IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100723

Docket: 37232

Registry:
Vernon

Between:

Christopher
Egan

Plaintiff

And

Insurance
Corporation of British Columbia
John Doe and/or Jane Doe

Defendants

Before:
Master Shaw

Reasons for Judgment

[1]            
The defendant, Insurance Corporation of British Columbia (“ICBC”),
applies for an order that two actions be tried at the same time. The two
actions have the same plaintiff but different defendants.

[2]            
The application is under action No. 37232, brought by the plaintiff,
Christopher Egan, for personal injuries where he was a pedestrian in a hit and
run incident. The accident occurred on August 12, 2003. The defendant is the
Insurance Corporation of British Columbia (the “ICBC action”).

[3]            
The second action is No. 41254, brought by the plaintiff, Christopher
Egan, for personal injuries suffered by the plaintiff while travelling as a
passenger in a vehicle driven by the defendant, Douglas Schurian. This accident
occurred on October 13, 2005 (the “Schurian action”).

[4]            
The plaintiff did not appear at this application. Counsel for ICBC
advised that the plaintiff consents to the two actions being tried at the same
time.

[5]            
The defendant, Schurian, opposes the application.

[6]            
ICBC brings their application pursuant to Rule 5(8) of the Rules of
Court which states:

5(8)      Proceedings may be
consolidated at any time by order of the court or may be ordered to be tried at
the same time or on the same day.

Background

[7]            
Both actions have been commenced out of the Vernon Registry.

[8]            
In the ICBC action, the plaintiff claims damages for personal injuries,
including injury to the head, headaches, cognitive problems, memory problems
and mood problems, injury to the neck, injury to the back and injury to the
left leg and knee.

[9]            
The ICBC action was set for an eight-day trial commencing September 21,
2009, by judge and jury. The trial was adjourned.

[10]        
Counsel for ICBC says that 15 days for trial are now set aside, but it is
uncertain at this time as to how long the trial will take. No trial date is
currently scheduled. The ICBC action is to be heard by judge and jury. Liability
and quantum are in issue. It is estimated that the issue of liability will take
about one to two days of trial time.

[11]        
Examinations for discovery have been done but may not be complete.

[12]        
In the Schurian action, the plaintiff pleads aggravation of pre-existing
injury to the neck and aggravation of pre-existing injury to the back.

[13]        
The trial of the Schurian action is expected to take not more than five
days and is by judge alone. There is no trial date scheduled. It is unlikely liability
will be an issue, but to date has not been admitted.

[14]        
In the Schurian action, there was no evidence whether examinations for discovery
have been done.

Analysis

[15]        
In Van Der Beke v Halford Estate, 2005 BCSC 270, the plaintiff
commenced two separate actions against two separate sets of defendants in
respect of two different collisions. In the first accident, the plaintiff in Van
Der Beke claimed to have sustained a head injury and then had a second
accident in which he sustained injuries as a cyclist in a collision with a
motor vehicle. Some of the injuries from the first accident were aggravated. In
Van Der Beke, the first action was set for 15 days of trial and
scheduled to commence within 60 days of the date of the application.

[16]        
In para. 6 of Van Der Beke, Master Keighley refers to Merritt
v. Imasco Enterprises Inc., [1992] B.C.J. No. 160, 2 C.P.C. (3d) 275. In Merritt,
Master Kirkpatrick ( as she was then), states the foundation of an application
under Rule 5(8) must be found in the pleadings. Quoting Merritt,  Master
Keighley states:

A review of the pleadings will, …,
answer the first question to be addressed, namely, do common claims disputes
and relationships exist between the parties?

[17]        
A review of the pleadings for the Schurian action refers to a claim for
aggravation of pre-existing injury to the neck and aggravation of pre-existing
injury to the back. There are no other specific injuries claimed in the Schurian
action. In the ICBC action, a review of the pleadings refers to injury to the
neck, injury to the back, as well as injury to the head, headaches, cognitive
problems, memory problems, mood problems, and injury to the left leg and knee.

[18]        
I find that on review of the pleadings there are common claims disputes
and there is a relationship between the parties in that the plaintiff in the Schurian
action claims aggravation of some of the injuries in the ICBC action.

[19]        
Continuing in para. 6 of Van Der Beke, Master Keighley refers to Merritt 
and states:

The second question, …, was derived from the case of Webster
v. Webster (1979) 12 B.C.L.R. 172 (C.A.) and is: are the two actions
so interwoven as to make separate trials at different times before different
judges undesirable and fraught with problems and expense? The answer to this
second question involves consideration of matters arising outside of the
pleadings themselves and will include considerations such as the following:

a) will trial of the two matters at the same time
create a saving in pre trial procedures?

b)  will there be a reduction in the number of trial
days if the two matters are tried together?

c)  what is the potential for serious inconvenience to
a party being required to attend part of a joined proceeding in which that
party may have little or no interest?

d)  will there be a real saving in experts’ time and
witness fees?

[20]        
Looking at the second part of the test; that is, are the two actions so
interwoven as to make separate trials at different times before different
judges undesirable and fraught with problems and expense, I review the
considerations from Webster, as set out above, as well as the
further considerations in Van Der Beke set out by Master Keighley as
follows:

[9] In the case of Shah v. Bakken, [1996] B.C.J. No. 2836, (B.C.S.C.), then Master
Joyce added additional considerations to the non-exhaustive list then Master
Kirkpatrick formulated in the Merritt v. Imasco case, including:

e)  is one of the actions at a more advanced stage than
the other?

f)  will the order sought result in a delay of the
trial of one of the actions and, if so, does any prejudice which a party might
suffer as a result of that delay outweigh the potential benefits which a
combined trial might otherwise have?

And in the case of Beazley v. Insurance Corp. of British
Columbia, [2004] B.C.J. No. 1680 (B.C.S.C), Madam Justice
Kirkpatrick added a further consideration:

g)  is there a substantial risk that separate trials
will result in inconsistent findings on identical issues?

[21]        
In Gulamani v. Chandra, 2008 BCSC 179, 80 B.C.L.R. (4^th)
382, Arnold-Bailey J. added a consideration which I will number as h):

[10] In Muller v. Taylor, 2003 BCSC 518 (B.C. S.C.), Lander J. followed Merritt and Shah and stated that an additional reason for refusing to
hear two actions at the same time is if doing so will deprive a party of their
right to a jury trial. In that case, the defendants in the first action filed a
jury notice, whereas the second action was set to proceed before a judge alone.
The plaintiff applied to have both actions heard on the trial dates scheduled
for the second action. Lander J. refused to grant the order, holding that
combining the two proceedings into a single trial by judge alone would deprive
the defendants of their right to a jury trial.

[22]        
I now review the above considerations.

a)       will trial of the two matters at the same time create a saving in
pre-trial procedures?

[23]        
Counsel did not specifically address the question of whether there would
be any anticipated savings with expense and time in relation to pre-trial
procedures. I make no finding in this regard.

b)       will there be a reduction in the number of trial days if the two
matters are tried together?

[24]        
There was little evidence on the question of whether there would be a
saving in the number of trial days if the two actions were combined. There were
no submissions whether there would be additional days added to the estimated15
days for the trial of the ICBC action if the two actions were combined. Counsel
for Schurian submitted that it would be prejudicial to Schurian to have the
actions heard together as Schurian would have to attend for an additional 10
days of trial. From this I assume that the five days of trial estimated for the
Schurian action would be subsumed within the estimated 15 days of trial for the
ICBC action. If that assumption is correct, there would be a saving in trial
time of about five days if both actions were joined.

c)       what is the potential for serious inconvenience to a party being
required to attend part of a joined proceeding in which that party may have
little or no interest?

[25]        
Counsel for Schurian argued that Schurian would be prejudiced if the
actions were joined. Attending a 15-day trial as opposed to a 5-day trial would
be a major increase in expense. Schurian has no insurance coverage for the
motor vehicle accident claim, and as such keeping the expense of the litigation
and trial as economical as possible is particularly important to this
defendant.

[26]        
ICBC argued that in the event the two actions are heard together,
counsel for the defendant, Schurian, could be excused from attending on the
days that liability and other non-reliant portions of the trial are argued.
Counsel for Schurian disagreed that the number of days they would have to
attend would be materially shortened.

[27]        
I accept that even if the trial judge did excuse counsel for Schurian
from some parts of the joined trial, given the unpredictable flow of evidence,
the number of days Schurian would not attend would be limited.

[28]        
I find the defendant Schurian would be prejudiced by having the two
actions heard together in that the cost of litigation would be significantly
increased due to the increased length of trial time he would be required to
attend.

d)       will there be a real saving in experts’ time and witness fees?

[29]        
The defendant, ICBC, argues that both actions are interrelated in that
they involve the same plaintiff, common injuries and common experts.

[30]        
There is some duplication of experts’ time and witness fees. ICBC argues
both actions will be using the same experts. In the Schurian action, the
plaintiff is not alleging any aggravation of his head injury. The plaintiff is
alleging aggravation of his neck and back injury. Counsel submits head injury
experts are not necessary to the plaintiff’s claim in the Schurian action.

[31]        
I accept the submissions of counsel for Schurian, and I find not all
experts needed for the ICBC action are needed for the trial of the Schurian
action. In particular, the experts in relation to liability and to the head
injury are only needed for the ICBC action. There would be some saving of the
common experts’ time and witness fees if the actions were heard together.

e)       is one of the actions at a more advanced stage than the other?

[32]        
Schurian further argues that the Schurian action is not as far along as
the ICBC action, but little detail was provided on the status of the Schurian
action such as discovery and document exchange. From the evidence presented, I
find that neither action is at such an advanced stage that there would be
significant or insurmountable prejudice to any of the parties if the trials
were heard together.

f)        will the order sought result in a delay of the trial of one of
the actions and, if so, does any prejudice which a party might suffer as a
result of that delay outweigh the potential benefits which a combined trial
might otherwise have?

[33]        
Neither action is set for trial. The evidence does not support a finding
that by having the two actions heard together the trial of either action would
be delayed or that either party would be prejudiced.

g)       is there a substantial risk that separate trials will result in
inconsistent findings on identical issues?

[34]        
There is always a possibility of inconsistent findings on separate
trials of identical issues, but I find the risk to be remote given the
circumstances of these actions.

h)       will combining the two proceedings into a single trial deprive the
parties of their right to a jury trial?

[35]        
The ICBC action is said to be proceeding by judge and jury. Counsel
submitted the Schurian action is proceeding to trial by judge alone. By having
the two actions heard together, Schurian would be deprived of his right of
trial by judge alone.

[36]        
 Depriving a party the right to a jury trial has been a compelling
reason to refuse to order the two actions to be tried together [Muller,
para. 10]. I find depriving a party to the right to have a trial by judge
alone, by forcing participation in a trial by judge and jury, to be a consideration
in deciding whether to order two actions to be tried together.

[37]        
Given the circumstances of Schurian not having insurance coverage and
the financial impact of increased trial time, in addition to the prejudice to
Schurian being denied his choice of trial process are compelling concerns in
ordering the two actions to be tried together.

[38]        
In the circumstances, and based on the evidence, I am unable to find
that the claims are:

…so
interwoven as to make separate trials at different times before different
judges undesirable and fraught with problems and economic expense.

[Gulamani,
para. 5]

[39]        
Although there are potential savings in overall trial time, experts’
time, and witness fees, I find that ordering the actions to be heard together
will cause significant prejudice to Schurian, both by unnecessary litigation
expense and, more significantly, by denying him the right of trial by judge
alone. On review of the evidence and the considerations, modest savings do not
outweigh the prejudice that would result by having the two actions heard
together.

[40]        
The application is dismissed.

Costs

[41]        
If counsel wish to make submissions on costs, they are to contact the
trial co-ordinator to schedule a date.

“Master
Shaw”

MASTER SHAW