IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100730

Docket: M091397

Registry: Vancouver

Between:

Kelli Christina Easton

Plaintiff

And

Daniel Allen Cooper

Defendant

Docket: M091398

Registry: Vancouver

Between:

Kelli Christina
Easton

Plaintiff

And

Felicia Maria
Distefano

Defendant

Docket: M092845

Registry: Vancouver

Between:

Kelli Christina
Easton

Plaintiff

And

Joshua Joseph
Cameron

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before: The
Honourable Mr. Justice Voith

Reasons for Judgment

[1]            
The defendants applied for two orders during the course of a Case
Management Conference conducted under the former Rule 68(41). The first such
order seeks to restrict the plaintiff to reliance on a single expert report.
The second requires written summaries of evidence, for the witnesses which the
plaintiff intends to call, that comply with Rule 68(31). The plaintiff, in
turn, argues either:  a) that by virtue of the application of s. 24-1(14)
of the transitional provisions to the Supreme Court Civil Rules, B.C.
Reg. 168/2009 (the “New Rules”), she is no longer required to adhere to these
limitations or restrictions or, b) that the proper application of the
discretion which I have would allow the plaintiff to file two expert reports.
The plaintiff accepts that the contents of the witness summaries that have been
provided to the defendants do not conform with the requirements of the former
Rules.

Background

[2]            
The plaintiff, Ms. Easton, has been involved in three separate
motor vehicle accidents. The first such accident occurred on July 5, 2007.
Daniel Cooper is the named defendant in the matter and the action bears Action No. M091397.
The second accident occurred on November 3, 2007. Joshua Cameron is the named defendant
and the matter bears Action No. M092845. The third accident occurred on
October 28, 2008. Felicia Distefano is the named defendant and the matter bears
Action No. M091398. All three actions are subject to Rule 68. By virtue of
an order made January 14, 2010, the three matters are set for a five day trial
which is to commence on November 22, 2010.

[3]            
The plaintiff has filed an expert report from her family doctor. She
seeks to file a further report from Dr. Russell O’Connor, a specialist in
Physical Medicine and Rehabilitation. In addition, counsel for Ms. Easton
has filed a summary of anticipated evidence on behalf of six witnesses which
does no more than, in a single sentence, capture the focus of their expected
evidence.

The Transitional Rules

[4]            
Rule 24-1(14) of the New Rules provides:

(14)      If a step in a
proceeding is taken before July 1, 2010, the former Supreme Court Rules apply
to any right or obligation arising out of or relating to that step if and to
the extent that that right or obligation is to have effect before September 1,
2010.

[5]            
The interpretation of Rule 24-1(14) turns on both the meaning of “step
in a proceeding” as well as the time period that is book-ended by the two dates
within the provision.

[6]            
Though not expressly defined or addressed in the New Rules, the meaning
ascribed to a “step” has been considered in numerous other contexts. The Dictionary
of Canadian Law, 3d ed., defines “step” as “[a] matter or development in an
action which advances the action toward trial.” In interpreting “step” in the
context of the Land Title Act, R.S.B.C. 1996, c. 250, s. 252(1),
the court in S.W. v. J.D.M. et al., 2004 BCSC 882, at para. 12,
relied on the definition in the Shorter Oxford English Dictionary: “[an]
action or movement which leads towards a result; one of a series of proceedings
or measures.”

[7]            
Although numerous rules in the former Rules of Court contain similar
phrasing, the term has primarily been considered in respect of Rule 2(4) and
Rule 3(4). Rule 2(4) of the former Rules stated:

(4)        An application for an
order under subrule (2)(a), (b) or (d) shall not be granted unless it is made
within a reasonable time, and the application is made before the party
applying has taken a fresh step after knowledge of the irregularity.
[emphasis added]

[8]            
The Court of Appeal in Daon Development Corporation v. Bestwall Applicators
(1974) Ltd. (1984), 56 B.C.L.R. 238 (CA.), found that an acknowledgement
was not a “fresh step”.

[9]            
In the context of Rule 2, the court in Khan v. Johal et al and Sidhu
et al, 2006 BCSC 1547, at para. 13, held that a step is limited to
formal steps. It defined “formal steps” as ‘those which are intended to move
the litigation forward to resolution, as provided for under the Rules.” One of
the formal steps included commencing the action.

[10]        
Recently in Motz v. McKean, 2009 BCSC 1133, in another case
concerning the Land Title Act, the court again decided that “steps”
meant “formal steps”. While “formal steps” were not strictly limited to filings
made in the registry, they did not include exchanges of correspondence and various
communications between counsel.

[11]        
Rule 3(4) of the former Rules provided:

(4)        In a proceeding where judgment has not been
obtained and no step has been taken for one year, no party shall proceed
until

a)         the expiration of 28 days after
service of notice of that party’s intention to proceed on all other parties of
record, … [emphasis added]

[12]        
The court in Seaboard Development Ltd. v. Purkis (1978), 5
B.C.L.R. 363 (Co. Ct.), noted that “step” encompassed more than just filing a
pleading; it included requirements under to the Rules, such as filing a
certificate of readiness which is filed with the record.

[13]        
Based on the foregoing authorities, within the “Rules context”, a “step”
means a formal step expressly permitted or required by the Rules.

[14]        
Rule 24-1(14) specifically focuses on a narrow window of time. It
addresses instances where a step undertaken prior to July 1, 2010 gives rise to
an obligation that is required to be satisfied prior to September 1, 2010. By
way of example, the “step” of delivering a demand for discovery of documents
created a right on the part of the initiating party and a concomitant
obligation on the part of the recipient of the demand to comply with the time
frames and substantive requirements of the former Rules. So long as the time
frame for that obligation ends before September 1, 2010 the response or action
is governed under the former Rules.

[15]        
In this case Rule 24-1(14) is not engaged.

[16]        
Rule 68(31) of the former Rules provided:

Witnesses

(31)      Within 90 days after the close of pleadings or
within 90 days after the action becomes an expedited action, whichever is
later, each party to an expedited action must deliver to each other party

(a)        a list, in Form 141, of
the witnesses that the party delivering the list proposes to call at the trial
of the expedited action, which list must

(i)    include
the party delivering the list, if that party intends to give evidence at trial,
and

(ii)    exclude
any expert witnesses referred to in subrule (33), and

(b)        for each of the witnesses included in the list, a
written summary of the evidence that the party believes that witness will give
at trial.

[17]        
In each of the three actions commence by Ms. Easton, the 90 day
period provided for by the former Rule 68(31), as well as the obligation or
formal step created by that Rule, had expired well before July 1, 2010. The
application of Rule 24-1(14) simply does not come into play. The fact that the
ultimate trial of these various actions will post-date September 1, 2010, is of
no moment and does not detract from the obligation to adhere to the formal
requirements established by the earlier Rules.

[18]        
The same analysis pertains to the two expert reports filed by the
plaintiff. Under Rule 68(33), absent a court ordering otherwise, the parties to
an expedited trial were limited to one expert report. Here the plaintiff chose
to obtain a second report from Dr. O’Connor. That report is dated February
16, 2009. It was served months before July 31, 2010. There is no reason that it
would be insulated from the requirements of Rule 68(33). Rule 24-1(14) has no
relevance to these circumstances.

[19]        
Having concluded that Rule 24-1(14) of the New Rules does not suspend or
otherwise obviate the ongoing obligation of the plaintiff to comply with the
witness summary requirements of Rule 68(31) or the limitation on the number of
experts whose reports can be tendered under Rule 68(33), the question becomes
whether those requirements should be enforced in this particular case.

The
Witness Statement Issue

[20]        
The plaintiff concedes, as I have said, that the various witness
summaries which have thus far been provided to the defendants are not compliant
with Rule 68(31). The object served by such witness statements was specifically
addressed by the oral reasons of Madam Justice Martinson in Evans v.
Urquhart (24 February 2009), Vancouver M083065 (S.C.):

[1]        I have been asked to consider the sufficiency of
witness statements provided pursuant to Rule 68 of the Supreme Court Rules.

[2]        I agree with the observations of both Chief
Justice Brenner and Madam Justice Gerow in the excerpts from the three cases
that have been presented to me that the Rule 68 anticipates a fulsome
statement. To be more specific, they, as Chief Justice Brenner has said, are
intended to set out what evidence counsel is planning to lead from the
witnesses in examination in chief at the trial. Doing so facilitates early
settlement. It focuses the parties on understanding their case at an early
stage. Such statements will make the limited examination for discovery provided
for more effective.

[3]        I agree with Ms. Booth
that this interpretation finds support in the specific wording of Rules 68(31),
(31.1), (32) and (32.2), which provide for consequences if statements of this
sort are not provided. The fact that there are other methods available to
obtain information does not detract from the fact that the Rule specifically
requires witness statements.

[21]        
The plaintiff is directed to provide proper witness statements to
counsel for the defendants within 21 days of the date that these Reasons for
Judgment are issued.

The Expert Report Issue

[22]        
Rule 68(33) establishes that "unless the court otherwise
orders" each party to an expedited action is limited to one expert report.
Rule 68 is intended to achieve numerous salutary objectives. Nevertheless, the
efficiencies which it seeks to advance should not prejudice or overwhelm the
plaintiff’s substantive rights. In this case, the expert report filed by Ms. Easton’s
family doctor, Dr. Tang, was said to be based primarily on the history of
dealings he has had with the plaintiff and who he has seen on numerous
occasions. Dr. Tang’s report was not provided to me, but no objection was
taken to this description of its contents. I was also advised, again without
objection, that as a result of the number of motor vehicle accidents that Ms. Easton
has been involved in, the expertise of Dr. O’Connor to assess and opine on
the impact of these various accidents likely exceeds the expertise which Dr. Tang
has.

[23]        
The report of Dr. O’Connor provides additional and focused assistance
pertaining to Ms. Easton’s prognosis. The following excerpts from that
report support this assertion:

Disability, Prognosis and
Recommendations

There is not a lot of medical information available for the 2006
and March 2007 motor vehicle accidents to suggest [s]he had developed long term
neck, back, arm or leg symptoms related to these two prior events.

Assuming this is true it is my opinion that as a result of
the combination of the three motor vehicle accidents (July 5, November 3, 2007
and October 2008) she suffered multiple strains to the neck, mid back and low
back, and aggravation of her headaches. Fortunately, her headaches and neck
pain have improved significantly. Her ongoing main limitation appears to be her
low back. She has evidence of aggravation of the facet joints posteriorly,
particularly on the left in the lower lumbar spine, most likely L4-5 or L5-S1.
She is most tender at the L5-S1 level. Clinically, she seems to have
aggravation of the facet joints on the left. Regardless, she is going to have a
reduced capacity for heavy lifting, bending or twisting, particularly with
repetitive extension. It is my impression that she is currently still limited
with heavier lifting and is going to have ongoing restrictions in this regard.

…

She has not yet reached maximal medical improvement, given
the fact that she has just recently had another motor vehicle accident. There
should be further room for improvement over the next period of months to up to
two years.

…

I would recommend a slow but
steady strengthening program and with this she should be able to get back to
her previous occupation, with the only limitation being with heavy lifting.

[24]        
The intended evidence of Dr. O’Connor is specific and proportional
to the nature of the case being advanced by the plaintiff. It can be
accommodated within the five days which the parties have scheduled for the
trial of this matter. In addition, there is no suggestion that the defendants
have not had or will not have time to respond to Dr. O’Connor’s report. Finally,
I consider that Dr. O’Connor’s evidence will likely be of assistance to the
judge who hears the trial. Accordingly, I am prepared to exercise my discretion
in favour of allowing the plaintiff to file a second expert report.

[25]        
Costs of this application are to be in the cause.

“Voith
J.”