IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150902

Docket: 050500

Registry:
Kamloops

Between:

John
Trombley

Plaintiff

And

Gurnake
Singh Pannu and Ranjit Kaur Pannu

Defendants

Before:
The Honourable Mr. Justice Myers

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: In this summary trial, the defendants seek dismissal
of this slip and fall action, because it was started outside the applicable two-year
limitation period provided by the Limitations Act, R.S.B.C. 1996,
c. 266 (repealed).  The plaintiff relies on a letter from the defendants’
insurance adjuster as a confirmation of the cause of action under s. 5 of
the Act.

[2]            
The alleged slip and fall took place on July 12, 2012 and the action was
commenced on August 6, 2014.

[3]            
The following facts are largely taken from the plaintiff’s application
response:

1.       The plaintiff retained
counsel in April 2013.  In late August 2013, plaintiff’s counsel sent notice to
the defendants that he would be pursuing a claim on behalf of the plaintiff.

2.       On September 16, 2013, plaintiff’s
counsel received a letter from the defendants’ insurance adjuster.  The
adjuster noted that her investigation was underway and that "we are unable
to comment on liability".  The adjuster requested plaintiff’s counsel
provide an account of the incident and forward medical records.

3.       On November 4, 2013, plaintiff’s
counsel sent the adjuster the requested information.

4.       In December 2013 the defendants’
adjuster asked to meet with the plaintiff to obtain a statement from him. 
Counsel responded to this request by advising that the plaintiff would respond
to questions put to him in writing.

5.       On January 24, 2014 the
adjuster sent a letter with a three-page list of questions for the plaintiff. 
These questions were responded to on February 20, 2014.

6.       On April 3, 2014 the defendants’
adjuster wrote to counsel.  That letter included the following paragraphs:

"As the
matter of investigation and assessment has continued, there has been no
indication of what is expected in terms of settlement.  As we are nearing the
two year mark following the date this incident occurred, in an attempt to keep
matter moving forward, please forward your settlement demands.

We thank you in advance for forward the
requested records, and we look forward to further discussions regarding
settlement."

7.       On May 28, 2014 plaintiff’s
counsel received a voice mail message from the adjuster asking what counsel’s
plans were as far as commencing an action or settlement.  Counsel spoke with
the adjuster the next day and she again wanted to discuss settlement.  Counsel
advised that he was unable to make a settlement proposal at that time.

[4]            
Section 5 of the Limitations Act provides:

5(1)      If, after time has begun to run with respect to a
limitation period set by this Act, but before the expiration of the limitation
period, a person against whom an action lies confirms the cause of action, the
time during which the limitation period runs before the date of the
confirmation does not count in the reckoning of the limitation period for the
action by a person having the benefit of the confirmation against a person
bound by the confirmation.

(2)        For the purposes of this section,

(a)        a person confirms a
cause of action only if the person

(i)         acknowledges a cause of
action, right or title of another

…

…

(5)        For the purposes of this section, an
acknowledgment must be in writing and signed by the maker.

(6)        For the purposes of this section, a person has the
benefit of a confirmation only if the confirmation

(a)        is made to the person or to a person through whom
the person claims …

[5]            
The plaintiff says the April 3 letter is a confirmation of the cause of
action.

[6]            
In Ryan v. Moore, 2005 SCC 38, the Supreme Court of Canada
considered the equivalent section in the Newfoundland statute and said:

43        In order to establish
confirmation, one of two events must be proven: (1) that the party acknowledged
the cause of action; or (2) that there was a payment made in respect of the
cause of action (see Mew, at p. 115).

44        The term "acknowledges"
as used in s. 16(1)(a) of the Limitations Act has been described by
Lord Denning in Good v. Parry, [1963] 2 All E.R. 59 (C.A.), at p. 61,
as requiring an "admission". While care must be shown when applying
English case law, as the English Limitation Act, 1939, 2 & 3 Geo. 6,
c. 21, does not provide for the acknowledgment of the "cause of
action" but the acknowledgment of the "claim", it is still
persuasive authority for the present interpretation.

45        Thus, a party can only be held
to have acknowledged the claim if that party has in effect admitted his or her
liability to pay that which the claimant seeks to recover (see Surrendra
Overseas Ltd. v. Government of Sri Lanka, [1977] 2 All E.R. 481 (Q.B.)). As
the British Columbia Court of Appeal concluded in Podovinikoff v. Montgomery
(1984), 1984 CanLII 52 (BC CA), 14 D.L.R. (4th) 716, at p. 721, a person
can acknowledge as a bare fact that someone has asserted (by making a claim) a
cause of action against him, without acknowledging any liability.  Simple
acknowledgment of the "existence" of a cause of action is
insufficient to meet the requirements of s. 16(1)(a). Acknowledgment must
involve acknowledgment of some liability.

46        Consequently, the letters from the
adjuster to Ryan’s counsel (i.e. letters of November 18, 1998 and January 25,
1999) do not restart the clock as they do not constitute an admission of
liability on the part of Cabot Insurance. These were obviously only requests
for information and part of the normal investigation process. As submitted by
the appellants, if mere investigation of claims were to constitute
confirmation, then potential defendants, in order to protect limitation
defence, would have no choice but to refuse to investigate until a statement of
claim is issued. This would destroy the possibility of early settlements and
lead to increased litigation and costs.

48        The
purpose for which these types of payments and correspondence are made is
critical. In this case, they were not intended as admissions of liability,
but only to promote investigation and early resolution of certain aspects of
the claim.

[Emphasis
added]

[7]            
In determining whether there has been a confirmation of the cause of
action, the court applies an objective test; namely, how a reasonable person
would interpret the words and actions of the parties; the analysis does not
hinge on the determination of what a party actually meant: Nguyen v.
Johnson, 2008 BCCA 218.

[8]            
Unlike the case at bar, in Ryan there was no mention of
settlement in the correspondence; there were only requests for information.  Nevertheless,
the case lays down the general principles to be applied in determining whether
a communication constitutes a confirmation of the cause of action.

[9]            
There have been cases where an adjuster’s request for a settlement
proposal has been held to be a confirmation of the cause of action.  However,
many of these were decided before Ryan.  One example is Williams v.
Williams, 1995 CanLII 307 (BCSC), aff’d 1996 CanLII 2648 (BCCA), in which
Cowan J. remarked that the cases dealing with this issue were difficult to
reconcile.  He noted that the action was one of a passenger suing a driver in a
single-car accident and that the only issue could have been damages and not
liability.

[10]        
In Hustad v. 594971 B.C. Ltd. (c.o.b. Chevron Canada Ltd.), 2008
BCSC 1441, a post-Ryan decision, Davies J. was of the view that the
letter in question was no different than that in Williams and other
similar decisions, and determined that there was a confirmation.  In reaching
his conclusion he relied, in part, on a second letter sent by the adjuster
after the expiry of the limitation period asking plaintiff’s counsel if he was
in a position to discuss settlement.

[11]        
In my view there are two things that make the letter in question here
distinguishable from those cases.  The first is that the letter was written
without prejudice.  The second is that the adjuster noted that the two-year
mark was approaching and she wanted to move the matter forward.  I do not see
that as a confirmation.  Rather, the adjuster was stressing that the limitation
period was about to expire and she wanted canvass settlement in order to avoid
an impending legal action which was expected to be commenced within the
limitation period.  I interpret the adjuster’s May 28 voice mail, left
approximately six weeks before the expiry of the limitation period, as
reinforcing that.

[12]        
One cannot lose sight of the fact that parties to litigation can and will
analyse claims and seek settlement proposals without admitting liability and it
is an admission of liability that Ryan requires.

[13]        
The application is therefore allowed and the action is dismissed.

"E.M.
MYERS, J."