Her Majesty The Queen In Right of the Province of British Columbia as represented by The Minister of Forests Plaintiff And: Fortis Pacific Holdings Inc., FortisBC Inc. v. Aquila Networks Canada (British Columbia) Ltd., 2013 BCSC 1401

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia (Minister of Forests) v. Fortis Pacific Holdings Inc., 2013 BCSC 1401 Date: 20130802 Docket: 05-3745 Registry: Victoria Between: Her Majesty The Queen In Right of the Province of British Columbia as represented by The Minister of Forests Plaintiff And: Fortis Pacific Holdings Inc., FortisBC Inc. and Aquila Networks Canada (British Columbia) Ltd. Defendants Before: Master Bouck Reasons for Judgment Counsel for the Plaintiff: P. Manhas Counsel for the Defendants/Applicants: J.J.

Kim Counsel for the Proposed Third Party The Nature Trust of British Columbia M. Van Nostrand Place and Date of Trial/Hearing: Victoria, B.C. July 24, 2013 Place and Date of Judgment: Victoria, B.C. August 2, 2013 Introduction [ 1 ] The defendants seek leave to file a third party notice against the Nature Trust of British Columbia (the “Nature Trust”). The application comes some six years after the filing of a statement of defence and eight years after this action was commenced by the plaintiff. [ 2 ] Both Nature Trust and the plaintiff oppose the application.

Background [ 3 ] The action concerns the consequences of a wildfire which ignited on August 22, 2003, near Vaseux Lake, B.C. [ 4 ] The fire allegedly started on the top of a power delivery pole owned by Fortis and located on a statutory right of way. The fire spread through what is described in the material as the Emery Property which is part of the larger parcel of land owned by the Nature Trust.

At the time of the fire, the property was leased to the plaintiff by the Nature Trust. [ 5 ] In 2005, the plaintiff commenced this action claiming that it has incurred significant costs in controlling, suppressing and extinguishing the fire.

Additional costs were incurred by the plaintiff in rehabilitating the lands in question. [ 6 ] The plaintiff’s claim against the defendants is for judgment for these costs, together with loss of timber resources, as well as general and special damages. [ 7 ] In their statement of defence filed in March 2007, the defendants reference the Nature Trust but allege that the fire was started by person or persons unknown or unidentified. A number of other defences are raised; none implicate the Nature Trust. [ 8 ] The action has proceeded in fits and starts.

Lists of documents were exchanged in 2007 but not further steps were taken for about three years. [ 9 ] Two related actions were brought by individuals with the surname Casorso (the “Casorso Actions”). The Casorsos owned property near the location of the defendants’ power pole and claimed losses resulting from the August 2003 fire.

[10] The Casorso Actions made claims against the defendants as well as the Nature Trust. In 2008, one of the Casorso actions wasdiscontinued against all defendants. The claim against the Nature Trust in the other Casorso action was discontinued in 2009. [11] At no time did these defendants seek to add the Nature Trust as a third party in the Casorso actions. [12] In 2010, the parties consented to having the trials in this and the remaining Casorso action being heard at the same time.

Iunderstand that the Casorso action has now been settled. [13] Examinations for discovery of the parties in this action were conducted in 2011 and 2012. [14] A case planning conference was held on March 5, 2013. The defendants raised the possibility of adding the Nature Trust, andwere ordered to proceed with any such application by March 31, 2013. The defendants’ notice of application was filed three days beforethat deadline. [15] Meanwhile, this action is set to proceed to trial in September 2014 for a period of up to 90 days.

A case management judge hasbeen assigned. [16] The defendants do not offer any explanation for the delay in bringing this application. The Third Party Notice [17] The defendants seek contribution and indemnity from the Nature Trust in the event that the plaintiff is successful in establishingits nuisance claim and damages are awarded. [18] The third party claim is based on the allegation that the Nature Trust sprinkler system in operation at the time of the incidentsomehow caused or contributed to the fire’s ignition.

The defendants also allege that the Nature Trust failed to take proper steps toprevent the spread of the fire. The cause of action against Nature Trust rests on the law of negligence and nuisance.

Discussion [19] The defendants’ application calls for the exercise of judicial discretion. [20] The parties agree that the following factors ought to be considered by the court in exercising that discretion: • the extent of delay in bringing the application, reasons for delay and any explanation offered; • whether the third party notice discloses a reasonable cause of action; • the connection of the proposed claim to the original cause of action; • the respective prejudices to the parties should the application be allowed or dismissed. [21] In addition, the court must recognize that multiple proceedings concerning related questions, issues and remedies ought to beavoided: McNaughton v.

Baker, (BC CA), [1988] B.C.J. No. 515 (B.C.C.A.), para. 14. [22] In more general terms, the court must determine whether the granting of the relief is just and convenient in the circumstances. [23] As noted, the defendants offer no explanation for the delay in bringing this application. The defendants say that the litigationhas been slow to unfold and no prejudice results to either the plaintiff or the Nature Trust from any delay.

There is still plenty of time toundertake the discovery process with respect to the third party claim before next year’s trial and very few days will be added to the trialas a result of this claim. In any event, the defendants say that delay is not a determining factor in allowing joinder of an action forcontribution and indemnity: The Owners, Strata Plan LMS 1751 v.

Scott Management Ltd., 2010 BCCA 192. [24] Furthermore, it is common ground that no Limitation Act, R.S.B.C. 1996, c. 266 defences arise in this case as the running oftime begins if and when judgment is obtained against the defendants. [25] The defendants suggest that they will be prejudiced by the delay in adjudicating the third party claim. If this application isdismissed, the defendants may still bring a separate cause of action if the plaintiff succeeds at trial.

Given that the defendants have sixyears from the date of judgment in which to commence that action, a trial on the issues raised in the third party notice could conceivablyhappen nearly two decades after the event in question. Nevertheless, the defendants’ material did not identify any actual prejudice suchas the unavailability of witnesses at that later date. [26] Nor did the defendants’ material identify the inconsistent judicial findings might possibly result if the third party claim isdelayed. The third party notice appears to acknowledge that the fire originated from the defendants’ power poles.

The issue in the thirdparty claim will be whether the Nature Trust’s actions or inactions contributed to this event. [27] Nature Trust submits that it will suffer the greater prejudice if joinder is allowed. It submits that witnesses are or will beunavailable for the scheduled trial. The Nature Trust also says that claim brought by the defendants is spurious.

Particular reliance isplaced on the evidence of individuals involved with the Nature Trust at the time of the fire and with the resulting fire investigation.Nature Trust says that it received “no hint” of any potential action by the defendants and has governed itself accordingly in terms ofevidence-gathering and the like. Indeed, the Nature Trust has had no involvement in any litigation stemming from the fire for almostfour years. [28] The plaintiff supports the position taken by the Nature Trust and raises additional grounds of prejudice.

It suggests that the thirdparty claim will add time and cost to an already exceptionally lengthy and expensive proceeding. Furthermore, the issues raised in the

third party claim have no bearing on the plaintiff’s claim. The better course of action is to await the outcome of this proceeding and havethe defendants determine then whether an action for contribution and indemnity is justified. [29] The plaintiff also invites the court to consider the objectives of the Supreme Court Civil Rules, including proportionality as wellas the provisions of the recently enacted Limitation Act. The plaintiff says that the trend in the law is to prevent delay by holding partiesaccountable to their choices in the litigation arena.

In this case, the defendants have been well aware of Nature Trust as a “player” in theCasorso action for years. To allow the defendants to raise the issue of contribution and indemnity at this late stage would condone delayand create an injustice to both of the parties opposing the application. [30] While Nature Trust makes a compelling argument on the strength of the defendants’ cause of action, the law is well establishedthat the merits of the third party claim are not to be weighed on this type of application.

The question is whether the action is “viable” inthat the pleading discloses a reasonable cause of action that on its face is not vexatious or unknown to the law: Wadsworth v. McLeod,2004 BCSC 1824 at para. 28; McNaughton v. Baker at paras. 21-29.

Certainly, common sense suggests that a sprinkler system would notbe a contributing factor to a fire but even that observation delves into a consideration of what evidence might be available to support thedefendants’ claim. [31] The merits of the action is one factor to consider but the “fundamental question” is whether greater injustice and inconveniencewould arise from allowing the contribution claim as a third party proceeding, or leaving it to be pursued in a separate future action: TheOwners, Strata Plan LMS 1751 v.

Scott Management Ltd. at para. 89. [32] At first blush, the defendants’ application appears on “all fours” with the principles stated in The Owners, Strata Plan LMS1751. The appellate court was persuaded that injustice would result if the defendants’ claim for contribution and indemnity fell intoabeyance for years while awaiting adjudication of the main action. [33] Both the defendants and the opposing parties suggest the delay factor weighs in their favour. [34] The submission of the Nature Trust with respect to delay cuts both ways.

If its key witnesses might not be available at the trialin this action, there seems a greater likelihood that the same individuals will not be available at any future trial of the third party claim.However, the challenges faced by the Nature Trust in preparing for trial is not really a valid consideration on this application. Theapplication is not deciding whether or not the third party claim can proceed at all.

Rather, the application is whether the claim might bepostponed. [35] In any event, I am not persuaded that any of the parties have demonstrated actual prejudice in the sense of an inability to presentor defend the third party claim: Bel-Mar Developments Inc. v. North Shore Credit Union, 2001 BCSC 388 at para. 9. [36] I am persuaded, however, that other assumed prejudice exists and that the ruling in The Owners, Strata Plan LMS 1751 can bedistinguished based on its facts.

Unlike the proceeding in The Owners, Strata Plan LMS 1751, this is not a multi-layered constructiondispute where evidence of each trade’s actions might well be relevant to the question of causation. As well, as the court noted in thatcase, there were multiple third parties brought into the action, many of whom took no issue with their ongoing involvement. [37] I accept the plaintiff’s submissions that the defendants’ cause of action is entirely separate in that there can be no risk ofinconsistent findings if the matter proceeded to trial at another time.

The claim described in the third party notice is premised on afinding of negligence and nuisance against the defendants. The court will be asked to find that the Nature Trust owed a duty of care tothe defendants and/or committed a nuisance. [38] This claim has nothing to do with the plaintiffs, yet will inevitably add steps and possible delay to the adjudication of the mainclaim.

The parties can only estimate the additional time required at trial for presenting evidence and argument on the third party claim.What is certain is that the plaintiff will be compelled to sit through this portion of the trial as an observer and at considerable cost thatwill not be recouped unless full indemnity costs are awarded -- a possible, but highly unlikely, scenario. [39] Similarly, if joined in the proceeding, the Nature Trust will incur costs while its counsel sits through days if not weeks ofevidence and submissions addressing the assessment of damages.

Again, it seems highly unlikely that any such prejudice will be fullyremedied in a costs award. [40] The only identifiable prejudice to the defendants is the delay in having the third party claim adjudicated. With respect, thedefendants’ inaction created this possible prejudice. Furthermore, the defendants should not be able to say that the prejudice will beexacerbated if an action is not commenced until near the end of the governing limitation period. Again, this speaks to a delay of thedefendants’ own doing.

On the other hand, if this application is dismissed, the defendants will control the pace of the third partyproceeding. [41] In Lui v. West Granville Manor Ltd. (1985), (BC CA), 18 D.L.R. (4TH) 391 (C.A.), Lambert J.A. addressessome of the factors that ought to be considered in exercising the discretion at play in this application: … What is the fair thing to do? Who suffers prejudice if the discretion is exercised? How much prejudice? Who suffers prejudice if thediscretion is not exercised? How much prejudice? Have the parties acted properly and reasonably in their own interests?

If a party hasnot acted properly and reasonably, should he be relieved from the consequences of his own behaviour? Is there another course availableto one or other of the parties? Where does the balance of convenience lie? This list is illustrative, but not exhaustive, of the questions thatshould be asked with respect to the parties before the court. But part of the purpose of the Rule is to avoid multiplicity of proceedings forthe benefit of other litigants, so that congestion in the courts is avoided.

So it is proper to ask questions in that area as well. [42] Upon consideration of all of those factors, I find that the fair result is the dismissal of this application. Put another way, I ampersuaded that the Nature Trust and the plaintiff will suffer the greater inconvenience and injustice if the third party claim is joined withthe main action.

[ 43 ] If the parties are unable to agree on costs of the application, arrangements should be made through the Court Scheduling office to speak to the matter. “C.P. Bouck” Master C.P. Bouck