Howard Jason Hickman

The appellant, Gamma Construction Ltd., appealed a lower court's decision regarding causation under the Insurance Act.

The Court of Appeal affirmed the application judge's conclusion that causation was not made out, applying the Amos v. The Insurance Corp. of British Columbia test.

The court found that the use of the automobile, as it related to the injuries, was merely incidental or fortuitous, and therefore, the causation finding was unassailable.

The appeal was dismissed with costs.

The applicants brought a motion to amend a statement of claim in a personal injury action arising from a motor vehicle accident to add Family Law Act claims after the expiry of the two‑year limitation period.

The primary action had been commenced within the limitation period by the injured plaintiff.

Following the plaintiff’s death, her spouse and mother sought to be added as plaintiffs under s. 61 of the Family Law Act for loss of care, guidance, and companionship.

The court held that the derivative claims could be added because the main action had been commenced in time and there was no compensable prejudice to the defendant.

Alternatively, the court found an evidentiary basis that the claims were not discoverable until the plaintiff’s death when the damages exceeded the statutory threshold.