Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs sought leave to amend their notices of civil claim to add claims of psychological injury and trespass after the notice of trial had been served.

• Delay in bringing the amendments was attributed to counsel's oversight in failing to discover Mr. Young's mental health injuries during the client interview process.

• The limitation period for the personal injury claims expired no later than February 17, 2024, meaning the proposed amendments were brought after the statutory deadline.

• Defendants argued the trespass claim was bound to fail because water damage from a leaking watermain was insufficiently direct to constitute trespass.

• Solicitor-client privilege was not waived, preventing the court from fully determining the reasons behind the delay in pleading the new claims.

• Both defendants sought to preserve the limitation defence to trial, but the court declined, finding it inconsistent with the just, speedy, and inexpensive resolution of proceedings.

Background and the parties involved

Frank Hillard Young and Tammy Elizabeth Young own and reside in a single-family home in Campbell River, British Columbia, situated next to property owned by Ryan Pyne and Karriann Pyne. The dispute arose from two water leaks — the first occurring in August 2019 and the second in October 2020 — that allegedly originated from the Pyne property and caused damage to the Young property. The Youngs commenced two related actions in March 2023: one against the Pynes for negligence and nuisance, and another against Gore Mutual Insurance Company for its refusal to cover the cost of repairs under the Youngs' insurance policy. The two actions were ordered to be heard together by consent in May 2025, with evidence shared between them.

The application to amend the pleadings

In September 2025, the Youngs' original counsel, Steve Allardice, filed notices of application in both actions seeking leave to add new claims. Outside counsel for the Youngs was then appointed to bring the application. In the Pyne action, the Youngs sought to add a claim of trespass as well as a claim for psychological and psychiatric injuries sustained by Mr. Young, including anxiety, depression, substance use disorder, and aggravation of PTSD. In the Gore Mutual action, the Youngs sought to add a claim that the denial of insurance coverage and breach of the duty of good faith caused Mr. Young the same psychological injuries. Mr. Young claimed general damages including non-pecuniary damages, special damages, and cost of future care.

The trespass claim against the Pynes

The Pynes opposed the trespass amendment, arguing that water seeping from a leaking watermain onto a neighbouring property is an indirect discharge and therefore insufficient to ground a claim in trespass. They relied on authorities such as Ming Sun Benevolent Society v. Philippine Women Centre of B.C., 2025 BCSC 1073, to support their position. The Youngs countered that trespass to land is committed by entry upon, remaining upon, or projecting any object upon land in the possession of the plaintiff without lawful justification, citing Ward v. Cariboo Regional District, 2021 BCSC 1495. Associate Judge Harper concluded that while nuisance might provide the more natural framing of the Youngs' claim and the claim in trespass might be dismissed, the trespass claim as pleaded disclosed a reasonable cause of action at the pleadings stage. The court found no prejudice to the Pynes, noting there was ample time before trial for them to prepare their defence to the claim of trespass.

The delay and limitation period issues

The central controversy surrounding the personal injury amendments was the significant delay. Mr. Young had reported to a psychiatrist on July 20, 2021 that he was experiencing an increase in his substance use due to Gore Mutual's denial of coverage. The psychiatrist recommended that Mr. Young seek legal advice. By February 17, 2022, he reported to a psychiatrist being afraid of losing his home. Despite these early indications, the psychological injury claims were not brought to counsel's attention until August 14, 2025, during a meeting to prepare Mr. Young for his examination for discovery. Mr. Allardice accepted responsibility, stating that solely due to his own oversight, he failed to discover Mr. Young's mental health injuries and make the proposed amendments sooner, and that none of the delay was due to the plaintiffs. The court acknowledged, however, that because solicitor-client privilege was not waived, there was no way of knowing whether Mr. Young told Mr. Allardice enough about his mental health troubles and substance use for Mr. Allardice to have concluded that he should include claims for personal injury in both notices of civil claim.

Expiry of the limitation period and prejudice analysis

Both defendants agreed that the limitation period began to run no later than February 17, 2022, and therefore expired no later than February 17, 2024 — well before the amendments were sought. Gore Mutual and the Pynes argued they were prejudiced by the loss of an accrued limitation defence and by the impairment of their ability to defend against the new claims. The court, however, found that the new claim was closely related to facts underlying the existing claims, which already included a claim for aggravated and punitive damages arising from the denial of the claim. The Youngs both claimed emotional stress. Although the claim for personal injury was a different claim than a claim for aggravated and punitive damages, the underlying facts were closely related. With the trial adjourned to February 22, 2027, the court determined there was sufficient time for the defendants to conduct further examinations for discovery, obtain independent medical examinations, and advance any claims for contribution and indemnity. The court concluded there was no actual prejudice to Gore Mutual or to the Pynes if the amendments were permitted.

Preservation of the limitation defence

Both Gore Mutual and the Pynes sought an order preserving the limitation defence to trial if the amendments were granted. The court rejected this request, reasoning that leaving the limitation defence to trial was not in keeping with the object of the Supreme Court Civil Rules, which is to secure the just, speedy, and inexpensive determination of every proceeding on its merits. The court further noted that if the limitation defence were left to trial, it would require the trial judge to rule on whether solicitor-client privilege ought to be waived by court order. If Mr. Young changed his position and decided to waive solicitor-client privilege at trial, Mr. Allardice, being counsel of record and presumably trial counsel, would be put in an impossible position. He may have to seek leave to withdraw and retain his own counsel. The Youngs would then be at trial without counsel, and a mistrial was a possible outcome which would not serve any party's interests.

Ruling and outcome

Associate Judge Harper ultimately determined that the interests of justice required permitting all of the amendments sought in both actions without preserving any limitation defence. The plaintiffs were granted leave to file amended notices of civil claim in each action. Gore Mutual and the Pynes were each entitled to a further examination for discovery of Mr. Young for up to two hours each. However, given the admitted errors that caused the delay, the Youngs were ordered to pay Gore Mutual and the Pynes their costs of the application in any event of the cause, but not payable forthwith. No specific monetary amount was awarded or ordered beyond the cost allocation for the application itself, as the case is proceeding to a 15-day trial scheduled for February 22, 2027, where the substantive claims will be adjudicated.