Adding, Substituting and Removing Parties to an Action

Adding, Substituting and Removing Parties to an Action

Stewart v Stewart 2017 BCSC 1532 also dealt with Rule 6-2 (7) that deals with adding, substituting or removing parties to a court action.

Rule 6-2(7)(a) provides:

(7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10),
(a) order that a person cease to be party if that person is not, or has ceased to be, a proper or necessary party,

66 The plaintiff relies on Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District, 2014 BCSC 1588. There, a defendant sought to remove a plaintiff as a party on the basis that the plaintiff that was named as the “Joint Venture” was not a legal person in and of itself. Notwithstanding the fact that the other plaintiffs had acknowledged that they were jointly and severally liable for anything for which the Joint Venture might be liable, the court did not accept the defendant’s submission that the Joint Venture itself ought to be removed as being unnecessary with Justice Griffin stating:

a) on an application under Rule 6-2(7)(c), for the addition of a party, all that is required is that the application establish that there is a “possible cause of action”: Terasen Gas Inc. v. TNL Construction Services Ltd., 2011 BCSC 1345at para. 12;

b) under this sub rule there is also no requirement to demonstrate the likelihood that an allegation can be proven. The threshold is a low one: The Owners, Strata Plan LMS 989 v. Port Coquitlam (City), 2003 BCSC 1398at para.10;

c) it may be appropriate to name individuals as defendants under Rule 6-2(7)(b), even if it has been conceded that vicarious liability will attach to another named defendant: Edwards v. British Columbia, 2006 BCSC 710at paras. 13-21;

d) the test for joinder under Rule 6-2(7)(b) will be met where the involvement of the party is material in an evidentiary sense to ensure that all matters in the proceeding may be effectively adjudicated upon: British Columbia v. R.B.O. Architecture Inc., 1994 CarswellBC 1931 (S.C.) at para. 8; and

e) the test for adding or substituting a party is whether a party “ought to be have been joined as a party” or if their participation is “necessary”. A party is “necessary” if their participation is required to effectively adjudicate all matters at issue, whereas a party “ought” to be joined in situations including where it may “be more than mere convenience but less than a necessity”: Kitimat (District) v. British Columbia (Ministry of Energy and Mines), 2006 BCCA 562at paras. 28-29.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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