Ashley Christine Peters Plaintiff And: Insurance Corporation of British Columbia Defendant, 2013 BCSC 2468

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Peters v. Insurance Corporation of British Columbia, 2013 BCSC 2468 Date: 20130221 Docket: 11-3727 Registry: Victoria Between: Ashley Christine Peters Plaintiff And: Insurance Corporation of British Columbia Defendant Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: D. Kozlick, agent for D. Brooks Counsel for the Defendant: S.J. Harper Place and Date of Trial/Hearing: Victoria, B.C. February 21, 2013 Place and Date of Judgment: Victoria, B.C.

February 21, 2013 [ 1 ] THE COURT: The plaintiff seeks an order pursuant to Rule and 6-1 of the Rules of Court permitting her to amend her notice of civil claim. She also seeks an order pursuant to Rule 15-1(6) that this proceeding be removed from the “fast track” provisions of Rule 15-1. Facts [ 2 ] The chronology of this matter is important to the determination of the application before me.

Consequently, I will review it in some detail. [ 3 ] The plaintiff claims that she was struck by a motor vehicle while she was walking in a crosswalk at the intersection of Douglas Street and Fisgard Street on 24 September 2009. The vehicle in question did not stop and therefore the plaintiff does not know the identity of the driver or the owner of the vehicle. [ 4 ] In the fall of 2009 and in the spring of 2010, the plaintiff met with and corresponded with an adjuster for the Insurance Corporation of British Columbia (“ICBC”) regarding her claim and the possibility of reaching a settlement.

The plaintiff says that she was unaware of her obligation under s. 24 of the Insurance (Vehicle) Act , R.S.C.B. 1996, c. 231 (the “ Act ”) to make reasonable efforts to locate the driver or owner of the vehicle that struck her.

Moreover, she asserts that no one with ICBC ever advised her of this obligation under the Act . [ 5 ] On 7 September 2011, counsel for the plaintiff filed a notice of civil claim naming ICBC as the nominal defendant pursuant to s. 24 of the Act . [ 6 ] On 9 November 2011, ICBC filed a notice of fast track action placing the plaintiff's action under the provisions of Rule 15-1. [ 7 ] The next day ICBC filed its response to the plaintiff's civil claim.

In its defence, ICBC pleaded, amongst other things, that the plaintiff's claim was statute-barred on account of s. 24 of the Act and her failure to make all reasonable efforts to determine the identity of the driver or owner of the vehicle that allegedly struck her. [ 8 ] The plaintiff has not filed a reply to ICBC's response, notwithstanding that she could have done so pursuant to Rule 3-6 of the Rules . [ 9 ] On 10 January 2012, counsel for ICBC filed a notice of trial setting the matter down for a three-day trial commencing 9

October 2012. [10] On 15 February 2012, counsel for ICBC conducted an examination for discovery of the plaintiff. This examination wasconducted, keeping in mind the matter was proceeding as a fast track action under Rule 15-1. [11] With the October 2012 trial date approaching, a trial management conference was held on 28 August 2012. In advance of thisconference, both parties filed trial briefs outlining the issues in dispute and their respective positions. [12] On the issue of liability, the plaintiff described her position as follows: "Liability lies solely with the defendant". For its part,the defendant explains its position on liability as: Defendant says: (

a) Plaintiff failed to make a reasonable effort to identify driver and owner; and (

b) Plaintiff is unable to prove negligence on the part of the unidentified driver. [13] At the conclusion of the trial management conference, the matter remained as a fast track action and there were no amendmentssought or ordered to any pleadings. [14] The trial did not take place on 9 October 2012, and the matter was adjourned generally. I am advised that the reason for thatwas because there was no judge available to hear the trial.

I take that to mean both sides were prepared to go to trial and had there been ajudge available, the trial would have proceeded. [15] The defendant filed a second notice of trial, again noting that the matter was subject to Rule 15-1. The matter was down for afive-day trial commencing on 15 July 2013. [16] That brings us to the present, and the plaintiff’s application that was filed on 11 January of this year. Argument Amending the Plaintiff’s Pleadings [17] The plaintiff wishes to add two new facets to her claim against the defendant. First, under

Part 1 “Statement of Facts”, shewishes to add “loss or impairment of past earning capacity” to the particularization of her claim for general damages. Second, under Part3 “Legal Basis”, she wishes to include a plea that the defendant is estopped from relying on the statutory defence provided by s. 24(5) ofthe Act and, in the alternative, that the defendant has waived its right to rely upon that

section of the Act. She also wishes to add underPart 1 “Statement of Facts”, two new factual assertions that she maintains support of her plea of estoppel and waiver. [18] Counsel for the plaintiff has candidly acknowledged that the addition of the waiver and estoppel pleas to the plaintiff’s notice ofcivil claim did not occur to him until he became aware of the obiter dicta of Justice Armstrong in Springer v.

Kee, 2012 BCSC 1210, andhad, in light of those comments, conducted a further review of the documents the plaintiff had received from the defence. [19] The plaintiff also cites s. 10 of the Law and Equity Act in support of its argument in favour of permitting the requestedamendments. In support of its position, the plaintiff relies upon Langret Investments S.A. v. McDonnell, (BC CA),[1996] B.C.J. No. 550 (C.A.) (Q.L.) and Mah v.

City of Vancouver, 2000 BCSC 41. [20] The defendant opposes the proposed amendments, arguing they change the entire nature of the case it has to meet and willunnecessarily create a more protracted litigation that has, since shortly after the action was commenced, been in the fast track stream.The defendant also opposes the proposed amendment to the plaintiff's statement of facts and legal basis, arguing that the facts as pleadeddo not support the proposed legal conclusions.

Removing the case from the “Fast Track” provisions of Rule 15-1 [21] The plaintiff argues that as she is now seeking a monetary award of greater than $100,000, and the trial is set for five days,there is no longer any justifiable reason to keep the matter within the fast track provisions of Rule 15-1. [22] The defence objects to this case being removed from Rule 15-1. In advancing this position, the defence points to the fact thatthe parties have pursued this litigation as a “fast track case” for the past three years and that it has conducted itself and its defence inaccordance with the spirit of the rule.

Decision Adding a plea for loss or impairment of past earning capacity [23] Although the proposition is trite, in the present instance it bears repeating that a party is bound by its pleadings, for they act asthe foundation of its case. Consequently, those pleadings should be crafted with care. [24] The plaintiff's claim, when it was filed in November 2011, did not contain a claim for loss or impairment of past earningcapacity. It is not clear to me why it did not, nor are the reasons for the delay in bringing the application to add this claim adequatelyexplained.

What is clear is that this matter was set to go to trial in October 2012 and had it done so, this new claim would not have beenadvanced.

[ 25 ] This matter has been set for fast track litigation, discoveries have taken place pursuant to Rule 15-1, and the defence has prepared its defence accordingly. In my view, adding this new claim to the mix at this point in the litigation would unfairly alter the extent and nature of the case the defence has to meet. I should add that the proposed changes to the notice of civil claim are not simply technical or “conceptual” amendments, as counsel for the plaintiff has argued.

In my respectful opinion, the inclusion of this new claim constitutes a significant alteration to the plaintiff’s lawsuit and entails a potential for a considerable financial award. Moreover, I agree with the submission of counsel for the defendant that there is no material before the court that supports the proposed amendment, and that in any event it is too late to add this additional claim.

Adding a plea of estoppel and/or waiver [ 26 ] As for the proposed amendments regarding waiver and estoppel, I am of the view the defence is correct when it argues that the amendments cannot be made because the proposed new facts the plaintiff seeks to allege do not support a plea of estoppel or waiver. In other words, even if the amendments are allowed and the plaintiff is permitted to plead the new facts, they do not support a claim of estoppel or waiver. [ 27 ] The proposed amendments to the notice of civil claim are denied.

Removing the case from the “Fast Track” provisions of Rule 15-1 [ 28 ] The plaintiff’s law suit has been in the fast track stream under Rule 15-1 since shortly after it was launched in the fall of 2011. The plaintiff's examination for discovery has been completed. The matter was set to go to trial as a fast track trial in the fall of 2012 and would have but for a lack of judicial resources. The matter is now set for trial, again under Rule 15-1, for June of this year.

I agree with the defendant’s argument that it is too late at this point to change tack and to remove the case from the provisions of Rule 15-1. [ 29 ] For all of the above reasons, the plaintiff's application is denied. [ 30 ] Those are my reasons. Mr. Kozlick, it was your application. Do you require any clarification? [ 31 ] MR. KOZLICK: I don't believe so, My Lord. [ 32 ] THE COURT: All right, thank you. [ 33 ] MS. HARPER: My Lord, given the success of the defendant's position, I ask for costs in any event of the cause. [ 34 ] THE COURT: Any submission? [ 35 ] MR.

KOZLICK: With regard to the novel issue of waiver and estoppel, my submission would be that it would be more appropriate to order costs in the cause on that. [ 36 ] THE COURT: Okay. I hear what you are saying, counsel, but I am not with you on that. [ 37 ] This is an application brought by the plaintiff. The defendant has successfully responded to it. The application has been dismissed in its entirety. I see no reason why costs should not go to the defendant on the ordinary scale, in any event of the cause, and I so order. “G.R.J. Gaul, J.”