Court Allows Addition Of Defendant After 2 Year Limitation Period, Whose Name ICBC Had Failed To Disclose

When ICBC cases are not settled within two years of the date of the accident, the Plaintiff must file a legal document called a Notice of Civil Claim in order to preserve the Plaintiff’s legal action. File materials provided by ICBC to counsel for the Plaintiff contain the names of the driver and owner of the Defendant’s vehicle, which must be included as named parties within the Notice of Civil Claim. Although the vast majority of the time such information is accurate, situations can arise where improper names are provided, as well as cases where names that should be provided are not.


In Littlejohn v. Clavelle, the Plaintiff was injured in a motor vehicle accident, and consequently commenced legal proceedings. Counsel for the Plaintiff was provided with names of Defendants by ICBC, however it would turn out to be the case that the name of the driver was omitted. The Notice of Civil Claim was filed, however shortly thereafter counsel for the Plaintiff was informed by ICBC of the error.


Counsel for the Plaintiff brought an application to add the name of of the Defendant driver. Counsel for the other Defendants took no position on the application, which means they did not agree to the amendment, nor did they object to it.


In allowing the amendment to the Notice of Civil Claim and finding that there was no prejudice to the current Defendants, the Court commented,


[6]              It is well-established that the addition of a party is a matter of discretion and it should be exercised generously to allow effective determination of the issues without delay, inconvenience or separate hearings (Delta Sunshine Taxi (1972) Ltd. v. Vancouver (City), 2014 BCSC 2100).


[7]              I note that the plaintiff was advised of the name of the actual driver of the defendants’ vehicle on May 27, 2020, three days after the expiry of the applicable limitation period on May 24, 2020. I also note that the original claim was filed in November 2019 and there is no evidence or suggestion of delay on her part or on the part of her counsel. It is clear that litigation was contemplated some time ago and the names of the current defendants were provided by ICBC in the normal course of business between counsel. Counsel for the plaintiff was entitled to rely on that information as being accurate. As well, the one year allowed for service has not passed (McIntosh v. Nilsson Bros. Inc., 2005 BCCA 297).

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