Dabrowski Estate v. York Structural Steel Ltd. et al., (1995) 161 N.B.R.(2d) 305 (CA)

• Judge: Ayles, Ryan and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 21, 1995
• Jurisdiction: New Brunswick
• Citations: (1995), 161 N.B.R.(2d) 305 (CA)

Dabrowski Estate v. York Steel (1995), 161 N.B.R.(2d) 305 (CA);

    161 R.N.-B.(2e) 305; 414 A.P.R. 305

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

York Equipment Ltd. (appellant/intended defendant) v. Cristina Seri, as Executrix of the Estate of the late Robert F. Dabrowski (plaintiff/respondent)

(324/94/CA)

Indexed As: Dabrowski Estate v. York Structural Steel Ltd. et al.

New Brunswick Court of Appeal

Ayles, Ryan and Turnbull, JJ.A.

April 6, 1995.

Summary:

A widow, the executrix of her husband's estate, sued several defendants for damages after her husband's fatal accident. She moved to add York Equipment Ltd. as a defendant after the limitation period had expired.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 155 N.B.R.(2d) 14; 398 A.P.R. 14, allowed the motion. York Equipment appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Practice - Topic 661

Parties - Adding or substituting parties - Defendants - Conditions precedent and special circumstances - [See Practice - Topic 666 ].

Practice - Topic 666

Parties - Adding or substituting parties - Defendants - Application of limitation periods - A widow sued York Steel et al. after her husband's fatal accident - She alleged that York Steel owned the vehicles involved in the accident - She learned that York Equipment, a related company, owned the vehicles and leased them to York Steel - After the two year limitation had expired, she applied to add York Equipment as a defendant - The New Bruns­wick Court of Appeal affirmed that there were suffi­cient special circumstances to have York Equip­ment added as a de­fend­ant - For example, York Equip­ment was aware, well within the limitation period, of the specific nature of the claim - The two companies had com­mon di­rectors and addi­tionally, there was no evidence of preju­dice to York Equip­ment.

Cases Noticed:

Weldon v. Neal (1887), 19 Q.B.D. 394; 56 L.J.Q.B. 621 (C.A.), folld. [para. 8].

Basarsky v. Quinlan, [1972] S.C.R. 380, refd to. [para. 10].

O'Brien v. Stephen et al. (1993), 142 N.B.R.(2d) 227; 364 A.P.R. 227 (C.A.), consd. [para. 12].

Golding v. Wharton Saltworks Co. (1876), 1 Q.B.D. 374 (C.A.), refd to. [para. 14].

Statutes Noticed:

Fatal Accidents Act, R.S.N.B. 1973, c. F-7, generally [para. 1].

Motor Vehicle Act, R.S.N.B. 1973, c. M-17, generally [para. 2].

Rules of Court (N.B.), rule 5.04(2), rule 27.10 [para. 1].

Counsel:

Howard A. Spalding, for the appellant;

Kenneth B. McCullogh, for the respondent.

This appeal was heard on March 21, 1995, before Ayles, Ryan and Turnbull, JJ.A., of the New Brunswick Court of Appeal. On April 6, 1995, the following decision was delivered by the court.