nan 1999 SKQB 150 Q.B.G. A.D. 1999 No. 232 J.C.B. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: GILBERT ROUSSEAU personally, and GILBERT ROUSSEAU and GAIL ROUSSEAU as litigation guardians for the minor, RENÉ and GAIL ROUSSEAU and KORY (ROUSSEAU) DUTTON, PROPOSED PLAINTIFFS (APPLICANTS) and THE CITY OF NORTH BATTLEFORD DEFENDANT (RESPONDENT) T.E. Roberts for the proposed plaintiff G.D. Heinrichs, Q.C. for the defendant FIAT LAING J. October 26, 1999 [1] This application by the proposed plaintiffs is sequel to an earlier fiat rendered by Smith J. on June 1, 1999 with respect to an application by the defendant to set aside proposed amendments to the original statement of claim and the joinder of parties to that claim. In the end result Smith J. found the proposed amendments as they related to the original plaintiff Gilbert Rousseau did not require court ordered leave to amend, and found that the infant, René Rousseau, could be joined as plaintiff to the action on the basis she was an infant against whom the limitation period of one year set out in The Urban Municipality Act, 1984, S.S. 1983-84, c. U-11, as amended, had not yet commenced to run. With respect to the proposed plaintiffs, Gail Rousseau in her personal capacity and Kory (Rousseau) Dutton, Smith J. held that the amendments as they related to these two persons did assert new causes of action, and as on its face the one-year limitation period contained in s. 314(1)(a) of The Urban Municipality Act had intervened, such amendments could only be considered pursuant to an application under s. 44(11) of The Queen’s Bench Act, R.S.S. 1978, c. Q-1, as amended. This is such application. [2] The defendant resists the joinder of the new plaintiffs and the amendments to the statement of claim on the basis of undue delay on the part of the proposed plaintiffs and actual prejudice to the defendant. For the reasons which follow the defendant is not successful and the application is allowed. [3] The statement of claim issued by Gilbert Rousseau against the City of North Battleford is dated October 3, 1996. In it he alleged nuisance and in the alternative negligence on the part of the defendant City with respect to the design, construction, and maintenance of its sanitary sewer system which the statement of claim alleges caused “. the basement of the plaintiff’s home to flood, and resulted in damage to his dwelling and to personal belongings located in the dwelling.” (para. 5) The statement of claim went on to say in para. 10, “As result of the said back up and flooding, the plaintiff has suffered loss and damage in the following amounts: (a) to his premises $5,826.94; (b) to his contents $13,101.29 .”. The defendant did not file statement of defence to this claim, nor did it file an intent to defend. The reasons it did not are not disclosed in the material. [4] In December 1998 and January 1999, notice of change of solicitors to the present solicitors, notice of intent to proceed, and the amended statement of claim was served on the solicitor for the defendant City. The amended claim sought to join the persons referred to above, and the amendments consisted of: (1) adding to para. 10 subparas. (c) and (d) as follows: (c) to the cost of replacing the basement and to the cost of repairing his residence: $55,723.83 (d) for the cost of alternate accommodations and incidentals during the period of repair 9,230.00 New para. 11 contained the following amendment: 11. As result of the said back up and flooding, the Plaintiffs, Gilbert Rousseau, Gail Rousseau, René Rousseau and Kory (Rousseau) Dutton have suffered loss and general damages for: (a) the loss of the use and enjoyment of this residence; (b) the diminished living conditions caused by the damage to the residence; and (c) mental distress. The defendant filed notice of intent to defend dated March 23, 1999, and thereafter brought the motion resulting in the fiat of June 1, 1999. The Defendant’s Position [5] The defendant applied for leave to appeal the fiat of June 1, 1999 to the Court of Appeal which leave was denied orally from the Bench. Defence counsel states that during argument, Justice of the Court of Appeal noted that the amendments to the pleadings which had been made without order did not preclude the defendant from pleading limitation period defence with respect to such amendments if so advised. Counsel for the defendant states he intends to do so. On this application defence counsel makes the point that this Court should treat the application to join Gail Rousseau and Kory (Rousseau) Dutton together with the amendments that apply to them as if the earlier order had not been made. The defendant’s position in this respect is accepted. To do otherwise would be to prejudge the limitation defence the defendant seeks to advance with respect to the amendments brought by Gilbert Rousseau which are not before the Court on this application. [6] Section 44(11) of The Queen’s Bench Act sets out two statutory requirements for the exercise of Chambers judge discretion with respect to the adding of parties or the adding of new claim where limitation period has intervened since the commencement of the action. The requirements are as stated by Sherstobitoff J.A. in Stockbrugger Estate v. Wolfe Estate et al. (1987), 1987 CanLII 4901 (SK CA), 59 Sask. R. 96 (C.A.), at pp. 98-99, wherein he stated: nan The new onus on the applicant is: (1) to show that the claim asserted by the amendment or by or against the new party arose out of the same transaction or occurrence as the original claim; (2) to satisfy the court that no party will suffer “actual prejudice” as result of the enactment. Sherstobitoff J.A. went on to state at p. 99: the judge under the new enactment has an unfettered (original emphasis) discretion to grant the application once the twofold threshold onus is met. He is constrained by only one rule: he must exercise that unfettered discretion judicially. [7] The claim asserted by the new parties, Gail Rousseau and Kory (Rousseau) Dutton, and the amendments they seek to the statement of claim as set out in the foregoing clearly arise out of the same occurrence as the original claim. Defence counsel does not dispute this. His position is that his client will suffer actual prejudice if the amendments are allowed. [8] The applicants submit in their affidavit material that Gail Rousseau is and has been joint owner of the residential property which is the subject of the action since 1990 when they purchased the premises. They state that the damage to their home and their health was not readily ascertainable at the time of the initial claim, and they only became aware of additional structural problems and possible health problems over period of time. This prompted them to commission geotechnical and structural engineering report dated January 8, 1998, and report from the Battlefords Health District, Public Health Inspector, dated October 19, 1998. These reports have been provided to the solicitor for the defendants, and are the basis for the requested amendments. [9] The prejudice alleged by the defendant is set out in the affidavit of the City Commissioner for the defendant. He states that during the period from October 3, 1996 when the original claim was issued and December 7, 1998 when the City was served with the amended claim, the City did not receive notice of any ongoing problems with the plaintiff’s property. He states that had the City received such notice, it would have investigated, and possibly taken steps to minimize any damage discovered. He further states that evidence has been lost because the City was not given the opportunity to inspect the causes of any alleged damage as it developed, and it may now be too late to determine the causes. [10] As a starting point, the limitation period in s. 314(1) applies from the time when the damages were sustained, not from the date of the occurrence which led to the damage. Section 314(1) states as follows: 314(1)(a) No action is to be brought against an urban municipality for the recovery of damages: (a) after the expiration of one year from the time when the damages were sustained, and no such action is to be continued unless service of the statement of claim is made within that one-year period. As pointed out per Wilson J. in Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] W.W.R. (S.C.C.), at 48: It seems to me that it is now settled, at least in England, that the defendant’s negligence has to have manifested itself in the shape of physical damage to the property, e.g., cracks or subsidence, before time starts to run for limitation purposes. It is vital, therefore, that the trial judge make finding as to when this occurred. nan The court in the foregoing case went on to adopt the discoverability rule, but did not negate the foregoing minimum requirement. The foregoing is mentioned simply to point out that on the material filed, it is not possible to determine when the additional damage claimed manifested itself, but presumably it is after the date of the issuance of the statement of claim on October 3, 1996. Likewise, the material does not indicate when the applicants should have discovered the additional damage. If it is the date of January 8, 1998, when the applicants received the geotechnical and structural engineering report, the amended claim was brought within the one-year limitation period. The foregoing is pointed out simply to emphasize that on the facts of this case it is not certain. [11] The foregoing uncertainty as to when the limitation period actually commenced running with respect to the amended claim is a factor to be taken into account with respect to the defence position of inexcusable delay and actual prejudice. The material filed does not establish inexcusable delay. [12] The defendant’s claim that it has suffered actual prejudice is not accepted. It is worth noting that the general limitation period contained in The Limitation of Actions Act, R.S.S. 1978, c. L-15, for injury to real property arising from negligence is six years (s. 3(1)(e)(i)). When the general legislation contemplates defendants having to investigate claim with respect to real property up to six years after the limitation period has commenced to run, it is difficult to conclude that when the delay is maximum of little over three years as in this case (October 23, 1995 December 7, 1998) defendant could experience actual legal prejudice in the absence of unusual circumstances that are not present in this case. Furthermore, on the facts of this case the defendant had very timely notice, and the fact it chose not to investigate or communicate with the plaintiff following service of the statement of claim is not the fault of the plaintiffs. If it was prejudiced, it was through its own inaction. To the extent it pleads it did not know that damages would increase, the same argument is available to the applicants. [13] The defendant is now in a position to conduct an investigation with respect to the amended claim, and it has the benefit of the reports provided to it by the applicants. No evidence has been lost. The basement is available for inspection. Any consultant hired by the defendant is in an equally good position to investigate as was the applicants’ consultant, and to offer an opinion on cause and remedy. [14] On the basis of the foregoing, the applicants have met the requirements of s. 44(11) of The Queen’s Bench Act. As there is no legal impediment to making the amendments requested, I consider it an appropriate exercise of judicial discretion to allow the amendments requested. [15] Gail Rousseau is a joint owner of the property and should have been included as a plaintiff at the time the original action was commenced. The fact she was not appears to have arisen from inadvertence rather than any deliberate choice made at the time. Her joinder as party in this fact situation is contemplated by the Rules (Rule 38(1)) and normally would not be contested. The material filed indicates the expanded claim alleged in the requested amendments was not apparent at the time the original claim was issued, and arises out of the same occurrence. Allowing the amendments with respect to Gail Rousseau accords with the functional approach to the amendment of pleadings originally articulated by Professor Watson in his article, “The Amendment Proceedings After Expiry After Limitation Periods” (1975), 53 Canadian Bar Review 237, portions of which article are extensively reproduced in Budget Rent Car of Edmonton Ltd. v. University of Toronto et al. (1991), 116 A.R. 33 (Q.B.) (Vide also: Pike v. Pemberton Securities Inc., 1997 CanLII 14845 (AB QB), [1998] W.W.R. 361 (Alta. Q.B.) at 373 et seq.). Allowing the amendments with respect to Gail Rousseau also makes it appropriate to join Kory (Rousseau) Dutton as a party. [16] The amendments to the claim joining Gail Rousseau and Kory (Rousseau) Dutton as parties to the action, and the amendments set out in paras. 10, 11 and 12 of the amended statement of claim are allowed. [17] The costs of this application are costs in the cause. [18] Order accordingly.
FIAT. It was held in an earlier fiat in June that the addition of the two proposed plaintiffs asserted new causes of action and amendments to the statement of claim could only be considered pursuant to an application under s.44(11) of the Queen's Bench Act. The defendant resisted the joinder of the new plaintiffs and amendments on the basis of undue delay and actual prejudice. The statement of claim alleged nuisance, and in the alternative, negligence against the City with respect to the design, construction and maintenance of the sewer system causing his basement to flood. The plaintiffs stated they only became aware of the damage to their home and possible health problems over period of time. Leave to appeal the June fiat was denied. The defendant plead limitation period defence to the amendment and argued that if the City had received notice of any ongoing problems it would have investigated and possibly taken steps to minimize any damage; that evidence had been lost; it may be too late to determine the causes. HELD: The amendments were allowed. 1)The limitation period in s.314(1) applies from the time damages were sustained, not from the date of the occurrence which led to the damage. The facts were uncertain. It was uncertain when the limitation period commenced. If the date the applicant should have discovered the additional damage was the date they received the geotechnical and structural engineering report, the amended claim was brought within the 1 year limitation period. 2)Inexcusable delay was not established. 3)It was not accepted that the defendant suffered actual prejudice. If it was prejudiced it was through its own inaction. No evidence had been lost. The basement was available for inspection. It had the benefit of the reports provided by the applicants. 4)The requirements of s.44(11) were met and judicial discretion was exercised to allow the amendments. The fact that the joint owner of the property was not included was due to inadvertence rather than any deliberate choice. It was also appropriate to join the new plaintiff. It appeared that the expanded claim alleged in the requested amendment was not apparent at the time the original claim was issued and arose out of the same occurrence. 4)Costs in the cause.