No Prejudice Adding Correct Defendants to Claim Where ICBC Provided Plaintiff With Wrong Names

Short but helpful reasons were published today by the BC Supreme Court, Victoria Registry, addressing a fact pattern that sometimes arises in litigation involving ICBC.

In today’s case (Littlejohn v. Clavelle) the Plaintiff was injured in a collision and sued for damages.  Prior to staring the lawsuit counsel for the plaintiff asked ICBC to provide information concerning the identity of the Defendants.  ICBC provided this information but did so partly in error.   As a result the Plaintiff commenced the lawsuit but failed to name all appropriate parties.

The Plaintiff successfully applied to add the correct party to the litigation.  Despite the passage of the two year limitation period the court noted there was no prejudice in allowing amendment.  In doing so Mr. Justice Steeves provided the following reasons:

[1]              In an application filed June 1, 2020 the plaintiff seeks to add the name of an additional defendant pursuant to Rule 6-2(7). The currently named defendants do not oppose the plaintiff’s application.

[2]              This original claim was filed on November 12, 2019 and it arose from a motor vehicle accident on May 24, 2018 from which the plaintiff alleges she suffered damages.

[3]              As is usually done, the names of the defendants were provided by the defendants’ insurance carrier, the Insurance Corporation of British Columbia (“ICBC”). The names provided were the registered owners of the defendants’ vehicle, Michael Clavelle and Elizabeth Clavelle.

[4]              The information provided by ICBC turned out to be incorrect and that was communicated to counsel for the plaintiff by email on May 27, 2020. The error was that the driver of the defendants’ vehicle at the time of the accident was the son of the named defendants, Matthew Robert Clavelle.

[5]              In an email dated June 1, 2020 counsel for the defendants advised counsel for the plaintiff that the named defendants would not be taking any position on an application by the plaintiff to add Matthew Robert Clavelle as a defendant.

[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).

[8]              I can find no prejudice to the current defendants and the plaintiff’s application is allowed. The names of the defendants are: “Matthew Robert Clavelle, Michael Clavelle and Elizabeth Clavelle.”

[9]              The plaintiff does not seek costs. They will be in the cause.

Adding party, Littlejohn v. Clavelle, Mr. Justice Steeves

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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.

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