Jump to full article: British Columbia Superior Courts, 2008-04-14
Intro: [89] As a result of Canada’s agreement to be bound by the Rules of Court, the Defendants will be entitled to seek document production under Rule 26 and witness testimony under Rules 28 and 38. They will also continue to have the right to make application under the federal Access to Information Act, R.S.C. 1985, c. A-1 to obtain Canada’s tobacco-related documents.
[90] There is nothing in the Costs Recovery Act to suggest that Canada must be a party in order to allow the court to determine the extent of the Defendants’ liability. It is settled law that a trial judge may make an assessment of fault against a non-party in order to reduce the defendant’s proportionate liability.
[91] Where a third party is immune by operation of law, all proceedings against it are precluded: Pearse v. Canpar Transport Ltd. et al., 2001 BCSC 594, 88 B.C.L.R. (3d) 312.
[92] In B.C. Ferry, the Court of Appeal emphasized at pp. 129-130 that the third party in question had been properly joined, and that “a private accord between plaintiff and third party” should not entirely negate the joinder:
It is important to keep in mind that the defendants had a perfect right to bring third party proceedings against the respondents, based on allegations of fault attributed to them in the Third Party Notices…. It would, in my view, by manifestly wrong if a private accord between plaintiff and third party could work to deprive a defendant of the ability to establish an element of proof essential to the just resolution of the action on which all parties had joined issue. …. In those circumstances, I am of the view that the third party claims for declaratory relief should be allowed to proceed.
[93] The Court of Appeal made clear at p. 129 that such claims for declaratory relief for purely procedural advantage ought to be the exception rather than the rule:
While I am of the view that the general rule against sanctioning actions brought for purely procedural relief will always be an important consideration governing the exercise of the court’s discretion to grant declaratory relief, I do not accept the proposition that it must be regarded as a controlling consideration in all cases. There will be instances, albeit rarely, where the declaratory relief should be granted notwithstanding the fact that it is needed only for such purpose.
Conclusion
[94] B.C. Ferry stands for the proposition that a third party which is properly part of an action at the time it is commenced may not, by settling its claim with the plaintiff, escape discovery under the Rules of Court if the result is significant prejudice to another, non-settling party. In the present case, Canada has been immune from liability from the time the action was commenced and, accordingly, was never a proper party in the litigation.
[95] Further, Canada has agreed to submit to the Rules of Court which will permit the Defendants access to all of the procedures necessary to assist the court in determining their liability as distinct from the liability of Canada.
VI. Summary
[96] In summary, I have concluded that all of the third party claims issued by the Defendants against Canada, including the claim for procedural declaratory relief, must be struck.
Jump to full article » |