ICBC insured defendants have lost a bold application to name a family doctor for negligent treatment in this multiple car accident lawsuit (Jack v. Kendrick,2015 BCSC 1872). The claim is for injuries sustained in three separate motor vehicle accidents and the allegation was that the family doctor prescribed negligently large doses of opiates. In order for ICBC to obtain compensation for the loss from the family doctor they needed to have the doctor included as a third party in the lawsuit.
Third party claims are governed by Rule 3-5 of the Supreme Court Civil Rules and sets out the circumstances in which a third party claim may be advanced. Pursuant to Rule 3-5(4), ICBC would require leave to file and serve the third party notice because in this case more than 42 days have elapsed since the notice of civil claim was first filed. As the judge stated at paragraph 10:
Whether or not to grant leave is a matter of discretion for the court. The factors governing the exercise of that discretion were described by Mr. Justice Goepel, as he then was, in Tyson Creek Hydro Corporation v. Kerr Wood Leidal Associates Limited at 2013 BCSC 1741 [Tyson Creek] as follows:
(a) prejudice to the parties;
(b) expiration of limitation period;
(c) the merits of the proposed claim;
(d) any delay in proceedings; and
(e) the timeliness of the application.
Mr. Justice Goepel’s decision was affirmed by the Court of Appeal at 2014 BCCA 17.
The family doctor opposed the application stating that the ICBC defendants offered no explanation for the delay in bringing the application. He said that the issue of overuse of medications has been well known and documented in the various reports dating back many years and was there for the defendants to see. The claimant also opposed the application and submitted that his own expert report did not go so far as to allege negligence on the part of the family doctor. The judge agreed.
The only real explanation given for the delay in bringing the application was found in the affidavit of a paralegal at the firm of counsel for the defendants. The judge found that is was not an adequate explanation for the defendants’ delay. For one thing, it was not clear that the paralegal was in a position to speak to the state of knowledge of the defendants and she did not address the broader question of when the defendants first became alive to the issue of the claimant’s use of medications and the family doctor’s role in that use.
The application for leave to file a third party notice was therefore dismissed.