Case Summary by John W. Bilawich

Re: Rule 6-2(7)(c)
Case: The Owners, Strata Plan LMS 1564 v. Odyssey Tower Properties Ltd

This decision (The Owners Strata Plan LMS 1564 v. Odyssey Tower Properties Ltd. - 2010 BCSC 1134) considers an application to substitute or add defendants and amend pleadings in a leaky condo case. Application was heard June 30 and July 6 (started before and finished after new rules came into effect). The application to substitute defendants was an attempt to get the new defendants in by substituting them for a, “ABC Company Ltd” John Doe defendant. Alternative approach was to add them as defendants in circumstances where they have a possible limitation defence.

Mr. Justice Burnyeat refers to the application being made pursuant to Rule 15(5)(a)(iii) old rules (now 6-2(7)(c) of the new rules), but he simply applies cases interpreting the old rule without conducting any analysis of language changes in the new rule, treating them as the same. He dismissed the application to substitute defendants but granted the application to add defendants. There is some interesting analysis on the effect of limitation defences to joinder applications, but that is based on conflicts between pre-rule change decisions and not changes in the new rule itself, so I do not proposed to address them here. See paras 43-63.