ICBC Law

Section 6(4) of the BC Limitation Act states in part that a limitation period “does not begin to run against a plaintiff…..until the identity of the defendant…is known to the plaintiff“.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this provision in the context of an ICBC Claim.

In this week’s case (Telus Corporation v. Araneda) equipment owned by Telus was struck by a motor vehicle causing $43,000 in damage.  They sued the party they alleged was responsible but did so nine days after the limitation period expired.

Telus argued that the running of the period should be postponed by several days under s. 6(4) of the Limitation Act because it took 18 days for them to receive the police report identifying the defendant.  Mr. Justice McEwan rejected this argument and dismissed the lawsuit.  In doing so the Court provided the following reasons:

[20] …. On the day of the accident, Telus, through its employee Dale Summers, knew it had a claim for property damage and knew the name of the tortfeasor was immediately ascertainable from a reliable source, the RCMP.

[21] In saying so, I reject Telus’ argument that a large enterprise should be judged on its “ individual circumstances” and that its step-wise approach to the management of its legal claims is akin to the situation in Strata Plan LMS 2940 v. Quick as a Wink Courier, 2010 BCCA 74. There the Court of Appeal upheld a judge of this Court who had found that an action brought by a strata corporation against an individual one day outside the limitation period was not statute-barred because the strata corporation was obliged to pass a resolution before it could initiate the action, and doing so took some time.

[22] Telus was not impeded by a statutory prerequisite, and there is no reason in principle why a large organization should be judged by a more accommodating standard than would apply to any competent individual. As in Meeker, Telus knew on the first day of the accident that it had suffered actionable harm and that the name of the person involved was ascertainable.

[23] It is regrettable that the limitation period went by in this case. As some of the case law demonstrates Courts frequently go some distance to ensure that cases are tried on their merits. The policy inherent in limitation periods, however, must also be respected. Applying the relevant legal principles to the present case, Telus has not established that it is entitled to postponement, and the action must be dismissed.

Often times as a lawsuit progresses a Plaintiff learns of new allegations that could be made or new parties who may be responsible.  Lawsuits can take time to get to trial and often when these new revelations are made the limitation period to sue the new party has already expired.  When this happens can the party be added to the existing lawsuit?  The answer is yes, however, the Court’s permission must be granted to do so.  Today the BC Court of Appeal released reasons for judgement providing a detailed overview of this area of law.

In today’s case (Chouinard v. O’Connor) the Plaintiff was injured in an altercation that took place during a lacrosse game.  He sued his alleged assailant and a variety of others alleging battery.  As the lawsuit progressed the Plaintiff wished to amend the claim to add allegations of negligence.  By the time this happened the limitation period to sue in negligence had expired.  The Plaintiff applied to Court to allow an amendment to the lawsuit but this was denied.  The Plaintiff appealed but was also unsuccessful.  In dismissing the matter the BC Court of Appeal provided the following useful legal overview addressing factors a Court should consider in allowing amendments to a claim after a limitation period has expired:

[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), 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, 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 inTeal 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, 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.

The Government of BC intends on overhauling the BC Limitation Act. As Ian Mulgrew of the Vancouver Sun points out, this proposed law reform is something that matters to everyone, not just personal injury lawyers and claimants.

The Government has released a White Paper discussing the proposed changes at length. The proposed New Limitation Act can be found at Appendix A of the White Paper. On review it is clear that the proposed changes are not concrete and the Government is seeking feedback before bringing the law into force.

Members of the public can contact the Government with any concerns or suggestions no later than November 15, 2010, at:

Civil Policy and Legislation Office

Justice Services Branch

Ministry of Attorney General

PO Box 9222 Stn Prov Govt

Victoria, British Columbia V8W 9J1

Fax: 250 387-4525

E-Mail: CPLO_Limitation@gov.bc.ca

One of the goals of the reformed act is to “simplify” the law. On review there is nothing simple about the proposed new law and it seems every bit as complex as the current Limitation Act. There are some proposed changes that are noteworthy including:

Replacing varying basic limitation periods with a standard 2 year period

Reducing the Ultimate Limitation Period from 30 years to 10 or 15 years

Redefining “Discoverability” of a potential lawsuit

Abolishing the special ultimate limitation period for medical malpractice claims

Continuing to waive limitation periods for civil lawsuits for damages as a result of sexual assault

There are other proposed changes as well and I suggest that anyone interested in this topic review the proposed new law in full.  If you have concerns about how these reforms may affect your rights or have suggestions for improved changes please be sure to contact the Government prior to the November 15 deadline.

Here is a video I recently uploaded to YouTube providing a brief overview of some of the unique legal issues that provide an advantage to abuse victims when suing in the BC Civil Courts:

Last month I authored a handful of articles discussing some of the unique laws that apply to Civil abuse claim lawsuits.  These include the law of limitation periods, the law of non-pecuniary damages, and the law of vicarious liability.

Due to some of the positive feedback I received after authoring these articles I thought it may be helpful to summarize some of my advice in this brief video.  I hope this video and these articles are of some assistance.

With the amount of quality legal articles available on the Internet these days there is a surprising lack of information concerning civil sexual assault lawsuits in British Columbia.  Perhaps it’s because this topic can be considered taboo, or perhaps its because there are relatively few lawyers who are experienced in prosecuting these types of claims.  Whatever the reason, I thought it would be appropriate to author a few articles addressing this unique area of law.  Today’s article will deal with an important topic; limitation periods.

Limitation Periods are legal rules that dictate the time frame in which a lawsuit needs to be brought.  If a claim is not brought within an applicable limitation period it can be dismissed by the Court, not on its merits but because it was simply not brought in time.

In British Columbia limitation periods for civil suits are set out in a statute called the Limitation Act.  Different limitation periods apply to different types of lawsuits.

Often times serious injury victims struggle with the decision of whether to sue.  Time is spent focusing on recovery instead of restitution.  When a victim finally decides to sue it can add insult to injury to learn that a limitation period expired.

Sexual assault victims often struggle more so than others with the decision of whether to file a lawsuit.   It is not unusual for substantial amounts of time to pass before victims of sexual abuse come to terms with the harm that has been caused.  For this reason the law in British Columbia creates a special exception for civil sexual assault claims.

Specifically, section 3(4)(l) of the BC Limitation Act holds that “a cause of action based on sexual assault”  is not “governed by a limitation period and may be brought at any time“.

This is important and powerful legislation.  The British Columbia Justice System respects the fact that the healing process can be lengthy and does not punish sexual abuse victims with artificial time limits within which they can access the civil courts of this Province.

Limitation periods can be complex.  Typically if a person is injured through the negligence of another in British Columbia a 2 year limitation period applies to bring a claim for damages in Court.  However, there are numerous exceptions and restrictions to this general rule and one restriction is contained in the Local Government Act.

If you are injured and can bring a claim against a municipality you will lose your right to make your claim unless you comply with s. 286 of the local government act which provides as follows:

Immunity Unless Notice Given To Municipality After Damage

(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 sustaibed, 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.

This limitation arises in many different cases including BC Car Crash cases.  For example, if you are injured by a Municipal worker in the course of his employment or someone driving a Municipal owned vehicle at the time of a crash this limitaiton can be triggered.  This obscure and very short limitaiton has been the death of many personal injury claims over the years and reasons for judgement were released today by the BC Suprene Court showing this ‘immunity’ in action.

In today’s case (Persall v. Bond) the Plaintiff was injured in a 2006 motor vehicle collision.  The Plaintiff brought a claim against the City of Surrey claiming that “the City failed to design, inspect and maintain the Intersection properly“.

The Plaintiff did not give the City written Notice in 2 months as required by the Local Government Act.  The City of Surrey brought an application to dismiss the Plaintiff’s claim against them for this failure and this motion was granted.

In granting the motion Madam Justice Dickson summarized and applied the law as follows:

[16]         When notice is not given to a municipality within two months in accordance with the statutory obligation, the onus is on the plaintiff to prove a reasonable excuse:  Keen v. City of Surrey, 2004 BCSC 1161, ¶ 17.

[17]         What may constitute a reasonable excuse will depend on the circumstances of each case.  Courts in British Columbia have taken various factors into account in assessing whether a plaintiff has a reasonable excuse for providing late notice.  They include:

a)       The plaintiff’s knowledge of the statutory obligation to provide notice;

b)       Actions or representations by the local government which have the effect of lulling the plaintiff into a false sense of security;

c)       The plaintiff’s awareness of his/her injuries and awareness of the seriousness of his/her injuries;

d)       The plaintiff’s awareness of the involvement of the local government in the matter giving rise to the litigation; and

e)       The plaintiff’s capacity to provide notice.

Griffiths v. New Westminster (City of), 2001 BCSC 1516
Keen v. City of Surrey, supra
Teller v. Sunshine Coast (Regional District of), 1990 CanLII 2131 (B.C.C.A.)

[18]         In Keen, Burnyeat J. held that ignorance of the law alone will not constitute a reasonable excuse for failure to provide timely notice pursuant to s. 286 of the Act.  Rather, it is but one of the factors to be taken into account:  Teller.

[19]         When a plaintiff acts through a solicitor, responsibility for providing a municipality with timely notice of a damages claim is shared.  In Horie v. Nelson (1987) Can LII 2508 (B.C.C.A.), a majority of the British Columbia Court of Appeal held that a solicitor’s negligent failure to deliver timely notice does not necessarily constitute a reasonable excuse.  In response to an argument that the appellants relied on their solicitor to deliver notice, but the solicitor inexplicably failed to do so, MacDonald J.A. stated:

[18]      … That approach can only help the appellants if they can put forward their own reasonable conduct and dissociate themselves from the failure of their solicitor.

[19]      I agree with Locke J. when he said in the course of his reasons [p. 112]:  “I am driven further by the wording of the section of our statute to hold that the responsibility for delivering the notice is collective in that, if the notice is not delivered, it does not matter by whose hand the failure occurred”.  The section requires reasonable excuse for “failure to give the notice”.  That means that when a party acts through a solicitor the conduct of both must be examined to determine whether there was reasonable excuse for failure to give the notice.

[20]      In my opinion the judge was correct in his conclusion. I would dismiss the appeal.

[20]         When a plaintiff is able to establish a reasonable excuse for failing to provide timely notice, the Court must go on to consider whether the municipality has nevertheless been prejudiced in its defence.  If so, the action against it cannot be maintained despite the existence of a reasonable excuse.

[21]         The onus is on the municipality to prove it has suffered prejudice as a result of receiving delayed notice.  Prejudice may be presumed on the basis of inordinate delay.  In such circumstances, however, it is open to the plaintiff to rebut the presumption of prejudice:  Griffiths.

[22]         In most cases, the issue of prejudice cannot be determined until the end of the trial.  This is so because whether a defendant has, in fact, been prejudiced will depend on the allegations pursued by the plaintiff at trial and the conclusions the Court is asked to draw:  Teller.

DISCUSSION

[23]         The City submits that Mr. Persall has not provided an excuse, reasonable or otherwise, for his failure to provide timely notice of his damages claim to the municipality.  It argues that knowledge of the statutory obligation should be imputed to Mr. Persall, given his failure expressly to deny it, and presumed of his previous solicitors.  Taking into account Mr. Persall’s apparent ability to instruct counsel from the outset despite his injuries, in the City’s submission there is no basis for a finding of reasonable excuse.

[24]         The City also submits that it has been demonstrably prejudiced by the long delay in notification.  The Intersection’s condition at the time of the Accident is presently unknown and would likely have been easier to ascertain had timely notice been received.  In addition, the 18-month delay at issue is excessive and inordinate.  In these circumstances, prejudice should be presumed.

[25]         Mr. Persall responds that his serious injuries, together with his reasonable conduct in leaving the matter of notification to his solicitors, constitute a reasonable excuse.  He submits the Court should infer he was personally unaware of the notification requirement and unable fully to instruct counsel until he was released from GF Strong in January, 2008.  He emphasises that notice was provided shortly after his present solicitors were retained, but concedes his previous solicitors’ failure to provide timely notice is unexplained.  In the event a reasonable excuse is found, he submits the issue of prejudice should be determined at trial as evidence of the Intersection’s condition at the relevant time may well come to light.

[26]         I accept that Mr. Persall’s discovery evidence as to his knowledge of the statutory notice requirement is less than crystal clear.  I am nonetheless satisfied that an absence of personal knowledge can be reasonably inferred and conclude he was personally unaware.  This does not, however, constitute a reasonable excuse, given Mr. Persall’s demonstrated capacity to instruct counsel within weeks of the Accident and his previous solicitors’ unexplained failure to notify the City of his damages claim.

[27]         It is not difficult to posit various explanations for the failure of Mr. Persall’s previous solicitors to provide the City with written notice of his damages.  One is that they formed the view the City would not be held liable and chose consciously not to notify.  Another is that they were unaware of, or insufficiently attentive to, the statutory notice obligation.  In the absence of evidence on the point, however, a factual conclusion simply cannot be reached.

[28]         As stated by MacDonald J.A. in Horie, when a plaintiff acts through a solicitor responsibility for delivering notice of damages in accordance with the Act is collective.  Accordingly, the Court must examine the conduct of both to determine whether there was a reasonable excuse for late notification.  In my view, the reason is obvious.  A plaintiff will not be excused from the statutory notification obligation merely because he or she retains a new solicitor who adopts a new approach to a potential claim for damages against a municipality.  Were it otherwise, the Legislature’s decision to impose a short limitation period for such claims would be easily overcome.

[29]         In this case, I am satisfied that Mr. Persall acted through his previous solicitors from no later than October 10, 2006 in connection with the Accident.  I am unable to reach a conclusion, however, as to why those solicitors did not provide the City with written notice of his damages as required by the Act.  That being so, I am unable to determine whether Mr. Persall does or does not have a reasonable excuse for his failure to comply with his statutory obligation to provide timely notice to the City.  The onus is on Mr. Persall to establish a reasonable excuse.  The onus has not been met.

[30]         If I am wrong and Mr. Persall does have a reasonable excuse as a result of his injuries and the unexplained inaction of his previous solicitors, I agree with him that the issue of prejudice cannot be determined until the end of the trial.