IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141216

Docket: M116252

Registry:
Vancouver

Between:

Jessica Sandra
Brandt

Plaintiff

And

Volkswagen Group
Canada Inc., Volkswagen Aktiengesellschaft, NQ Enterprises Ltd., Citrus
Nightclub, 298856 British Columbia Ltd., Brock Caissie and Township of Langley

Defendants

Before:
The Honourable Mr. Justice G.C. Weatherill

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff applies for an order pursuant to Rule 6-2(7)(c) of the Supreme
Court Civil Rules, B.C. Reg. 168/2009 (“SCCR”), adding Volkswagen de
Mexico, S.A. de C.V. (“VW Mexico”) as a defendant in this action (the “Joinder
Application”).

[2]            
VW Mexico applies for an order requiring that the plaintiff and her
counsel produce documents pertaining to the plaintiff’s mental capacity to
instruct counsel or receive legal advice and pertaining to her counsel’s
ability to access and inspect the plaintiff’s damaged vehicle (the “Document
Production Application”).

[3]            
The plaintiff asks the court to assume, for the purposes of these
applications only, that the limitation period for commencing an action against
VW Mexico has expired.

II.              
Background

[4]            
The plaintiff was injured in a motor vehicle accident on December 6,
2009.  The 2002 Volkswagen Jetta she was driving left the road and struck a
concrete barrier.  There were three other occupants of the vehicle at the time
of the accident.  One was seated in the front passenger seat and two were
seated in the rear passenger seats.  The air bag on the passenger side of the
vehicle deployed during the accident.  The front and back seat passengers on
the right side of the vehicle did not suffer any significant injuries.  The air
bag on the driver’s side of the vehicle did not deploy.  Both the plaintiff and
the passenger who was seated in the left rear passenger seat sustained serious
injuries.  The plaintiff was in a coma for several months after the accident.

[5]            
At the time of the accident, the plaintiff was 18 years of age and was a
minor.  She turned 19 years of age on January 27, 2010.

[6]            
After the accident, the vehicle was purchased from the plaintiff by VW
Canada Group Inc. (“VW Canada”).  I understand that, although it was
subsequently sold by VW Canada to a third party, it has been preserved by that
third party and continues to be available for inspection.

[7]            
In September 2010, Mr. Delaney, a lawyer with the law firm of
Lindsay Kenney LLP (“Lindsay Kenney”), was consulted by the plaintiff’s family in
respect of the accident.  He retained the assistance of an accident
reconstruction expert who apparently inspected the vehicle in late September 2010. 
Mr. Delaney was not “formally” retained by the plaintiff until September 2011. 
No explanation was provided for the delay.  He commenced this action on behalf
of the plaintiff on November 30, 2011, claiming, among other things,
damages against the defendant VW Canada for negligent manufacture of the
vehicle and, in particular, negligence in respect of the manufacture of the air
bags.

[8]            
VW Canada filed its response to civil claim on February 16, 2012.  It
pleaded that the vehicle was designed by Volkswagen Aktiengesellschaft (“Volkswagen
Germany”) and was manufactured by VW Mexico.

[9]            
On August 2, 2012, plaintiff’s counsel filed an application to add
VW Germany and VW Mexico as defendants.  No explanation has been provided for
why it took almost six months to file the Joinder Application.

[10]        
Plaintiff’s counsel attempted to serve the Joinder Application on VW
Germany and VW Mexico by delivering a copy to counsel for VW Canada.  In October 2012,
VW Canada filed a response to the Joinder Application stating that it does not
transact or carry on the business of or any business for VW Germany or VW
Mexico in British Columbia.

[11]        
The first attempt by Lindsay Kenney to initiate service upon VW Germany
and VW Mexico directly occurred in February 2013.  The following is a
summary of the efforts made by Lindsay Kenney to serve VW Mexico:

a)    On February 19,
2013, Lindsay Kenney retained the services of the Process Service Network (“PSN”)
to assist with service on VW Mexico.  The application materials were translated
into Spanish.  PSN subsequently advised Lindsay Kenney that letters rogatory
would be required in order to serve VW Mexico.  On May 8, 2013, the
application for letters rogatory was refused by the court because of the
reciprocity and reimbursement clauses contained in it.

b)    PSN then advised
Lindsay Kenney that a Request for Service Abroad under The Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, 15 November 1965 (the “Hague Convention”) was
necessary.  That request was forwarded to Mexico’s Receiving Authority (“Receiving
Authority”) by PSN in May 2013.

c)     On July 12,
2013, Lindsay Kenney received a letter from the Receiving Authority indicating
that a Spanish translation of the application materials had not been enclosed. 
PSN advised that the translation material had been enclosed.

d)    In July 2013,
PSN resubmitted the application materials to the Receiving Authority together
with the required Spanish translation.

e)    In August 2013,
Lindsay Kenney was advised that a letter addressed to them had been received by
the British Columbia Legal Services Society (“LSS”).  That letter was retrieved
by plaintiff’s counsel on August 7, 2013.  It was a notice from the
Receiving Authority that the application materials had been rejected because
there was a discrepancy between the number of days for responding to the notice
of application and the number of days for responding to the unfiled,
non-operative notice of civil claim attached to the notice of application.  The
Receiving Authority also indicated that it wanted the pleading to refer to “calendar
days” rather than “days”.

f)      On August 8,
2013, plaintiff’s counsel sent the application materials to PSN with
modifications intended to clarify the time period for responding.

g)    In September 2013,
the Receiving Authority sent another letter to the LSS responding to the
modified application materials.  It indicated that the application materials
had been rejected because there continued to be a discrepancy between the
number of days for responding to the notice of application and the number of
days for responding to the notice of civil claim.  Plaintiff’s counsel did not
pursue any of the appeal remedies available under The Hague Convention.  No
further steps were taken by plaintiff’s counsel to serve the Joinder
Application.

[12]        
VW Germany was successfully served on August 14, 2013 under the
provisions of The Hague Convention.  VW Germany ultimately decided not to
oppose the application and was formally added as a defendant on May 2,
2014.

[13]        
VW Canada and VW Germany are represented by the same counsel at Borden
Ladner Gervais LLP (“BLG”).

[14]        
On October 11, 2013, plaintiff’s counsel sought to overcome the
difficulties it was having with the Receiving Authority by commencing a
separate action naming VW Mexico as the only defendant (the “Second Action”). 
It did so to eliminate any concern the Receiving Authority may have over two
different time periods.  With one document, namely a notice of civil claim,
there would be only one date by which VW Mexico would have to respond.  Yet plaintiff’s
counsel continued to be frustrated in its attempts to serve the Second Action
on VW Mexico:

a)    On October 17,
2013, it sent the new notice of civil claim to the Receiving Authority with
Spanish translations in duplicate.

b)    On January 14,
2014, plaintiff’s counsel received a letter from the Receiving Authority
acknowledging receipt of the documents.

c)     On January 21,
2014, plaintiff’s counsel sent an email, in Spanish, to the Receiving Authority
asking whether service of the document had occurred.

d)    On February 14,
2014, plaintiff’s counsel sent an email to the Receiving Authority requesting a
response to the January 21, 2014 email.

e)    On February 25,
2014, plaintiff’s counsel wrote to BLG outlining the difficulties it was having
serving VW Mexico and asking whether BLG would accept service on its behalf. 
BLG responded on March 3, 2014, indicating that it would not do so.

f)      On March 26,
2014, plaintiff’s counsel received an email from the Receiving Authority
indicating that the documents were not served on VW Mexico because they did not
meet the necessary requirements.  Plaintiff’s counsel immediately responded to
ask which specific requirements had not been met.

g)    On March 27,
2014, the Receiving Authority sent an email to plaintiff’s counsel indicating
that the Spanish translations had not been sent in duplicate.  Plaintiff’s
counsel immediately responded by resending the Spanish translations in
duplicate electronically.

h)    On March 31,
2014, the Receiving Authority sent an email to plaintiff’s counsel advising
that it was not permitted to review documents in electronic form.

i)       On
April 1, 2014, plaintiff’s counsel re-sent the documents, with duplicate
copies of the Spanish translations, to the Receiving Authority.

j)      The
Receiving Authority served VW Mexico on May 26, 2014 and notified plaintiff’s
counsel of the service on July 3, 2014.

[15]        
Ms. MacKay was retained in early October 2014 to argue the
Joinder Application.  She readily and correctly realized that the Joinder
Application could be made ex parte and informed VW Mexico’s counsel, Mr. McFee,
that she would be proceeding on that basis.  VW Mexico agreed to waive the service
requirements for the purpose of this hearing.

III.            
Analysis

[16]        
Rule 6-2(7)(c) provides as follows:

Adding, removing or substituting parties by order

(7) At any stage of a proceeding, the court, on application
by any person, may, subject to subrules (9) and (10),

(c) order that a person be added as
a party if there may exist, between the person and any party to the proceeding,
a question or issue relating to or connected with

(i) any relief claimed in the
proceeding, or

(ii) the subject matter of the
proceeding

that, in the opinion of the
court, it would be just and convenient to determine as between the person and
that party.

[17]        
It is noteworthy that the rules plainly contemplate an application under
Rule 6-2(7) being brought ex parte and the party added being given 21
days after service of the order to apply to vary or discharge it: Rule 6-2(8). 
Had Lindsay Kenney been aware of this provision, it may well have been able to
avoid needless delay and expense.

[18]        
The only questions for the court on this application are:

a)    whether there is
a question or issue between the plaintiff and VW Mexico related to the relief
claimed in or the subject matter of this proceeding; and

b)    whether joinder
of VW Mexico would, in the circumstances, be just and convenient between the
plaintiff and VW Mexico.

McIntosh v. Nilsson Bros. Inc.,
2005 BCCA 297 at para. 7; The Owners, Strata Plan No. V1S3578
v. John A. Neilson Architects Inc., 2010 BCCA 329 at paras. 45 – 46.

[19]        
The court’s discretion is unfettered, although it must exercise its
discretion judicially in accordance with the evidence and authorities: Amezcua
v. Taylor, 2010 BCCA 128 at para. 36.

[20]        
As indicated above, it is conceded by the plaintiff for the purposes of
this application that the limitation period for bringing a claim against VW
Mexico expired prior to the notice of application being filed.  However, the
existence of a limitation defence is no bar to adding a party as a defendant in
a proceeding: Neilson at paras 43 – 44.  Because the claim in this
proceeding was discovered prior to June 1, 2013, it is subject to the Limitation
Act, R.S.B.C. 1996, c. 266, which provides, in relevant part:

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

(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.

A.             
Is There a Question or Issue against VW Mexico Related to this
Proceeding?

[21]        
VW Mexico concedes that there is a question or issue between it and the
plaintiff related to the relief claimed or the subject matter of this
proceeding.

B.             
Is the Joinder of VW Mexico Just and Convenient in the Circumstances?

[22]        
In considering whether it is just and convenient to join a party after
the expiration of a limitation period, the court considers the following
factors:

a)    the extent of
the delay;

b)    the reasons for
the delay;

c)     any
explanation put forward to account for the delay;

d)    the degree of
prejudice caused by the delay; and

e)    the extent of
the connection, if any, between the existing claims and the proposed new cause
of action (the “Letvad factors”).

Teal Cedar
Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 19 B.C.L.R. (3d)
282 (C.A.) at para 67; Letvad v. Fenwick, 2000 BCCA 630 at para. 29.

[23]        
These factors, while important, are not exhaustive.  No one factor is
determinative.  The decision is ultimately a discretionary one.  The overriding
consideration is whether adding the party is just and convenient in the
circumstances: Amezcua at para. 63; Chouinard v. O’Connor,
2011 BCCA 161 at para. 21.

a)             
Extent of the Delay

[24]        
The case law is not clear as to the period of delay that should be
considered.  One approach is to only consider the delay between the expiry of
the limitation period plus the one year period allowed for service of the
action to the date of the joinder application: Amezcua at para. 42;
Weinlich v. Campbell, 2005 BCSC 1865 at para. 48 (adding a party after
the expiration of the limitation period); Sutherland v. McLeod, 2004
BCCA 653 at para. 38 (application for a renewal of a writ after expiration).
The other approach is to consider the delay from when the plaintiff (or
plaintiff’s counsel) became aware of the joinder issue to the date of the
joinder application: Strata Plan No. VIS 3540 v. Oak Meadows Estates
Ltd., 2007 BCSC 750 at paras. 63 – 65.

[25]        
In my view, the period to be examined in determining the extent of the
delay in the context of the first of the Letvad factors is the period
from the date that the plaintiff (or plaintiff’s counsel) became aware of the
need for the joinder application and the date of the joinder application.  The
court examines the period between the expiration of the limitation period plus
the one year available for perfecting an action and the joinder application
when considering the fourth of the Letvad factors, namely whether a
proposed defendant has been prejudiced by the delay: McIntosh at para. 8.

[26]        
Regardless, Ms. MacKay concedes, for the purposes of this
application, that the period of delay to be examined is from the date that  plaintiff’s
counsel became aware of the need to join VW Mexico, namely February 16,
2012 (when VW Canada filed its response) to December 5, 2014 (the date of
the hearing).  On its face, the delay is significant.

b)             
Reasons and Explanations for the Delay

[27]        
A delaying party asking the court to exercise its discretion must explain
the delay in an honest and forthright manner: 600433 B.C. Ltd. v. XJ Motors
Ltd., 2011 BCSC 1144 at para. 35.

[28]        
Mr. McFee submits that the affidavit evidence of the plaintiff and
her counsel is vague and not forthright.  For example:

a)     Mr. Delaney
deposed that he was not “formally” retained by the plaintiff until September 2011. 
Yet, ICBC records indicate that Lindsay Kenney was acting for the plaintiff as
early as September 2010.

b)    Mr. Delaney
deposed that the vehicle was not in the plaintiff’s possession, that it had
been taken from her immediately after the accident and that she did not have
access to the vehicle or the documents that were inside it; he also stated that
he had never personally seen the vehicle.  However, ICBC records indicate that
no later than January 2010, the plaintiff’s family knew where the vehicle
was and had access to it.  Those records also indicate that the plaintiff’s
engineering expert inspected the vehicle in September 2010.

[29]        
Mr McFee forcefully submits that the identity of the manufacturer would
have been plainly evident to anyone inspecting the vehicle or the owner’s
manual and quick-reference guides, both of which were located in the vehicle at
the time of the accident.  Despite the vehicle having easily-seen stickers
containing the name of the manufacturer, despite Mr. Delaney and the
plaintiff’s family members having access to the vehicle since January 2010,
despite an expert having inspected the vehicle in September 2010, and
despite the ability to easily obtain manufacturing information from a variety
of other sources, Lindsay Kenney named VW Canada as the manufacturer because
that was the only Volkswagen entity that showed up on an online corporate
registries search.

[30]        
Mr. McFee argues that the efforts Lindsay Kenney made prior to February 16,
2012, to ascertain the identity of the manufacturer of the vehicle were
woefully inadequate and must be taken into consideration by the court when
assessing the explanation for the delay.

[31]        
I make two observations about the ICBC records that were produced:

a)    first, they
plainly indicate that it was Lindsay Kenney’s intention to sue the vehicle’s
manufacturer as early as September 2010; and

b)    second, they are
records of telephone conversations between ICBC and the plaintiff’s family
members and Lindsay Kenney and are, of course, hearsay.

[32]        
I agree that the affidavits filed by Lindsay Kenney leave the reader
with the impression that Lindsay Kenney did not have access to the vehicle and
was not actively engaged on behalf of the plaintiff until September 2011. 
However, given the hearsay nature of the ICBC records, I am unable to
evaluate the extent to which the evidence presented by and on behalf of the
plaintiff to explain the delay has been less than forthright.

[33]        
What is clear is that, on February 16, 2012, Mr. Delaney became
aware that the manufacturer of the vehicle was VW Mexico, not VW Canada, yet the
Joinder Application was not filed until August 2, 2012.  No explanation
was provided for the delay of almost six months.  From then, it took until December 5,
2014, over two years and four months, for the Joinder Application to be heard.

[34]        
Ms. MacKay submits that Lindsay Kenney’s failure to appreciate that
the vehicle had been manufactured by VW Mexico was an honest mistake.  She goes
on to submit that, in any event, because the plaintiff was a minor at the time
of the accident, she is not required to explain the delay from February 16,
2012, but rather only needs to explain the delay from January 27, 2013
(her 19^th birthday plus two year limitation period plus one year
period available for service of the notice of civil claim): Kean v. Blue Boy
Motor Hotel Ltd., [1988] B.C.J. No. 1653 (S.C.), aff’d [1989] B.C.J. No. 2242
(C.A.).  While that may be so, when one is considering the question of whether
the proposed defendant has been prejudiced by the delay, the period of delay
that is taken into account when considering whether the plaintiff has provided an
adequate explanation for the delay is the whole period of delay after the issue
became known.

[35]        
I agree with Mr. McFee that Lindsay Kenney failed to take the most basic
and fundamental steps it should have taken to ascertain the identity of the
vehicle’s manufacturer.  But the question is whether the period of delay after
it became aware that VW Mexico was the manufacturer has been adequately
explained.  Moreover, the court must consider whether the delay caused by the
plaintiff’s counsel should be attributed to the plaintiff.

[36]        
In McIntosh, the court stated, at para 10:

[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. As I have said,
that is not so here.

[Emphasis added.]

[37]        
In this case, Lindsay Kenney was not formally retained by the plaintiff
until September 2011.  It is difficult to criticize the firm for what it
did or failed to do prior to being retained.  Once retained, it clearly
intended to sue the vehicle’s manufacturer.  For whatever reason, it named VW
Canada as the manufacturer.  It did not become aware that VW Mexico was the manufacturer
until February 16, 2012, when VW Canada filed its response.  The Joinder
Application was filed on August 2, 2012, well within the one-year time
period for serving the notice of civil claim.  Although Lindsay Kenney
apparently failed to recognize that the application could have proceeded on an ex
parte basis and was not as prompt as it perhaps should have been in
effecting service on VW Mexico, neither error was the fault of the plaintiff
who relied throughout on Lindsay Kenney to take all appropriate steps in
connection with the action.

[38]        
The failure on the part of the Receiving Authority to effect service of
the Joinder Application materials was, in my view, due to an error on its part,
not the part of Lindsay Kenney.  The Hague Convention does not give the
Receiving Authority jurisdiction to interpret documents.  Rather, it is obliged
to serve any documents received by it that comply with The Hague Convention. 
The acts of a third party in this context are excusable and cannot be visited
on the plaintiff: Azeri v. Esmati-Seifabad, 2009 BCCA 133 at paras. 10
and 12.

[39]        
I am satisfied that the delay from August 2, 2012, to the date of the
hearing, although inordinate, has been adequately explained.  It was primarily
the result of the failure on the part of the Receiving Authority to carry out
its obligations under The Hague Convention.  The delay from February 16,
2012 to August 2, 2012, was not explained; however, it was not inordinate.

[40]        
Regardless, the failure on the part of the plaintiff or his/her counsel
to provide an explanation for the delay that exculpates him or her from all
fault or culpability does not preclude the court from exercising its discretion
in his or her favour: Teal Cedar Products at para. 67.

c)             
Prejudice Caused by the Delay

[41]        
The onus is on VW Mexico to demonstrate actual prejudice suffered as a
result of the delay: Amezcua at paras. 50 and 51; Moldovan v.
Insurance Corp. of British Columbia, 2011 BCCA 418 at para. 32; Neilson
at para. 94.  Although prejudice is presumed by the loss of a limitation
defence, more must be shown.  Evidence is required that the defendant’s ability
to mount a full defence has been imperiled in some way: Seeliger v. Eagle
Ridge Hospital, 2007 BCCA 582 at para. 39.

[42]        
VW Mexico has proffered no evidence that it has suffered or will suffer
any prejudice, let alone irremediable prejudice, as a result of the delay in it
being named as a party.  Moreover, there is no evidence that VW Mexico’s
ability to mount a defence will be imperiled in any way by the delay in being
named as a party.  VW Canada, VW Germany and VW Mexico are sophisticated
corporations.  VW Mexico has been aware of the plaintiff’s claim against it
since at least May 2014 and in all likelihood as early as October 2012
when BLG declined to accept service of the Joinder Application on its behalf.  It
is also likely that VW Mexico will assume a common defence with VW Canada and
VW Germany, who are represented by the same counsel.

[43]        
The court must balance any prejudice to VW Mexico, presumed or
otherwise, against the prejudice that will be suffered by the plaintiff if the
manufacturer of the vehicle is not joined in the action.  Clearly in this case,
the loss to the plaintiff of her opportunity to pursue a claim against the
manufacturer of her vehicle is greater than the loss to VW Mexico of “a
windfall opportunity to avoid entirely any potential liability” for a claim
that the law considers actionable: Amezcua at para. 55; Takenaka
v. Stanley, 2000 BCSC 242 at para. 41.

d)             
Extent of Connection between Existing Claim and Proposed Cause of Action

[44]        
Joining VW Mexico to the action will not alter the character of the
action.

C.             
Summary

[45]        
After considering all of the Letvad factors, it is my view that the
balance of prejudice is overwhelmingly in favour of the plaintiff.  It is just
and convenient that Volkswagen de Mexico, S.A. de C.V. be added as a defendant
in this action.  Accordingly, any limitation defence that VW Mexico may have
had is extinguished: Neilson at para. 47.

D.             
Document Production Application

[46]        
The relevance of the documents sought by VW Mexico in the Document
Production Application relates to the issues of:

a)    whether the
limitation period for commencing the Second Action has been postponed; and

b)    the reason for
the delay in filing and service of the Joinder Application.

[47]        
As requested by Ms. MacKay, I have proceeded on the basis that
the limitation period has expired.  Accordingly, a postponement argument has
neither been raised nor arisen.

[48]        
I have found that the delay in the hearing of the Joinder Application is
explained by a combination of errors on the part of both Lindsay Kenney and the
Receiving Authority.  I have also found that the start of the delay period
requiring explanation commenced on February 16, 2012, when VW Canada filed
its response to the plaintiff’s claim.  Accordingly, documents relating to the
plaintiff’s knowledge or lack of knowledge of the factual and legal information
necessary to commence an action or her mental capacity to give instructions and
her and Lindsay Kenney’s ability to access and inspect the vehicle are not
relevant.

IV.           
The Second Action

[49]        
In the event that the Joinder Application was successful, Ms. MacKay
invited me to order a stay of the Second Action.  This was considered by the
court to be the proper course in similar circumstances: Neilson at para. 111. 
A stay of the action would avoid the plaintiff having to pay costs.  A
discontinuance of the action would entitle VW Mexico to its costs.

[50]        
In my view, the circumstances are such that the proper course is a
discontinuance of the Second Action, rather than a stay.  This gives rise to a
consideration of who should pay VW Mexico’s costs.

[51]        
Rule 14-1(33) of the SCCR provides that, if the court considers
that a party’s lawyer has caused costs to be incurred without reasonable cause,
or has caused costs to be wasted through delay, neglect or some other fault,
the court may order that the lawyer be personally liable for all or part of any
costs that his or her client has been ordered to pay to another party.

[52]        
In Nazmdeh v. Spraggs, 2010 BCCA 131, a lawyer appealed an order
holding him personally responsible for the payment of costs.  In dismissing the
appeal, the court observed as follows:

[103]      The
power to make an order for costs against a lawyer personally is discretionary. 
As the plain meaning of the Rule and the case law indicate, the power can be
exercised on the judge’s own volition, at the instigation of the client, or at
the instigation of the opposing party.  However, while the discretion is broad,
it is, as it has always been, a power to be exercised with restraint.  All
cases are consistent in holding that the power, whatever its source, is to be used
sparingly and only in rare or exceptional cases.

[53]        
In my view, this is an exceptional case.  The Second Action was filed
and VW Mexico was put to needless expense as a result of Lindsay Kenney’s delay
and failure to bring on the hearing of the Joinder Application in a timely
way.  The Second Action was neither justifiable nor warranted.

[54]        
VW Mexico is entitled to its costs of the Second Action payable by
Lindsay Kenney.

V.             
Conclusion

[55]        
The Joinder Application is allowed with costs in the cause.

[56]        
The Document Production Application is dismissed with costs in the
cause.

[57]        
The Second Action is discontinued.  VW Mexico is entitled to its costs
of the Second Action payable by Lindsay Kenney.

_____________ “G.C.
Weatherill J.”_____________
G.C. Weatherill J.