Daniels v. Sran, 2017 BCSC 1659

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Daniels v. Sran, 2017 BCSC 1659 Date: 20170920 Docket: 54017 Registry: Kamloops Between: Petrina Daniels, Mia Cameron Pena an infant by her Litigation Guardian Mary Pena and Vincent Bradley Silas Cameron-King an infant by his Litigation Guardian Demetria King, as all persons entitled to advance a claim arising from the death of Raymond Peter Cameron, Deceased Plaintiffs And Jagdeep Sran, G & A Trucking Ltd. and Canadian Western Bank Leasing Inc. Defendants Before: Master R.W. McDiarmid Reasons for Judgment Counsel for the Plaintiffs: S.

Ellis Counsel for the Defendants/Applicants: C. Ross Place and Date of Hearing: Kamloops, B.C. September 11, 2017 Place and Date of Judgment: Kamloops, B.C. September 20, 2017 [ 1 ] This is an application by the defendants to have leave to file a Third Party Notice and add Interior Roads Ltd. as a third party. [ 2 ] Rule 3-5(4) of the Supreme Court Civil Rules , B.C. Reg. 168/2009 [ Civil Rules ] reads as follows: When leave is required (4)A party may file a third party notice (

a) at any time with leave of the court, or (

b) without leave of the court, within 42 days after being served with the notice of civil claim or counterclaim in which the relief referred to in subrule (1) is claimed. [ 3 ] Paragraph 12 of the Application Response states: 12. Jagdeep Sran was personally served on February 16, 2017. ICBC, the Applicants’ insurer, was served via registered mail on February 14, 2017. [ 4 ] There is no evidence before me as to when the other defendants were served, but it is common ground that it was substantially more than 42 days prior to this application being filed on July 26, 2017.

Leave of the court is, therefore, required. [ 5 ] This action is a claim on behalf of the plaintiffs pursuant to the Family Compensation Act , R.S.B.C. 1996, c. 126 arising out of the death of Mr. Raymond Cameron as a result of a motor vehicle accident on February 19, 2015. The history of the matter is set out in the Affidavit of the plaintiffs’ lawyer, Darren Paulsen. Paragraphs 5-13 of Mr. Paulsen’s Affidavit are as follows: 5. The Application Respondent, Petrina Daniels, ("Daniels") was a passenger in the vehicle that Raymond Peter Cameron was operating at the time of the Collision.

Petrina Daniels sustained injuries as a result of the Collision, and filed a related tort action on November 19, 2015 against the Applicants (the "Tort Action"). 6. The Applicants have not named a third party in the Tort Action, nor have the Applicants made an application to add a third party in the Tort Action.

7. I was provided with initial disclosure documents by ICBC under correspondence dated June 2, 2016, received in our office onJune 8, 2016 in relation to the February 19, 2015 motor vehicle accident. Those documents contained a copy of the Motor Vehicle TrafficCollision Police Investigation Report, which is attached as exhibit "A" to this my affidavit. 8. The RCMP accident report and reconstruction report referred to icy road conditions, but neither actually cites road maintenance asan issue or suspected cause of the Collision. 9.

On August 30, 2016, my associate, Scott Ellis, wrote to ICBC, further to their correspondence of June 2, 2016, and asked if theycould provide me with any witness statements, as well as documents that would provide a more detailed investigation by the RCMP.Attached hereto and marked as exhibit "B" is a copy of that correspondence. I received no further documentation as a result of thatcorrespondence. 10. The Insurance Company of British Columbia ("ICBC"), the insurer of the Applicants, was in possession of the Motor VehicleTraffic Collision Police Investigation Report on or about March 3, 2015.

The Motor Vehicle Traffic Collision Police InvestigationReport states that both vehicles were out of control due to icy road conditions. 11. While the RCMP file does indicate that the Highway was icy oil February 15, 2015, the date of the Collision, there is no directevidence in the RCMP file to support a claim of negligence by the road maintenance company, Interior Roads Ltd. 12. Counsel for the Applicants in the related Tort action were in possession of the RCMP file containing the reconstruction report ofthe Collision on or about December 5, 2016. 13.

Counsel for the Applicants in this action were in possession of the entire RCMP file on or about May 19, 2017. [6] The evidence deposed to by Mr. Paulsen in paragraphs 8 and 10 is confirmed by the exhibits attached to the Affidavit of LeighPedersen, counsel for the defendants. Exhibit D to that Affidavit, exhibit page 25, states “Both vehicle (sic) were out of Control due toRoad Conditions (ice)”. Exhibit E to Mr. Pedersen’s Affidavit is a collision reconstructionist report prepared by Corporal John Burns ofthe RCMP.

At exhibit page 29, he writes “a visible tire mark on an icy asphalt surface”. [7] In his Conclusions, in the same exhibit at exhibit page 37, no mention is made of an icy road surface. [8] In the defendants’ Response to Civil Claim filed May 5, 2017, the defendants deny liability for the collision referred to inparagraph 5 of Mr. Paulsen’s Affidavit. Included in their denial, in Division 2 - Defendants’ Version of Facts, subparagraph 1(

k) is thefollowing: (

k) in the alternative, and in further answer to the whole of the Notice of Civil Claim, the Defendants say that the collision allegedherein [happened] without negligence on the part of the Defendant, Jagdeep Sran or in other words, this was an “inevitable accident”which happened as a result of something over which the Defendant, Jagdeep Sran had no control over because there was no warning andit was thus not expected. [9] If that pleading is intended to plead that icy roads in Salmon Arm were not to be expected on November 19, 2015, it is apleading which common sense tells us has no basis whatever.

As is apparent from the plethora of signs on B.C. highways setting out therequirements for motorists to have vehicles properly equipped for winter driving, icy roads in the late fall, winter and early spring are tobe expected in virtually all of this province, and certainly to be expected in Salmon Arm on November 19, 2015. [10] However, if the icy road condition resulted from the road where the collision occurred being improperly maintained and thushazardous to the users of the roadway that is a different matter. [11] Paragraphs 11, 14 and 15 of Mr. Paulsen’s Affidavit are as follows: 11.

While the RCMP file does indicate that the Highway was icy on February 15, 2015, the date of the Collision, there is no directevidence in the RCMP file to support a claim of negligence by the road maintenance company, Interior Roads Ltd. … 14. The Applicants have not sought to add Interior Roads Ltd. as a Third Party in the related Tort Action. This could lead toinconsistent findings on the same questions of liability, in a multiplicity of proceedings. 15.

As Interior Roads Ltd. is not a defendant in this action, it could prejudice the Application Respondents’ ability to recover damagesshould Interior Roads Ltd. be found liable. The Applicants, however, would not be prejudiced, as they retain the right to bring a separateproceeding against Interior Roads Ltd. for contribution and indemnity. [12] Paragraphs 11, 14 and 15 are not evidence, but rather submissions.

They were properly stated as submissions in the ApplicationResponse. [13] Consideration for granting leave to file a Third Party Notice includes a consideration of McLachlin J.A.’s, as she then was,decision in McNaughton v. Baker (1988), (BC CA), 25 B.C.L.R. (2d) 17 (BCCA). In a previous decision of mine,Leijenhorst v. Turner, 2016 BCSC 1563, a decision relied on by the respondent plaintiffs, I wrote at paras. 3-4: [3] Justice Goepel cites the seminal case of Madam Justice McLachlin, as she then was, in McNaughton v. Baker, (BC CA), 25 B.C.L.R. (2d) 17.

The history sets out some of the problems of the third party rules which traditionally were in effect.Justice Goepel explains the purpose of the third party proceedings, referring to the decision of Mr. Justice Lambert in Lui. Paragraphs 39and 40 of Goepel J.’s decision are as follows: [39] In Lui v. West Granville Manor Ltd. (1985), (BC CA), 61 B.C.L.R. 315 at 327,18 D.L.R. (4th) 391 (C.A.)

[Lui], which was decided under the 1976 Rules, Lambert J.A. stated that the purpose of third party proceedings was to avoid the problem of having different results on the same issue between the same parties and to avoid a multiplicity of proceedings. [40] In MacNaughton , McLachlin J.A. explained, at 21, the purpose of third party proceedings as follows: Third party pleadings function as a special type of statement of claim. Indeed, the claim they embody could be brought by separate action.

But to avoid a multiplicity of proceedings, the rules permit the claim to be made in the action which has been commenced against the defendant. The object of permitting third party proceedings to be tried with the main action is to provide a single procedure for the resolution of related questions, issues or remedies, in order to avoid multiple actions and inconsistent findings, to provide a mechanism for the third party to defend the plaintiff's claim, and to ensure the third party claim is decided before a defendant is called upon to pay the full amount of any judgment.

The avoidance of a multiplicity of proceedings is fundamental to our rules of civil procedure. This has been the case since the reforms effected by the Judicature Acts in the nineteenth century. As Cotton L.J. stated in Searle v. Choat (1884), 25 Ch. D. 727 : "the whole tenor of the Judicature Acts is to require all proceedings as far as possible to be taken in one action". [4] In his reasons, Goepel J. writes: . . . the claim they embody could be brought by separate action.

But to avoid a multiplicity of proceedings, the rules permit the claim to be made in the action which has been commenced against the defendant. The object of permitting third party proceedings to be tried with the main action is to provide a single procedure for the resolution of related questions, issues or remedies… [ 14 ] In Tyson Creek Hydro Corp. v. Kerr Wood Leidal Associates Ltd. , 2013 BCSC 1741 , which is the decision of Mr.

Justice Goepel, now Goepel J.A., referred to in paras. 3-4 of Leijenhorst , Goepel J. sets out that in determining whether to grant leave, the court must consider several factors, including most importantly in this case, possible prejudice to the plaintiff. Several of the factors to be considered in determining whether leave should be granted are set out by Goepel J.

These include whether there will be a delay of the trial, the need to avoid a multiplicity of proceedings, how to achieve the object of the Civil Rules to secure the just, speedy and expensive determination of every proceeding on its merits, limitation issues, delay in bringing the application and weighing the balance of inconvenience and injustice to the parties. [ 15 ] In Leijenhorst , a Notice of Civil Claim was filed October 16, 2014 and served shortly thereafter. A Response to Civil Claim was filed December 5, 2014.

The Notice of Application to join an arguably statute-barred third party was filed June 27, 2016, approximately a year and a half after the expiry of the 42-day period referred to in Rule 3-5 of the Civil Rules . The issue relating to whether there was any liability on the proposed third party in that case was largely a separate issue from the other issues in the litigation. Inconsistent findings in that case were unlikely. [ 16 ] The facts of this case are substantially different. [ 17 ] There has been no inordinate delay in bringing this application. No trial date has been set.

Applications to add third parties on the eve of trial often raise the suspicion that the application is tactical because the third party would have no opportunity to prepare for trial, and thus the trial would get adjourned. That consideration is not are present here. [ 18 ] The plaintiffs argue that adding the third party could lead to inconsistent findings in the related action referred to by Mr. Paulsen in his Affidavit as the “tort action” on the same questions of liability as are present in this action. Of course, this action is also a tort action.

I was advised by counsel that the defendants in that other related tort action are intending to bring a similar application to file a Third Party Notice and add the same proposed third party. [ 19 ] The most significant potential prejudice here has to do with the potential limitation defence available to Interior Roads Ltd. if it is sought to be added by the adult plaintiff, Petrina Daniels. The other plaintiffs are infants; no limitation issues would likely arise with respect to their claims. [ 20 ] Petrina Daniels still has time to bring an application to add additional defendants.

As is set out in paragraph 7 of Mr. Paulsen’s Affidavit, Mr. Paulsen did not receive the disclosure documents which referred to icy road conditions until June 8, 2016.

Although comments I make are obviously not determinative of an issue to add the proposed third party as a defendant, if an application were brought promptly it is at least arguable that a court would permit such an addition, both in this action and in the related tort action. [ 21 ] In considering applications to add or amend pleadings, I am required to assume that the facts, as opposed to conclusions of law, alleged in the proposed pleading can be proven. I cannot make findings of fact at this stage.

That is why the fact that the RCMP accident report does not cite road maintenance as an issue is not particularly relevant to this application. [ 22 ] I have considered the issue of whether these defendants can bring a separate proceeding for contribution and indemnity. That is the sort of proceeding which would raise a significant risk of inconsistent findings and, of course, a multiplicity of proceedings. [ 23 ] After considering the factors applicable in this case, I am satisfied that there has been no undue delay. I have weighed the balance of prejudice.

There is no trial date set and indeed no examinations for discovery scheduled. The existence of a potentially relevant triable issue satisfies me that the application ought to be granted. I, therefore, make the following Orders: 1. The defendants, Jagdeep Sran, G & A Trucking Ltd. and Canadian Western Bank Leasing Inc. are granted leave to file and serve the Third Party Notice attached to the Notice of Application as Appendix A; 2. The style of cause of the within action is ordered to be amended to include Interior Roads Ltd. as a third party; 3.

The costs of this application are awarded to the defendants in the cause. “Master R.W. McDiarmid”

MASTER McDIARMID