Fehling v. Leger,


2016 BCSC 418

Date: 20160310

Docket: SM51165



Hayden Fehling



Garet Douglas



The Honourable Mr. Justice Rogers


Reasons for Judgment

Counsel for Plaintiff:

R.D. Irving

Counsel for Defendant (Applicant):

M. Geekie

Counsel for proposed Third Party,
Darcy Ryan Schenkeveld

R.M. Moffat

Counsel for proposed Third Party,
Clayton Tanner Ricketts

J.M. O’Quinn

Place and Date of Trial/Hearing:

Vernon, B.C.

February 25, 2016

Place and Date of Judgment:

Kelowna, B.C.

March 10, 2016



The defendant is defending a claim arising out of a motor vehicle
accident. He seeks liberty to add two individuals as third parties to the

The plaintiff and the proposed third parties oppose the application, the
former because adding the parties would delay the trial of his claim and the
latter on the ground that they have a limitation defence and that in any event
there is insufficient evidence to link them to the plaintiff’s claim against
the defendant.


On March 25, 2012, a number of people attended a party in the bush near
Lumby, B.C. The plaintiff was there – at all material times he was a
pedestrian. The proposed third parties Mr. Schenkeveld and Mr. Ricketts
were there – at all material times they were pedestrians as well. The defendant
was there – he drove his truck to the party. The defendant brought a number of
passengers with him to the party.

The precise chronology and detail of what happened at the party and what
led to the plaintiff’s injury is a matter of some dispute and much muddled
information. However, some things are clear. The defendant arrived in his truck
with his passengers. They disembarked and socialized with other persons already
there. After a period of time the defendant and Mr. Schenkeveld exchanged
angry words. The defendant decided to leave the party. He and some or all of
his passengers got into his truck.

The defendant started the truck’s engine. Something about the defendant’s
behavior excited some of the persons who were standing in the vicinity. One or
more of those persons began throwing beer bottles at the defendant’s truck. The
defendant’s truck moved forward, and in the process of moving forward it ran
over the feet of at least one and perhaps two young people who were standing

Mr. Ricketts approached the driver’s door of the defendant’s truck.
He tried to open the door. Whether his effort succeeded or not is unclear, but
what is clear is that by some means or other the door did open up. Mr. Ricketts
says that he stepped away from the truck when the door opened. The defendant
and at least one of his passengers say that when the door opened unknown
persons tried to extract the defendant from his driver’s seat. They say that in
the course of that effort, the truck moved forward some more.

Then the driver’s door became to be closed again. The defendant says
that he put the truck in reverse. He says that his driver’s door was pulled
open again by persons unknown and that those persons tried once more to extract
him from the driver’s seat. On this occasion, the defendant says that these
unknown persons caused his feet to be lifted away from the truck’s pedals. One
of those pedals operated the vehicle’s clutch and when the defendant’s foot was
taken away, the pedal engaged the clutch. Because the truck was already in
reverse gear, it jumped backwards.

At that moment, Mr. Fehling happened to be standing between another
vehicle and the rear of the defendant’s truck. The truck struck him when it
jumped backwards. Mr. Fehling says that he suffered a number of serious
injuries as a result of that impact.

The RCMP investigated the incident. An officer interviewed a number of
people who had been at the party. No one was able to identify who it was that
tried to pull the defendant out of the truck. Notwithstanding the lack of
relevant data from witnesses to the event, the investigating officer wrote a
report opining that Messrs. Ricketts and Schenkeveld tried to pull the defendant
out of the truck. The officer did not go so far as to hypothesize that as a
result of their interference the truck reversed into Mr. Fehling.

Shortly after the incident, the defendant gave a statement to an
adjuster employed by his third party liability insurer. The subject of the
statement was Mr. Fehling’s claim that he had been injured by the defendant’s
truck. The defendant told the adjuster that persons unknown to him tried to
pull him out of his truck. He did not, however, assert that the truck had
reversed because other persons had interfered with his driving.

Mr. Fehling commenced this proceeding in late July 2013. The defendant
filed his response in December 2013. That response made no mention of persons
interfering with the defendant’s operation of his truck. It contained no
allegation that Mr. Fehling’s injury was caused or contributed to by the
actions of persons other than the defendant. The response did allege that Mr. Fehling
was contributorily negligent for having placed himself in a position of danger
behind the defendant’s erratically moving truck.

Sometime between early February and mid-April 2014, the defendant’s
counsel obtained a copy of the RCMP investigation file in this matter. That
file contained all of the statements that had been gathered by the
investigating officer and it contained the officer’s narrative of events. That
narrative includes the officer’s opinion that Mr. Ricketts and Mr. Schenkeveld
tried to pull the defendant from his truck.

Approximately eight months later in mid-December 2014, counsel for the defendant
asked for Mr. Fehling’s consent to add Messrs. Ricketts and
Schenkeveld as third parties to the proceeding. Counsel declined consent.

In mid-January 2015, the parties conducted examinations for discovery of
one another. At the end of January 2015, the defendant amended his response to Mr. Fehling’s
notice of claim. In that amended response, and for the first time in any formal
sort of way, the defendant asserted that persons unknown to him caused him to
lose control of his vehicle and in so doing caused or contributed to the cause
of Mr. Fehling’s injuries.

Three months later, in May 2015, the defendant filed the present

Application and Parties’ Positions

The defendant seeks leave to add Messrs. Ricketts and Schenkeveld as
third parties to the proceeding. Leave is necessary because more than 42 days
have passed since the defendant was served with the notice of civil claim: see Supreme
Court Civil Rule

The defendant says that there is sufficient indirect evidence that Messrs.
Ricketts and Schenkeveld to support the defendant’s allegation that they caused
or contributed to the cause of Mr. Fehling’s injuries. The defendant says
that his delay in bringing the application is not inordinate and that what
delay there has been is reasonable. The delay was, according to the defendant,
a consequence of having to obtain the RCMP file and having to locate and
interview the various witnesses who were at the party.

Mr. Fehling opposes the application on the ground that adding two
third parties at this stage will certainly result in the loss of the June 27,
2016 trial date. He says that he hopes to enter a training course for a new
career and that he needs to have the trial done and over with first. Mr. Fehling
worries that a later trial date may interfere with his ability to devote
himself to his training and that may have a severe impact on his finances.

Messrs. Ricketts and Schenkeveld are united in their opposition to being
added as third parties. They say that they may be deprived of a limitation
defence, that the evidence does not support an allegation that they
participated in Mr. Fehling’s injuries, and that the defendant’s
application comes after too long a delay and without an adequate excuse for
that delay.


Supreme Court Civil Rules provides for third party notices but
limits the liberty period to 42 days after service of proceedings on the defendant.
To file a third party notice after that period, the defendant must obtain leave
of the court:

(4)        A party may file a third party notice

 (a)  at any time with leave of the court, or

 (b)  without leave of the
court, within 42 days after being served with the notice of civil claim or
counterclaim in which the relief referred to in subrule (1) is claimed.

Supreme Court Civil Rule 6-2(7) authorizes the court to order
that a person be added as a party to a proceeding:

At any stage of a proceeding, the court, on application by
any person, may, subject to subrules (9) and (10),

 (a)  order
that a person cease to be party if that person is not, or has ceased to be, a
proper or necessary party,

 (b)  order
that a person be added or substituted as a party if

 (i)   that
person ought to have been joined as a party, or

 (ii)  that
person’s participation in the proceeding is necessary to ensure that all
matters in the proceeding may be effectually adjudicated on, and

 (c)  order
that a person be added as a party if there may exist, between the person and
any party to the proceeding, a question or issue relating to or connected with

 (i)   any
relief claimed in the proceeding, or

 (ii)  the
subject matter of the proceeding

 that, in the opinion of the
court, it would be just and convenient to determine as between the person and
that party.

Subrules 6-2 (9) and (10) have no application in the present case.

Third party proceedings allow litigants to employ a single proceeding to
resolve multiple issues involving multiple parties. One of the rationales for
third party proceedings is to avoid multiple separate legal proceedings.

Under the previous Rules of Court, a defendant could file a third party
notice as of right any time 120 days ahead of trial (a simplified description
of the previous rule, but it will suffice for the present discussion). The 42
day grace period stipulated in Rule 3-5 (4) is new to the most recent iteration
of the Supreme Court Rules. This time limit represents a significant
change in the process. Why the new provision? In answer to that question, in Tyson
Creek Hydro Corporation v. Kerr Wood Leidal Associates Limited
, 2013 BCSC
1741 [Tyson Creek], Goepel J. (as he then was) wrote:

[53]      In Lui and MacNaughton, the court
emphasized that one of the main purposes of third party proceedings was to
avoid a multiplicity of proceedings. Nonetheless, the Amended Rule and the New
Rule have, I would suggest, diluted the overriding importance of that
consideration. By limiting the time in which a third party notice can be
issued without leave, the rule makers have clearly signalled that other factors
must be considered when the court is asked to exercise its discretion to allow
a third party notice to be issued.

[54]      This interpretation is supported by the decision in
Scott Management, in which the Court of Appeal, echoing Lui,
framed the question as being one of weighing competing injustices and

(emphasis added)

The issue in Tyson Creek was whether the court should permit a
defendant to add a third party when doing so would certainly prejudice the
plaintiff. That prejudice comprised substantial delay of the trial of the
plaintiff’s action. The trial date was not too far into the future – it would
be many months if not years before a trial could be convened on a new date.

Goepel J. turned to the ‘other factors’ – i.e.: factors other than
simply avoiding a multiplicity of proceedings – that must be considered on an
application to add a third party under the present rules. Goepel J. noted that
the rule requires a defendant to apply himself to the question of third party
proceedings early in the litigation process. He wrote:

[61]      I do not accept KWL’s suggestion that the dismissal
of their application will lead to the indiscriminate use of third party
proceedings within 42 days of a defendant being served. The New Rule does not
require the indiscriminate use of third party proceedings. The New Rule
does, however, force a defendant to give early consideration to the question of
adding additional parties. That is consistent with the object of the rules to
secure the just, speedy and inexpensive determination of every proceeding on
its merits. This is not, I suggest, a significant burden for a defendant. In
many cases the role of potential third parties will be known to the defendant
at the outset of the litigation or shortly thereafter. When a defendant only
learns about a potential third party well into the litigation it will be a
factor the court will have to consider in determining whether or not leave
should be given to issue the third party notice.


[63]      The New Rule mandates that after the 42-day window
has expired, a defendant can only bring a third party application with leave of
the court. When the application is brought after a notice of trial has been
issued and the joinder will likely lead to the adjournment of a trial to the
prejudice of a plaintiff, it will usually be incumbent on the applicant to
explain by affidavit the reason why the application is being brought at such a
late date and why the court should exercise its discretion in its favour. On
such an application it will be important for the court to know when the
applicant knew, or reasonably ought to have known, that a claim for
contribution or indemnity against the proposed third party could be made and
the explanation for any delay in bringing the application.

(emphasis added)

I take these passages to mean that a defendant must apply himself to
whether he seeks contribution or indemnity from a third party and he must make
that deliberation in a timely way. If he goes about his duty slowly and if in
the result he seeks to add a third party at a time when doing so will result in
the loss of a trial date, then he must explain his sloth. Absent an acceptable
explanation and in the face of the prejudice caused by adjournment of the
trial, the application to add a third party may well be denied. That was, in
fact, the result in Tyson Creek.

There are in the present case two issues worth examining in detail. The
first is the issue on which the Tyson Creek case was decided. That issue
is the prejudice to the plaintiff of losing his trial date and the defendant’s
explanation for his delay in bringing on his application. The second issue is
whether the evidence on the application sufficiently implicates Messrs.
Schenkeveld and Ricketts so that it makes sense to order that they be added to
the proceeding.

As to the first issue, I note that the third party claim arises out of
events that directly involved the defendant. There is no evidence that the defendant
initially suffered from memory loss and that months or years after the incident
he suddenly recalled that his truck reversed into Mr. Fehling because his
feet were pulled out of the cab. On the day after the bush party the defendant
must be taken to have had grounds to believe that other persons caused or
contributed to Mr. Fehling’s injuries. Yet the defendant did not mention
this to his insurance adjuster and his original response to civil claim did not
raise this potential defense. The defendant has offered no explanation for
those two failings.

Further, it is clear from the chronology of the litigation that the defendant’s
counsel had the RCMP file by April 2014, at the latest. It was not until
December of that year that his counsel broached with plaintiff’s counsel the
subject of adding third parties. It was not until five months later, in May
2015, that the defendant filed the present application. The only explanation
for that delay that I can glean from the materials is that the defendant’s
counsel wished to conduct examinations for discovery before pressing his
application to add Messrs. Schenkeveld and Ricketts to the proceeding. That
explanation does not, frankly, make sense. Defendant’s counsel sought the plaintiff’s
consent to add Schenkeveld and Ricketts in December 2014 – a month before the
discoveries. The discoveries had nothing to do with the defendant’s wish to
expand the litigation to include those two gentlemen.

I find that I am not satisfied by the defendant’s explanation for his
delay in bringing the application forward. I am satisfied that if the
application is allowed the June 2016 trial date will be lost. If Messrs. Schenkeveld
and Ricketts are added to the proceeding a new trial date will have to
accommodate their calendars and the trial will likely be delayed further in the
result. In my view, the prejudice to the plaintiff of allowing the defendant’s
application outweighs the defendant’s prejudice in having to commence separate
proceedings against Messrs. Schenkeveld and Ricketts.

As to the second issue, on my review of the evidence there is very
little to suggest that either Mr. Schenkeveld or Mr. Ricketts had
anything to do with the defendant’s truck backing into Mr. Fehling. There
is no mention in any of the witness statements of Schenkeveld trying to pull
the defendant from his truck. The only suggestion that he may have played a
part in Mr. Fehling’s injury comes from the investigating officer’s
narrative and that narrative appears to be based entirely on speculation. The
only reference to Mr. Ricketts having been involved in the incident comes
from his statement. In that statement he admits to going to the door of the defendant’s
truck and of that door coming open. Beyond that, there is no suggestion in the
materials that Mr. Ricketts tried to pull the defendant from his vehicle.

In my opinion the evidence supporting the defendant’s position is scant
and unconvincing. It is not sufficient to persuade me that it would be just and
convenient to add Mr. Schenkeveld or Mr. Ricketts as third parties to
the proceeding.


The application is dismissed. The plaintiff, Mr. Schenkeveld,
and Mr. Ricketts are each entitled to their costs on Scale B in any event
of the cause. They may assess their costs immediately. The plaintiff shall
recover his costs at the conclusion of the proceeding. The defendant shall pay
the costs of Mr. Schenkeveld and Mr. Ricketts forthwith.