Dorus et al v. Teck Corporation et al

2005 BCSC 886 Dorus et al v. Teck Corporation et al

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dorus et al v. Teck Corporation et al 2005 BCSC 886 Date: 20050602 Docket: 14237 Registry: Dawson Creek Between: Vasile (Willy) Dorus and Vlanney Maria Dorus Plaintiffs And: Teck Corporation, Bullmoose Operating Corporation, Quintette Operating Corporation, Quintette Coal Limited, Edma Holdings Ltd., Canada Mortgage and Housing Corporation Defendants Before: The Honourable Mr. Justice Wong Oral Reasons for Judgment In Chambers June 2, 2005 Counsel for the Plaintiffs: D.W. Donohoe Counsel for the Defendants Teck Corporation, Bullmoose Operating Corporation, Quintette Operating Corporation, Quintette Coal Limited, and Edma Holdings Ltd. and appearing for Teck Bullmoose Coal Incorporated: S. Hern Counsel for the Defendant Canada Mortgage and Housing Corporation: P.R. Albi and K. Knapp Place of Hearing: Vancouver, B.C. [1] THE COURT: I have, in the last day and today, the pleasure of listening to carefully considered submissions which were also outlined in written form. [2] With respect to the plaintiffs' application to add Teck Bullmoose Coal Incorporated as a defendant to the proceeding, and that the plaintiffs be granted leave to file a further amended Writ of Summons in the form attached in the Notice of Motion as Schedule A, I am of the view that it is just and convenient. Also, I am satisfied, based on plaintiffs' counsel's

submission, that much of that is a recasting of the cause of action based on a factual matrix already outlined in earlier Statement of Claims with respect to the background of this particular matter; on that basis, to file a further amended Statement of Claim. [3] However, I am concerned with respect to Teck Bullmoose Coal. There may well be the issue of a limitation defence which might otherwise be lost, and therefore there will be terms that potential limitation defences of the defendants remain intact despite the amendment. [4] The plaintiff has also asked that the further amended Statement of Claim be converted into a class proceeding. Counsel, in their research, have not found any reported authority that has permitted this to be done without the commencement of a new proceeding under the Class Proceedings Act, although plaintiffs' counsel made the submission that there is case authority to provide for this very same thing under representational proceedings. Counsel also indicated that since the promulgation of the Class Proceedings Act, particularly as cited in McLachlin and Taylor, there is some doubt whether representational proceedings is the proper avenue to be used. [5] I have also given consideration to the submissions by CMHC, although they do not oppose the amended Statement of Claim, they do oppose the matter of converting this into a class proceeding primarily on

the arguments that this would cause prejudice and open up a large class of potential plaintiffs who may well be statute barred and unduly complicate the carriage of this particular litigation. [6] I might add that this litigation commenced about five years ago and is still ongoing. Mr. Dorus has gone through a lengthy litigation history with respect to complaints to various administrative tribunals, including the Human Rights Tribunal. Upon being unsuccessful, he has moved on to other steps. It may well be that he does have a valid cause of action on some of his complaints, but I am of the view that in light of the history of this matter, this action should proceed in an expeditious manner. [7] I am of the view that to accede to converting this to a class action would merely complicate and delay it even more, aside from the concern of unfairness to the defendants. I see no prejudice to the plaintiff with the amended Statement of Claim, of carrying on his basic complaint. [8] Accordingly, the application to convert this into a putative class proceeding or representational proceeding are denied. [9] I think that pretty well takes care of all that is necessary in this case, and costs of this application will follow the final result of the cause. "R.S.K. Wong, J." The Honourable Mr. Justice R.S.K. Wong