IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131004

Docket: 43716

Registry:
Vernon

Between:

Donald
Walter Kennedy

Plaintiff

And

Turtle
Bay Marina Inc., 381713 B.C. Ltd.,
Belco Holdings Inc., and Her Majesty the Queen
in Right of the Province of British Columbia

Defendants

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
This is an application to add The Owners, Strata Plan KAS1913 (the
“Strata Corporation”) as a defendant to this action, together with
consequential amendments to the style of cause and notice of civil claim.

[2]            
Rule 6-2 of the Supreme Court Civil Rules as presently
constituted contemplates a two-stage process for adding a party. Rule 6-2(7)
contemplates an application to add a party being brought by “any person” and
then subrule (8)(c) contemplates the added party applying to the court to vary
or discharge the order within 21 days after the date on which the order was
served.

[3]            
Although not stated in Rule 6-2, it is common for the initial application
to be made without notice. Subrule (8) then permits full argument to be made
respecting any issues which the court ought to consider.

[4]            
In this case, the proposed defendant was served. By consent of both the
applicant and the proposed defendant/respondent, the court considered the
issues that would normally have been raised by the proposed defendant in an
application brought pursuant to subrule (8)(c)(i).

[5]            
The factual basis of the application is set out by the plaintiff in Part
2 of his notice of application as follows:

1.         The
Plaintiff’s claim, herein, relates to a Slip and Fall on or about August 17,
2008 (the “Slip and Fall”), at the premises located at 2860 Woodsdale Road in
Winfield, British Columbia, including the grounds and pier thereon (the
“Premises’).

2.         The
Plaintiff plead in its Amended Notice of Civil Claim that the Defendant, Turtle
Bay Marina Inc. (“Turtle Bay”), is an occupier and/or owner of the Premises.

3.         In the
alternative, the Plaintiff plead that the Defendants, 381713 BC Ltd., Belco
Holdings (“Belco”) and/or Her Majesty the Queen in Right of the Province of
British Columbia, represented by the Minister of Environment, Lands, and Parks
pursuant to the Land Act, RSBC 1996, Chapter 245 (“HMTQ”), are the
owners and/or occupiers of the Premises.

4.         As a
result of the Slip and Fall, the Plaintiff suffered physical injuries including
fractures to his upper arm and/or shoulder region, resulting in pain and permanent
restriction of movement.

5.         An
Examination for Discovery of the representative of Tutle Bay, Stewart Smith,
was conducted on March 22, 2010. At that time, Mr. Smith referenced that the
right of way access to the grounds and pier on which the Slip and Fall occurred
was through property owned by Strata Corporation KAS1913 (the “Strata
Corporation”).

6.         The
Plaintiff filed an Amended Notice of Civil Claim on September 30, 2010 naming
Turtle Bay, 381713 BC Ltd., Belco, and HMTQ (collectively, the “Defendants”) as
the individuals responsible for the Slip and Fall.

7.         HMTQ
filed a Response to Civil Claim on October 26, 2010.

8.         Turtle
Bay, 381713 BC Ltd., and Belco filed a Response to Civil Claim on November 5,
2010. The Response to Civil Claim was signed by R. Stewart Smith as
representative of the Defendants.

9.         The
Plaintiff filed a Notice of Discontinuance against HMTQ on June 22, 2012.

10.       A
continuation of the Examination for Discovery of Stewart Smith, who at that
point was acting as a representative of Turtle Bay, 381713 BC Ltd., and Belco,
was conducted on August 29, 2012. At that time, Mr. Smith confirmed that he
believed that the Slip and Fall occurred on property owned by the Strata
Corporation.

11.       At the
Examination for Discovery of Mr. Smith on August 29, 2012, Mr. Smith also
identified that:

(a)        At the time of the Slip and
Fall, he was the owner of 8 of the 18 units in the Strata Corporation; and

(b)        At the time of the Slip and
Fall, he may have been the President of the Strata Corporation.

12.       At the
Examination for Discovery of Mr. Smith on August 29, 2012, Juan O’Quinn, then
counsel for the Plaintiff, advised Mr. Smith that he intended to bring an application
to amend the Notice of Civil Claim to add the Strata Corporation as a
Defendant.

13.       The
Plaintiff is currently 80 years old. The Plaintiff’s son, Ian Harold Kennedy
has a Power of Attorney over the Plaintiff’s affairs. Ian Kennedy has deposed that
to the best of his knowledge, the Plaintiff’s intention throughout the
litigation was that all potentially liable parties should be named as
Defendants.

14.       The failure to name the Strata
Corporation as a Defendant at an earlier date was due to inadvertence by the
Plaintiff’s solicitors.

[6]            
These facts were established by the affidavit material filed. The
affidavit sworn July 12, 2013 by Brett H. Kirkpatrick, the lawyer who assumed
conduct of this matter on behalf of the plaintiff in September of 2012, deposes
as follows:

6.         On or about March 27, 2013, I was provided with a
strata plan for the Strata Corporation [KAS1913] (the “Strata Corporation”).
Upon a review of the strata plan and where the Plaintiff fell I determined that
the Strata Corporation was the owner of the property where the Plaintiff fell
and was not named as a Defendant in the herein action. Attached hereto and
marked as Exhibit “C” to this my Affidavit is a copy of the strata plan for the
Strata Corporation.

7.         I understood that at all times, the Plaintiff
wanted his solicitors to pursue an action for damages arising out of the Slip
and Fall against all parties that may potentially be liable.

8.         By inadvertence, I did not immediately bring an
application to add the Strata Corporation as a Defendant upon discovery of the
fact that the Strata Corporation had not been named.

9.         On July 3, 2013, I
received instructions from the Plaintiff’s son, Mr. Ian Kennedy, who has an
enduring Power of Attorney over the affairs of the Plaintiff, to retain separate
counsel to act on the Plaintiff’s behalf for the purposes of bringing an
application to add the Strata Corporation as a Defendant.

[7]            
Ian Kennedy, son of the plaintiff, and the attorney appointed by the
plaintiff pursuant to an enduring power of attorney, deposes in his affidavit
filed July 12, 2013 at paragraphs 5 and 6 as follows:

5.         On or about October 17, 2012, I am advised by the
Plaintiff and I verily believe it to be true that the Plaintiff discovered that
Strata Corporation KAS1913 (the “Strata Corporation”) owned the lands and
premises in which the Slip and Fall occurred and it was not named as a
Defendant to the herein action despite the action having been commenced on
February 4, 2009.

6.         I am advised by the
Plaintiff and I verily believe it to be true that at all times material to this
action, the Plaintiff intended that his solicitors would bring an action for
damages arising out of the Slip and Fall against all parties that may
potentially be liable.

[8]            
Shane Dugas, a lawyer who acted for the plaintiff from early 2009 until
March 31, 2011, deposes in his affidavit filed July 16, 2013 at paragraphs 5, 6
and 7 as follows:

5.         On March 22, 2010, I conducted an examination for
discovery of the representative of Turtle Bay Marina, Mr. Stewart Smith. At
that discovery, Mr. Smith gave evidence that the access to the property on
which Turtle Bay operated was through the property of Strata Corporation
KAS1913 (the “Strata Corporation”). Attached hereto and marked as Exhibit “A”
to this my Affidavit is a copy of the transcript of the examination for
discovery of Mr. Smith on March 22, 2010.

6.         Following the examination for discovery of Mr.
Smith, I realized that in addition to Turtle Bay, a number of other parties
should be named as Defendants in the action, namely 381713 B.C. Ltd., Belco
Holdings Inc., and Her Majesty the Queen in Right of the Province of British
Columbia. Accordingly, I obtained on behalf of the Plaintiff an Order adding
Defendants dated August 24, 2010. Following that Order, I filed an Amended
Notice of Civil Claim on behalf of the Plaintiff dated September 30, 2010.
Attached hereto and marked as Exhibit “B” to this my Affidavit is a copy of the
Amended Notice of Civil Claim.

7.         By inadvertence, I did
not apply to add the Strata Corporation as a Defendant and accordingly the
Strata Corporation was not named as a Defendant in the Amended Notice of Civil
Claim.

The transcript exhibited to his
affidavit confirms what Mr. Dugas deposes to.

[9]            
In his affidavit sworn July 16, 2013, Juan M. O’Quinn, the lawyer who
had conduct of this case on behalf of the plaintiff from about March 31, 2011
until late September 2012, deposes as follows:

4.         On August 29, 2012, I conducted an examination for
discovery of the representative of Turtle Bay Marina Inc., 381713 B.C. Ltd.,
and Belco Holdings Inc., Mr. Stewart Smith. At that discovery, Mr. Smith gave
evidence that he believed the Slip and Fall occurred on the property of Strata
Corporation KAS1913 (the “Strata Corporation”). Attached hereto and marked as
Exhibit “A” to this my Affidavit is a copy of the transcript of the examination
for discovery of Mr. Smith on August 29, 2012.

5.         At the examination for discovery Mr. Smith
confirmed that he was an owner of 8 of the 18 strata lots in the Strata
Corporation and that from time to time he had been President of the Strata
Corporation. He could not recall whether he was President of the Strata
Corporation at the material time and I left a request on the record for Mr.
Smith to confirm whether he was President of the Strata Corporation at the time
of the Slip and Fall.

6.         Further at the examination for discovery of August
29, 2012, I advised Mr. Smith that I intended to bring [an] application to name
the Strata Corporation as a Defendant in the herein action.

7.         I understood that at
all times, the Plaintiff wanted me to bring an action for damages arising out
of the Slip and Fall against all parties that may potentially be liable.

[10]        
Counsel for the proposed defendant opposes joinder on the basis that the
limitation period for the claims made against it has expired.

[11]        
Both counsel agree that in considering this issue the Limitation Act,
S.B.C. 2012, c. 13 is the applicable governing legislation. That Act, in s. 6,
sets a basic limitation period as follows:

Basic limitation period

6 (1) Subject to this Act, a court proceeding in
respect of a claim must not be commenced more than 2 years after the day on
which the claim is discovered.

(2) The 2 year limitation period
established under subsection (1) of this section does not apply to a court
proceeding referred to in section 7.

[12]        
Section 8 sets out when a claim is discovered:

General discovery rules

8 Except for those special situations referred to in
sections 9 to 11, a claim is discovered by a person on the first day on which the
person knew or reasonably ought to have known all of the following:

(a) that injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or
contributed to by an act or omission;

(c) that the act or omission was that of the person against
whom the claim is or may be made;

(d) that, having regard to the nature of the injury, loss or
damage, a court proceeding would be an appropriate means to seek to remedy the
injury, loss or damage.

[13]        
Arguably, the first day on which the plaintiff knew, or reasonably ought
to have known that the act or omission was that of the person against whom the
claim is or may be made, was March 22, 2010, the date when evidence was given
that the proposed defendant owned the property upon which the plaintiff slipped
and fell. The limitation period would have fully accrued by March 23, 2012. On
the other hand, if “reasonably ought to have known” refers to the plaintiff
personally, and not his lawyer, the first day might be October 17, 2012, as
deposed to by Mr. Ian Kennedy in his affidavit (see para. 7 above).  The
limitation period, in that case, has not yet run.

[14]        
Pursuant to s. 3(2)(a) of the former Limitation Act, R.S.B.C.
1996, c. 266, the limitation period would have expired on August 18, 2010. The
writ of summons and statement of claim in this action was filed on February 4,
2009.

[15]        
As set out in Kerpan v. Higginbotham (2003), 19 B.C.L.R. (4^th)
356, as extracted from the 2014 British Columbia Annual Practice at page
128:

The addition of a party
eliminates that party’s accrued limitations defence. Normally, the court should
not order that the addition is made without prejudice to that defendant raising
the limitation defence, especially if it is just and convenient that the party
be added.

[16]        
The applicant submits that the addition of the party and the
consequential amendments are required so as to allow the determination on the
merits of the issues between the proper and necessary parties, that amendments
should be allowed unless there is actual prejudice to the parties, and that a
party should be added if there is a possible cause of action alleged.

[17]        
In particular, the plaintiff relies on appellate court decisions which
analyze criteria to be applied in determining whether the addition of the
proposed defendant is just and convenient.

[18]        
In McIntosh v. Nilsson Bros. Inc., 2005 BCCA 297, Mr. Justice Lambert
writes at para. 10 the following:

[10]      I would like to add one
further point. The question of what is "just and convenient to determine
as between the person and that party" within the concluding words of Rule
15(5)(a)(iii) requires a close focus on balancing the interests of the existing
parties and the person sought to be added. It is important not to be diverted
from the conduct of the parties to the conduct of their lawyers, except to the
extent that the conduct of the lawyers may be at the heart of real prejudice to
the other side. In this case, the plaintiffs were neither the cause of the
failure to add Bavaria in the first instance nor the cause of any of the
delays. They should not be prejudiced because of conduct on the part of their
lawyer unless that conduct was the cause of irremediable prejudice to the other
side.

[19]        
In Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996),
19 B.C.L.R. (3d) 282, Mr. Justice Finch, as he then was, considers criteria for
deciding whether or not it is “just and convenient” to add the party. In para.
62 of his decision, he writes:

[62]      In any event, in my
view, the plaintiff in this case did provide a satisfactory explanation for the
delay in seeking to amend. Its solicitor’s affidavit sets out how he came to
give the advice not to sue on the contract and how he subsequently came to alter
his views in that regard. I am unable to understand why a plaintiff who
considered advancing a cause of action but decided upon legal advice against
doing so should be in a worse position than a plaintiff who never (or whose
solicitor never) turned his mind to the question. A decision not to sue or to
claim may be "deliberate" in the sense of being intentional. But not
all such decisions are the result of fault or culpability. Some are the result
of honest but mistaken judgment. In deciding whether it is in the interests of
justice to allow an amendment under s. 4(4) after the limitation period has
gone by, I do not think a party should be punished for having obtained advice
that may have been mistaken.

[20]        
In the same judgment, Chief Justice McEachern writes at para. 74 the
following:

[74]      Applying the same
principles regardless of whether the application is to add new defendants, as
in Ricketts or new causes of action, as in Med Finance, I believe the most
important considerations, not necessarily in the following order, are the
length of the delay, prejudice to the respondents, and the overriding question
of what is just and convenient.

[21]        
In Letvad v. Fenwick, 2000 BCCA 630, a decision relied upon by
counsel for the proposed defendant, Mr. Justice Esson considered and analyzed Teal
Cedar Products (1977) Ltd. Esson J.A. writes as follows:

[24]      Teal Cedar is now one of the leading authorities on
the subject of adding parties after the expiration of a limitation period.
Strictly speaking, that was a case of an application to add a cause of action
against a defendant but the court made it clear that the same basic principles
are to be applied to adding parties.

[25]  Teal Cedar is an important case in that it
clarified the law on an issue which had caused some difficulty after the
decision of this court in Bank of Montreal v. Ricketts (1990), 44 B.C.L.R. (2d)
95 (C.A.). In that case, the majority (Locke and Gibbs JJ.A., McEachern
C.J.B.C. dissenting) allowed the appeal of parties who had been added after the
limitation period had expired. Locke and Gibbs JJ.A. gave separate reasons.
Locke J.A. in his reasons stressed that there had been "voluntary dilatory
behaviour" on the part of the plaintiff and that to allow the application
would "render the concept of diligence meaningless." Bank of Montreal
v. Ricketts came to be regarded for a time as holding that voluntary dilatory
behaviour was a complete bar to allowing a party to be added or a new cause of
action to be pleaded. That was the basis of the decision of the chambers judge
in Teal Cedar. Having found that there was no real prejudice to the insurer
which had known all there was to know about the loss from the time of the loss,
he went on to hold that the amendment "must be refused as a matter of
policy."

[29]      … It was held in Teal that the guidelines to which
the chambers judge is required to have regard include these:

–           the
extent of the delay;

–           the
reasons for the delay;

–           any
explanation put forward to account for the delay;

–           the
degree of prejudice caused by delay; and

–           the extent of the connection,
if any, between the existing claims and the proposed new cause of action.

[22]        
Counsel for the proposed defendant submits that in analyzing the factors
summarized by Mr. Justice Esson I should rely most heavily on the presumption
of prejudice because the limitation period for the claims made against that
defendant has expired.

[23]        
In Letvad, at para. 30, Esson J. writes as follows:

[30]      I return to the reasons
of the chambers judge. She correctly stated that at law there is a presumption
of prejudice to the proposed defendants if the limitation period for the claims
made against them has expired. She found that the limitation period had
"probably expired." In my view, the evidence requires the conclusion
that it had expired.

[24]        
No evidence of actual prejudice, apart from the expiry of a fully
accrued limitation period, was led by the proposed defendant. The essence of
his submission was that the fully accrued limitation period had expired over
three years ago, two years and eleven months prior to the filing of the notice
of application which came before me, and thus the presumption of prejudice
resulting from that lengthy period of time should, in essence, trump the other
guidelines that I am required by Teal Cedar Products (1977) Ltd. to
consider.

[25]        
The proposed defendant also submits that on the evidence, it is probable
that if liability is established by the plaintiff, the existing defendants will
be found culpable, at least in part.

[26]        
Litigation in slip and fall accidents such as this action almost without
exception require the court to determine whether or not the plaintiff was
contributorily negligent. It is trite law that if the plaintiff was
contributorily negligent, he will only be able to recover that portion of
damages attributable to each of the various defendants. He will not be able to
recover on the basis of joint and several liability. If he were found to be
contributorily negligent, he would not be able to recover from the other
defendants that portion of fault attributable to this proposed defendant,
unless this proposed defendant is added as a defendant.

[27]        
In considering the factors in Teal Cedar Products (1977) Ltd., I
conclude:

a)    The delay is
significant. This application was brought, as noted, two years and eleven
months after the expiry of the limitation period under the former Limitation
Act;

b)    The reason for
the delay was not a conscious choice on the part of the plaintiff, but rather
inadvertence on the part of a succession of counsel retained by him. The
plaintiff did not discover until on or about October 17, 2012 that the proposed
defendant owned the lands and premises on which the slip and fall occurred,
although his then counsel, Mr. Dugas, probably should have reviewed ownership
of the land when he was retained, but in any event was aware of the ownership
of the land by the proposed defendant by March 22, 2010;

c)     The
explanation put forward to account for the delay is inadvertence on the part of
the plaintiff’s counsel. This evidence is uncontradicted, and confirmed by the
plaintiff’s son, who deposes that at all times the plaintiff wanted to make
claim against whoever was responsible for the injuries he suffered.

d)    The degree of
prejudice in losing the benefit of a fully accrued limitation period is
significant. However, the practical prejudice is minimal. I was advised by both
counsel that no trial date has been set. Mr. Stewart Smith, the representative
of the defendant, Turtle Bay Marina Inc., would have knowledge of most of the
relevant facts. In his examination for discovery on March 22, 2010, he answered
that he was not a member of the Strata Corporation, and while that may have
been a true answer (the members being the company which owned strata lots, not
Mr. Smith personally), it was an incomplete one. The examination for discovery
conducted by Mr. O’Quinn confirms that Mr. Smith was originally the President
of the Strata Corporation, ceased being President for a time and then was again
President at the time the examination for discovery was being conducted on
August 29, 2012. He deposed that he (I am assuming that he actually meant one
of his corporations, although that is not clarified in the evidence) owned
eight of the 18 strata lots comprising the Strata Corporation. From an
evidentiary perspective, there is little prejudice to the proposed defendant,
whose sometime President was fully aware of these claims well within the
initial two-year limitation period.

e)    The evidence
establishes that there is a significant connection between the existing claims
and the proposed new party, in that the proposed party apparently is the
registered owner of the property upon which the plaintiff slipped and fell.

[28]        
It is not necessary for me to determine whether or not the plaintiff
reasonably ought to have known that the act or omission he complains of was
that of the proposed defendant. If he was at the discovery of Mr. Smith which
took place on March 22, 2010, or if he had read the response to civil claim
filed by Turtle Bay Marina Inc. on November 5, 2010, he may well have
“reasonably ought to have known” that the Strata Corporation was the person
against whom he ought to be claiming. I do not have sufficient evidence to
determine that issue, but for the purposes of this application I do not need
to.

[29]        
I am satisfied, for the reasons I have set out above, that it is just
and convenient that Strata Corporation KAS1913 be added as a defendant to the
action, that the style of cause be amended, and that the notice of civil claim
be amended to reflect the addition of the new defendant. The amended notice of
civil claim is to be filed by November 15, 2013 without further order, and must
be served promptly.

[30]        
Costs of this application to the plaintiff in the cause.

“Master
R.W. McDiarmid”

MASTER McDIARMID