In Alamdar-Saadati v. Lee, the Plaintiff was 6 years old when he was struck by a motor vehicle, after exiting the transit bus that he was riding on. The Plaintiff, through his litigation guardian, his mother, commenced legal proceedings against the driver of the motor vehicle. The Defendant then made an application to bring Third Party proceedings against the mother, claiming the parents of the child were negligent in allowing him to ride the bus by himself. The Plaintiff opposed the application, arguing that it would necessitate the Plaintiff obtaining a new litigation guardian. The Court, however, did not accede to this argument, and allowed the Defendant’s application.
[12] The authorities indicate that a Third Party Notice should not be set aside on a motion under Rule 3-5(8) unless the applicant is able to establish beyond doubt that the pleadings disclose no cause of action. This test is identical to that applied on an application under Rule 9-5(1)(a) and, as a result, it has been held that a Third Party Notice should only be set aside if there is no serious question or issue to be determined, the question or issue raised by the Third Party Notice is not substantially the same as a question or issue in the original action or the question or issue should not properly be determined in the original action: Northmark Mechanical Systems Inc. v. King (Estate), [2009] B.C.J. No. 1812, 2009 BCSC 1237.
[13] The Courts should only exercise its discretion in striking out a Third Party Notice where the question of whether the notice is founded is perfectly clear. If the issue is in doubt the Third Party proceedings should be allowed to proceed to trial for final resolution: Wade v. Marsolais, [1949] B.C.J. No. 14.
[14] The facts pleaded in the Third Party Notice do not have to be supported by evidence and the Court, in considering an application to strike a Third Party Notice, will proceed on the assumption that all the facts pleaded in the Third Party Notice are true: McNaughton v. Baker, [1988] B.C.J. No. 515, 25 B.C.L.R. (2d) 17 (C.A.).
[18] ….. The defendant is entitled to the order sought if he is able to demonstrate that the pleadings reasonably disclose a cause of action against the proposed Third Parties connected to the relief sought against him in this action by the infant plaintiff.
