IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20070219

Docket: M91965

Registry: New Westminster

Between:

Oanh Kieu (Kim) Nguyen

Plaintiff

And:

Kori Patricia Johnson

Defendant

Before: The Honourable Mr. Justice Groberman

Oral Reasons for Judgment

In Chambers

February 19, 2007

[1]                THE COURT: This is a summary trial application by the defendant for a determination that the action has been brought outside of the limitation period.  The plaintiff alleges that she was injured in a motor vehicle accident that occurred on April 9, 2003.  The writ of summons was filed April 27, 2005.  Section 3(2)(a) of the Limitation Act, R.S.B.C. 1996, c. 266 provides for a limitation period of two years.  It is common ground that unless there has been a confirmation of the cause of action the limitation period has expired.

[2]                At the time of the accident, the plaintiff was driving a car that was leased by her husband from a leasing company.  While she was an insured under her husband’s policy of insurance and was driving with his permission, she does not suggest that she had any property interest in the vehicle.

[3]                Initially, it did not appear that the plaintiff had suffered any injury in the accident.  There was damage to the automobile and it was repaired.  At the initial stages, it was not clear whether the repair would be paid for under Ms. Nguyen’s husband’s collision policy or under Ms. Johnson’s third party coverage.  A few weeks after the accident, however, ICBC accepted that the accident was Ms. Johnson’s fault and refunded Mr. Nguyen’s deductible under his collision insurance.  It did, therefore, accept that Ms. Johnson was liable for the accident at that stage.

[4]                Ms. Nguyen had neither brought any claim on her own behalf at that time, nor made ICBC or the defendant aware of any claim that she intended to bring.  Indeed, Ms. Nguyen did not raise the possibility of a claim until January 12, 2004, and the details of the alleged injuries were not related to ICBC until January 27, 2004.  That was something over nine months after the accident.

[5]                The question that arises is whether the limitation period has been extended by operation of s. 5(1) of the Limitation Act.  Section 5(1) reads as follows:

5.(1) If, after time has begun to run with respect to a limitation period set by this Act, but before the expiration of the limitation period, a person against whom an action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for the action by a person having the benefit of the confirmation against a person bound by the confirmation.

[6]                The plaintiff contends that there has been a confirmation and cites particularly s. 5(2), which states:

(2)For the purposes of this section,

(a)        a person confirms a cause of action only if the person

(i)         acknowledges a cause of action, right or title of another, or

(ii)        makes a payment in respect of a cause of action, right or title of another,

[7]                Section 5(6) further qualifies the provision.  It states:

For the purposes of this section, a person has the benefit of a confirmation only if the confirmation

(a)        is made to the person or to a person through whom the person claims ...

[8]                At the initial hearing of this matter, the plaintiff relied only on s. 5 (2)(a)(ii).  On the second appearance on this hearing, the plaintiff indicated a desire to also include an allegation under s. 5(2)(a)(i), suggesting that a letter written by ICBC constituted a confirmation of the cause of action.

[9]                I will start, then, with the plaintiffs primary argument, which was based on s. 5(2)(a)(ii).  The plaintiff argues that certain payments made by ICBC, and in particular payments by ICBC refunding Ms. Nguyen’s husband’s deductible and paying for a rental car constituted a confirmation of the cause of action.

[10]            A number of cases have been cited to me on this issue.  In Fournier v. Evanow (1995), 2 B.C.L.R. (3d) 237 and Germyn v. Federici (1995), 2 B.C.L.R. (3d) 138, the Court of Appeal held that payments made to doctors in respect of reports on injuries were not payments “made to the person” coming within s. 5(6).  This proposition was extended slightly in the case of MacKay v. Lemley (1997), 44 B.C.L.R. (3d) 382.  In that case a payment had been made not directly to doctors but through plaintiff’s counsel.  In Cristiano v. Choy (4 August 1998), Vancouver B974699, (B.C.S.C.) R. D. Wilson J. held that payments by the defendant’s insurer directly to car repairers were, similarly, not payments “made to the person” for the purpose of s. 5(6) of the Limitation Act.  That case was followed by J. Taylor J. in Parker v. Commcorp Financial Services Inc., 2002 BCSC 415, 100 B.C.L.R. (3d) 319.

[11]            Based on these various decisions, I cannot find that the payments directly to the automobile repairer or to the car rental company came within the ambit of section 5(6).

[12]            The reimbursement of the deductible, however, would clearly fall within section 5(6) if the repayment had been to the plaintiff.  The biggest problem that the plaintiff has with respect to s. 5(6), whether the argument is based on repairs to the car, payment to rental agencies, or return of the deductible is that none of those payments were to the plaintiff or her agent; they all were payments made in respect of the vehicle in which the plaintiff had no property interest whatsoever.  She was not the owner and she did not suffer the loss of the vehicle.  Her husband was the owner, and the payments and confirmations were of his cause of action, if any, and not of the cause of action that she may have had.

[13]            Counsel for the plaintiff spent considerable time taking me through the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 and regulations, emphasizing that the plaintiff is an “insured” under various sections of that Act and those Regulations.  I do not doubt that the plaintiff is an insured under the Act and regulations.  However, the fact that the plaintiff was an insured under her husband’s policy of insurance is completely irrelevant to this action.  The claim is not a claim under his policy of insurance, but rather a tort claim against Ms. Johnson.  To the extent that any policy of insurance is in issue, it is that of Ms. Johnson, not that of Ms. Nguyen’s husband.

[14]            There does not appear to have been any payment in respect of the plaintiff’s claim to her or to anyone else.  Nor does she make the claim through her husband.  She makes the claim on her own behalf.  In the result, there has been no payment to which s. 5(2)(a)(ii) can attach in this case.  Payment of the deductible to plaintiff’s husband is irrelevant to the limitation period on the plaintiff’s claim for any personal injury.

[15]            The secondary argument put forward by the plaintiff relies on s. 5(2)(a)(i) of the Limitation Act.  It is alleged that a letter written by Debbie Davis, a claims representative for ICBC, on February 19, 2004, constitutes an acknowledgment of the cause of action, right or title.

[16]            I agree with counsel for the plaintiff that the letter must be examined in context and in its entirety.  I do not intend to recite the entirety of the letter but will highlight some portions of it.  On February 19 Ms. Davis thanks the plaintiff’s counsel for her letter of February 3, 2004 in respect of the accident.  In places, it is clear that it does not intend to be a confirmation of any cause of action.  In particular, it refers to a payment to a doctor, and it says:

It is to be understood that no such payment shall be construed as a confirmation of a cause of action or an extension of any limitation period.

The letter goes on to state:

Until the claim is finalized, it is normal corporate practice not to pay for any medical or specialist reports resulting from a plaintiff counsel patient referral.

It also says:

Given the length of time this injury has been reported to ICBC, causation is an issue.

It is noted that the claim was not made until approximately nine months after the accident.  Finally, the last paragraph states:

I look forward to working with you to resolve this matter.

[17]            Counsel for both sides cited a number of cases dealing with the interpretation of s. 5(2)(a)(i) of the Limitation Act.  In Podovinikoff v. Montgomery (1984), 58 B.C.L.R. 204, 14 D.L.R. (4th) 716 (CA), the court upheld a decision holding that a letter from the Insurance Corporation constituted a confirmation of a cause of action.  The letter that was held to constitute a confirmation was one that indicated:

The writer has attempted to reach you by telephone regarding settlement of your personal injury claim.

The Court of Appeal agreed that the mention of settlement was sufficient in that case to constitute a confirmation of a cause of action.

[18]            In Williams v. Williams, [1996] B.C.J. 2442 (CA), the court also accepted that a letter constituted an acknowledgment of a cause of action.  In that case again there was some limited discussion of settlement in the letter.

[19]            The Podovinikoff decision was recently referred to in obiter in the case of Ryan v. Moore, 2005 SCC 38, 254 D.L.R. (4th) 1.  In that case Bastarache J., speaking, I believe, on behalf of the majority, accepted that proposition that:

... a party can only be held to have acknowledged the claim if that party has in effect admitted his or her liability to pay that which the claimant seeks to recover ...  As the British Columbia Court of Appeal concluded in Podovinikoff v. Montgomery ... a person can acknowledge as a bare fact that someone has asserted (by making a claim) a cause of action against him, without acknowledging any liability. Simple acknowledgment of the "existence" of a cause of action is insufficient to meet the requirements of s. 16(1)(a) [the equivalent of our section 5(2)(a)(i)].  Acknowledgment must involve acknowledgment of some liability.

[20]            Although I am concerned with respect to the letter of February 19, 2004, in that it closes with the words, “I looking forward to working with you to resolve this matter, “ I do not find that that amounts to an acknowledgment that there will be a settlement or an offer or an acknowledgment of liability.  Taken as a whole, the letter is an unequivocal denial of liability.  It is an indication that further investigations will take place, and working with Mr. Doran to resolve the matter does not carry with it any implication that it will be resolved with payment to the plaintiff.

[21]            In the circumstances I do not find that the letter constitutes confirmation of any cause of action.

[22]            A final issue that arises is with respect to a claim that the plaintiff now wishes to make through an amendment to the statement of claim.  The plaintiff wishes to claim for accelerated depreciation of the vehicle.  On behalf of the plaintiff, Mr. Doran says that, as this is a claim in respect of the vehicle and as ICBC by paying the deductible accepted liability for the vehicle for damage to the vehicle, it constitutes an acknowledgment of the plaintiff’s cause of action.

[23]            I am at a loss to understand how the plaintiff has any claim in respect of accelerated depreciation on a vehicle to which she has no claim of title or right.  The vehicle is that of her husband.  The fact that her husband may have had a claim for accelerated depreciation and, for all I know, may continue to have such a claim, cannot in any way increase the plaintiff’s right to bring her action or to somehow piggyback her action on a claim of her husband’s that she has wrongly asserted in the action.

[24]            I therefore concur with the defendant’s position that the claim is brought outside of the limitation period and must be dismissed.  The dismissal will be with costs on scale B.

The Honourable Mr. Justice H. M. Groberman