Wasmund et al v. Meunier et al

2000 BCSC 1521 Citation: Wasmund et al v. Meunier et al Date: 20001017 2000 BCSC 1521 Docket: 11493 Registry: Dawson Creek

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: STEPHANIE ANN WASMUND, AN INFANT, AND SUSAN LOUISE NOLAN, AN INFANT, BY THEIR GUARDIAN AD LITEM, LEONARD GRACE, JEFFREY THOMAS NOLAN, AN INFANT, CURTIS MICHAEL NOLAN, AN INFANT, JASON FRANCIS NOLAN, AN INFANT, BY THEIR GUARDIAN AD LITEM, THOMAS NOLAN, DANNIELLE NOLAN AND TAMMY NOLAN, AND STEPHEN DANIEL WASMUND

PLAINTIFFS AND: PHILEAS RICHARD MEUNIER, TABOR DOUGLAS MCALLISTER

AND GARY MCALLISTER

DEFENDANTS AND: CO-OPERATORS GENERAL INSURANCE COMPANY

THIRD PARTY AND:

PHILEAS RICHARD MEUNIER

THIRD PARTY AND:

TABOR DOUGLAS MCALLISTER AND GARY MCALLISTER

THIRD PARTY

REASONS FOR JUDGMENT

OF

MASTER PATTERSON (IN CHAMBERS) Counsel for the Applicant, David Anthony Wasmund Leslie G. Dellow Counsel for the Defendant and Third Party, Phileas Richard Meunier Anna Feglerska Counsel for the Third Party, Co-operators General Insurance Company Monica R. Bittel Date and Place of Hearing: September 22, 2000 Vancouver, BC [1] This is an application brought by Anthony David Wasmund, to be added as a plaintiff, and for consequential amendments to the pleadings. [2] The action arises out of a motor vehicle accident which occurred near Dawson Creek, British Columbia, on June 13, 1995. In that accident, David Martin Wasmund and Rose Ann Nolan were killed. The action is brought pursuant to the Family Compensation Act by the various children of the two deceased. [3] Apparently the action was commenced, but the applicant and his brother Stephen were not included among the plaintiffs. On December 20, 1999, Master Baker made an order that Stephen be added as a plaintiff. That application was not opposed as the limitation had not expired for Stephen. Counsel agreed that the limitation period for the applicant expired March 7, 1998. [4] The applicant was born September 7, 1976 and is now 24 years old, he and Stephen are the sons of the deceased, David Wasmund. They lived with their mother in Ontario since sometime in 1982, when she was divorced from the deceased. [5] According to the affidavit of the applicant, he understood there was a lawsuit related to his father's death, and he believed that he was a party to the suit. His affidavit sworn December 15, 1999 contains the following paragraphs: 4. That my father was David Martin Wasmund, who along with Rose Ann Nolan died in a motor vehicle accident on the 13th day of June, 1995 near Dawson Creek, British Columbia.

5. That I understand that a lawsuit was commenced in connection with the death of my father, David Martin Wasmund, and Rose Ann Nolan, and that this claim is for the benefit of the children of Rose Ann Nolan and David Wasmund.

6. That up until the last few weeks, I believed that my younger brother, Stephen Daniel Wasmund, and I were named as parties to the action taking place in British Columbia in connection with my father's death.

7. That the same summer as my father's death, and before my 19th birthday, I had a conversation with my aunt, Susan Thompson. She is my father's sister. She advised me that lawyers had been hired in British Columbia and that a possible lawsuit was being considered in connection with my father's death. She specifically told me I did not need to hire my own lawyer, because the lawyers in British Columbia were taking care of everything. I had no reason to doubt Susan Thompson, and I believed her.

8. That Susan Thompson advised at that time, during the summer of 1995, that she was named the next of kin for my father, and that she was acting as the executor of his estate.

9. That since that initial conversation, and over the years that followed it, I spoke to Susan Thompson occasionally but she did not keep in touch with me very well. On several occasions when I tried to reach her she would not return my calls. Whenever the topic of the British Columbia proceedings came up, she would assure me that it was being taken care of. When I would ask her to provide me with the name or phone number for the lawyers, she would say that she did not have the number or name close at hand, and would essentially put me off.

10. That the last time I spoke to Susan Thompson was approximately one month ago. She advised me at that point that she did not really know anymore what was happening with the British Columbia proceeding since Leonard Grace had basically taken over in acting for the estate.

11. That I spoke to Leonard Grace the same night I spoke to Susan Thompson, and I inquired of him what was happening with the proceedings. He assured me that everything was in order and that my brother Stephen's name and my name were part of the British Columbia proceedings.

12. That approximately two or two and one-half years ago, my grandmother Gladys Wasmund assured us that the British Columbia Courts were aware of me and my brother Stephen.

13. That I only discovered that my brother and I were not named as parties to the British Columbia lawsuit approximately a month ago, after my mother contacted Dennis Mitchell, counsel for Stephanie Ann Wasmund and Susan Louise Nolan, two of my father's other children. Up to that point I was under the impression that everything was in order and that I was a party to the lawsuit in connection with my father's death.

14. That I have a highschool equivalency diploma. I have never been involved in a civil lawsuit before, and have a very limited understanding of the legal system and the process involved in a lawsuit. I trusted my aunt Susan and her assurances that things were looked after. I did not contact or retain my own counsel because I was assured that counsel had already been retained on my behalf in British Columbia. (emphasis added) [6] His mother, Mary-Ann Wasmund, swore an affidavit in support of this application on December 13, 1999, and the applicable paragraphs are as follows: 4. That my late ex-husband David Martin Wasmund and I divorced in or about 1981 or 1982, the exact date of which I do not recall. David Martin Wasmund is the father of my sons Anthony and Stephen.

5. That David Martin Wasmund and Rose Ann Nolan died in a motor vehicle accident on the 13th day of June, 1995 near Dawson Creek, British Columbia.

6. That I understand that a lawsuit was commenced in connection with the death of David Martin Wasmund, and Rose Ann Nolan, and that this claim is for the benefit of the children of Rose Ann Nolan and David Wasmund.

7. That until very recently, I believed that both my sons Anthony and Stephen were part of whatever action was taking place in British Columbia in connection with the death of their father.

8. That I found out that in fact my sons were not parties to the lawsuit when I spoke to Dennis Mitchell, counsel for two of David Martin Wasmund's other children. I spoke to him for the first time about a month ago. I obtained his number from a letter received from his office in connection with obtaining letters of administration for the estate of David Martin Wasmund. Mr. Mitchell advised me that Anthony and Stephen were not named as parties.

9. That I first put my mind to the idea of a lawsuit to obtain some compensation for my sons' loss of a father shortly after the accident and the death of David Martin Wasmund. I could not afford to hire my own lawyer to make an inquiry into a lawsuit or possible lawsuit as a result of David's death.

10. That within six months of the accident, I spoke to Susan Thompson, who is a sister of my late ex-husband, David Martin Wasmund. She told me that lawyers in British Columbia had been hired to look into a lawsuit in connection with David's death. She asked me to provide her with my sons' birth certificates, and told me that she needed these to prove that my sons' father was David Martin Wasmund and that they had a right to a part of David's estate.

11. That I have never been involved in the legal system before this point, and I did not know the process or who I could talk to. I was concerned about obtaining compensation for my sons for the death of their father, but was relying on Susan Thompson, since I was under the impression that she was handling everything in connection with David's estate, including the lawsuit. My sons were relying on her as well, and even told me not to get involved and let Susan handle everything. (emphasis added) [7] The only other affidavit material to the application is that of Dennis J. Mitchell, Q.C., sworn February 1, 2000 contains the following paragraphs: 1. I am the Solicitor for the Plaintiffs, Stephanie Ann Wasmund, Susan Louise Nolan and Stephen Daniel Wasmund and as such have personal knowledge of the facts hereinafter deposed to and save and except where such facts are stated to be on information and belief and where such facts are based on information and belief, I verily believe the same to be true.

2. That I was aware at an early stage in this file that the late David Martin Wasmund had two sons by his first marriage and that they lived with their mother, the former Mrs. Wasmund in Ontario.

3. That I was never in receipt of instructions to include or add Stephen or Anthony Wasmund as Plaintiffs until approximately early December, 1999, when I received a telephone call from Mrs. Wasmund, the mother of Stephen and Anthony Wasmund. [8] This application is brought pursuant to Rule 15(5)(a)(iii): (5)(a) At any stage of a proceeding, the court on application by any person may (iii) order that a person be added as a party where there may exist, between the person and any party to the proceeding, a question or issue relating to or connected (A) with any relief claimed in the proceeding, or (B) with the subject matter of the proceeding, which in the opinion of the court it would be just and convenient to determine as between the person and that party. [9] A leading case on applications of this nature is Teal Cedar Products (1977) Ltd. v. Dale intermediaries Ltd. (1996), 19 B.C.L.R. (3d) 282. Mr. Justice Finch, giving the majority decision in the Court of Appeal writes at paragraph 39: The phrase "just and convenient" in Rule 15(5)(a)(iii) has been much discussed in a number of cases. One of the early cases to consider this rule was Knight Towing Ltd. v. General Motors of Canada Ltd. (1981), 27 B.C.L.R. 335 (C.A.). Seaton J.A. for the court rejected the submission that the person applying to add parties was required to show that he had not been "voluntarily dilatory". He

said, at 338: Rule 15(5) provides the test - "just and convenient" are the words used. The third provision in R. 15(5)(a) is a new one and the words "just and convenient" have not yet been narrowed by judicial decisions. I would not wish to narrow them by adding a requirement that when a limitation period is involved, the applicant must show that he was not voluntarily dilatory. I think that it would be wrong to ignore that there is a limitation period that has expired and that delay in proceeding might well be a factor. Indeed, the limitation period and delay might be important factors, but I raise them no higher than that. And at paragraph 67: In the exercise of a judge's discretion, the length of delay, the reasons for delay and the expiry of the limitation period are all factors to be considered, but none of those factors should be considered in isolation. Regard must also be had for the presence or absence of prejudice, and the extent of the connection, if any, between the existing claims and the proposed new cause of action. Nor do I think that a plaintiff's explanation for delay must necessarily exculpate him from all "fault" or "culpability" before the court may exercise its discretion in his favour. This case is a good example. The plaintiff sought legal advice and accepted a lawyer's opinion to the effect that it did not have a claim against insurers under the policy.

The lawyer was subsequently persuaded that his initial opinion was unduly pessimistic and that there was at least some prospect of success in advancing such a claim. Unfortunately, the limitation period had passed. [10] Counsel for the defendant and third parties who appeared argue that there was a lengthy period of time from the motor vehicle accident until November 1999, almost four-and-a-half years, when the applicant did little or nothing about his claim. They argue that the explanation for the delay is inadequate. Some prejudice, they argue, can be presumed due to the missed limitation, and due to the fact that there is another claim to investigate, evaluate, and defend. [11] The onus in applications of this nature is on the applicant to adequately set out the facts necessary to support his legal argument. [12] The affidavits filed in support are thin at best. The applicant's affidavit sets out no sources of the information to support the applicant's belief contained in paragraphs 5 and 6. In paragraphs 8, 9, 10, 11 and 12 the applicant does not state that as a result of receiving the information set out that he verily believes it. Similar comments apply to paragraphs 6, 7, 10 and 11 of the affidavit of Mary-Ann Wasmund. Rule 51(10) clearly states that an affidavit may state only what a deponent would be permitted to state in evidence at trial, except that if the source of

the information is given an affidavit may contain statements as to the deponent's information and belief, if it is made in respect of an interlocutory order. In my view, these affidavits do not comply with that rule. [13] There are no affidavits from Susan Thompson or Leonard Grace explaining what they may or may not have done, nor what they said or to whom. The affidavit from the solicitor adds nothing to the applicant's case. [14] In my view, the affidavits filed in support of the application fail miserably to explain the length of the delay and the reasons for the delay. The affidavits contain inadmissible statements, impressions, and deductions. It appears from paragraph 9 of the applicant's affidavit that his aunt was being somewhat evasive concerning legal proceedings. That in itself should have sounded the alert and caused further inquiries to be made. The applicant's mother swears she was asked to provide her sons' birth certificates to Ms. Thompson, but nowhere swears that the certificates were sent. Unfortunately, the court is left to guess what was done and said by either Ms. Thompson or Mr. Grace. [15] Notwithstanding the failure to adequately explain the length of the delay and its reasons, those are only two of the factors to be considered. According to Finch, J.A. the court must also consider the presence or absence of prejudice, and the connection between the

applicant's claim and the existing causes of action. Clearly there is a connection between the applicant's claim and that of his brother, now a party to the action. They are siblings, their situation will be somewhat similar, and their claims would also be somewhat similar. Clearly, also, there is prejudice to the defendant and the third parties by the late claim being added onto the existing claims. [16] McEachern, C.J.B.C. in Teal, (supra), adds this to the judgment of Mr. Justice Finch: Applying the same principles regardless of whether the application is to add new defendants, as in Ricketts or new causes of action, as in Med Finance, I believe the most important considerations, not necessarily in the following order, are the length of the delay, prejudice to the respondents, and the overriding question of what is just and convenient. [17] In this case, it would clearly be convenient for the applicant to have his claim heard with the others. However, in my view, it would not be just to make the order sought on the basis of the applicant's affidavits. There are just too many gaps in the evidence before the court to grant the application. [18] The application is dismissed, with costs to the opposing defendant and third parties in any event. Those costs may be assessed on Scale 3. [19] The applicant will have liberty to reapply on filing further and better affidavits. "Master Patterson"