The Corporation of Delta is now a defendant in at least four legal claims filed in connection with the May 17, 2008 death of toddler Alexa Middelaer.
According to court documents posted online Oct. 5, Justice Robert Jenkins ruled the city could be added as a defendant in a claim filed by Daphne Middelaer, Alexa’s aunt. Middelaer was seriously injured in the same collision that killed Alexa, who attended preschool in Crescent Beach.
The pair were feeding a horse at the side of road in the 4400-block of 64 Street in Delta when they were struck by a car driven by Carol Berner.
Berner was later convicted of impaired and dangerous driving in connection with the crash, and is currently awaiting a decision on her appeal of those convictions.
Jenkins’ judgment notes several other legal actions are underway in connection with the tragedy, including civil claims filed by Alexa’s parents, Laurel and Michael Middelaer, and her grandparents, John and Yvette Middealaer.
Daphne Middelaer’s request to add Delta as a defendant came outside of the time limit set for commencing legal action, the judgment notes. The original claim only named Berner as defendant.
Jenkins notes that Daphne Middelaer’s lawyer submitted that Delta was a necessary defendant to her client’s claim after reviewing a report regarding the design of the Delta street where the collision occurred, a transcript detailing the significance of spacing of the road’s speed humps and a mechanical engineer’s opinion on that spacing.
“Mr. (Jonathan) Lawrence concluded the speed humps were not in conformity with sections of the Canadian Guide to Traffic Calming; the significance of which is that in a vehicle travelling at 50 km/h, going over the humps would cause the vehicle to be more sensitive to any force applied to the steering wheel by the driver,” the judgment notes.
“The inevitable conclusion is that the spacing of the speed humps could have contributed to the cause of the accident.”
In ruling to allow Daphne Middelaer’s application, Jenkins notes he has no evidence that her lawyer was aware that the speed-hump spacing may have been a contributing factor in the May 17, 2008 crash prior to receipt of the reports, the first of which was provided on June 15, 2012.
While lawyers for Delta argued that Daphne Middelaer herself should have been aware of the allegations against Delta, given that she is also a defendant in three related claims that name Delta, Jenkins found that “to deny the application… would deny the plaintiff the right to assert a claim of negligence on the part of Delta which would usually be actionable and at the same time provide Delta a ‘windfall opportunity’ of avoiding altogether adjudication as to its potential liability.”
Jenkins found “no evidence” of prejudice or unfairness to Delta in granting Daphne Middelaer’s application.
“(Delta) ought to have been joined as a party and its participation in the proceedings is necessary to ensure the proper adjudication of the issues,” Jenkins found.
