Our law makes it more difficult to sue local governments than private citizens. Local governments are treated differently from other litigants in BC by requiring injury claimants to give written notice within a very short period following an incident to the local government. Most local citizens are unaware of this requirement and when injured on city or municipal land are left with serious injury claims being statute barred.
If written notice is not provided in the way set out in the legislation, as in our ICBC hit and run case study (Anonson v. North Vancouver (City),2017 BCCA 205), and the local government is added to the litigation after the notice period, the government retains the ability to have the claim dismissed as being out of time.
In this case the claimant was struck by a hit and run truck while riding her bicycle on a street in the City. The truck left the scene and as a result a lawsuit was filed against the Insurance Corporation of British Columbia (“ICBC”). ICBC filed a Third Party Notice naming the City as a third party to the action long after the claimant was required to give notice to the City of North Vancouver.
The claimant applied to have the City added as a defendant to the action and the Master allowed the addition of the City without prejudice to the right of the City to raise the issue of late notice under s. 286 of the Local Government Act.
The injury claimant appealed arguing successfully that once the City was added as a defendant to the action on the basis that it was “just and convenient” to do so, s. 4(1) of the Limitation Act effectively eliminated what she submitted was an accrued limitation defence under s. 286 of the LGA.
In allowing the appeal of ICBC and restoring the decision of the Master the Court of Appeal was clear to point out,
[38] In British Columbia, notice provisions for local government have been interpreted as substantially different from limitation period provisions. The Legislature chose to treat local government differently from other litigants by requiring that local government be given notice within a short period following an incident to allow the City to investigate the potential claim.
[39] Unlike the Limitation Act, s. 736 of the LGA (and the former notice provisions in s. 286 of the LGA and s. 755 of the Municipal Act) are not akin to a lapse of time in which to bring an action. The notice provisions do not function in the same way as limitation period provisions for the following reasons: (1) non-compliance with s. 736 of the LGA or its predecessors does not prevent a plaintiff from commencing or maintaining an action; (2) unlike the more objective language of s. 4(1) of the Limitation Act, the discretionary saving provision of s. 736(3) may or may not act as a bar to an action; and (3) the trial or appeal court must determine whether the discretionary saving provision applies based on the evidentiary record.
[40] The notice provisions of the current and former legislation have never been captured by s. 4(1) of the Limitation Act when a party is added to an action because the trial or appeal court must first determine whether the saving provision applies. Neither Bannon, which interprets differently worded legislation, nor Neilson, which assumes that s. 4(1) of the Limitation Act is engaged, are applicable to this issue.
The appeal was allowed, the chambers judge’s order set aside, and Master’s order reinstated.
Posted by Mr. Renn A. Holness, B.A LL.B. 1994