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Application to Add Defendant to Existing Action Successfully Opposed

Shawn Sipma

Shawn Sipma

In McFaul v Ranch-Lewchuk, 2015 ABQB 706, Shawn R. Sipma of CBM Lawyers successfully opposed an Application by the Plaintiff (and the Administrator of the Motor Vehicle Accident Claims Act) to have the driver of a second unidentified vehicle (the “Proposed Defendant”) added as a new Defendant in an existing personal injury action arising out of a single vehicle accident occurring on August 26, 2006. The Plaintiff’s Application was premised on the allegation the Proposed Defendant had caused the accident by “hogging the centre line” on a rural gravel road, resulting in the Plaintiff having to take evasive action to avoid a head-on collision and thereby causing his vehicle to leave the roadway and overturn.

The Plaintiff maintained the applicable limitation period did not begin to run until the identity of the Proposed Defendant was “discovered” in 2009 which was when the Plaintiff’s Application was originally filed and served. However, Madam Justice Pentelechuk rejected the Plaintiff’s position and found that any claim against the Proposed Defendant was barred under section 3(1) of the Limitations Act as the information leading to the identification of the Proposed Defendant was “discoverable” during the 2 year limitation period which began to run on the date of the accident (and which expired in August 2008). Furthermore, she held the Plaintiff’s Application could not be “saved” by section 6(4) of the Limitations Act as the Proposed Defendant had not received any notice of a claim within 3 years of the accident.

Madam Justice Pentelechuk also noted, even if she was wrong about the applicable limitation period, she would have otherwise still dismissed the Plaintiff’s Application having regard to Rule 3.74 and the Foundational Rules (in particular, Rule 1.2) of the Alberta Rules of Court which, given the conflicting and paucity of evidence before her and the significant delay in moving the action forward, required that the Plaintiff’s Application “not be allowed in the interests of justice”.

Costs of the Plaintiff’s unsuccessful Application were awarded in favour of the Proposed Defendant, but payable by the Administrator of the Motor Vehicle Accident Claims Act only, not the Plaintiff.