Schwager v. Cadillac Fairview Corp. Ltd.

2002 BCSC 413 Citation: Schwager v. Cadillac Fairview Corp. Ltd, et al Date: 20020321 2002 BCSC 413 Docket: S057219 Registry: New Westminster

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

EDITH SCHWAGER

PLAINTIFF AND:

THE CADILLAC FAIRVIEW CORPORATION LIMITED

PACIFIC CENTRE LIMITED SCANDINAVIAN BUILDING MAINTENANCE LTD. AND SCANDINAVIAN BUILDING MAINTENANCE LTD.

DEFENDANTS AND: SCANDINAVIAN BUILDING MAINTENANCE LTD. AND SCANDINAVIAN BUILDING MAINTENANCE LTD.

THIRD PARTY

REASONS FOR JUDGMENT

OF

MASTER NITIKMAN Counsel for the Plaintiff V.A. Ishkanian Counsel for the Defendants E. Vanderburgh Counsel for the Third Party D.A. Shugarman Counsel for Proposed Defendant M.J. Jackson Date and Place of Hearing/Trial: March 13, 2002 New Westminster, BC [1] This is the plaintiff's application to add a defendant to her action after a limitation period has expired. The proposed defendant is Concord Security Corporation ("Concord"). [2] A three-day trial of the plaintiff's action is scheduled to begin on April 24, 2002. All parties and the proposed defendant agree that if the court grants the plaintiff's application, the trial will have to be adjourned. [3] The plaintiff's application is not opposed by the defendants Cadillac Fairview and Pacific Centre. It is, however, opposed by Concord and by the defendant and third party, Scandinavian Building Maintenance ("Scandinavian"). [4] Briefly, the background facts are that on October 31, 1998, the plaintiff, aged 81 years at the time, slipped and fell in a pool of vomit on the floor of the Pacific Centre Mall in downtown Vancouver. The plaintiff sustained injuries as a result of the fall and subsequently initiated legal action for damages for negligence against the named defendants. Cadillac Fairview and Pacific Centre then issued a third party notice against Scandinavian. [5] The plaintiff's position is that while she was aware of

Concord's involvement in security matters in or around November 2001, she did not know of Concord's involvement in maintenance until January 2002. At that time, the plaintiff learned that in addition to Concord's duties and responsibilities for security, it also had responsibility for maintenance including reporting any incidents such as spills or debris. Concord was then to wait the arrival of someone to clean up the spill or get rid of the debris. [6] Counsel for the proposed defendant and for Scandinavian take the position that, first, the plaintiff knew of the existence of Concord personnel on the premises. They note that the person who attended upon the plaintiff after her fall was wearing a clearly labeled Concord uniform. Second, they note that there was a reference to Concord in a Liability Occurrence Report prepared following the accident by Nika Cejnek, a security guard for Concord. Third, they point to the affidavit of Adil Mohammed sworn November 9, 2000 and filed December 6, 2000. Mr. Mohammed, a janitor at the Mall in the employ of Scandinavian at the relevant time, deposed to the existence of security staff, "...not employed by Scandinavian", whose duties in addition to their security duties, included walking through the Mall throughout the day checking the floors for spills and debris in addition to their other duties. [7] Counsel argue that plaintiff's counsel

could easily and should have put two and two together and figured out, from all the above clues, that Concord was involved with maintenance as well as security. Had counsel been more diligent, the proposed defendant would not now be faced with defending a negligence action some 40 months after the incident that gave rise to the action and some 16 months past the expiry of the limitation period. [8] Counsel submits that Concord will be severely prejudiced by the length of the delay. [9] Mr. Naso, account director with Concord, testified that the first notice he received of the plaintiff's claim against Concord was by means of a January 8, 2002 letter to Concord from plaintiff's counsel. He says that he does not have a copy of the incident report. [10] Mr. Naso does not say that he never received a copy of the incident report or that he was unaware of the accident or the potential for a claim against Concord. [11] Mr. Naso says it is Concord's policy to purge accumulated shift schedules approximately every two years. He says he has been unable to find the shift schedule that would identify the Concord employees on duty on the day of the incident. [12] Mr. Naso does not say what efforts have been made to locate the shift schedule. Nor does he say that the shift schedule is irretrievable. In fact, Mr. Naso is aware of at least some of the employees on duty the day of the

accident. [13] Mr. Naso says the Building Standing Orders-Security for Mall Patrol indicate that there were five Concord employees on duty on October 31, 1998. The identity of three of the five employees is known from the security incident report, but without the shift schedule for that day Mr. Naso says he cannot determine the identity of the other two. [14] It is not clear from Mr. Naso's evidence what prejudice Concord would suffer from an inability to identify the two unknown employees. It is possible that one or more of the three known employees will recall the names of the other two. It does not appear from Mr. Naso's evidence that he asked that particular question of the two employees he did speak to. [15] Mr. Naso says that the three known employees on duty on October 31, 1998 have all ceased employment with Concord. He says he has no knowledge of the whereabouts of Kelly Grayson, one of the three known employees. He tried to reach her at her last known phone number but it was no longer in service. [16] Mr. Naso does not say what other attempts he made to locate Ms. Grayson. [17] The other two employees, Nika Cejnek and Orie Weiterer, that Mr. Naso knows about are now employed by Cadillac Fairview. Mr. Naso has spoken to them. Mr. Cejnek told Mr. Naso that he has no recollection of his activities on October 31st prior to his attendance upon the plaintiff after her fall.

According to Mr. Naso, Mr. Cejnek said he had "discarded" the notebook he kept while working for Concord. He said that the notebook would have assisted him in recalling what he did that day prior to the incident. [18] Mr. Weirterer told Mr. Naso essentially the same thing as Mr. Cejnek except that Mr. Weirterer was not sure whether he still had his notebook or not. [19] Mr. Naso says that Concord is significantly prejudiced by the plaintiff's failure to notify Concord of the intended action much earlier and prior to the departure from Concord's employ of the three known employees. Had Concord been so notified, Mr. Naso says he would have asked the employees for the relevant portions of their notebooks and obtained statements from them concerning their activities during their shift on October 31st.

DISCUSSION [20] All counsel agree that the leading case concerning the addition of a defendant after the expiry of a limitation period is Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996) 19 BCLR (3d) 282. I have reviewed that case and the several cases cited by counsel that have followed it. The principles of law distilled from Teal and the cases that follow Teal, in particular, Bukmeier v. Creyke [1998] BCD Civ. 770.51.10.00-05, may be briefly summarized as follows: the expiration of a limitation period is not necessarily a bar to adding a party under Rule 15(5). If the proposed defendant is added, the combined effect of the rules and the Limitation Act is that the limitation defence is no longer available to the new defendant. The test to be applied on such applications is whether adding the proposed defendant is just and convenient to all the parties. Neither the passing of a limitation period nor the extent of the delay nor the plaintiff's explanation for the delay including fault or culpability or even deliberately dilatory conduct on the plaintiff's part, are decisive. In the absence of clear evidence to the contrary, no one factor should be given more weight than any other. [21] I have reviewed the cases cited and relied upon by counsel for Concord. I find they are distinguishable from the case at bar. [22] Krusel v. Firth [1991] B.C.J. No.2545

(B.C.C.A) and Picher v. Kerrybrooke Development Ltd [1997] BCJ No.578 (BCSC) (Chambers) are postponement cases pursuant to s.6 of the Limitation Act. The court in Teal expressly dealt with the distinction between sections 6 and 4 of that Act. [23] In Haw v. Canada Safeway Ltd [1992] BCJ No.435 (BCSC) (Master), the plaintiff sought to add as defendants to the action the third parties named by the named defendants. The court said that the plaintiff was aware of the proposed defendants at least by August 1990 when the named defendants issued a third party notice. The plaintiff failed to provided any explanation for the delay between August 1990 and January 1992 when the application to add the third parties as defendants was brought. [24] The facts in Haw are distinguishable from the case at bar. Here, the plaintiff says she did not become aware of Concord's role in the maintenance, as opposed to the security of the Mall, until early in January 2002. Should the plaintiff have been alerted to this fact by Mr. Mohammed's affidavit? As noted above, one of the principles derived from Teal, is that fault on the plaintiff's part including an absence of due diligence will not be sufficient to refuse an application to add a defendant unless there is clear evidence that fault should be given weight above all other factors. In my view, there is not such clear evidence in this case. [25] In

Horgan v. Spinks [1991] BCJ No.3665 (BCSC)(Master), the court found that the plaintiff's counsel had failed in his obligation to bring the true facts forward in a forthright manner. The court found the affidavit in support of the motion to add a defendant was "woefully inadequate" to explain. [26] In my view, plaintiff's counsel in the case at bar has been forthright. [27] In Rowlands v. Telfer [1997] BCJ No 413 (BCSC) (Master) the court was persuaded to dismiss the plaintiff's application on a combination of factors: the expiry of a limitation period and the presumption of prejudice to the proposed defendant that followed from that fact, the fact that actual prejudice was demonstrated, the fact that the error in naming the correct defendant was occasioned by the plaintiff and the fact that the plaintiff failed to take reasonable and obvious steps to determine the correct name of the defendant when such steps were clearly indicated. [28] In the case at bar, I do not find the combination of factors that persuaded the court in Rowlands to dismiss the application. [29] Roscoe v. Lewis [1995] BCJ No. 1289 (BCSC) (Chambers) was a motor vehicle accident case in which the plaintiff was advised early and repeatedly by the insurer, ICBC, who the proper defendant was. The plaintiff failed to act on the information and did not provide any satisfactory explanation for the failure to do

so. [30] This case can be distinguished from the case at bar on its facts. In the case at bar, none of the named defendants provided the plaintiff with the kind of information provided in Roscoe. On the contrary, the named defendants take the position that the plaintiff should have been more diligent in finding out the information from "clues" along the way. [31] Counsel for Scandinavian submits that the court's discretion must be exercised in a way that is just and convenient to all parties. I agree. Counsel says Scandinavian has prepared for and is ready to proceed to trial on April 24th and will be prejudiced by the delay that will ensue if the trial is adjourned. [32] In my view, Mr. Naso's evidence falls short of demonstrating actual prejudice to Concord. Scandinavian has not demonstrated actual prejudice, either. The argument is that delay itself is prejudicial. No evidence was presented concerning what actual delay there might be in obtaining a new trial date in the event the April 24th date is vacated. Moreover, if there is prejudice due to delay, some of that can likely be addressed by costs. [33] In my view, there is prejudice to the plaintiff in not granting the order sought. There is a question or issue between Concord and the plaintiff that should be determined at trial. It is just and convenient to do so. The prejudice to the plaintiff in not having before the court all of the parties who may be liable for the damages she suffered on October 31st, outweighs, in my opinion, any prejudice that might accrue to the named defendants. [34] I order that the proposed defendant be added as a party to the proceedings and that the trial scheduled for April 24, 2002 be adjourned. "Master S. Nitikman"