Krusel v. Firth et al., (1991) 2 B.C.A.C. 81 (CA)

• Judge: Macfarlane, Locke and Taylor, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 15, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 2 B.C.A.C. 81 (CA)

Krusel v. Firth (1991), 2 B.C.A.C. 81 (CA);

    5 W.A.C. 81

MLB headnote and full text

Richard Robert Krusel (plaintiff/respondent) v. Grant Firth, Rosa Maria Firth, Rick Firth, Pioneer Pools Ltd., Jeffrey Michael Harvey, Michael Edward Zarchynski, Douglas Richard Gary Dzus, Mario Kovarik, Gregory A. Weber, John Doe and Richard Doe (defendants/respondents) and Alan Newsome and Pioneer Pools Ltd. (third parties/respondents) and Hanson Kidde Canada Inc., Jacuzzi Canada Ltd. and Kidde Canada Limited/Kidde Canada Limitee (third parties/appellants)

(Nos. CA013772/CA013776)

Indexed As: Krusel v. Firth et al.

British Columbia Court of Appeal

Macfarlane, Locke and Taylor, JJ.A.

August 19, 1991.

Summary:

The plaintiff was rendered a quadriplegic in a swimming pool accident at the Firths' home. The plaintiff sued the Firths and the company which installed the pool and waterslide for damages. Some five years after the accident, when the plaintiffs learned the name of the manufacturer of the pool and its successors, the plaintiffs applied to join these parties in the action against the Firths and the pool installer. A Master allowed the application. The pool manufacturer and its successors appealed raising issues under the Limitation Act.

The British Columbia Court of Appeal allowed the appeal to the extent that it directed that if the parties agreed, the limitations issue would be determined at trial. If the parties did not agree the court stated that it would direct a rehearing of the joinder motion in chambers below.

Limitation of Actions - Topic 207

Practice - Limitation period - Commencement of - The British Columbia Limitation Act, s. 6(3), provided that the limitation periods under the Act would be postponed from running against a plaintiff until, inter alia, the identity of the defendant was known - The British Columbia Court of Appeal discussed the tests to be applied in determining whether a limitation period was postponed by s. 6(3) - See paragraphs 9 to 51.

Limitation of Actions - Topic 207

Practice - Limitation period - Commencement of - [See Practice - Topic 356 ].

Limitation of Actions - Topic 9303

Postponement or suspension of statute - Where defendant's identity unknown - The British Columbia Limitation Act, s. 6(3), provided that the limitation periods under the Act would be postponed from running against a plaintiff until, inter alia, the identity of the defendant was known - The British Columbia Court of Appeal discussed the tests to be applied in determining whether a limitation period was postponed by s. 6(3) - See paragraphs 9 to 51.

Limitation of Actions - Topic 9303

Postponement or suspension of statute - Where defendant's identity unknown - [See Practice - Topic 356 ].

Practice - Topic 356

Parties - Joinder of parties - Application of limitation periods - The British Columbia Supreme Court Rules, rule 15(a)(iii), permitted joinder of parties in certain circumstances where it would be just and convenient to do so - The Limitation Act, s. 6(3), postponed the running of limitation periods fixed by the Act until such time as the identity of the defendant became known by the plaintiff - The British Columbia Court of Appeal discussed the relationship between these two provisions - See paragraphs 1 to 8.

Statutes - Topic 1205

Interpretation - Construction where meaning is plain - Where plain meaning inconsistent with purpose of statute - The British Columbia Limitation Act, s. 6(3), provided that the limitation periods under the Act would be postponed from running against a plaintiff until, inter alia, the identity of the defendant was known - The British Columbia Court of Appeal, in interpreting this provision, adopted the "golden rule" of statutory interpretation (i.e., the natural words of the statute were not applied where the result was unjust, absurd or would contradict the plain purpose or intent of the statute when read as a whole) - See paragraphs 41, 42.

Cases Noticed:

Karsanji v. Rocque, [1990] 3 W.W.R. 612 (B.C.C.A.), refd to. [paras. 12, 39].

Bank of Montreal v. Ricketts (1990), 44 B.C.L.R.(2d) 95 (C.A.), refd to. [para. 16].

Webb v. Insurance Corp. of British Columbia (1989), 40 B.C.L.R.(2d) 153 (C.A.), refd to. [paras. 26, 32, 36].

Charleton v. Vancouver General Hospital (1989), 39 B.C.L.R.(2d) 186 (S.C.), refd to. [para. 31].

Stock v. Frank Jones (Tipton) Ltd., [1978] 1 W.L.R. 5, refd to. [para. 42].

Lucy v. W.J. Henley's Telegraph Works Co. Ltd., [1969] 3 All E.R. 456 (C.A.), refd to. [para. 42].

Statutes Noticed:

Limitation Act, R.S.B.C. 1979, c. 236, sect. 3(1)(a) [paras. 3, 33]; sect. 4 [para. 16]; sect. 4(1) [paras. 4, 20, 24]; sect. 6 [para. 22]; sect. 6(3) [para. 11 et seq.]; sect. 6(3)(a) [paras. 3, 8, 27]; sect. 8(1) [para. 14].

Rules of Court (B.C.), Supreme Court Rules, rule 15(5)(a)(iii) [para. 2 et seq.].

Counsel:

James M. Coady, for the appellant Hanson Kidde Canada Inc.;

   Michael P. Ragona, Q.C., for the appellants Jacuzzi Canada Ltd. and Kidde Canada Ltd.;

John H. Laxton, Q.C., and Robert S. Gibbens, for the respondent Richard Robert Krusel;

J.H. MacMaster, for the respondent Grant Firth.

This appeal was heard on May 15, 1991, in Kamloops, B.C., before Taylor, Macfarlane and Locke, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered by, Taylor, J.A., on August 19, 1991.