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Month: April 2011

Can you add a Party to a Lawsuit After the Limitation Period Expires?

Written by admin on . Posted in Uncategorized. 64 Comments on Can you add a Party to a Lawsuit After the Limitation Period Expires?


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.

Bus Passenger Injuries: When Can a Driver be sued in Negligence?

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 46 Comments on Bus Passenger Injuries: When Can a Driver be sued in Negligence?


When a Bus Driver is involved in an at-fault collision causing injury to the passengers a suit for damages can usually be brought.  What if there is no collision but instead the bus driver makes an abrupt move causing injury to the passengers, can a suit succeed on these facts?  Depending on the circumstances the answer is yes.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing this area of the law.
In this week’s case (Habib v. Jack) the Plaintiff was injured while riding on a bus in Burnaby, BC.  The Plaintiff testified that the driver went over a speed bump and that “her seat cushion slid out from under her and she became briefly airborne during which time her neck snapped forward and back“.  The Court ultimately dismissed the lawsuit finding that the Defendant drove the bus appropriately.  Prior to making this finding Madam Justice Ross provided the following useful discussion addressing this area of the law:

[26] The standard of care owed by a transit operator to a passenger was addressed in Day v. Toronto Transportation Commission, [1940] S.C.R. 433. Justice Hudson described the duty as follow:

Although the carrier of passengers is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree: 4 Hals., p. 60, paras. 92 and 95. In an old case of Jackson v. Tollett [(1817) 2 Starkie 37], the rule was stated by Lord Ellenborough, at p. 38, as follows:

Every person who contracts for the conveyance of others, is bound to use the utmost care and skill, and if, through any erroneous judgment on his part, any mischief is occasioned, he must answer for the consequences.

[27] In this province, Madam Justice Humphries summarized the principles to be applied in Lawson v. B.C. Transit, 2002 BCSC 1438, as follows at paragraph 18:

As set out in Wang v. Harrod, supra, once an accident has occurred, the defendant must meet the heavy burden of establishing that he used all proper and reasonable care and skill to avoid or prevent injury to the passenger. The standard of care imposed is the conduct expected of a reasonably prudent bus driver in the circumstances. The court must consider the experience of an average bus driver, as well as anything that the particular driver knew or should have known about the passenger. The standard of care required is higher when the driver knew or ought to have known that the passenger was handicapped or elderly.

[28] Mr. Justice Berger in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.) noted that:

…this is not a case where negligence has been established. I say that because, though the bus lurched as it started up, it was a lurch that she, as someone who had travelled on the buses for twenty years had experienced in the past. Anyone who travels on the buses must expect that from time to time the movement of the buses will not be smooth and uneventful. Lurches are part of the movement of these buses and something that the people who travel on the buses learn to expect. Accidents do happen. And there are bound to be some accidents on the bus system. And some of them, like this accident, will not give rise to a right to damages.

Madam Justice Ross goes on to cite about a dozen other cases dealing with Bus Passenger injuries in BC making this week’s case a good starting point in researching bus driver liability for injury to passengers.

Court Ordered Medical Exams and Location: Can ICBC Send You Out of Town?

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 51 Comments on Court Ordered Medical Exams and Location: Can ICBC Send You Out of Town?


When ICBC requests a Plaintiff to attend an ‘independent’ medical exam they often pick physicians in the Lower Mainland for these assessments.  One of the obvious reasons for this is that the Lower Mainland has the highest concentration of physicians who provide these consultations to ICBC.  Is it reasonable to object to such an appointment on the basis of location?  The answer is usually not and reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this area of law.
In today’s case (Parsons v. Mears) the Defendant was involved in an incident where he became trapped in an overturned tractor trailer.  The Plaintiff “allegedly suffered various injuries when attempting to rescue the Defendant“.  The Plaintiff sued for damages and in the course of the lawsuit the Defendant requested that the Plaintiff attend a Vancouver based medical exam.  The Plaintiff agreed to the assessment but insisted it take place in Victoria.  The parties could not reach agreement on this issue and an application was brought.  Master Bouck ordered that the Plaintiff attend and in doing so provided the following summary of the law:

[19] The following principles are applicable to this discussion:

a.  The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant: Sinclair v. Underwood, 2002 BCSC 354 at para. 5;

b.  Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person: Willis v. Voetmann, [1997] B.C.J. No. 2492 (S.C.) at para. 5;

c.  Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: Adelson v. Clint (1993), 16 C.P.C. (3d) 209 (B.C.S.C.) at para. 17; and

d.  It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair v. Underwood and Adelson v. Clint, supra.

[20] In terms of convenience to the plaintiff, I do not understand the authorities to say that an independent medical examination should, or even might preferably, take place at the examinee’s town or city of residence. Nor do I understand those authorities to say that all things being equal, the defence should be required to schedule an examination with a specialist practicing near the examinee’s residence. For example, the court in Willis v. Voetmann, supra, deemed it reasonable for a resident of Port McNeil to travel to Victoria or Vancouver for an examination.

[21] It is almost always an inconvenience to a plaintiff to attend an independent medical examination. An employed person might miss a day’s pay; a homemaker with young children might be required to pay for childcare. However, that inconvenience can be remedied at trial by an award of damages for this suggested loss.

[22] On a very rare occasion, the court may order that the defendant’s nominee travel to the plaintiff’s town or city of residence to conduct the independent examination or assessment. Such an order might be appropriate where the examination or assessment is requested so late in the day that travel time would unduly interfere with the plaintiff’s trial preparation. The alternative to such an order would be to deny the defendant’s entitlement to an examination altogether: White v. Gait, 2003 BCSC 2023.

[23] In this case, there is no objection to the qualifications of either Dr. Leith or the proposed evaluator at Progressive Rehabilitation. The plaintiff can obviously travel although the defendant may need to offer special accommodations for that travel.

[24] In short, convenience to the plaintiff is one of several factors for the court’s consideration on this application. It is not the predominant factor and in itself does not provide justification for denying the defendant’s entitlement to the order sought.

$25,000 For "Mild to Moderate" Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this ever-growing British Columbia non-pecuniary damages (pain and suffering) caselaw database, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a claim involving lingering soft tissue injuries.
In today’s case (Manson v. Kalar) the Plaintiff was involved in a rear-end collision in 2008.  The crash was fairly significant resulting in over $5,000 in damage to the Plaintiff’s vehicle.  Fault for the collision was admitted focusing the trial on the value of the claim.
Madam Justice Boyd ultimately found that the Plaintiff suffered mild-moderate soft tissue injuries and that while these were on-going some three years after the fact there was still room for improvement.  In assessing non-pecuniary damages at $25,000 the Court provided the following reasons:
[38] …The plaintiff here has suffered injuries which are limited to his lower back and neck.  He has pursued very little treatment for his injuries and, despite his doctor’s recommendations, he has not attended few physiotherapy treatments or undertaken any core muscle conditioning programs.  Nevertheless it is expected that he will recover in the foreseeable future.  As I have already noted, while I satisfied that his ongoing pain and discomfort has limited his participation in his former sporting activities, some of his social withdrawal appears to be the result of other factors. ..
[46] …In the case at bar, the plaintiff has suffered a mild to moderate soft tissue injuries, where the symptoms have persisted for almost three years since the accident and are still not resolved.  In these circumstances, I find that a fair and reasonable award of damages is $25,000.
For more on this topic you can click here to access my archived posts of other recent BC court cases dealing with damages for soft tissue injuries.