BC Supreme Court adds defendant to action after expiration of limitation period

Introduction

The BC Supreme Court recently considered the issue of whether a party could be added as a defendant to an action after the relevant limitation period had expired.

Background facts

In Stiller v Parsons, 2023 BCSC 872, the plaintiff sought damages resulting from injuries sustained during treatment of an abnormal growth in her right eye on March 28, 2017.  Part of the treatment included administering a drug (the “Drug”) into her eye. Unfortunately, the pre-filled insulin syringe used to administer the Drug (the “Syringe”) was contaminated by a silicone lubricant, which resulted in the plaintiff sustaining permanent impairment to her vision.

On March 20, 2019, the plaintiff commenced an action against the pharmacy who dispensed the Drug (the “Pharmacy”), as well as against the importer, seller and distributor of the Drug (the “Action”).  At this time however, the plaintiff was unaware of the identity of the party who manufactured and supplied the Drug or the Syringe, despite efforts to determine same.  As a result, the plaintiff named these unknown parties as John Doe defendants in the Notice of Civil Claim (“NOCC”).

After filing the NOCC, plaintiff’s counsel sent several letters to the Pharmacy between 2019 and 2021 to inquire about the identity of the manufacturers and suppliers of the Syringe and the Drug. The Pharmacy eventually confirmed the identity of the party who supplied both the Syringe and the Drug (the “Supplier”), after which they sought to add the Supplier as a defendant to the action in this application.

The BC Supreme Court’s decision

In considering whether the Supplier ought to be added as a defendant in the underlying action, the court considered two issues.  Firstly, whether there was a triable question or issue as between the parties relating to the relief, remedy or subject matter of the Action.  Secondly, whether it was just and convenient to decide on the issue in the Action rather than by way of commencing a separate action to address same.

Since the NOCC pled that the Supplier owed the plaintiff a duty of care, and that they breached this duty in a number of ways, e.g., breach of a duty to warn of the potential risks of using the Syringe, the court determined that there was a triable issue as between the plaintiff and the Supplier.

With respect to the second issue, the court considered the following four sub-issues:

1. Whether the plaintiff’s delay in adding the Supplier as a defendant in the Action was justifiable;
2. Whether the Supplier was prejudiced due to their loss of the limitation defence;
3. Whether the Supplier suffered from any actual prejudice due to being added as a defendant after the limitation period expired; and
4. Whether there was a sufficient connection between the plaintiff and the Supplier to justify adding them as a defendant to the Action.

The court was satisfied that counsel for the plaintiff made reasonable efforts to identify the Supplier of the Drug and Syringe, which excused the delay in adding them as a defendant. The court acknowledged that while there is a presumption of prejudice if a party loses their limitation defence, this does not prevent the court from adding a defendant to an action.

While the Supplier submitted that they experienced a great deal of staff turnover and no longer were in contact with those that possessed and had knowledge of the issues to be tried, the court held that the Supplier failed to advance any evidence to show that they suffered from any actual prejudice as a result from being added to the Action after the limitation period expired.

With respect to whether the Supplier and the plaintiff were sufficiently connected so as to warrant them being added to the Action, the court determined that the Supplier occupied a key role in the supply chain of the Syringe and the Drug, which were live issues in the Action. Therefore, there was a sufficient connection between plaintiff and the Supplier. The court thereby allowed the plaintiff to add the Supplier as a named defendant in the Action.

Takeaway

While most claims are subject to a two year limitation period in British Columbia, Stiller v. Parsons demonstrates that the court has broad discretion to add a defendant to an action at any time, even after the expiry of the limitation period.

Should you have any questions or concerns, please feel free to reach out to a member of Miller Thomson’s Insurance Defence team.