[1] NEWBURY, J.A.: The applicant insurers seek leave to appeal from an order of the Chambers judge amending the plaintiff's Statement of Claim to add causes of actions against the insurers as defendants.

[2] The action is a "leaky condo" case commenced in 1996. As with so many of these cases, it is not known at present when which damage to the building arose, and in this case, problems were known to the plaintiff from at least 1990, as I understand it. However, it appears the problems continued or worsened or recurred or that new ones arose, throughout the period between 1990 and 1996 at least.

[3] The action begun in 1996 obviously will entail a determination of when which damage did arise. However, the applicants who insured the building in particular years during the period rely on a contractual limitation which bars any claim "unless commenced within one year next after the loss or damage occurs". They rely on this court's decision in ASM Capital Corp. v. Mercer International Inc. (1999), 69 B.C.L.R. (3d) 177 (C.A.) construing s. 4(4) of the Limitation Act, R.S.B.C. 1996, c. 266. It decided clearly that the section cannot be used to revive an action that had already expired before the action was brought. I am, of course, bound by and accept that decision.

[4] Here, however, the question is whether in fact the limitation period did expire before the Writ was issued. Mr. Dabb's clients wish to raise certain legal and factual considerations that might (and I make no comment on this likelihood) make s. 4(4) and the ASM decision distinguishable, or that might have the effect of making the statutory period set forth in the Insurance Act, rather than the more cut and dried contractual limitation, applicable.

[5] The Chambers judge below thought these arguments had a good chance of success and he felt the prejudice to the applicants was small. Certainly the prejudice to the plaintiffs, if their claims against these insurers are now pre-empted, would be great compared with the prejudice to the insurers if the pleadings are amended.

[6] Balancing the factors of prejudice, significance and the merits, I am not persuaded that leave should be given. As Mr. Dabb argues, an appeal now will delay an already aging claim and would decide as a matter of law what appears to be or what may be a matter of at least mixed fact and law, if not pure fact. As well, I am guided by the fact that the Chambers judge's decision is a discretionary one.

[7] I therefore dismiss the application. I leave costs to the trial judge.