ACTIONS BY AND AGAINST MUNICIPALITIES - Actions against municipality - Bringing action - Serving notice

 Appeal by the defendant City of North Vancouver (City) from a decision of a chambers judge setting aside a Master’s order that added the City as a defendant to Anonson’s action without prejudice to the City’s ability to advance its late notice defence at trial. Anonson commenced an action in 2014 against the Insurance Corporation of British Columbia (ICBC) for injuries she suffered in an accident in 2012 when she was struck by a truck while riding her bicycle on a street in the City. In 2015, she applied to have the City added as a defendant after the ICBC commenced a third party claim against the City. The City conceded that it was just and convenient to add it as a defendant on condition that the order was made without prejudice to its ability to pursue its late notice defence at trial pursuant to s. 286 of the former Local Government Act. The Master concluded that s. 286 was a notice provision and not a statutory limitation period that engaged s. 4(1) of the Limitation Act because s. 286 set out a mechanism for the trial court or the Court of Appeal to determine the effect of late notice on the joinder application. The chambers judge held that the Master erred by finding that s. 286 was simply a notice period and not a statutory limitation period. The central issue on appeal was whether s. 736 of the current Local Government Act, which was s. 286 of the former Local Government Act and previously s. 755 of the Municipal Act, was akin to a limitation period for the purpose of engaging s. 4(1) of the Limitation Act.

HELD: Appeal allowed. Section 736 of the Local Government Act was not akin to a limitation period for the purpose of engaging s. 4(1) of the Limitation Act. Unlike the Limitation Act, the notice provision was not akin to a lapse of time in which to bring an action. The notice provision did not function in the same way as limitation period provisions because non-compliance with s. 736 or its predecessors did not prevent a plaintiff from commencing or maintaining an action. Unlike the more objective language of s. 4(1) of the Limitation Act, the discretionary saving provision of s. 736(3) may or may not act as a bar to an action, as the trial or appeal court was required to determine whether the discretionary saving provision applied based on the evidentiary record. The notice provisions of the current and former legislation had never been captured by s. 4(1) of the Limitation Act when a party was added to an action because the trial or appeal court was required to first determine whether the saving provision applied.

Anonson v. Insurance Corp. of British Columbia, [2017] B.C.J. No. 1027, British Columbia Court of Appeal, M.V. Newbury, D.M. Smith and P.M. Willcock JJ.A., May 31, 2017. Digest No. TLD-July32017004