Third Party Pleadings Permitted Against Plaintiff's Litigation Guardian
When an infant sues for damages in BC they must do so through a litigation guardian. Typically a parent acts in this role. If an allegation arises that the litigation guardian’s negligence contributed to the child’s injuries can Third Party proceedings be brought against the litigation guardian? The answer is yes as was demonstrated in reasons for judgement released by the BC Supreme Court, New Westminster Registry, earlier this month.
In the recent case (Alamdar-Saadati v. Lee) the Plaintiff was involved in a pedestrian/motor vehicle collision in 2009. He was 6 years old at the time. He was travelling alone on a transit bus. After leaving the bus he “attempted to cross the street in front of the bus and was struck by a motor vehicle“. The Plaintiff, through his mom acting as litigation guardian, sued the driver of the vehicle.
The driver brought an application to bring bring Third Party proceedings against the Plaintiff’s parents arguing they were negligent in allowing the Plaintiff to ride the bus alone. The Plaintiff objected arguing the application would require the appointment of a new litigation guardian. Master Keighley found that this was not a barrier to the claim. In doing so the Court provided the following reasons:
[11] Ultimately, I have reached the conclusion that Ms. Alamdar’s status as litigation guardian does not impact the outcome of this case. She is, however, as a proposed Third Party, entitled to object to the issuance of the notice.
[12] The authorities indicate that a Third Party Notice should not be set aside on a motion under Rule 3-5(8) unless the applicant is able to establish beyond doubt that the pleadings disclose no cause of action. This test is identical to that applied on an application under Rule 9-5(1)(a) and, as a result, it has been held that a Third Party Notice should only be set aside if there is no serious question or issue to be determined, the question or issue raised by the Third Party Notice is not substantially the same as a question or issue in the original action or the question or issue should not properly be determined in the original action: Northmark Mechanical Systems Inc. v. King (Estate), [2009] B.C.J. No. 1812, 2009 BCSC 1237.
[13] The Courts should only exercise its discretion in striking out a Third Party Notice where the question of whether the notice is founded is perfectly clear. If the issue is in doubt the Third Party proceedings should be allowed to proceed to trial for final resolution: Wade v. Marsolais, [1949] B.C.J. No. 14.
[14] The facts pleaded in the Third Party Notice do not have to be supported by evidence and the Court, in considering an application to strike a Third Party Notice, will proceed on the assumption that all the facts pleaded in the Third Party Notice are true: McNaughton v. Baker, [1988] B.C.J. No. 515, 25 B.C.L.R. (2d) 17 (C.A.)…
[19] I am well aware that granting the order sought will disqualify the mother from continuing to act as her son’s litigation guardian. In all fairness, this is a matter which she ought to have considered at the outset. If not she, then surely her counsel should have considered that there was a possibility that a Third Party claim might be advanced against her by virtue of the circumstances of this accident.
[20] The infant plaintiff will not lose his claim but an alternate litigation guardian will have to be found.
[21] The father, I should have mentioned earlier, did not oppose the application to add him as a Third Party.
[22] In the result, an order will go granting the defendant leave to file a Third Party Notice naming Zoleikha Alamdar and Mohsen Saadati as third parties in the form attached as Schedule “A” to the application with the addition of these parties as third parties in the style of cause thereof.