McFaul v. Ranch-Lewchuk et al., [2015] A.R. TBEd. NO.056

• Judge: Pentelechuk, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 13, 2015
• Citations: [2015] A.R. TBEd. NO.056;2015 ABQB 706

McFaul v. Ranch-Lewchuk, [2015] A.R. TBEd. NO.056

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. NO.056

Brian McFaul (applicant) v. Jesse Ranch-Lewchuk, Edward Szymt, Alan Gratton, John Doe, XYZ Corporation and the Administrator of the Motor Vehicle Accident Claims Act (respondents)

(0703 09300; 2015 ABQB 706)

Indexed As: McFaul v. Ranch-Lewchuk et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Pentelechuk, J.

November 9, 2015.

Summary:

The plaintiff claimed damages for injuries he sustained in a single motor vehicle accident on August 26, 2006. He alleged that the defendant Jesse Ranch-Lewchuk was driving when he lost control of the vehicle and veered into the ditch. The plaintiff sought to amend his statement of claim to add Elizabeth MacIntyre as personal representative of the Estate of Allan Joseph MacIntyre as a defendant and to plead particulars of negligence respecting the late Mr. MacIntyre. Specifically, the proposed amendment alleged that Mr. MacIntyre was the owner and driver of an unidentified vehicle and that his actions resulted in the defendant Ranch-Lewchuk having to take evasive action to avoid a collision, causing him to leave the road and veer into the ditch. The Administrator of the Motor Vehicle Accident Claims Act (Administrator) defended the action in various capacities. The Administrator took no position regarding the application in his capacity as a nominal defendant. The Administrator also defended the action on behalf of Ranch-Lewchuk and, in this latter capacity, supported and participated in the application. The application was opposed by Mr. MacIntyre's Estate (proposed defendant).

The Alberta Court of Queen's Bench dismissed the application. The proposed amendment was outside the limitation period and, while the amendment did not prejudice the proposed defendant, it was inappropriate generally. The tepid and confusing evidence proffered in support of the amendment suggested that the claim against the defendant was tenuous at best. The accident happened over nine years ago with no trial date in sight. The amendment ought not to be allowed in the interests of justice. The court awarded costs to the proposed defendant against the Administrator where the Administrator, and not the plaintiff, was the driving force behind the application. Because of the plaintiff's unexplained delay in diligently prosecuting the claim, no costs were payable to the plaintiff.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - See paragraphs 34 to 47.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - See paragraphs 34 to 47.

Motor Vehicles - Topic 1570

Unsatisfied judgment fund - Actions against the fund - Practice and costs - Costs - See paragraphs 82 to 86.

Practice - Topic 604

Parties - Adding or substituting parties - General principles - Considerations - See paragraphs 62 to 81.

Practice - Topic 607

Parties - Adding or substituting parties - Power of court to add parties - See paragraphs 62 to 81.

Practice - Topic 666

Parties - Adding or substituting parties - Adding or substituting defendants - Application of limitation periods - See paragraphs 28 to 52.

Practice - Topic 673

Parties - Adding or substituting parties - Adding or substituting defendants - Circumstances when denied - See paragraphs 1 to 61.

Practice - Topic 716

Parties - Adding or substituting parties - Notwithstanding limitation period - Prejudice to opposing party - See paragraph 59.

Practice - Topic 712

Parties - Adding or substituting parties - Notwithstanding limitation period - Statutory authorization - See paragraphs 53 to 61.

Counsel:

Wally Nashman (James H. Brown & Associates), for the applicant/plaintiff, Brian McFaul;

Shawn Sipma (Chomicki Baril Mah LLP), for the respondent, the proposed defendant, the Estate of Allan MacIntyre;

Brendan A. Carr (Carr Defir Barristers and Solicitors), for the respondent Administrator of the MVACA, on behalf of the defendant, Jesse Ranch-Lewchuk.

This application was heard on October 13, 2015, by Pentelechuk, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on November 9, 2015.