBC was taking the position that McKinlay had breached his policy and
accordingly ICBC was joined as a third party. The instruction letter also
requested that counsel consider the possibility of negligence on the part of
Langley.

[13]        
Keen and ICBC filed a response to the claim on December 12, 2012, which
was served on the plaintiff on December 14, 2012. They pleaded that Langley’s negligence
caused or contributed to the accident.

[14]        
By letter of December 18, 2012, Keen and ICBC gave notice of damage to
Langley pursuant to s. 286 of the Local Government Act, R.S.B.C. 1996,
ch. 323. Unfortunately, that notice mistakenly identified the accident as
having occurred on August 21, 2012. As a result, Langley takes the position
that notice was defective and hence ineffective.

[15]        
Keen and ICBC say that their delay, from the receipt of the notice of
civil claim to filing their response and notifying Langley in December, was due
to serious injuries that were sustained by the paralegal in charge of this file
on September 17, 2012, resulting in him being away from work until December 17,
2012. As a result, Keen and ICBC inadvertently missed the time for filing a
third party notice against Langley.

[16]        
On February 13, 2013, the plaintiff gave notice in writing to Langley of
the plaintiff’s intention to join Langley due to the claim of Keen and ICBC. In
that letter, which properly identified the accident date, plaintiff’s counsel
said that the response to civil claim was the first indication they had of
blame against Langley. Langley says this is the first accurate notice that it
had with respect to this accident.

[17]        
The action is still relatively new and there have been no other steps in
the action, including exchange of documents, examinations for discovery or
setting a trial date.

[18]        
In support of its opposition to both applications, Langley relies on s.
286 (but not s. 285) of the Local Government Act, which provides as
follows:

Immunity
unless notice given to municipality after damage

286 (1) A municipality is in no case liable for
damages unless notice in writing, setting out the time, place and manner in which
the damage has been sustained, is delivered to the municipality within 2 months
from the date on which the damage was sustained.

(2) In case of the death of a person injured, the failure to
give notice required by this section is not a bar to the maintenance of the
action.

(3) Failure to give the notice or its insufficiency is not a
bar to the maintenance of an action if the court before whom it is tried, or,
in case of appeal, the Court of Appeal, believes

(a) there was reasonable excuse,
and

(b) the defendant has not been prejudiced in its defence by
the failure or insufficiency.

Leave to File Third Party Notice

[19]        
Supreme Court Civil Rule 3-5(4) provides:

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.

[20]        
The parties agree that the granting of leave to file a third party notice
is discretionary and Langley notes the decision of Symes v Knooihuizen,
[1998] B.C.J. 511 in which the court sets out the factors for
consideration:

[38] It is clear that the granting of the
order to allow leave to file a Third Party Notice is a discretionary one and as
such, the discretion must be exercised judicially. Some of the factors taken
into consideration when exercising judicial discretion are: prejudice to the
parties, both present and those affected by the application; expiration of the
limitation period; merits of the proposed claim; delay in the proceedings;
timeliness of the bringing of the application; and others.

[39] The bottom
line in exercising that discretion is really whether the proposed course of
action, here issuing a Third Party Notice, is just and convenient in all of the
circumstances of the case at hand. Put another way, the issue is, what does the
better administration of justice demand, given the facts ascertainable at the
time.

[21]        
Keen and ICBC say that they could have filed a third party notice as of
right within the 42 day window and that they have explained that the delay was
inadvertent and due to the injuries received by the paralegal in charge of the
file. They say they brought this application in a timely manner as no steps
have been taken in the lawsuit. They argue that there is no prejudice to
Langley.

[22]        
As to the failure to give notice to Langley within the time stipulated
in s. 286 of the Local Government Act, Keen and ICBC rely on the Limitation
Act, R.S.B.C. 1996, ch. 266, s. 4(1)(b):

Counterclaim or
other claim or proceeding

4 (1) If an action to which this or any other Act
applies has been commenced, the lapse of time limited for bringing an action is
no bar to

(a) proceedings by counterclaim, including the adding of a
new party as a defendant by counterclaim,

(b) third party proceedings,

(c) claims by way of set off, or

(d) adding or substituting a new party as plaintiff or
defendant,

under any applicable law, with
respect to any claims relating to or connected with the subject matter of the
original action.

[23]        
As to whether their action might be barred by the limitation period
expiring as between the plaintiff and Langley, they rely on the recent decision
in Strata Plan LMS 1751 v. Scott Management Ltd., 2010 BCCA 192.  There
the court considered the cases and the contribution provisions of the Negligence
Act, and concluded:

[57] I am
satisfied that the defendants’ claim is properly governed by the principles
established in Asleson. Section 4(2)(b) of the Act creates an
independent right of contribution as between the defendants and the respondents
since the plaintiff had a cause of action against each of them when the alleged
tort occurred. The objective of that right is to ensure that any damages
established by the plaintiff will be shared equitably among concurrent
tortfeasors according to their degree of fault. There is no principled reason
why the post-tort conduct of the plaintiff in failing to join the respondents
as defendants before the limitation period against them expired should
interfere with the defendants’ right of contribution.

[24]        
I agree that the limitation in s. 286 of the Local Government Act
will not bar a third party claim by Keen and ICBC because of the provisions of
the Limitation Act, s. 4(1)(b). Even if the limitation has expired as
between the plaintiff and Langley, on the authority of Strata Plan LMS 1751
v. Scott Management (supra), that is no bar to the claims as Keen and ICBC
have an independent right of contribution.

[25]        
The matter remains discretionary. Keen and ICBC urge that it is in the
interests of justice that the third party claim be allowed to proceed.

[26]        
Langley says there has been prejudice to it because of the failure to
give timely notice. Mr. Campbell, a risk management advisor, deposes for
Langley:

The fact that the Township of
Langley did not receive timely notice of the Accident and this claim has
resulted in the loss of an opportunity to conduct a scene investigation in a
timely way and the loss of an opportunity to take statements from the
participants in the Accident and witnesses to the immediate circumstances of
the Accident in a timely way.

[27]        
Given that the RCMP has done an Accident Reconstruction Report and that
Langley has, between the time of the accident and the time of the report, fixed
the lines on the relevant section of road, I do not see any resultant prejudice
to them in their ability to investigate the physical circumstances of the
accident. They are in the same position as all other parties.

[28]        
Regarding witnesses, no specific prejudice is evident in Langley’s
materials. It does not allege, e.g. that any witness is now beyond its reach. I
have no evidence that the delay has affected its position regarding the
witnesses other than a general statement.

[29]        
The two-year limitation has not yet expired.

[30]        
I cannot see that any real prejudice has resulted from the delay.

[31]        
 In the circumstances, I conclude that it is in the interests of justice
that Langley be joined and accordingly leave to issue the third party notice is
granted.

Leave to Add Langley as a Defendant

[32]        
As to the application of the plaintiff to add Langley as a defendant and
to amend the style of cause and notice of civil claim, Langley agrees that the
hurdle is a low one, particularly where the two-year limitation period has not
run. It refers to the decision in Pepper’s Produce Ltd. v. Medallion Realty
Ltd., 2011 BCSC 1867, where Mr. Justice Butler set out the matters for
consideration:

[17] The test for adding a defendant and
for amending the pleadings is not high. For an application to amend pleadings,
there must be sufficient evidence presented to disclose a reasonable cause of
action: McNaughton v. Baker 1988 CanLII
3036 (BC CA), (1988), 25 B.C.L.R. (2d) 17 at 25 (C.A.).

[18] In Ipsos
S.A. v. Reid, 2005 BCSC 1114 (CanLII),
2005 BCSC 1114, the court noted that the discretion to add parties should be
exercised generously to allow effective determination of the issues without
delay, inconvenience or separate trials. The parties should be added unless the
allegations are frivolous. Under subrule (7)(c), the first part of the test
requires a party to show that it has a possible cause of action against the
proposed defendant, and while the threshold is low, the pleadings must show on
what ground the proposed defendant is being sued.

[33]        
As noted, Langley relies on s. 286 of the Local Government Act to
say that the proper notice not having been given, the claim is barred.

[34]        
The plaintiff says that s. 286(3) of the Local Government Act requires
the limitation to be considered either at the trial or by the court of appeal
and that the limitation should not be a factor in this application.

[35]        
The plaintiff says he cannot be held to the notice requirement in s. 286
in any event as it was not until receipt of the Accident Reconstruction Report
that anyone other than the RCMP knew there was any potential liability of
Langley. The plaintiff points out that the RCMP are the agents of Langley and
that the report was not even completed until after the expiry of the limitation
in s. 286.

[36]        
Given the provisions in s. 286(3), I conclude that s. 286 is not a bar
to bringing an action against Langley. The question of the limitation will be
addressed at trial in accordance with that sub-section.

[37]        
The plaintiff also sought to rely on the decision of our court of appeal
in Gringmuth v. North Vancouver (District), 2002 BCCA 61. Although that
was a decision regarding s. 285, not s. 286, of the Local Government Act,
counsel urged that it was analogous. I do not agree. Section 285 deals with
actions against a municipality for unlawful acts. Gringmuth makes clear
that negligent acts are not captured by the limitation in that section. Section
286 of the Local Government Act is not restricted to unlawful acts. The
analysis is quite different and I do not find Gringmuth to be of any
assistance in interpreting s. 286.

[38]        
Langley also urges me to find that the claim of the plaintiff against it
is frivolous in the circumstances. Langley argues the excessive rate of speed
and potential that the driver was impaired will overcome any possibility of
liability on the part of Langley.

[39]        
I do not agree that the claim is frivolous. I conclude, based on the
Accident Reconstruction Report, that there is a potential for liability of
Langley for allegedly leaving the road unsigned and unlined.

[40]        
The application is therefore allowed. There is liberty for the plaintiff
to amend the style of cause to add Langley as a defendant and to amend his
claim in the form presented at the hearing of this application.

[41]        
Costs to both applicants in the cause.

“Master Muir”