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CIVIL PROCEDURE - Parties - Adding or substituting - After expiry of limitation period

Tuesday, March 09, 2021 @ 6:09 AM  


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Appeal by three defendants from a decision adding them as defendants to a claim of misfeasance in public office that was, but for the order, statute-barred. The appellants were retired teachers who presided over a disciplinary hearing from 2009 to 2011 into the respondent’s conduct as a teacher that arose in 2001. They found him guilty of some allegations of misconduct and imposed a penalty. After those proceedings concluded, the respondent made a human rights complaint, which was dismissed in 2012 and pursued a statutory appeal which was dismissed in 2014 after the College agreed to set aside the decisions of the disciplinary panel. The respondent commenced the present action against the Province in 2015. In September 2019, he sought to add the appellants as defendants. The claim against the appellants was based on alleged unlawful acts relating to the panel’s reasoning for finding him guilty of misconduct, the penalty it imposed, and maintaining the proceedings after a 10-year delay. The judge concluded it was necessary to add the appellants in order to fully and properly adjudicate the claim of misfeasance in public office. The judge therefore concluded that the balance of prejudice favoured adding the appellants and that it was just and convenient to do so. The appellants argued the chambers judge erred by refusing to consider the merits of the proposed claims and by misapprehending the evidence relevant to her assessment of the issues of prejudice and delay.

HELD: Appeal dismissed. Despite an error by the chambers judge in assessing the relevant threshold for joinder, the respondent established a real and non-frivolous issue in his claim against the appellants. The judge did not misapprehend the evidence in her assessment of the relative prejudice to the parties. The law in this province permitted a defendant to be added to an otherwise statute-barred claim where a court determined that it would be just and convenient to do so. That determination took into account the prejudice to a proposed defendant who lost a limitations defence and balanced that with the prejudice to the other party. The judge was correct to reject the argument that she could assess the strength of the claim or its chances of success. While the chambers judge failed to examine the pleadings before her with the view of determining whether the claim set out material facts sufficient to establish a real and not frivolous issue between the respondent and the appellants and also failed to examine the evidence before her for the purpose of determining if the required issue between the parties existed, the respondent had established a real, non-frivolous issue between him and the appellants. The pleaded facts, taken together with the pleas of knowledge that the conduct was unlawful, subjective awareness of the consequential harm to the respondent, and improper purpose, sufficiently pleaded the tort of misfeasance in public office. The judge accepted that the loss of the limitation defence in this case was serious, presumed prejudice. In balancing the prejudice between the parties, she made no error in principle that would call into question her exercise of discretion.

Madadi v. Nichols, [2021] B.C.J. No. 33, British Columbia Court of Appeal, G. Dickson, B. Fisher and P.G. Voith JJ.A., January 12, 2021. Digest No. TLD-March82021003