Teal Cedar v. Dale Intermediaries (1996), 71 B.C.A.C. 161 (CA);
117 W.A.C. 161
MLB headnote and full text
Teal Cedar Products (1977) Ltd. (plaintiff/appellant) v. Dale Intermediaries Ltd. Les Intermédiaries Dale Ltée, Dale-Parizeau Inc., Laurentian General Insurance Company, Reliance Insurance Company, Canadian General Insurance Company, Commonwealth Insurance Company, and N.J. Oppenheim in his quality as Attorney in Canada for the Non-Marine Underwriters, Members of Lloyd’s, London, England, Bennett Cole Adjusters Ltd., and Matec Consultants Ltd. (defendants/respondents)
(CA019669)
Indexed As: Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. et al.
British Columbia Court of Appeal
McEachern, C.J.B.C., Finch and Ryan, JJ.A.
February 8, 1996.
Summary:
The plaintiff applied under rule 24(1) and the Limitation Act, s. 4(4), to add a new cause of action to its claims against the defendant insurers, after the expiration of a one year contractual limitation period (Rules of Court, rule 24(1)). A Chambers judge dismissed the application. The plaintiff appealed.
The British Columbia Court of Appeal allowed the appeal.
Limitation of Actions – Topic 2321
Actions in contract – Insurance contracts – General – [See both
Practice – Topic 2110
].
Limitation of Actions – Topic 9612
Enlargement of time period – Application for – When available – [See both
Practice – Topic 2110
].
Limitation of Actions – Topic 9614
Enlargement of time period – Application for – Considerations – [See both
Practice – Topic 2110
].
Practice – Topic 2110
Pleadings – Amendment of pleadings – Adding new cause of action – The plaintiff applied under rule 24(1) and the Limitation Act, s. 4(4), to add a new cause of action to its claims against the defendant insurers, after the expiration of a one year contractual limitation period – A Chambers judge dismissed the application – Although the limitation had only recently expired and the defendants would suffer no insurmountable prejudice if the amendments were allowed, the judge concluded that because the plaintiff had made a careful and deliberate decision not to sue on the policy, which was communicated to the insurers, the limitation should be enforced – The British Columbia Court of Appeal allowed the plaintiff’s appeal stating that the Chambers judge placed unwarranted weight on the plaintiff’s original decision not to sue on the policy.
Practice – Topic 2110
Pleadings – Amendment of pleadings – Adding new cause of action – The plaintiff applied under rule 24(1) and the Limitation Act, s. 4(4), to add a new cause of action to its claims against the defendant insurers, after the expiration of a one year contractual limitation period – In allowing the plaintiff to add the cause of action, the British Columbia Court of Appeal considered, inter alia, the length of the delay in bringing the application (only a few months), the prejudice the addition would cause to the defendants (none), and the overriding question of what was just and convenient (which the court concluded was to allow the addition of the new cause of action).
Words and Phrases
Just and convenient
– The British Columbia Court of Appeal discussed the meaning of this phrase as used in s. 15(5)(iii) of the Limitation Act, R.S.B.C. 1979, c. 236 – See paragraphs 37 to 42.
Cases Noticed:
Knight Towing Ltd. v. General Motors of Canada Ltd. (1981), 27 B.C.L.R. 335 (C.A.), refd to. [para. 39].
Lui v. West Granville Manor Ltd. (1987), 11 B.C.L.R.(2d) 273 (C.A.), refd to. [para. 40].
Med Finance Co. S.A. v. Bank of Montreal et al. (1993), 29 B.C.A.C. 98; 48 W.A.C. 98; 79 B.C.L.R.(2d) 222 (C.A.), refd to. [para. 44].
Bank of Montreal v. Ricketts (1990), 44 B.C.L.R.(2d) 95 (C.A.), not folld. [para. 44].
Levitt v. Carr et al., [1992] 4 W.W.R. 160; 12 B.C.A.C. 27; 23 W.A.C. 27; 66 B.C.L.R.(2d) 58; 8 C.P.C.(3d) 101; 12 C.C.L.T.(2d) 195 (C.A.), refd to. [para. 50].
Evans v. Vancouver Port Corp., [1990] 2 W.W.R. 726; 42 B.C.L.R.(2d) 174; 39 C.P.C.(2d) 51; 65 D.L.R.(4th) 521 (C.A.), refd to. [para. 50].
Karsanjii Estate v. Roque, [1990] 3 W.W.R. 612; 43 B.C.L.R.(2d) 234; 39 C.P.C.(2d) 168 (C.A.), refd to. [para. 50].
Frosch Construction Ltd. et al. v. Volrich (1995), 60 B.C.A.C. 266; 99 W.A.C. 266; 7 B.C.L.R.(3d) 72 (C.A.), refd to. [para. 50].
McIntyre v. Armitage Shanks Ltd., [1980] S.L.T. 112 (H.L.), refd to. [para. 52].
West Fraser Mills Ltd. v. Chouinard et al. (1992), 73 B.C.L.R.(2d) 252 (S.C.), affd. (1993), 27 B.C.A.C. 311; 45 W.A.C. 311; 79 B.C.L.R.(2d) 321 (C.A.), refd to. [para. 60].
Statutes Noticed:
Limitation Act, R.S.B.C. 1979, c. 236, sect. 4(4) [paras. 4, 43]; sect. 6(3) [para. 49]; sect. 15(5)(a)(iii) [para. 37].
Rules of Court (B.C.), rule 24(1) [para. 3].
Counsel:
R.R. Sugden, Q.C., for the appellant;
P.G. Altridge, for the respondents.
This appeal was heard on December 19, 1995, at Vancouver, British Columbia, before McEachern, C.J.B.C., Finch and Ryan, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on February 8, 1996, and the following opinions were filed:
Finch, J.A. (Ryan, J.A., concurring) – see paragraphs 1 to 71;
MacEachern, C.J.B.C. (Ryan and Finch, JJ.A., concurring) – see paragraphs 72 to 79.
