In Houston v. 10475 Newfoundland Limited, 2012 NLCA 34, the plaintiff, Houston, fell on an icy walkway in an area abutted by two commercial buildings. She started an action within the limitation period, naming only the property manager of one of the building owners as defendant. Following the expiry of the limited period, she made an application for leave to add both owners as parties.
The applications judge allowed the additions pursuant to s. 11(1)(d) of the Limitations Act, which provides that the expiration of a limitation period does not bar the addition of a new party under the Rules if the claim is related to the original action, and rule 7.04(2)(b), which provides that a court may, after expiry, order any person be added as a party, who “ought to have been joined” or “whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon”. The judge relied on the second part, the “necessity branch”, in adding the parties. The building owners appealed.
The Court of Appeal allowed the additions on different grounds than the applications judge. Emphasizing the discretion of the applications judge, they urged a liberal and purposive interpretation of the relevant provisions and held that both grounds under rule 7.04(2)(b) were applicable, seemingly expanding the scope of the test for allowing post-limitation period additions and minimizing the prejudice suffered by the lost limitations defence.
Subsequently, in Tucker v. Unknown Person, 2012 NLTD(G) 132, the Trial Division considered an application of the plaintiff, Tucker, to add his Section D insurer to an action in which he had only named an “unknown person” as defendant within the limitation period.
Tucker’s counsel argued that Houston represented a change in the approach to be taken and that, following Houston, the decision to add a new party was completely within the discretion of the court and, in this case, that all factors pointed to an exercise of discretion in Tucker’s favour. Orsborn C.J. rejected this submission, finding that the liberal approach in Houston did not “fit comfortably with statements in earlier authorities”. He stated that in the absence of an explicit statement in Houston that earlier cases should no longer considered good law, he could not consider the well- established principles to be changed.
Therefore, in making his decision Orsborn C.J. abided by the traditional narrow interpretation of the “ought to” branch namely, that it is only applicable where the legal integrity of the proceeding requires the party’s addition. He found that this was not the case. He then held that AXA was not a party “necessary” to the adjudication of Tucker’s personal injury action against the unknown person. The application was dismissed.
An application for leave to appeal the decision in Tucker v. Unknown Person has been filed with the Newfoundland and Labrador Court of Appeal.