Foreign Insurers Entitled to Rely on s. 103 Limitation Defence; Adding Defendant Beyond Limitation Discussed


Reasons for judgement were released today by the BC Court of Appeal addressing the ability of foreign insurers to rely on the s.103 limitation defence for no-fault accident benefits.
By way of background, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.
The Court of Appeal confirmed PAU signatories can take advantage of the limitation contained in s. 103 of BC’s Insurance (Vehicle) Regulation. The Court further discussed the common sense approach BC law imposes in adding a defendant to an existing lawsuit despite the availability of a limitation defence.
In today’s case (Moldovan v . Republic Western Insurance Company) the Plaintiff was injured while travelling as a passenger in a rented U-Haul vehicle.  The vehicle was insured by the Republic Western Insurance Company.  The Plaintiff sought no fault benefits and sued ICBC.  When he realized he sued the wrong insurer the limitation period under s.103 of the Insurance (Vehicle) Regulation had passed.
He sought to add RWIC to the existing lawsuit which the Court of Appeal ultimately permitted.  In doing so the Court explained that while a foreign insurer PAU signatory can take advantage of the s. 103 limitation period the Court retains a discretion to add a Defendant to an existing lawsuit even beyond the limitation period due to section 4(1)(d) of BC’s Limitation Act and further due to the former Rule 15(5)(a) which is reproduced as the new Supreme Court Rule 6-2(7).  The Court provided the following reasons:
[17] As will be seen below, I am of the opinion that while s. 103 would normally be available to RWIC to assert in defence of the plaintiff’s claim, s. 4(1)(d) of the Limitation Act nevertheless does permit the court to join RWIC as an additional defendant. I also conclude that RWIC should be so joined in the circumstances of this case…
[25] I conclude that the chambers judge erred in declining to apply s. 103 on the basis that the PAU does not constitute an agreement to incorporate into RWIC’s insurance policy all the terms that are required to be incorporated in a policy issued by ICBC.  The fact that s. 103 was not incorporated into U-Haul’s rental contract did not make it somehow inapplicable to Mr. Moldovan, any more than the silence of a British Columbia policy on the question of limitation would make it inapplicable to a claim against ICBC.  As a person claiming benefits under Part 7 in a British Columbia action, the plaintiff is subject to the statutory limitation in s. 103.  No breach of the principle of extraterritoriality arises…

[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…

[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.

I believe that his analysis provides a firmer foundation for the conclusion I reached at paragraph 68 of the Mah decision ([2000] B.C.J. No. 44), that if all else is equal the balance of prejudice should be resolved in favour of the plaintiff.”  [At paras. 22-4.]

[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.

bc injury law, Moldovan v. Republic Western Insurance Company, PAU, Power of Attorney Undertaking, Rule 6, Rule 6-2, Rule 6-2(7), Rule 6-2(7)(b), Rule 6-2(7)(b)(i), Rule 6-2(7)(b)(ii), Section 103 Insurance (Vehicle) Regulation, Section 4 Limitation Act, Section 4(1)(d) Limitation Act

Comments (51)

  • I simply want to mention I’m all new to blogging and really savored this web blog. Probably I’m going to bookmark your blog . You certainly have incredible article content. Regards for revealing your website.

  • I was just seeking this information for some time. After six hours of continuous Googleing, finally I got it in your web site. I wonder what’s the lack of Google strategy that don’t rank this type of informative websites in top of the list. Usually the top websites are full of garbage.

  • I would like to thank you for the efforts you have put in writing this web site. I’m hoping the same high-grade site post from you in the upcoming as well. In fact your creative writing abilities has inspired me to get my own website now. Actually the blogging is spreading its wings rapidly. Your write up is a good example of it.

  • I have been browsing on-line greater than 3 hours today, but I by no means found any fascinating article like yours. It’s beautiful worth enough for me. In my view, if all site owners and bloggers made good content material as you did, the internet shall be a lot more useful than ever before.

  • Great work! This is the type of info that should be shared around the internet. Shame on the search engines for not positioning this post higher! Come on over and visit my web site . Thanks =)

  • One more thing. I think that there are numerous travel insurance sites of trustworthy companies that let you enter a trip details and acquire you the insurance quotes. You can also purchase the international travel insurance policy on-line by using your own credit card. All that you should do should be to enter your travel information and you can start to see the plans side-by-side. Just find the system that suits your financial allowance and needs after which it use your bank credit card to buy the item. Travel insurance on the web is a good way to take a look for a respected company regarding international holiday insurance. Thanks for revealing your ideas.

  • Aw, this was a really nice post. In idea I want to put in writing like this additionally – taking time and precise effort to make an excellent article… however what can I say… I procrastinate alot and in no way seem to get something done.

  • fantastic issues altogether, you just received a new reader. What could you recommend in regards to your put up that you made some days ago? Any sure?

  • I carry on listening to the newscast lecture about receiving free online grant applications so I have been looking around for the most excellent site to get one. Could you tell me please, where could i get some?

  • Oh my goodness! an incredible article dude. Thanks Nonetheless I am experiencing subject with ur rss . Don’t know why Unable to subscribe to it. Is there anyone getting identical rss downside? Anybody who knows kindly respond. Thnkx

  • We’re a group of volunteers and starting a new scheme in our community. Your site offered us with valuable info to work on. You have done a formidable job and our entire community will be thankful to you.

  • Valuable info. Lucky me I found your website by accident, and I’m shocked why this accident didn’t came about in advance! I bookmarked it.

  • Hey, you used to write magnificent, but the last several posts have been kinda boring… I miss your super writings. Past several posts are just a little bit out of track! come on!

  • Hey there would you mind stating which blog platform you’re using? I’m looking to start my own blog soon but I’m having a difficult time selecting between BlogEngine/Wordpress/B2evolution and Drupal. The reason I ask is because your layout seems different then most blogs and I’m looking for something unique. P.S Apologies for getting off-topic but I had to ask!

  • I simply could not go away your web site prior to suggesting that I really loved the usual information an individual provide in your visitors? Is gonna be back ceaselessly in order to check out new posts.

  • Thank you, I have recently been looking for information about this subject for ages and yours is the greatest I have discovered till now. But, what about the conclusion? Are you sure about the source?

  • A lot of thanks for your own labor on this web page. Kate takes pleasure in setting aside time for research and it’s easy to understand why. We hear all concerning the dynamic way you present rewarding strategies via this website and in addition strongly encourage contribution from other people on this concept then our favorite girl is without question understanding a lot of things. Take advantage of the rest of the year. You are always carrying out a wonderful job.

  • I simply wanted to thank you very much yet again. I do not know the things I could possibly have sorted out without the smart ideas contributed by you over my topic. It has been an absolute challenging concern in my view, but taking note of a specialised style you solved it took me to weep with delight. I’m happy for your assistance and as well , hope you know what a great job you have been getting into teaching the mediocre ones all through your websites. I’m certain you’ve never come across all of us.

  • Great beat ! I would like to apprentice while you amend your web site, how can i subscribe for a blog web site? The account aided me a acceptable deal. I had been a little bit acquainted of this your broadcast offered bright clear concept

  • I haven’t checked in here for a while as I thought it was getting boring, but the last several posts are great quality so I guess I’ll add you back to my everyday bloglist. You deserve it my friend 🙂

  • I simply wanted to thank you so much once again. I’m not certain what I would’ve gone through without the concepts shared by you concerning such situation. It was before an absolute terrifying circumstance in my position, nevertheless spending time with the very expert strategy you dealt with it made me to leap for fulfillment. I’m just happy for your work and then trust you recognize what an amazing job you were accomplishing training many others with the aid of your website. Probably you have never come across any of us.

  • An additional issue is really that video gaming has become one of the all-time biggest forms of fun for people of every age group. Kids have fun with video games, and adults do, too. The XBox 360 is among the favorite games systems for those who love to have hundreds of activities available to them, and also who like to experiment with live with others all over the world. Thank you for sharing your ideas.

  • Very nice post. I just stumbled upon your blog and wanted to say that I’ve truly enjoyed surfing around your blog posts. After all I will be subscribing to your feed and I hope you write again very soon!

  • I got what you intend, regards for putting up.Woh I am pleased to find this website through google. “I would rather be a coward than brave because people hurt you when you are brave.” by E. M. Forster.

  • Thanks for the tips shared on your own blog. Another thing I would like to state is that weight reduction is not information about going on a fad diet and trying to get rid of as much weight as possible in a few months. The most effective way in losing weight is by consuming it slowly but surely and right after some basic points which can help you to make the most from a attempt to drop some weight. You may realize and be following many of these tips, although reinforcing awareness never damages.

  • Just wish to say your article is as astonishing. The clarity on your submit is just nice and i can think you’re knowledgeable on this subject. Fine along with your permission let me to clutch your feed to stay up to date with coming near near post. Thank you a million and please carry on the gratifying work.

  • Thank you for sharing excellent informations. Your site is so cool. I am impressed by the details that you’ve on this site. It reveals how nicely you perceive this subject. Bookmarked this web page, will come back for extra articles. You, my friend, ROCK! I found simply the information I already searched everywhere and simply could not come across. What a perfect web-site.

  • Excellent post. I was checking continuously this blog and I’m impressed! Very useful info particularly the last part 🙂 I care for such info much. I was seeking this certain information for a very long time. Thank you and best of luck.

  • Hi would you mind sharing which blog platform you’re working with? I’m looking to start my own blog soon but I’m having a difficult time selecting between BlogEngine/Wordpress/B2evolution and Drupal. The reason I ask is because your design seems different then most blogs and I’m looking for something completely unique. P.S Sorry for being off-topic but I had to ask!

  • Write more, thats all I have to say. Literally, it seems as though you relied on the video to make your point. You definitely know what youre talking about, why waste your intelligence on just posting videos to your weblog when you could be giving us something enlightening to read?

  • Very interesting subject , thanks for putting up. “It is much easier to try one’s hand at many things than to concentrate one’s powers on one thing.” by Quintilian.

  • Can I simply say what a relief to search out somebody who truly is aware of what theyre talking about on the internet. You definitely know tips on how to bring a problem to light and make it important. Extra people must read this and perceive this facet of the story. I cant consider youre no more in style since you undoubtedly have the gift.

  • I have been browsing online more than three hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my opinion, if all webmasters and bloggers made good content as you did, the net will be much more useful than ever before.

  • You are my inhalation, I have few blogs and infrequently run out from post :). “No opera plot can be sensible, for people do not sing when they are feeling sensible.” by W. H. Auden.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer