In Cebula v. Smith, the Plaintiff was injured in a chain reaction collision, and subsequently brought an ICBC claim for damages for pain and suffering, as well as various other heads of damages. The Plaintiff had been traveling behind a truck hauling a boat trailer, when a car coming from the opposite direction crossed the double yellow line and collided with the truck, causing the trailer to strike the Plaintiff‘s vehicle. The Defendant‘s vehicle then struck the Plaintiff‘s vehicle. The injuries alleged were serious, and liability was disputed. The owner of the Defendant‘s vehicle passed away after proceedings had been commenced. In substituting the estate of the Defendant owner for the Defendant owner, the Court commented on the applicable law.

 

[13] Upon his death, Mr. Smith ceased to exist in law: McNabb Estate v. Mills, 1995 CanLII 160 (B.C.S.C.). Notwithstanding R. 6-2(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, which provides that if a party to a proceeding dies but the claim survives the proceeding may continue in spite of the death, until such time as an executor or administrator is substituted as a party there is no legal person or entity before the court: McCulloch v. Green, 1995 CanLII 8909 (B.C.C.A.) at para. 30:

If the defendant, in a properly brought action for tort, dies after the commencement of the action, that action is suspended until an executor or administrator is appointed and, in accordance with the Rules of Court, substituted as a party for the deceased, whereupon the plaintiff may proceed.

[14] I was advised by counsel that Mr. Smith’s estate has not yet been probated.

[15] During the trial, the plaintiff sought leave pursuant to R. 6-2(7) to substitute the Estate of Mr. Smith for Mr. Smith as a defendant in this action. In my view, the participation of the Estate of Mr. Smith as a party is necessary to ensure that all matters in the proceeding may be effectually adjudicated on. I ordered that that substitution be made and directed that the style of cause be amended accordingly.

 

Generally speaking, there is a two year limitation period under Section 6 of the Limitation Act to commence legal proceedings in a personal injury matter. What happens if the Plaintiff wishes to add another Defendant after the expiry of the two year period? The Court does have the ability to add a Defendant after the expiry of a limitation period, if the circumstances call for such an addition. Several factors will be considered by the Court hearing the application to add a Defendant, such as the length of delay in bringing the application, the reason for such delay, and the existence of any possible connection between the existing claim and the proposed new cause of action. An overriding factor the Court will consider is weighing the prejudices between the parties should the application to add a Defendant be allowed or denied.

 

In Middelaer v. Berner, the Plaintiff was injured in a car accident, and brought an ICBC claim for damages arising therefrom. After the expiry of the applicable limitation period, the Plaintiff sought to add the Corporation of Delta as a Defendant in the action, and sought leave to amend the Notice of Civil Claim to include allegations against the Corporation. Both applications were opposed by counsel for the Corporation on the basis that it was outside the applicable limitation period. ICBC’S lawyer, representing ICBC as a third party, took no position on the application. The Court permitted the addition of the Corporation of Delta as a Defendant, ruling that the balance of prejudice favored the Plaintiff, as by denying the Plaintiff’s application would prevent the Plaintiff from asserting a claim of negligence which would usually be actionable. This, in the Court’s view, was more prejudicial than any prejudice that would be suffered by the Corporation of Delta.

 

[21]           The limitation for the commencement of an action claiming damages was likely two years from the date the damages were sustained under s.3(2) (a) of the Limitation Act R.S.B.C. 1996, c.266. I say “likely” as it is possible that discoverability under s. 6(4) of  the Limitation Act could extend the period beyond two years. In oral submissions plaintiff’s counsel conceded that it would be a “fair finding” to conclude that this application was brought outside the limitation period; however, the plaintiff contends that the date of discovery, and therefore the date on which time began to run for the purposes of the Limitation Act, was not the date of the accident, but rather from some later date. I find that the statutory limitation period has expired, however, based on my finding below, it is not necessary to delve further into the issue of discoverability.

 

[27]           I pause to note that plaintiff’s counsel enlightened me to the fact that Delta has not relied on s.286 of the Local Government Act, R.S.B.C. 1996, c.323 in this action, despite having plead this section in its defence to the companion actions. Without making a determination on this issue, I am of the opinion that s.286(3) would operate to prevent Delta from barring the maintenance of this action due to the plaintiff’s failure to give notice within the two month period as specified in s.286(1).

 

[32]           Considering the discretion referred to in Letvad and Teal, a balancing of the prejudices to the parties and what is just and convenient, Delta ought to have been joined as a party and its participation in the proceedings is necessary to ensure the proper adjudication of the issues. As a result, I order that Delta be added as a defendant to this action. I also grant leave to the plaintiff to file a notice of civil claim to include the allegations made against Delta.

In Haworth v. Haworth, a woman was injured as a passenger in a single vehicle accident, with her husband being the driver. The woman sued her husband for damages. ICBC’S lawyer plead the defence of “inevitable accident”, and added a road maintenance company as a Third Party. The plaintiff sought to add the road maintenance company as a Defendant, however after the applicable limitation period. The road maintenance company objected to this, citing the expiry of the limitation period. An application was brought, and the Plaintiff was successful in this regard, as the Court found in favour of the Plaintiff after a balancing of the parties’ respective prejudices.

 

[39]         There is, as previously confirmed, a presumption of prejudice if a proposed defendant will be deprived of a limitation defence by his addition as a party. Also, as previously indicated, the relevant period during which prejudice is to be assessed is that which follows the expiration, in this case, of the three year period following the date upon which the cause of action arose. The plaintiff will certainly suffer prejudice if her application is dismissed. She will lose a possible claim against a party or parties with potential liability. This issue, Wilson J. indicates in Walsh v. Blair, Vancouver Registry, Action No. M015646, BCSC, said as follows:

 

        [22]      There is prejudice to the plaintiff in that if the application is not allowed, she will lose a right to claim against a party with potential            liability. As noted in Takenaka v. Stanley (2000), 91 B.C.L.R. (3d) 179 (S.C. Master), that will usually outweigh the loss of a potential limitation defence to a potential defendant. Generally, the courts are reluctant to deprive a plaintiff of his or her day in court, so that the trend in the cases appears to be that it will take more than theoretical prejudice to outweigh the loss of that potential claim.

 

[40]         The plaintiff’s potential peril becomes more significant when one considers that, should the application be dismissed, and should the present defendant succeed on the issue of unavoidable accident, she will be left without remedy although blameless with respect to the circumstances of the accident.

 

[43]         In the circumstances, I find that there is no prejudice to these proposed defendants in making the order sought, whereas the potential prejudice to the plaintiff, should she be deprived of potential claims, is overwhelming. An order will go in the terms of the application. Costs will be in the cause.

In Moldovan v. Republican Western Insurance Company, the Plaintiff was injured as a passenger in a motor vehicle accident, and brought an ICBC claim for damages. The Plaintiff eventually sued the wrong Defendant for “no fault” benefits. Once he realized this, it was already past the two year mark. The British Columbia Court of Appeal ultimately allowed the addition of the Defendant.

 

[27] I set out below the material provisions of s. 4 again for convenience:

 

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…

 

[28]         I also reproduce R. 15(5)(a), which was in force at the time of the hearing below:

At any stage of a proceeding, the court on application by any person may

            (i)         order that a party, who is not or has ceased to be a proper or necessary party, cease to be a party,

            (ii)        order that a person, who ought to have been joined as a party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added or substituted as a party, and

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

                        A.         with any relief claimed in the proceeding, or

                        B.         with the subject matter of the proceeding,

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

 

[35] The circumstances surrounding the plaintiff’s claim, which need not be rehearsed here, were reviewed by the Master.  Most important, he found that the plaintiff’s delay “resulted not from any tactical decision designed to gain an advantage for the plaintiff but from solicitor inadvertence or an honest error in judgment.”  As against this, RWIC has not alleged any particular prejudice. A helpful summary of the law on the weighing of relative prejudice in this context is found in the analysis of Martinson, J. in Wadsworth v. McLeod, supra:

 

Regard must be had for the presence or absences of prejudice. There must be a balancing of prejudices: Teal at p. 299. Prejudice can be assumed, or actual.

 

Prejudice means prejudice associated with the delay itself. The fact that an opposing party is affected negatively by such an amendment does not mean that he is prejudiced. The prejudice must affect the ability to respond to the amended claim: Bel Mar Developments Inc. v. North Shore Credit Union, [2001] B.C.J. No. 512, 2001 BCSC 388 at para. 9.

 

I agree with the following comments of Master Bolton in Takenaka v. Stanley, [2000] B.C.J. No. 288, 2000 BCSC 242 at paras. 41 and 42:

 

Putting aside any issues of actual prejudice in addition to the prejudice resulting from the loss of the cause of action or of the limitation defence, I am satisfied that the prejudice to a plaintiff in the former event will usually be greater than the prejudice to a defendant in the latter. In the former case the plaintiff loses the opportunity to ask a court to consider a claim that the defendant has done something the law of the land considers to be actionable. In the latter, the defendant loses a windfall opportunity to avoid the issue altogether. Their respective situations may be precisely balanced in purposely financial terms, but not, I conclude, as a matter of justice. A right to seek justice cannot fairly be equated with a right to cut short the search without an answer

 

[36]           In the circumstances of this case, it seems to me that the balance of prejudice is clearly in the plaintiff’s favour, and that it is just and convenient that RWIC was added as a defendant notwithstanding the time limitation in s. 103 of the Regulation.  I would therefore dismiss the appeal and confirm the order of the chambers judge below, although for different reasons than those she expressed

 

In Chouinard v. O’Connor, the British Columbia Court of Appeal again discussed the law with respect to adding a party after the expiry of the limitation period.

 

[17]           This Court has considered the proper approach to amendments to pleadings after the expiry of a limitation period on numerous occasions.  The issue has arisen frequently under both former Rule 15(5)(a)(iii) (now replaced by Rule 6-2(7)), where a plaintiff wished to add a party after the expiry of the limitation period, and under former Rule 24(1) (now replaced by Rule 6-1(1)) where a plaintiff sought to plead a new cause of action against an existing defendant after the expiry of the limitation period for bringing the cause of action.

 

[18]           In Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. 1996 CanLII 3033 (BC CA), (1996), 19 B.C.L.R. (3d) 282, 34 C.C.L.I. (2d) 211, this Court determined that the Supreme Court has broad discretion to allow or disallow an amendment, holding that the overriding test is whether it is “just and convenient” to allow the amendment.  Finch J.A. (as he then was), with the concurrence of Ryan J.A., stated:

 

[36]      This application was brought … under Rule 24(1) which permits a party to amend pleadings at any time, with leave of the court.  The rule is discretionary and contains no criteria for the exercise of that discretion.

 

[37]      The rule most often involved in questions arising under the Limitation Act is Rule 15(5)(a)(iii). It is invoked on applications to add parties. Rule 15(5)(a)(iii) says that the court may order a person to be added as a party where there exists a question which, in the opinion of the court, would be “just and convenient” to determine as between a party and the person sought to be added. The qualifying phrase “just and convenient” is not to be found in Rule 24(1).

 

[38]      Discretionary powers are, of course, always to be exercised judicially. It would clearly be unjudicial to permit an amendment to pleadings under Rule 24(1) if it appeared to be either unjust or inconvenient to do so. So, even though the words “just and convenient” are not found in Rule 24, justice and convenience would, in my view, be relevant criteria for the exercise of the discretion found in that rule.

…

[45]      [T]he discretion to permit amendments afforded by … Rule 24(1) … was intended to be completely unfettered and subject only to the general rule that all such discretion is to be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities.  Delay, and the reasons for delay, are among the relevant considerations, and the judge should consider any explanation put forward to account for the delay. But no one factor should be accorded overriding importance, in the absence of a clear evidentiary basis for doing so.

…

[67]      In the exercise of a judge’s discretion, the length of delay, the reasons for delay and the expiry of the limitation period are all factors to be considered, but none of those factors should be considered in isolation. Regard must also be had for the presence or absence of prejudice, and the extent of the connection, if any, between the existing claims and the proposed new cause of action. Nor do I think that a plaintiff’s explanation for delay must necessarily exculpate him from all “fault” or “culpability” before the court may exercise its discretion in his favour….

 

[19]           The concurring reasons of McEachern C.J.B.C. (Ryan J.A. also concurring) were to similar effect:

 

[74]      Applying the same principles regardless of whether the application is to add new defendants … or new causes of action, … 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.

 

[20]           In Letvad v. Fenwick, 2000 BCCA 630 (CanLII), 2000 BCCA 630, 82 B.C.L.R. (3d) 296, Esson J.A. for the Court cited from Teal Cedar, and then said:

 

[29]      My understanding of the phrase “completely unfettered” in this context is that the discretion is not fettered by the relevant legislation, i.e., the Rule and the Limitation Act.  It is, however, fettered to the extent that, as was held in Teal, it must be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities.  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.

 

[21]           As can be seen from the chambers judgment in the case before us, this list of factors has come to be seen as a checklist in applications to add a cause of action or a party after the expiry of the limitation period.  It is sometimes forgotten that the list of factors is not an exhaustive one, and that the overriding concern is whether the proposed amendment will be “just and convenient”.  The factors listed in Teal Cedar and in Letvad will typically be important factors to be considered by a chambers judge, but the decision is ultimately a discretionary one.  Thus in Boutsakis & Kakavelakis, A Partnership v. Boutsakis, 2008 BCCA 13 (CanLII), 2008 BCCA 13, 77 B.C.L.R. (4th) 113, this Court upheld the granting of amendments even though not all of the Teal factors had been specifically referred to in the judgment of the chambers judge.  Newbury J.A., speaking for the Court, said:

 

[21]      … [I]t seems to me that although the summary trial judge did not mention the authorities, she did consider many of the factors listed in Teal Cedar – the reasons for the plaintiffs’ delay, the question of prejudice to the appellants; Mr. Kakavelakis’ difficulty in obtaining Mr. Boutsakis’ cooperation in enforcing the Partnership’s rights against Crown Travel; and the overall context of the two actions generally.  Given the high degree of deference that is to be accorded to a discretionary decision of this kind, I see no basis on which this court should interfere with her conclusion that both amendments to the Statement of Claim in the “F” action should be permitted and given effect to notwithstanding that between the issuance of the writ in 1989 and the 1997 and 2004 motions to amend, fresh causes of action advanced by those amendments would have become barred by the lapse of time.