Kazuta v. Chicas

2008 BCSC 1052 Kazuta v. Chicas Citation: Kazuta v. Chicas, 2008 BCSC 1052

IN THE SUPREME COURT OF BRITISH COLUMBIA Date: 20080625 Docket: M073116 Registry: Vancouver Between: Aaron Kazuta Plaintiff And: Silvia E. Chicas Defendant Before: Master Donaldson Oral Reasons for Judgment In Chambers June 25, 2008 Counsel for Plaintiff J. Critchley Counsel for Defendant P. Lightbody Place of Trial/Hearing: Vancouver, B.C. [1] THE COURT: This is an application to add a defendant to a Writ and Statement of Claim which arises from a motor-vehicle accident which occurred on the 19th of July, 2005. It is an interesting application, because it follows a certain pattern, or at least it allows me to comment on what seems to have become an increasing pattern. [2] I note from the material filed that counsel on behalf of the plaintiff, who is not present counsel, Mr. Kolb, took it upon himself on the 10th of September, 2005, to write to ICBC, advising the name of his client, the date of the accident, and the claim number. He then requested of ICBC medical reports, accident benefit claim forms, statements, et cetera. [3] Additionally, and I emphasize this, in paragraph number 1 on page 2: Names and addresses of the driver and owners of the motor-vehicle accident involved in the collision with my client. Two, the driver license numbers of the driver of the motor vehicle involved in the collision with my client. Three, the license plate number of the vehicle involved in

the collision with my client. [4] ICBC, or at least someone on behalf of ICBC, responded in a letter dated the 15th of September, '05, informing Mr. Kolb of all the information that he sought, namely the name of the owner, Silvia E. Chicas; the name of the driver, Siliva, S-i-l-i-v-a M. Chicas; gave the plate number, under the heading of "owner", and the license number under the heading of "driver"; and so on. [5] Mr. Kolb then commenced action on the 19th of July '07 with a Writ. Action was commenced only however against the owner Silvia E. Chicas, and that Writ was filed prior to the expiration of the limitation period, which would have been the 19th of July, '07. However, it was not until the after the limitation date had expired that Mr. Kolb discovered in fact the owner and driver were not the same person, but indeed, as it now turns out, were other mother and daughter. [6] It should be noted that they're both at the same address; and Mr. Kolb, in his material, indicates that, because there was a typo in the name, namely the mother's name is spelled S-i-l-v-i-a, and the driver daughter's name is spelled S-i-l-i-v-a, that he concluded that in fact the insertion of the M., as a middle initial, instead of the E. as a middle initial was yet another typo. [7] In any event, I find it somewhat bemusing that, in reliance upon the information that Mr. Kolb received from ICBC, and

upon his failing to comply or at least draft his material in accordance with the information he had requested of ICBC, he now takes the position that he should be able to add the correct spelling, Silvia, S-i-l-v-i-a M. Chicas as a defendant. [8] Clearly the application is brought prior to the expiration of what I will refer to euphemistically as the ultimate limitation period. That is to say, the two years from the date of the incident, plus one year for service [9] There is an absence, I am satisfied, both real and imagined, of prejudice. Because of course, ICBC knew, at least as early as the 15th of September, '05 that either Siliva, S-i-l-i-v-a, M. Chicas, or perhaps more accurately Silvia M. Chicas, should have been added as a defendant to the Writ. [10] One wonders as to the consequence of refusing the application, and that simply is that there will be yet more litigation involved, and the disruption of this litigation, and indeed the court's time will be wasted, as would that of counsel, in dealing with the issue. [11] On the other hand, it would seem somewhat surprising that counsel, having requested information of ICBC, rather than attempting to determine the information from one's own client, or police reports, would then, upon failing to draft documents based upon the information sought and received, and then as a position in essence without consequence to some time

later apply to amend. That, however, will have to be dealt with, I suppose, at a later date by wiser minds than mine. [12] In any event, I'm satisfied in the circumstances, and in particular in the absence of prejudice, having considered the various authorities, including Teal Cedar, Wadsworth v. MacLeod, Winlux v. Kiefer, Walsh v. Blair, and McIntosh v. Neilson Brothers, that it's appropriate to permit the amendment. [13] There will be an order to the defendant will be entitled to its costs in any event of the cause. "Master Donaldson"