IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151015

Docket: M143894

Registry:
Vancouver

Between:

Tammy Lea Anonson

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

And

The City of North
Vancouver

Third
Party

Before:
Master Muir

Reasons for Judgment

introduction

[1]            
This is an application by the plaintiff to add the third party, the City
of North Vancouver (the “City”), as a defendant in this action.

[2]            
The City does not oppose its addition as a defendant on the condition
that its addition is without prejudice to its ability to contest, at trial, the
issue of late notice under s. 286 of the Local Government Act, R.S.B.C.
1996, c. 323. That section provides:

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.

Background Facts

[3]            
The plaintiff claims for damages for personal injuries arising out of a
motor vehicle accident that is said to have occurred on July 30, 2012. The
plaintiff says the accident occurred when she was riding her bicycle on a
roadway and was struck by a truck travelling in the same lane and in the same
direction. The truck left the scene and as a result, the action is against the
Insurance Corporation of British Columbia (“ICBC”).

[4]            
The plaintiff retained counsel on or about August 15, 2012 and ICBC
was advised of this or on about August 16, 2012.

[5]            
The notice of civil claim was filed on June 17, 2014 and served on
ICBC on June 25, 2014.

[6]            
A response to civil claim was served by ICBC on August 26, 2014. The
response alleges that, at the location of the accident, a traffic sign directed
cyclists to travel on the sidewalk rather than on the road and a ramp was
present to allow them to do so. Counsel for the plaintiff, who was not counsel
before me, apparently did not review the response and did not know about this
allegation.

[7]            
A list of documents was provided by ICBC on September 30, 2014, and
two additional documents, being a letter to the City from ICBC and a reply were
provided to the plaintiff on February 13, 2015. Plaintiff’s counsel apparently
did not review these and remained unaware of this correspondence.

[8]            
On June 2, 2015, ICBC sent a filed copy of a third party notice to
the plaintiff, naming the City as a third party to this action. Counsel for the
plaintiff was apparently not aware of this until July 3, 2015.

[9]            
On July 6, 2015, counsel for the plaintiff wrote to the City
advising of the plaintiff’s intent to seek to add the City as a defendant.

[10]        
On July 13, 2015, a proposed amended notice of civil claim was
provided by the plaintiff to the City.

analysis

[11]        
As the City does not oppose being added as a defendant, it is not
necessary for me to look at the factors that are normally considered on an
application of this sort. The narrow issue is the application of the statutes
in question to the limitation period.

[12]        
There was no dispute that the former Limitation Act, R.S.B.C.
1996, c. 266 applies. Section 4(1) of that Limitation Act
provided:

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.

[13]        
As to the operation of this section of the former Limitation Act,
the plaintiff directed me to Strata Plan VIS3578 v. John A. Neilson
Architects Inc., 2010 BCCA 329 at para. 47. The City referred me to para. 48
of that decision. For convenience, both paragraphs follow:

[47]      The existence of a limitation defence is a
relevant, but not determinative, factor in deciding whether to permit joinder,
since the effect of s. 4(1)(d) of the Limitation Act is to
extinguish such a defence if the proposed defendant is added. In Brito
(Guardian ad litem of) v. Wooley (1997), 15 C.P.C. (4th) 255, [1997] B.C.J.
No. 2487, Joyce J. set out a three step approach to considering a
possible limitation defence, which was adopted by this Court in Strata Plan
LMS 1725 v. Star Masonry Ltd., 2007 BCCA 611, 73 B.C.L.R. (4th) 154 at para. 12.
I summarize it as follows:

1.         If it is clear there is
no accrued limitation defence, the only question is whether it will be more
convenient to have one or two actions since the plaintiff will be able to
commence a new action against the proposed defendant if it is unsuccessful in
the joinder application.

2.         If it is clear there is
an accrued limitation defence, the question is whether it will nevertheless be
just and convenient to add the party, notwithstanding it will lose that
defence. The answer to that question will emerge from consideration of the
factors set out in Letvad.

3.         If the parties disagree
as to whether there is an accrued limitation defence, and a court cannot
determine this issue on the joinder application, the court should proceed by
assuming that there is a limitation defence, and consider whether it is just
and convenient to add the party, even though the result will be the elimination
of that defence. If that question is answered affirmatively, an order for
joinder should be made, and it becomes unnecessary to deal with the limitation
issue since it will be extinguished by s. 4(1)(d) of the Limitation Act.

[48]      There is also a fourth
option, an alternative to the third step, set out by Lambert J.A. in Lui
v. West Granville Manor Ltd., [1987] W.W.R. 49, 11 B.C.L.R. (2d) 273 at 303
(C.A.) [Lui No. 2]. He suggested that when the limitation issue
could not be determined on the joinder application, and the applicant had not
established that considerations of justice and convenience justified extinction
of the limitation defence under s. 4(1) of the Limitation Act,
judicial discretion could be exercised to permit joinder on terms that the
limitation defence would be preserved and determined at trial. That approach
was considered and adopted in Strata Plan No. VR 2000 v. Shaw,
[1998] B.C.J. No. 1086 (S.C.) [Shaw] and Stone Venepal (Celgar)
Pulp Inc. v. IMO Industries (Canada) Inc., 2008 BCCA 317, 83 B.C.L.R. (4th)
138.

[14]        
Counsel for the plaintiff referred to Chavez v. Burnaby (City of),
2003 BCCA 320 at para. 10 in support of his submission that s. 286(1)
of the Local Government Act establishes a “limitation period” and says
on the plain reading of the former Limitation Act, the limitation cannot
be a bar to adding the City as a defendant.

[15]        
In accordance with the analysis in para. 47 of Strata Plan
VIS3578 set out above, the plaintiff submits that the court should assume
there is an accrued limitation defence but, as it is just and convenient to add
the City as a party, s. 4(1)(d) of the former Limitation Act
eliminates the limitation defence found in s. 286 of the Local
Government Act.

[16]        
The City, on the other hand, argues that the former Limitation Act
properly applies to limitations that are quite different from the notice
requirement in s. 286 of the Local Government Act. Counsel pointed
out that s. 286(3) of the Local Government Act provides a specific
mechanism for relief if notice is not given in time and that mechanism requires
the matter to be decided by the trial court or the Court of Appeal.

[17]        
The City’s position was that, as a result, the limitation issue cannot
be determined on this joinder application and this case properly falls into the
exception outlined in para. 48 of Strata Plan VIS3578 set out
above.

[18]        
I agree. As s. 286(3) of the Local Government Act sets out a
specific mechanism for the determination of when a failure to give notice is
not a bar to bringing an action, and as that mechanism is to be exercised by
the trial court or the Court of Appeal, I conclude that the limitation
issue raised by that section cannot be determined on this application and must
be left to the trial judge.

[19]        
As a result, the application of the plaintiff to add the City as a defendant
is allowed, without prejudice to the right of the City to raise the issue of
late notice under s. 286 of the Local Government Act.

[20]        
As the City was successful on the only issue before me, the City will
have its costs in the cause.

“Master Muir”