Pouliot v. UBC Date:, 2017 BCPC 275

Citation: Pouliot v. UBC Date: 20170825 2017 BCPC 275 File No: 14-50236 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: HELENE MARIE POULIOT CLAIMANT AND: ASSOCIATION OF ADMINISTRATIVE AND PROFESSIONAL STAFF OF THE UNIVERSITY OF BRITISH COLUMBIA DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE M.F. GIARDINI Counsel for the Claimant: C. Janusz Appearing on her own behalf: H. Pouliot Place of Hearing: Vancouver , B.C.

Dates of Hearing: January 20 & June 22, 2017 Date of Judgment: August 25, 2017 INTRODUCTION [ 1 ] This ruling deals with an application made by Ms.Pouliot (“the claimant”) to amend a Notice of Claim filed on October 31, 2014, wherein she seeks damages of approximately $25,000 from the Association of Administrative and Professional Staff of the University of British Columbia (“the defendant” or “the Association”). The original Notice of Claim was served on the Association and a Reply was filed on November 18, 2014.

Subsequently, on January 15, 2016, the claimant filed an application to amend her original Notice of Claim. [ 2 ] The Association opposes the claimant’s application to amend the Notice of Claim. Its position is that a number of the amendments sought by the claimant go beyond clarifying the legal basis for the claim as set out in the original Notice of Claim. In particular, the Association maintains that some of the proposed amendments raise new allegations and claims not set out in the original Notice of Claim.

Further, the Association maintains some of the proposed amendments raise new causes of action not contemplated in the original Notice of Claim. Additionally, the new causes of actions and allegations are being added after the expiration of the limitation period. Moreover, some of the proposed amendments have no reasonable prospect of success. BACKGROUND The relationship of the parties [ 3 ] In order to understand the original claim against the Association and the claimant’s current application to amend the original Notice of Claim, some background context is required.

Accordingly, based on the information provided by the parties, but without making any findings of fact, I will set out a

summary of their relationship. This

summary is based solely on information provided by the parties on this application. At this stage, the court has not had the benefit of viva voce evidence from the parties. Some of the information provided may not be in dispute, but it is clear there are significant differences between the parties about the circumstances giving rise to the claimant’s claim against the Association. [ 4 ] The claimant is a former employee of the University of British Columbia (“UBC”). Ms. Pouliot said she began employment with UBC in November 2000 on an on-call basis in a department/unit in the Faculty of Education.

She said she later obtained a full-time position in the same department/unit. [ 5 ] The Association is not a union but an incorporated society that is the exclusive bargaining agent for administrative and professional staff at UBC. The Association and UBC have entered into agreements respecting the terms and conditions of employment of those UBC employees who are members of the Association. The agreements between the Association and UBC are the Agreement on Conditions and Terms of Employment (“ACTE”) and the Framework Agreement (“FA”). [ 6 ] By letter dated February 1, 2008, UBC offered Ms.

Pouliot a position effective February 1, 2008, to January 31, 2009. The letter noted that although the claimant’s appointment was for a definite term, it was nevertheless subject to a probationary period of 12 months. As a result of UBC’s offer and the claimant’s acceptance of the offer on February 4, 2008, Ms. Pouliot became a member of the Association. For the purpose of calculating limitation periods that may affect the amendment application before the court the Association has used the date of February 4, 2008. [ 7 ] On November 10, 2008, UBC dismissed the claimant from her employment. Ms.

Pouliot claims the dismissal was without notice or pay in lieu. The claimant explained she initiated a grievance through the Association regarding her dismissal from UBC. However, on January 20, 2009, she was informed by an Association representative that the Association was not pursuing any matter against UBC on her behalf. [ 8 ] The Association acknowledged in its Reply to the original Notice of Claim that it has a common law duty of fair representation to its members. It maintained it fulfilled that duty in relation to the claimant.

Moreover, the Association denied it is liable for any of the other claims asserted by the claimant, namely; wrongful dismissal and severance, payment for lost EI (employment insurance) benefits, unpaid banked time and vacation time, and harassment by UBC management. Original claim filed by claimant [ 9 ] On October 31, 2014, the claimant filed the original Notice of Claim in this matter using the Form 1 provided by the provincial court registry.

In that Notice of Claim she set out a one paragraph recitation about what happened: The Association was obliged to represent me and protect my rights in regard to a wrongful dismissal case with the University of British Columbia. It did not try to stop the University of British Columbia from misrepresenting my length of service to Human Resources Canada, thereby leading to the denial of extended EI benefits to me. It did not insist that the University of British Columbia pay me even the minimum required severance pay for my length of service.

It knowingly permitted members of management to harass and humiliate me. When I enquired about the status of my grievance, the Association informed me that there were developments or that they were waiting to hear from their lawyer. They send me emails and left messages on my answering machine several months pas(sic) my termination date to this effect. They also neglected to collect monies owing for banked time, and did not grieve that I had not received the amount of vacation pay as required by BC Employment Law while I was employed by the University of British Columbia. I am

suing for Breach of Contract. [ 10 ] On November 18, 2014, the Association filed its original Reply in Form 2 and an eight page appendix setting out details of its objections to the claimant’s claim. With respect to the claim for wrongful dismissal and severance, the Association maintained the claimant was terminated during her probationary period for lack of suitability. It maintained the dismissal was not wrongful and the claimant’s severance was more than sufficient.

The Association noted that the BC Court of Appeal has held that members of the Association do not have the right to pursue common-law notice through the courts. [ 11 ] With respect to EI benefits, the Association claimed it never received the claimant’s record of employment or information about the amount of EI benefits the claimant may have received. The Association maintained the claimant was only a member of the Association from February 2008 to November 2008.

The length and character of her service with UBC before that time was not something the Association could address. [ 12 ] With respect to unpaid banked time and vacation time, the Association noted that UBC’s termination letter stated vacation pay and other pay owed to the claimant would be paid out. The employer has a duty to pay those monies to employees within 48 hours of the termination.

The Association maintained that as far as it was concerned the claimant received the pay to which she was entitled under the Association contract with UBC. [ 13 ] With respect to the claim of harassment, the Association maintained it had no authority to prevent, let alone permit, members of management from harassing or humiliating the claimant. The Association maintained it informed the claimant of UBC’s procedure for dealing with complaints of harassment.

The Association did not know if the claimant filed a complaint with UBC, but if she did so, she did not seek to involve the Association in that process. [ 14 ] With respect to the duty of fair representation and breach of contract, the Association acknowledged it has a common law duty of fair representation to its members. It maintained it acted fairly and diligently in representing the claimant and fulfilled its duty to represent her. The Association maintained it did not breach any contract with the claimant.

Procedural background following filing of claim and reply [ 15 ] On September 2, 2015, the parties attended a mediation session with mediator Chris Harris. The court file records show a mediation meeting took place from 9:30 a.m. to 12 p.m. that day. The parties did not settle the issues. [ 16 ] On September 2, 2015, the claimant filed an application to a judge to add another party to her claim. The claimant wanted to add UBC as a party. In that application Ms. Pouliot noted that during the mediation meeting, the Association indicated it would argue that at least part of her claim should be addressed to UBC.

The claimant further noted it was not clear to her who was responsible and therefore this issue may need to be decided by a judge. The date she chose to have the application to add UBC as a party heard was October 19, 2015. [ 17 ] In the meantime, a trial conference was scheduled. The parties were sent a notice dated September 14, 2015, advising that a trial conference would be held on November 17, 2015. On September 23, 2015, the parties filed a consent adjournment request to have the trial conference set on another date.

The parties were sent a second notice dated September 24, 2015, setting the trial conference for November 24, 2015. [ 18 ] On October 19, 2015, the parties attended court on the claimant’s application to amend her original Notice of Claim to add UBC as a party. The parties appeared before Judge Wingham.

The court record shows the application was adjourned to a new two hour hearing on another date. [ 19 ] On October 19, 2015, the parties agreed to adjourn the trial conference scheduled for November 24, 2015, until the claimant’s September 2, 2015, amendment application had been heard. [ 20 ] On November 26, 2015, the parties appeared in court before Judge Werier to deal with the claimant’s application to amend her Notice of Claim by adding UBC as a party. The court file record shows the application was adjourned to give the claimant an opportunity to seek legal advice.

As a result, the claimant’s application to add UBC as a party was adjourned generally. The court file record sets out orders made by Judge Werier:

a) In the event the claimant sought to proceed with an application to add UBC as a party, and/or to amend the Notice of Claim, she was required to serve UBC and the Association with her application no later than January 15, 2016.

b) Alternatively, the claimant was given until January 15, 2016, to re-set “the existing application”.

c) UBC had standing at that stage of the proceedings to appear and to argue and oppose the application to add UBC as party.

d) If no new application was filed by January 15, 2016, or if the existing application was not re-set, the claimant was not at liberty to add UBC as a party to this action. The application to amend [ 21 ] On January 15, 2016, the claimant filed a new application to amend her Notice of Claim against the Association. That application is the subject matter of this ruling. That application consisted of an amended Form 1 and a two-page

Schedule A setting out a brief introduction, procedural history, the applicable Small Claims Rule and the claimant’s position. The claimant wrote:

a) She wanted to remove claims for legal consultation and ineligible EI benefits in order to speed up the process.

b) She wanted to clarify the legal basis for her claims of wrongful dismissal and unpaid wages. This would assist in the just, speedy,

and inexpensive resolution of the dispute. [ 22 ] The claimant also attached an 11 page

Schedule B which amplified her position and the basis for the amendments proposed. The amendments proposed were claims that:

a) The claimant was a party to the two agreements between UBC and the Association, therefore she was entitled to the benefit of those agreements and entitled to enforce them against the Association.

b) The Association stood in a fiduciary relationship to the claimant.

c) The Association was the claimant’s agent with respect to her employment with UBC.

d) The Association had a duty of fair representation as a result of the contractual, fiduciary, and/or agency relationship between the claimant and the Association.

e) The Association has an implied duty of good faith and fair dealing with respect to the claimant.

f) The claimant was entitled to at least five weeks paid vacation per year but instead she received only 8% vacation pay throughout her employment with UBC. The Association’s failure to grieve this error resulted in the claimant being underpaid for vacation pay.

g) The claimant was treated in a harsh and insensitive manner during the course of her employment at UBC. The Association failed to grieve such treatment and did not provide representation to the claimant in her dealings with UBC.

h) The Association further failed in its duty of fair representation of the claimant by failing to challenge the probationary period on which she was placed in February 2008. The claimant maintained she had over seven years of service with UBC.

i) The Association further failed in its duty of fair representation of the claimant by failing to challenge UBC’s failure to compensate the claimant for all pay credited to her time bank.

j) The Association further failed in its duty to represent the claimant by failing to challenge UBC’s failure to pay vacation pay in accordance with the ACTE.

k) The Association further failed in its duty to represent the claimant by failing to challenge UBC’s dismissal of the claimant, which occurred without reasonable notice or pay in lieu of notice in accordance with common law.

l) The Association further failed in its duty to represent the claimant by failing to claim for compensation for the entirety of the fixed term contract under which she had been employed by UBC. Ass ociation’s position regarding proposed amendments [ 23 ] The Association opposed some, but not all, of the amendments proposed by the claimant. The Association noted that many of the proposed amendments appeared to go beyond clarifying the legal basis of the claimant’s claims for wrongful dismissal and unpaid wages. In particular the Association opposed the following amendments:

a) that the claimant was a party to the agreements negotiated with UBC, namely ACTE and FA;

b) that the Association stood in a fiduciary relationship with respect to the claimant;

c) that the Association was the claimant’s agent;

d) that the Association had a duty of fair representation to the claimant arising from contractual, fiduciary, and/or agency relationships;

e) that the Association had an implied duty of good faith and fair dealing to the claimant;

f) that the Association failed to grieve an error in the calculation of the claimant’s vacation pay which resulted in the claimant being underpaid for vacation pay;

g) that the Association failed in its duty of fair representation to the claimant by failing to challenge her placement on probation in February 2008;

h) that the Association failed in its duty of fair representation to the claimant by failing to challenge UBC’s failure to pay vacation pay in accordance with ACTE;

i) that it was an express or implied term that UBC would not dismiss the claimant without reasonable notice or pay in lieu and that the Association would grieve UBC’s failure to do so on the claimant’s behalf;

j) that the Association failed to grieve UBC’s failure to pay the claimant the full compensation she would have earned had she worked to the end of the fixed term contract;

k) that the Association breached its fiduciary obligations to represent the claimant with respect to various matters (not detailed herein);

l) that the Association failed to represent her as an agent with respect to various matters (not detailed herein);

m) that the claimant is entitled to aggravated damages and/or damages for mental distress due to the Association’s treatment of her;

n) that the claimant is entitled to punitive damages for the Association’s alleged breach of its implied duty of good faith and fair dealing;

o) that the claimant is entitled to compensation in the form of damages under the following heads of damages – breach of contract, mental distress and/or aggravated damages, punitive damages, costs and expenses, and interest. [ 24 ] The Association argued that the above-noted amendments sought by the claimant should not be granted on the grounds that:

a) the allegations and the causes of action proposed by the claimant are sought to be added after the expiry of the limitation period, and

b) the allegations and the causes of action the claimant wishes to add have no reasonable prospect of success. However, on the second day of hearing on this application, in the interest of efficiency, the Association advised it was prepared to have some of the matters set out in the amendment application addressed at the trial of Ms. Pouliot’s claim rather than on this pre-trial amendment application. [ 25 ] The matters the Association suggested could be addressed at the trial of this claim are the following:

a) the claimant’s assertion that she is a party to the ACTE and FA agreements,

b) the claimant’s assertion that she was entitled to vacation pay which arose from employment with UBC before February 2008,

c) the claimant’s assertion that she did not receive the appropriate pay in lieu of notice upon the termination of her employment in November 2008, and

d) the claimant’s request for aggravated and/or punitive damages. [ 26 ] Although the Association agreed to have these matters addressed at the trial of Ms. Pouliot’s claim, the Association made clear it does not abandon any defences or other arguments available to it regarding the validity of the any of the claims advanced by the claimant. For the sake of efficiency, it simply does not object to those claims being addressed at the trial of this matter rather than at this pre-trial application hearing. [ 27 ] The Association acknowledged it has a common law duty of fair representation to its members.

That claim can properly be considered and fully addressed at the trial. ISSUES THAT REMAIN TO BE ADDRESSED ON THIS PRE-TRIAL APPLICATION [ 28 ] The discrete issues which are left for consideration on this pre-trial application for an amendment of the original Notice of Claim are:

a) Can the claimant amend the Notice of Claim to add that the Association had a fiduciary relationship with her and that it breached its fiduciary duty in representing her?

b) Can the claimant amend the Notice of Claim to add that the Association was the claimant’s agent with respect to her employment at UBC and that it breached its obligation as an agent to represent her?

c) Can the claimant amend the Notice of Claim to include a claim that the Association had implied duty of good faith and fair dealing?

d) Can the claimant amend the Notice of Claim to include a claim that the Association failed to challenge UBC’s placement of the claimant on probation in February 2008?

THE POSITION OF THE PARTIES The Association’s position on the above-noted issues Expiry of limitation [ 29 ] The Association argued that the four issues to be addressed in this pre-trial amendment application, namely; the alleged fiduciary relationship, the alleged agency relationship, the alleged implied duty of good faith and fair dealing and the failure to challenge the claimant’s probationary status, all fall outside the applicable limitation dates. The facts giving rise to Ms. Pouliot’s claims in this matter arose in 2008.

Accordingly, the limitation periods that should be considered are those contained under the former limitation act, namely, the Limitation Act , R.S.B.C. 1996 c. 266, (the “1996 Limitation Act” ). Section 3 (5) of the 1996 Limitation Act provides that a claim must not be started more than six years after the day on which the claim was discovered. [ 30 ] The Association maintains there are two applicable limitation periods, namely;

a) January 20, 2015 – This date applies to the claim of a breach of a duty of fair representation arising from a contractual, fiduciary and/or agency relationship and/or a breach of implied duty of good faith and fair dealing in respect of the claimant’s dismissal by UBC. This date is six years from the date when the Association told Ms. Pouliot it would not grieve the termination of her employment from

UBC.

b) February 4, 2014 – This date applies to the claim of breach of a duty of fair representation and/or implied duty of good faith in respect to UBC’s placement of the claimant on probation.

It is six years from the date when the claimant signed the offer letter and accepted employment with UBC upon terms which included a probationary period. [ 31 ] The Association acknowledged that s. 4 (4) of the 1996 Limitation Act grants the court discretion to allow an amendment even if, between the filing of the original Notice of Claim and the application for an amendment, the limitation period for new causes of action included in the amendment has expired. [ 32 ] The Association acknowledged the case law outlines a number of factors that must be considered.

The Association further acknowledged the case law suggests a different approach ought to be taken when considering a matter where a party’s amendment to add a new cause of action does not seek to add new factual allegations, and cases in which a party seeks to add a new claim/claims based on new factual allegations. [ 33 ] The Association submitted the amendments sought by the claimant ought not to be granted because there has been excessive delay after the expiration of the limitation periods.

Moreover, the Association said it will be unfairly prejudiced if the claimant is allowed to advance the new causes of action and the new factual assertions which are contained in the proposed amendments. No reasonable prospect of success [ 34 ] In addition to the limitation period argument, which applies to all four issues being addressed in this pre-trial application, the Association further submitted the court can also dismiss claims at any time if the claims have no reasonable prospect of success.

This submission applies to the proposed amendments regarding the existence of a fiduciary duty, an agency relationship, and the implied duty of good faith and fair dealing alleged by the claimant. [ 35 ] The Association argued the claims of the existence of a fiduciary and/or agency relationship between the claimant and the Association have no reasonable prospect of success. It said the case law is clear that non-union employee associations, such as the Association, owe members a common law duty of fair representation similar to that owed by a trade union to its members.

On this point, the Association relied on a decision of the Alberta Court of Queen’s Bench which held that a faculty association excluded from the scope of the provincial labour code and the statutory duty of fair representation contained in that legislation nevertheless owed a common law duty of fair representation to its members. However, the Association argued no other duties arise from a fiduciary or agency relationship as claimed by Ms. Pouliot.

The Association argued that the same common law duty of fair representation that applies to trade unions applies to the Association regardless of the fact the Association is not a trade union under the BC Labour Relations Code . [ 36 ] The Association asserted, in light of its duty of fair representation, it only owes a single duty of fair representation to its members. It argued it would be contrary to the common law to allow the claimant to pursue claims other than the duty of fair representation.

Moreover, it argued this would result in the court being asked to apply different standards at trial to the same representational issues. [ 37 ] In

summary, the Association submitted the claimant’s proposed amendments to the original Notice of Claim asserting a duty of fair representation arising out of a fiduciary relationship and/or an agency relationship must not be granted. [ 38 ] The Association also submitted that Ms. Pouliot’s claim that there exists an implied duty of good faith and fair dealing has no reasonable prospect of success. The Association argued it is clear from the language of

Article 2 of the ACTE that common law employment principles apply only to the employment relationship between UBC and the employees. The language of

Article 2 in no way provides that common law employment principles apply to the relationship between the Association and its members, whose relationship is governed by a constitution and bylaws. The Association submitted the only duty it owes its members, as their exclusive bargaining agent, is a duty of fair representation. It does not owe any additional implied duty of good faith and fair dealing. [ 39 ] The Association argued that the claimant’s claim regarding a duty of good faith and fair dealing must be dismissed.

In addition, because the claim for damages for mental distress and/or aggravated damages and punitive damages claimed by Ms. Pouliot in the amended Notice of Claim are, in part, tied to the claim of the duty of good faith and fair dealing, those claims for damages will be affected if the Association is successful in its submission that the claimant’s amendments regarding the duty of good faith and fair dealing should not be permitted. Position of the claimant [ 40 ] Ms. Pouliot’s position is that the amendments she seeks should be allowed by this court.

She did not think she was adding new claims when she filed her application to amend. It is her belief she was simply clarifying what she had already identified in the original Notice of Claim. She said she did her very best to bring matters to court in a timely way. [ 41 ] Ms. Pouliot said she had seen a lawyer before filing her original Notice of Claim, but for various reasons was not a position to retain counsel, so she had to represent herself.

The claimant explained that some years later she went to a second lawyer who helped her by preparing materials (presumably the schedules the claimant filed with her application to amend) which walked her through the issues and identified causes of action. Ms. Pouliot believed she had to identify whether her claims fell under the common law, statutory law, or fiduciary law. However, it was her view that in applying for an amendment she was simply clarifying what was already briefly set out in the original Notice of Claim. [ 42 ] Ms. Pouliot advised she prepared the original Notice of Claim herself.

She raised two points in this regard. She thought the wording she used in the original Notice of Claim was sufficient to raise issues about the probationary period she had been placed on by UBC in 2008. The claimant believed the right to fair representation, which she asserted had been breached, included being placed on a

probationary period. She also believed, given the type of form she filled out originally, that she was very limited in what she could setout in her original Notice of Claim. She noted there were very few lines on the Form 1. [43] The claimant said at the mediation she was urged to add UBC as a defendant and to clean up the language of her Notice ofClaim. Her recollection was this comment was made by “a judge”. As a result of that comment Ms. Pouliot went back to see the lawyershe had originally consulted. However, he had retired, so she had to find a new lawyer, that is the second lawyer mentioned above.

Eventually, the claimant filed an amended Notice of Claim. Ms. Pouliot’s view is that she was cleaning up the language of the originalNotice of Claim as she had been directed to do. [44] As previously noted, after being urged at mediation to add UBC as a defendant, Ms. Pouliot sought legal advice. It was thesecond lawyer she consulted who assisted her in preparing the documents she used to file her application to amend the original Notice ofClaim. [45] Ms. Pouliot said she went to court on another occasion. A lawyer attended court on that occasion to represent UBC.

Theclaimant maintained that counsel for UBC convinced the court the statute of limitations had passed and the only avenue left to theclaimant to pursue a claim against UBC was if she could establish fraud. According to Ms. Pouliot, the judge on that occasion told herthat she understood UBC’s point. Ms. Pouliot said she told the court she wanted to get a legal opinion. The court gave her time to do so. That is when Ms. Pouliot was told to clean up the language in the original Notice of Claim.

The claimant believed that is what she didwhen she filed the application to amend. [46] At this juncture I should note that Ms. Pouliot made every effort to explain to the court her position and the sequence of eventsleading to this application. I have summarized the points she made over the course of the two court appearances on this application. Indoing so I took into account that Ms. Pouliot is a lay litigant and cannot be expected to set out her position as clearly and concisely aswould be done by counsel.

LEGAL PRINCIPLES TO CONSIDER ON LEAVE TO AMEND APPLICATIONS Small Claims Court Rules [47] It should be noted that on June 1, 2017, long after these proceedings were initiated and after the first day of the hearing on thisapplication, the Small Claims Rules were amended.

However, those amendments have no material bearing on the claimant’s January 15,2016, application to amend the original Notice of Claim. [48] Rule 8 (1) provides that anything in a notice of claim, reply, or other document that has been filed by a party may be changed bythat party without any permission at any time before the settlement conference begins. However, after that a change may be made withthe permission of a judge. [49] In this case, there was a mediation session but the settlement conference had not taken place at the time the claimant filed herapplication to amend.

However, the case law makes it clear that an amendment that raises a new cause of action may not be madewithout leave of the court, see Shamrock Fencing

(1992) Ltd. v. Walker, 2015 BCPC 289, and cases cited therein. Limitation Act [50] Limitation statutes typically set out the period of time a person has before she must begin legal proceedings if she plans to makea civil claim against another person or corporation. On June 1, 2013, a new limitation act came into force in British Columbia (“the2013 Limitation Act”) and replaced the former limitation act, the 1996 Limitation Act”. [51] In the present case the events that triggered Ms. Pouliot’s claim occurred in 2008. The 1996 Limitation Act set out limitationperiods for specific types of actions.

It also set out certain actions which were not subject to any limitation period. It provided in s. 3 (5)that any other action not specifically provided for in that Act “may not be brought after the expiration of six years after the date on whichthe right to do so arose”. [52] The claimant was offered employment by UBC on February 1, 2008, and she signed the letter accepting the offer on February4, 2008.

Accordingly, the limitation period in relation to claims of breaches of the duty of fair representation and or implied duty of goodfaith in respect to the claimant’s placement on probation expired six years later on February 4, 2014. [53] The claimant’s employment with UBC was terminated on November 10, 2008. However, it was not until January 20, 2009(according to the Association) that the Association told Ms. Pouliot it would not be pursuing a grievance.

Accordingly, the six yearlimitation period in relation to her claims for breach of the duty of fair representation arising from a contractual, fiduciary, and/or anagency relationship between the claimant and the Association, and/or breach of an implied duty of good faith in respect of the claimant’sdismissal from UBC expired on January 20, 2015. [54] The 1996 Limitation Act, however, gives the court discretion to allow an amendment of pleadings, on terms the court considersjust, even if between the commencement of the action (i.e. the filing of the original Notice of Claim) and the application for theamendment the limitation period for a “fresh cause of action” included in the amendment has expired. [55] The fundamental principle to be considered when a court decides whether to exercise its discretion under s. 4 (4) of the 1996Limitation Act is to balance the interests of justice and convenience in relation to all the parties, see Teal Cedar Products

(1997) Ltd. v.Dale Intermediaries Ltd. (1996) (BC CA), 19 B.C.L.R. (3d) 282, and cases cited therein. [56] In Teal Cedar Products and in Letvad v. Fenwick, 2000 BCCA 630, the court identified a number of factors which should beconsidered in deciding whether to permit an amendment pursuant to s. 4 (4) of the 1996 Limitation Act. Those factors include:

a) the extent of delay,

b) the reasons for the delay,

c) any explanation put forward to account for the delay,

d) whether the limitation date has expired,

e) the degree of prejudice caused by the delay, and

f) the extent of the connection, if any, between the existing claims and the proposed new cause of action. [57] The case law also draws a distinction between cases in which an amendment application by a party to add a new cause of actiondoes not seek to add new factual allegations, and cases where a party not only seeks to add new causes of actions but also bases them onnew allegations. [58] With respect to cases where the amendment to add a new cause of action does not seek to add new factual allegations, it wasnoted in Shamrock Fencing that the expiry of the limitation period prior to the amendment is an important factor to be considered, eventhough it is not a decisive factor.

Additionally, in Letvad it was noted that the amendment may be refused where there is excessive,unexplained delay. [59] With respect to cases where a party seeks to add new claims based on new factual allegations, the court held in ShamrockFencing that an amendment should not be permitted if the limitation period has expired. The court noted that where a new cause ofaction arises from a factual matrix different from that alleged in the original pleadings, the court must not allow an amendment whichwould have the effect of depriving a defendant of a limitations defence.

On that point the court relied on Pootlass v. Pootlass, (BC SC), [1999] B.C.J. No. 466. [60] In Pootlass the court noted that pleadings relying on one event should not be used by a plaintiff to claim a cause of actionarising out of a different event in order to allow the plaintiff to take advantage of the original writ for the purpose of defeating theLimitation Act. The court further noted this has been a consistent finding by Canadian courts.

Moreover, the court noted, if such anamendment was available to the plaintiff, then the Limitation Act would be virtually meaningless as long as there were ongoingproceedings between the same parties. [61] As previously noted, in Teal Cedar Products our Court of Appeal held that a court should not exercise its discretion to allow anamendment if it appears to be unjust to do so.

In several recent cases decided in the BC Supreme Court, judges have considered theprinciple that amendments may not be allowed if they would cause prejudice to a party or where it is not in the interests of justice to doso. [62] One such case was Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104; the other case was Fenguyn v. He, 2017 BCSC110. Both cases acknowledge there is a wide discretion to permit amendments so as to enable the real issues between the parties to bedetermined.

However, both cases also refer to the principle that the overriding consideration is the interests of justice generally and todirect what is just and convenient between the parties. An additional principle to be considered is that amendments may not be allowedif they would cause prejudice to the opposing party that cannot otherwise be dealt with in costs. ANALYSIS [63] First, I will address the proposed amendment pertaining to Ms.

Pouliot’s placement on probation in 2008 Alleged improper placement of claimant on probation [64] The claimant in her application and submissions to this court maintained that as of February 2008 she had seven years of servicewith UBC.

She maintained the Association failed to challenge the imposition of a 12 month probation period which was set out inUBC’s offer of employment dated February 1, 2008. [65] I am satisfied that the claimant’s proposed amendment claiming breach of the Association’s duty of fair representation inrelation to the alleged improper placement of the claimant on probation constitutes a new claim which is based on new factualallegations. The issue about being placed on probation is clearly set out in UBC’s offer letter.

In the original Notice of Claim theclaimant specifically identified a number of matters regarding which she had not received proper representation from the Association. However, Ms. Pouliot did not raise her probationary status, either directly or indirectly, in the original Notice of Claim. [66] The claimant was aware of the probation requirement on February 4, 2008, when she signed UBC’s February 1, 2008, offerletter. The probationary term was expressly set out in the second paragraph of UBC’s offer letter.

According to the informationprovided by the Association, the claimant became a member of the Association as of February 4, 2008, when she accepted UBC’s offer. Accordingly, taking the date of acceptance as the operative date for the running of the limitation period, the statutory limitation for thiscause of action against the Association expired on or about February 4, 2014.

The claimant did not file her amendment application untilalmost 2 years after the expiry of the limitation period. [67] In Shamrock Fencing, the court noted that in cases in which a party seeks to add new claims, based on new factual allegationswhich are different from the factual matrix alleged in the original pleading, the court must not allow an amendment which would havethe effect of depriving the defendant of a limitations defence. Moreover, the court in Shamrock Fencing noted that the primary purposeof a limitations statute is to require claims to be made promptly.

Over time, memories fade, witnesses sometimes become difficult tolocate, and documents are often lost. Accordingly, a defendant is likely to be unfairly prejudiced if a claimant is permitted to advance a

new cause of action based on new factual assertions after the expiry of the limitation period. [ 68 ] In Med Finance Co. S.A. v. Bank of Montreal, [1993] B.C.J. No. 1277 , our Court of Appeal, albeit somewhat reluctantly, concluded the court must presume that the appellants were prejudiced by an amendment which added a new cause of action after the expiration of the limitation period. In that case the court noted it could conceive of cases in which the only prejudice which would result to a party is prejudice which could be compensated for in costs.

In the present case, even absent an automatic presumption of prejudice, I conclude, based on the information placed before me on this application, that the Association would be prejudiced in a way that could not be compensated for in costs. [ 69 ] In addition to prejudice, I have also considered the length of the delay (just shy of two years) after expiration of the limitation period, and the reasons given for the delay. In doing so I took into account the fact the claimant is a self-represented litigant.

However, she had the opportunity to and did in fact seek legal advice by her own admission on two separate occasions. The information/explanation she provided regarding the delay in filing an amendment application was not easy to follow. I appreciate, based on her statements in court, that this situation has been very stressful for Ms. Pouliot and that she is not legally trained.

However, the claimant did not sufficiently or satisfactorily explain the delay. [ 70 ] The overarching principle I must consider in exercising my discretion under s. 4 (4) of the 1996 Limitation Act is to balance the interests of justice and convenience in relation to all the parties. I have considered the factors in Teal Cedar Products. I have also considered the observation in Chouinard v. O’Connor, 2011 BCCA 161 , that the list of factors is not an exhaustive one and the overriding concern is whether the proposed amendments will be just and convenient.

In all of the circumstances, I have concluded it would not be just or convenient to allow the claimant to raise a new cause of action based on new allegations of fact. Accordingly, I deny Ms. Pouliot’s application to amend her Notice of Claim to include a claim regarding the probationary period set out in UBC’s letter of February 1, 2008.

Amendments regarding fiduciary duty, agency relationship and/or implied duty of good faith and fair dealing [ 71 ] As previously noted, the claimant alleged the Association failed to adequately represent her as a member, but she also claimed, in the alternative, that the Association breached its fiduciary and/or obligations as an agent and the implied duty of good faith and fair dealing in a number of respects. [ 72 ] The Association acknowledged that the claims made by the claimant regarding the existence of a fiduciary, and/or agency relationship are based, in part, on allegations made in the original Notice of Claim.

It is my understanding that the Association also acknowledged some of the allegations pertaining to an implied duty of good faith and fair dealing are adverted to (either directly or indirectly) in the original Notice of Claim. However, the Association submitted the claims made in relation to these causes of action are made outside the limitation period. Accordingly, while the court has discretion to permit an amendment to the original Notice of Claim pursuant to s. 4 (4) of the 1996 Limitation Act , it should not exercise its discretion in this regard.

The Association argued prejudice should be presumed, and there has been excessive delay on the part of the claimant in pursuing these matters. [ 73 ] I am satisfied that the limitation period for Ms. Pouliot’s claims pertaining to the alleged breach of a fiduciary duty, agency relationship, and implied duty of good faith and fair dealing in relation to the her dismissal from UBC expired on January 20, 2015. That date is six years from January 20, 2009, when the claimant learned the Association would not be pursuing a grievance with UBC regarding her dismissal. [ 74 ] In Howard v.

Madill, 2009 BCPC 355 , the court noted that when considering an application to amend a claim a judge, in exercising her discretion, must keep in mind the purpose of the Small Claims Act set out in s. 2. Accordingly, permission to amend should be given when it can bring about a just, speedy and inexpensive resolution of the dispute. In the present case Ms. Pouliot’s application, if granted, would substantially expand the scope of the claim against the Association. [ 75 ] The case law emphasizes that discretionary powers must always be exercised judicially.

The cases referred to me in the course of this application identified factors/guidelines to be considered.

In Ledvad the court provided a consolidated list of factors which include: the extent of the delay, the reasons for the delay, the explanation given for the delay, the degree of prejudice caused by the delay, and the extent of the connection, if any, between the existing claims and the proposed new cause of action. [ 76 ] Additionally, it has been noted in the case law that neither a defendant’s interest in being secure against claims after a limitation period has expired, or the plaintiff’s deliberate dilatory conduct in making an application, are decisive of whether the application should be allowed.

Both considerations may be important factors, but neither would prevent the court from exercising its discretion in the plaintiff’s favour, see Teal Cedar Products . The overriding concern is whether the proposed amendment will be just and convenient. [ 77 ] In this case, the period after the expiry of the limitation period for the above-noted three claims is a few days short of 12 months. The claimant, during her submissions on this application, provided an explanation. As I have previously indicated, the information she provided regarding the delay in filing an amendment application was not easy to follow.

My understanding of her explanation, in part, is that Ms. Pouliot did what was suggested to her by the mediator and later by a judge. However, it will be recalled that on September 2, 2015, she had filed an earlier amendment application to add a party. She later asked for an adjournment of the hearing into her application to add a party so that she could seek legal advice.

After seeking legal advice she did not continue her application to add UBC as a party, instead she filed a new amendment application which considerably expanded the basis for her claim against the Association. [ 78 ] The Association argued that although the court has discretion, the expiry of the limitation period prior to the amendment is an important factor to take into account. Moreover, the Association argued the court must presume it will be prejudiced by an amendment adding a new cause of action.

Additionally, it pointed to the claimant’s delay and noted it has suffered prejudice because the Association has incurred the expense of preparing a response as well as responding to the amendment application which is substantially different from the original claim. Further, the Association pointed out that, as mediation has already occurred in respect of this case, it has been denied the opportunity to attempt to resolve the new claims with the assistance of the mediator.

[ 79 ] As previously noted in my analysis regarding the proposed amendment pertaining to Ms. Pouliot’s placement on probation, the overarching principle I must consider under s. 4 (4) of the 1996 Limitation Act is to balance the interests of justice and convenience in relation to all the parties.

In other words, I must consider whether, in the circumstances of this case, the proposed amendments to add three additional claims will be just and convenient. [ 80 ] On the facts of this case, I conclude it would not be just and convenient to allow Ms.Pouliot to amend her notice of claim to add alleged breaches of a fiduciary duty, a duty to act as agent, and an implied duty of good faith and fair dealing. In reaching this conclusion I have considered that at least some of the factual underpinnings relied on to advance these claims have been raised, either directly or indirectly, in Ms.

Pouliot’s original Notice of Claim. Accordingly, she is not raising an entirely new set of factual allegations. However, the amendments she wishes to make advance new causes of action that are considerably broader than the original claim which was based in contract. [ 81 ] The case law suggests that where a proposed amendment alleges a new cause of action, after the expiration of the limitation period, there is a presumption of prejudice to the defendant.

However, the case law also supports the proposition that the expiry of a limitation period, by itself, is not a sufficient basis for denying an application to amend. Although I have taken the expiry of the limitation period into account, I have also considered the length of the delay (just under one year after the expiration of the limitation period) and the explanation Ms. Pouliot gave for the delay (which I found unsatisfactory). [ 82 ] In

summary, I find that the proposed addition of amendments regarding a fiduciary duty, an agency relationship, and an implied duty of good faith and fair dealing are not just or convenient in the circumstances. Accordingly, I dismiss Ms. Pouliot’s application to amend her original Notice of Claim to include claims based on a fiduciary duty, or an agency relationship, or an implied duty of good faith and fair dealing. CONCLUSION [ 83 ] For the reasons set out above:

a) I dismiss the claimant’s application to amend her Notice of Claim to include a claim regarding the probationary period set out in UBC’s letter of February 1, 2008.

b) I dismiss the claimant’s application to amend her Notice of Claim to include claims based on alleged breaches of a fiduciary duty, an agency relationship or an implied duty of good faith and fair dealing. [ 84 ] Given my conclusions, set out above, it is not necessary to address the Association’s argument that the proposed amendments have no reasonable prospect of success. [ 85 ] It is my understanding that hearing dates have been set in the spring of 2018 to address the claims set out in Ms. Pouliot’s original Notice of Claim.

Additionally, the Association has agreed in the interest of efficiency to have certain matters, which are set out in paragraph 25 of this ruling, dealt with at the hearing rather than on the pre-trial application to amend. Accordingly, those matters will be addressed at the scheduled hearing in the spring of 2018. _____________________________ The Honourable Judge M.F. Giardini Provincial Court of British Columbia