(UPDATE: May 10, 2010 – The below case was overturned today by the BC Court of Appeal; reasons can be found here)
Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing the postponement of a limitation period in a personal injury claim.
In last month’s case (Iezzi v. R.) the Plaintiff worked as a foster parent. She alleged that in 2001 one of her foster children, identified as “MW” accidentally stuck her with a hypodermic syringe and infected her with Hepatitis C. She claimed the Ministry of Children and Family Development was responsible for the harm and started a lawsuit in 2009.
The Ministry argued the action was brought out of time set out in the Limitation Act and brought a motion to dismiss the claim. The motion was dismissed, however, with the Court finding that on-going settlement discussions and other factors operated to postpone the running of the limitation period under Section 6(4) of BC’s Limitation Act. In dismissing the Ministry’s motion Mr. Justice Burnyeat provided the following reasons:
I am satisfied that there was a postponement of the limitation period to sometime between the Spring of 2008 and the Fall of 2008 as a result of a number of factors. There were negotiations with the Ministry during 2006 and until April 2008 regarding a possible settlement of damages flowing from the Hepatitis C infection and from the breach of contract. It would have been unwise to interrupt those by the commencement of an action. While negotiations were ongoing and while there was still a hope that a settlement could be reached, a reasonable person would believe that it was not necessary to commence an action for damages flowing from the Hepatitis C infection. It was not until the April 1, 2008 meeting with a Ministry representative that the final position of the Ministry regarding a possible settlement was received. Even then, Ms. Iezzi advised the Ministry that she had “no desire to go to a lawyer” although she also did advise that “I have been left with no other choice”. It was only at that point that negotiations came to a conclusion and that Ms. Iezzi was left with no other alternative.
It was not until sometime between April 2008 and September 2008 that Ms. Iezzi obtained the actual documentation relating to the Hepatitis C status of MW. Before commencing an action, a reasonable person would first ascertain the exact knowledge the Ministry had about the Hepatitis C status of MW when she was placed as a foster child. A reasonable person would not want to rely on the unsubstantiated information that was available from an employee of the Ministry. A reasonable person would first wish to see the actual documentation before proceeding. That documentation was not available to Ms. Iezzi until she ascertained in a document that was made available to her that the Ministry was aware that MW had Hepatitis C when MW was placed with her because the Ministry was in possession of the records available from the Juvenile Detention Centre.
Until that information was available, it would have been foolhardy and unreasonable for a person to conclude that an action should be commenced and that there was a reasonable or any possibility of success. Until the actual documentation was available to her, Ms. Iezzi had only the hearsay statements from her resource worker. It was reasonable not to proceed until a determination could be made that there was a reasonable prospect of success and that there was a reasonable prospect of there being sufficient funds available if an action was successful to justify the action being commenced in the first place.
I also consider that Ms. Iezzi was under intense stress. I am satisfied that I should take into account a number of circumstances in dealing with whether the running of the limitation period should be postponed. First, she had lost her house. Second, she had lost her health as a result of the Hepatitis C infection. Third, she had lost her livelihood because she could no longer take foster children. At the same time to require her to face the intense stresses and strains involved in suing the Province is unrealistic.
Taking into account all of the circumstances surrounding the commencement of this action in October 2009, I am satisfied that the application of the Defendant should be dismissed.
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:
 …. 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.
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.
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.
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.
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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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