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GENERAL PRINCIPLES - Legislation - Transitional provisions - Time

Monday, March 29, 2021 @ 9:19 AM  

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Appeal by the defendants from a judgment setting aside a grant of leave to file third-party proceedings in a motor vehicle accident claim. In 2014, the plaintiff filed a notice of civil claim seeking damages for injuries suffered in an automobile accident. The named defendants included the driver and the owner of the vehicle, a rental car company. The claim named the driver’s employer as a John Doe defendant. In 2015, the defendants became aware of the corporate identity of the driver’s employer. In 2018, the defendants applied for leave to file third-party notices claiming contribution and indemnity from the defendant driver’s employer. A master granted the order. On appeal, the chambers judge set aside the master’s order on the basis that the proposed claims were time-barred under the two-year limitation period under the 2012 Limitation Act. The defendants appealed.

HELD: Appeal dismissed. A claim for contribution and indemnity was a contingent claim. Under the previous Limitation Act, no specific limitation period was set out for a contribution claim and it was thus subject to the residual six-year limitation period. Under the 2012 Act, time ran from the point of discoverability rather than when a cause of action accrued, which was a finding of liability in the case of a contribution claim. In addition, the 2012 Act deemed a claim for contribution was discoverable upon the earlier of service of the underlying pleading or actual or imputed knowledge of the claim. Here, the appellants’ proposed claim was not a pre-existing claim for the purpose of the 2012 Act’s transition provisions, as it was not based on an incident that occurred before the effective date. Under s. 16 of the 2012 Act, the claim was discoverable more than two years prior to the appellants’ application to add the respondents as third parties. As the chambers judge found, s. 22(2) precluded commencement of the appellants’ claim after expiration of the two-year limitation period in accordance with ss. 6 and 16. The chambers judge correctly concluded the master had no discretion to grant the leave requested.

Sohal v. Lezama, [2021] B.C.J. No. 134, British Columbia Court of Appeal, M.E. Saunders, J. DeWitt-Van Oosten and J.C. Grauer JJ.A., January 29, 2021. Digest No. TLD-March292021001