Atleo v. Neptune Packers Ltd.
T-360-96
Hargrave P.
5/3/97
6 pp.
Motion to add as defendants four employees of defendant-Statement of claim alleging plaintiff's vessel capsizing, sinking on August 3, 1994 as result of negligence of defendant, employees-Despite four timely, unanswered letters requesting names of employees, and two requests for affidavit of documents, plaintiff not learning names of employees until examination of plaintiff's president on October 16, 1996-Federal Court Rules, R. 1716(2)(d) permitting Court at any stage of action to add party whose presence before Court "necessary to ensure all matters in dispute in action may be effectively, completely determined, and adjudicated upon"-British Columbia Limitation Act, s. 4(1)(d) providing lapse of time for bringing action no bar to adding new defendant "under any applicable law" with respect to claims relating to or connected with subject matter of original action-Plaintiff submitting R. 1716 "any applicable law" needed under s. 4(1)(d)-Motion dismissed-Test under R. 1716(2)(b) whether intended party necessary to effectively, completely determine, adjudicate matter in dispute-R. 1716 discretionary-R. 1716 ought to be interpreted broadly as generally, amendment ought to be allowed so long as sought in good faith and will do no injury to other side not compensable in costs-Employees necessary witnesses, but not necessary parties-As employer, defendant vicariously liable for negligence of employees-Nothing suggesting corporate defendant unable to pay, plaintiff would have to look to employees personally for payment of damages-Alternatively, if action failing against corporate defendant, unlikely would succeed against employees as nothing suggesting accident occurring other than in course of employment-Although examination for discovery of employees directly more efficient, not making them necessary parties-If examination for discovery of president of corporate defendant unsatisfactory, remedy second examination for discovery of someone more suitable-Not in interests of justice to add employees as causing proposed defendants to incur substantial costs without affecting outcome-Federal Court Rules, C.R.C., c. 663, R. 1716(2)(b)-Limitation Act, R.S.B.C. 1979, c. 236, ss. 4(1)(d), 6(3).