In Barlow v. Waterson, 2018 BCSC 483, an application is made to the court by the Plaintiff to add a party as a Defendant to an existing action.

In order to succeed in seeking such an Order, there must be a question or issue between the Plaintiff and the proposed Defendant that relate to the subject matter of the case.

As outlined in this case, the Court considered the following factors:

1. The delay;
2. Any prejudice arising out of the delay (if any);
3. The claim as drafted and the facts as pleaded are taken to be true; and
4. That there is a valid claim as against the proposed Defendant.

The Plaintiff in this application seeks an Order to add as a Defendant an owner of a subject property located at 1041 Prospect Avenue in North Vancouver, BC.  The subject property was rented to the Defendant Waterson (the tenant), who was the owner of a white dog, the subject matter of this case.

The said white dog, while off-leash and off its property, raced towards the Plaintiff, who was walking her daughter’s dog on a leash at or near 1041 Prospect Avenue, and this interaction caused the daughter’s dog to pull the Plaintiff to the ground causing injury.

It was deemed that the Owner of the property was not in control of the property, nor was he in control of the activities on the property as those premises were rented to the Defendant tenant, and therefore the Owner did not owe a duty of care to the Plaintiff.

The Owner of the subject property did not own the dog (he owned the premises) nor was he the occupier of the street (Prospect Avenue) in which the Plaintiff was walking with her daughter’s dog. It is a street owned by the Municipality (presumably).

Furthermore, there was no evidence that the dog had escaped from the subject property.  The evidence confirmed that the Defendant tenant allowed the dog to roam around freely, therefore, any allegation by the Plaintiff that the fence on the subject property was inadequate, creating a duty of care by the Owner to the Plaintiff, was not accepted by the Court.

The said application was dismissed as it was determined that the proposed Defendant Owner did not owe a duty of care to the Plaintiff.

Fixed costs were assessed at $1,000 to the proposed Defendant.

Adding a Party

The Rules and Statutes that should be reviewed in this type of application are:

An application to add a defendant is brought pursuant to Rule 6‑1 and 6‑2(7) of the Rules of Court:

Rule 6‑1 — Amendment of Pleadings

When pleadings may be amended

(1) Subject to Rules 6‑2 (7) and (10) and 7‑7 (5), a party may amend the whole or any part of a pleading filed by the party

(a) once without leave of the court, at any time before service of the notice of trial, or

(b) after the notice of trial is served, only with

(i) leave of the court, or

(ii) written consent of the parties.

How amendments made

(2) Unless the court otherwise orders, to amend a pleading under subrule (1), a party must

(a) amend the pleading in accordance with subrule (3),

(b) indicate on the amended pleading the date on which the original version of the pleading was filed, and

(c) file the amended pleading.

Identifying amendments

(3) Unless the court otherwise orders, if a pleading is amended under this rule,

(a) any deleted wording must be shown as struck out, and

(b) any new wording must be underlined.

Service of amended documents

(4) Unless the court otherwise orders, if a party amends a pleading under this rule, the party must do both of the following:

(a) within 7 days after filing the amended pleading, serve, by ordinary service, a copy of the filed amended pleading on all parties of record;

(b) if the amended pleading is an originating pleading, promptly after filing the amended pleading and before taking any further step in the proceeding, serve, by personal service, a copy of the filed amended originating pleading on any person who

(i) was served with a copy of the filed original version of the originating pleading, and

(ii) has not filed a responding pleading to the original version of the originating pleading.

Response of a party to amended document

(5) If a pleading (in this subrule and in subrule (6) called the “primary pleading”) is amended under this rule and the amended pleading is served on a party of record under subrule (4) (a), that party

(a) may amend, under this rule, any pleading he or she had filed in response to the original version of the primary pleading but only with respect to any matter raised by the amendments to the primary pleading, and

(b) in that event, must, within 14 days after being served with the amended pleading, serve a copy of the filed amended responding pleading on all parties of record.

Failure to serve amended responding document

(6) If a party on whom an amended pleading is served under subrule (4) (a) does not serve an amended responding pleading as provided in subrule (5),

(a) the pleading he or she filed in response to the original version of the primary pleading is deemed to be the pleading he or she filed in response to the amended pleading, and

(b) any new facts set out in the amended pleading are deemed to be outside the knowledge of the defendant.

Responding to amended pleading

(7) If an originating pleading is amended under this rule and served under subrule (4) (b) on a person who is not yet a party of record, the person has the same period for filing a responding pleading to that amended originating pleading as the party had to file a responding pleading to the original version of the originating pleading.

Amendment at trial

(8) Unless the court otherwise orders, if an amendment is granted during a trial or hearing, an order need not be taken out and the amended pleading need not be filed or served.

Rule 6‑2 — Change of Parties

Change of Party Status or Interest

Change of Parties

Adding, removing or substituting parties by order

… (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10),

(a) order that a person cease to be party if that person is not, or has ceased to be, a proper or necessary party,

(b) order that a person be added or substituted as a party if

(i) that person ought to have been joined as a party, or

(ii) that person’s participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and

(c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with

(i) any relief claimed in the proceeding, or

(ii) the subject matter of the proceeding

that, in the opinion of the court, it would be just and convenient to determine as between the person and that party.

Also see Bedoret v. Bandham, 2012 BCSC 1713:

In Weinlich v. Campbell, 2005 BCSC 1865 (CanLII), Madam Justice Martinson discusses the applicable legal principles the court must consider when adding a party to an action. First, she reviews the then applicable Rule 15(5)(a)(iii) of the Rules of Court, which is virtually the same as Supreme Court Civil Rule 6-2(7)(c). She also considers s, 4(1)(d) of the Limitation Act set out above. At paras. 43 and 44 Her Ladyship says:

[43]      Judicial discretion is fettered to the extent that it must be exercised judicially, in accordance with the evidence adduced and such guidelines as may appear from the authorities. The five factors to consider in determining whether to add a party pursuant to Rule 15(5)(a)(iii) are:

1. the extent of the delay;
2. the reason for the delay;
3. any explanation put forward to account for the delay;
4. the degree of prejudice caused by delay; and
5. the extent of the connection, if any, between the existing claims and the proposed new cause of action.

[44]      In the absence of a clear evidentiary basis for doing so, no single factor is necessarily determinative or given overriding importance. No factor should be considered in isolation: Letvad; Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 1996 CanLII 3033 (BC CA), 19 B.C.L.R. (3d) 282, 46 C.P.C. (3d) 183, 71 B.C.A.C. 161 [Teal].

[45]      In McIntosh, the Court of Appeal made two important points. First, at para. 7., they confirmed the following statement of McKenzie J. from Honeywell v. Latimer et al. [1982] 1 W.W.R. 606 at 614 (B.C.S.C.):

…limitation defences must now be defeated whenever a claim against a person who would otherwise have had protection of the statute involves questions or issues connected with the relief sought in, or the subject matter of, an existing action brought within the limitation period against others, provided that joinder would be just and convenient. The only questions for the court are whether there is such a connection and whether joinder would in the circumstances, be just and convenient between the proposed parties.

[46]      Second, the Court confirmed that no explanation is required with respect to delay within the period available in a normal situation, the normal situation being the limitation period plus the one year period for service of the writ (paras. 7 – 8).

 

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