IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110404

Docket: M095572

Registry:
Vancouver

Between:

Taik Soo Chun

Plaintiff

And

Roy Justin Smit

Defendant

–
and –

Docket: M095571

Registry:
Vancouver

Between:

Ho Eun Kim

Plaintiff

And

Roy Justin Smit

Defendant

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

[1]            
There are two applications before the court for summary judgment pursuant
to Rule 9-7, arising out of two separate proceedings. In each the plaintiff is
seeking judgment against the defendant on the issue of liability, with damages
to be assessed. One is on behalf of Taik Soo Chun, in action no. M095572. He
was the driver of a motor vehicle involved in a collision with a vehicle
operated by the defendant on February 23, 2009 at or near the intersection of
Lougheed Highway and Shaughnessy Street in Port Coquitlam, B.C. The other
application is on behalf of Ho Eun Kim, who was a passenger in the vehicle Taik
Soo Chun was driving. The question is whether Taik Soo Chun may be liable to
Mr. Kim, apparently does not trouble counsel, who represented both at this
hearing.

[2]            
The defendant opposes these applications on several grounds, including
on the ground that they are not suitable for summary disposition.

[3]            
Having heard submissions from both counsel on the merits of the
applications, and on the defendant’s objections, I think it best to address the
latter first.

[4]            
The defendant’s first objection to proceeding on the issue of liability
on a summary trial basis is that, he submits, the plaintiffs are making what
amount to applications for severance under Rule 12-5(67). It reads:

Rule 12-5 – Evidence and Procedure at Trial

Trial of one question before others

(67)  The court may order
that one or more questions of fact or law arising in an action be tried and
determined before the others.

[5]            
The submission is that the case law suggests that there must be
extraordinary, exceptional or compelling reasons to sever liability from
quantum. The most recent source cited for this proposition is Bramwell v.
Greater Vancouver Transportation Authority, 2008 BCSC 1180. There, Allan J.
addressed the issue in the context of an application for severance under Rules
39 (29) and (30) (now Rule 12-5 (67)). Allan J. made the following
observations at paras. 13-15:

[13]  Mr. McGivern relies heavily on Vaughn
v. Starko, [2004] Y.J. No. 50, a decision of the Yukon Supreme
Court.  In that case, the plaintiff sought a determination of liability
pursuant to Rule 18A with damages to be assessed at a later date.  Gower
J. rejected the defendant’s argument that there must be extraordinary,
exceptional or compelling reasons for a severance of liability and
damages.  He drew a distinction between applications under Rule 39(29) and
Rule 18A.  He concluded at para. 48 it would not be unjust to decide the
issue of liability on a summary basis and that it would be appropriate to sever
liability from the issue of damages.  Because the application was made
under Rule 18A, he found that it was not necessary to apply the heavier onus
for severance that Rule 39(29) imposed.

[14]  With respect, I do not agree with the
analysis in that case.  Rule 18A is a method of trying a case
summarily.  The issues in determining whether Rule 18A is suitable are (1)
whether it is possible to find the facts necessary to decide the issues of fact
or law; and (2) whether it would be unjust to decide those issues
summarily.  On the other hand, Rule 39(29) provides the Court with the
discretion to try one question of fact or law before another and give
judgment.  A determination of an application for severance must be
informed by the case law that relates to the issue of severance, not to the
issue of disposing of an action summarily.

[15]  In an earlier
case, Legrand v. Canning and Canning, 2000 BCSC 1633, Scarth J.
dealt with a severance application brought under Rule 18A.  He concluded
that the plaintiff had not established extraordinary, exceptional or compelling
reasons for severance.  In that case, the liability issues were not plain
in the circumstances and there was a further issue of whether the plaintiff was
contributorily negligent.  Evidence relating to the severity of the impact
in question was relevant to the issues of liability and quantum.

[6]            
Rule 9-7 (2), under which the plaintiff seeks to proceed, reads as
follows:

A party may apply to the court for judgment under this rule,
either on an issue or generally, in any of the following:

(a) an action in which a response to civil claim has
been filed;

(b) a proceeding that has been transferred to the trial
list under Rule 22-1 (7) (d);

(c) a third party proceeding in which a response to
third party notice has been filed;

(d) an action by way of counterclaim in which a response
to counterclaim has been filed.

[7]            
The question is really whether Rule 9-7 merely describes a mode
of trial, while the claim or cause of action remains otherwise subject to the
rules that govern trial, or whether the trial of an “issue” under Rule
9-7, where that issue is the severance of liability from quantum, somehow
bypasses Rule 12-5 (67) and falls to be decided on a lower standard.

[8]            
In the brief passage excerpted from Bramwell (above), three
different approaches are apparent. It seems to me, however, that whether the
test for severance, or of a trial of an “issue” is rationalized as within or
outside Rule 9-7, it must meet the standard set out in Bramwell. Rule
9-7 is, in itself, a departure from the ordinary mode of hearing a trial, and
proceedings within it are contingent upon the court accepting that the compromises
inherent in that process will not impair the courts’ ability to do justice.
That being so, it would be illogical that collateral to the compromises
inherent in proceeding by summary trial, other aspect of the process were
similarly downgraded. If a trial of an issue is found to be an appropriate way
to proceed, it may be tried under Rule 9-7, if Rule 9-7 itself is properly
applicable.  Where a party seeks to proceed on only part of a case under Rule
9-7, the first question is whether there should be severance at all, and the
second is whether Rule 9-7 is appropriate. The correct approach is set out in Bramwell,
which would bind me in any case (see Hansard Spruce Mills Ltd. (Re),
[1954] 4 D.L.R. 590 (B.C.S.C.)).

[9]            
The test for severance is therefore whether there are “extraordinary,
exceptional or compelling reasons” for severance of liability from quantum.

[10]        
The defendant also submits that the case is not, in any event, suitable
for a Rule 9-7 “trial by affidavit”. This submission breaks down into a number
of distinct propositions that may be summarized as follows:

(1)   Where
there is a dispute about important information or facts, a summary trial should
not be the method by which trial is conducted;

(2)   The
affidavit evidence must be on personal knowledge, not on information and
belief;

(3)   Where
one possible answer to an issue raised on summary trial will not resolve the
whole dispute the application must demonstrate that the administration of
justice, including the orderly use of court time is enhanced by proceeding with
the application;

(4)   If
there must be an ordinary trial on the issue of damages that involves an issue
of credibility the trial should not be split by separately trying the issue of
liability on a summary trial.

[11]        
The authority the defendant cites for the first of these propositions is
Urban Holdings Ltd. v. MacDuff, 2007 BCSC 631. There, Blair J. observed:

[17]  In Inspiration Management Ltd. v.
McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202; 36 C.P.C. (2d)
199 (C.A.), our Court of Appeal held at ¶43 that, on a summary trial under Rule
18A, the trial judge can make credibility assessments in the appropriate
circumstances.

[18]  However, in cases such as this where the
evidence of the parties on critical issues differs significantly, the proper
approach is to conclude that it is not possible to find the facts necessary to
determine the case.  The credibility of the deponents must be tested by
their being examined and cross-examined before the court or at least be
cross-examined on their affidavits, although given the parties’ differing
positions, the latter might not be sufficient in this case.

[19]  Mr. Justice Melnick in Chu v. Lee, 2006
BCSC 547 determined that he could not decide the case pursuant to Rule 18A of
the Rules of Court because the parties disputed most if not all
aspects of the evidence.  He stated at ¶12:

I appreciate that counsel often proceed on the basis of a
Rule 18A summary trial for reasons of economics if nothing else.  This is
especially so when the amount of the claim, as here, is so modest.  However,
there is a limit to the extent that the court can go in assessing credibility
based only on affidavit evidence.  This is, unfortunately, one of those
cases.

[20]  I find myself in
the same predicament.  I am unable, on the evidence before me, to find the
facts necessary to determine if the arrangement between Urban and Mr. Petersen
provides Ms. MacDuff with a base from which she might pursue a claim to the
Property and, if so, are the terms of the arrangement sufficiently clear as to
be enforceable?

[12]        
As to the second, while undoubtedly true, the
material on the whole does not offend the Rule, although the affidavits include
an assertion of personal knowledge “except where stated on information and
belief… .” Such information is not appropriate in affidavits seeking final
relief but, with minor exceptions, nothing in the affidavit appears to be
evidence of that kind. The affidavits were, however, translated, and this was
not evident on the face of the original affidavits tendered. This was a serious
omission, which I granted the plaintiffs leave to correct. All
affidavits that are prepared with the benefit of an interpreter must bear an “ENDORSEMENT
OF INTERPRETER” as required by the Rules. Failure to do so deprives the court
of significant information that may affect its assessment of the reliability of
the evidence contained in the affidavit.

[13]        
The authority cited for the third proposition is
North Vancouver (District) v. Fawcett (1998), 162 D.L.R. (4th) 402. There, Lambert J.A. said the following:

33  With respect, it seems to me that if the answer to an issue
sought to be tried under Rule 18A will only resolve the whole proceeding if one
answer is given, but not if a different answer is given, then the applicant
should be required to demonstrate, and the judge should be expected to decide,
that the administration of justice, as it affects not just the parties to the
motion, but also the orderly use of court time, will be enhanced by dealing
with the issue as a separate issue. It cannot be enough simply that the parties
have agreed to a summary trial of one or more issues, but not all of the
issues, raised in the proceeding, without any consideration for the effective
use of court time, or the efficient resolution of the proceeding.

[14]        
This proposition may be conveniently considered,
along with the last, the authority for which is Dudek v. Li, [1996] 82
B.C.A.C. 86 at p. 88. There, Legg J.A. sitting in chambers, observed:

4  Counsel for the applicant submitted that
the issue of liability was an appropriate issue to be decided under Rule 18A,
and indeed, that there was a duty upon the judge to decide the issue in order
to bring about a speedy resolution of the matters in dispute between the
parties. He emphasized first that the rule afforded a just, speedy and inexpensive
procedure for determining liability, and secondly, the evidence of the
defendant’s negligence was clear. Counsel referred to some passages of the
defendant’s examination for discovery which in his submission established that
the defendant clearly breached the right-of-way of the plaintiff, and that
there was no evidence to show that the plaintiff may have been contributorily
negligent. He emphasized that there were no independent witnesses. In support
of his submissions, counsel referred to passages from the decisions of this
Court in Placer Developments Ltd. v. Skyline Explorations Ltd. (1985) 67
B.C.L.R. 366, and Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.
(1989) 36 B.C.L.R. (2d) 202.

5  Counsel for the respondent defendant
conceded that for the purposes of this application some liability rested with
the respondent, but submitted that the appellant may have been contributorily
negligent in the following respects:

a.   whether the appellant or respondent
had the right-of-way pursuant to section 167 of the Motor Vehicle Act or, if
the appellant had the right-of-way, whether he exercised it with appropriate
caution;

b.   whether the appellant was travelling at excessive
speed; or

c.   whether the appellant failed to take reasonable care or
failed to see the respondent’s vehicle in time to avoid a collision.

In his motion book, counsel for the respondent supported his
submissions by references to a number of passages of the plaintiff’s
examination for discovery.

6  I note that the action is already set for
a lengthy jury trial in 1998 on the issue of quantum of damages.

7  In my
opinion, the learned Chambers judge was entitled to weigh the matters referred
to in his reasons and to exercise his discretion to direct that the trial
should take its normal course and that the issue of liability should not be
split from the issue of damages where issues of credibility might arise.

[15]        
There are certainly cases where the efficiency
argument for severance of liability from quantum may be compelling. Where the question
of damages does not fundamentally turn on credibility, as is the case in many
serious injury cases, it may make sense to settle the question of liability in
aid of settlement discussions on the damages case.

[16]        
Often, however, it is obvious that the credibility
of the plaintiff or claimant will be at issue as to liability and damages, and
a fully informed assessment of the case should proceed on the basis of all the
evidence. The requirement for “extraordinary, exceptional or compelling
reasons” set out in the authorities on severance essentially reflects a
standard that where there is doubt about the justification for severance the
court ought to rule against it.

[17]        
The plaintiffs’ position on all of this is
essentially that “…[a]lthough there are some inconsistencies between the
evidence of the Plaintiff and Defendant there is sufficient evidence that the
court can find the facts necessary to decide the questions of liability.”

[18]        
The authority for this proposition is, de rigueur,
Inspiration Management Ltd. v. McDermind St. Lawrence Ltd. (1989), 36
B.C.L.R. (2d) 202.

[19]        
Inspiration Management addressed the reluctance of some courts following the introduction
of Rule 18A (now Rule 9-7), to use it for its intended purposes. It dispelled
certain misconceptions that had arisen, that, for example, where there are
conflicting affidavits the case must inevitably go on the trial list; or that
the procedure required the consent of both parties; or that the court had to be
sure that a full trial would inevitably lead to the same result. Instead
McEachern C.J.B.C. observed:

53  The
test for Rule 18A, in my view, is the same as on a trial. Upon the facts being
found the chamber judge must apply the law and all appropriate legal
principles. If then satisfied that the claim or defence has been established
according to the appropriate onus of proof he must give judgment according to
law unless he has the opinion that it will be unjust to give such judgment.

54  In deciding whether the case is an
appropriate one for judgment under Rule 18A the chambers judge will always give
full consideration to all of the evidence which counsel place before him but he
will also consider whether the evidence is sufficient for adjudication. For
example, the absence of an affidavit from a principal player in the piece,
unless its absence is adequately explained, may cause the judge to conclude
either that he cannot find the facts necessary to decide the issues, or that it
would be unjust to do, so. But even then, as the process is adversarial, the
judge may be able fairly and justly to find the facts necessary to decide the
issue.

55  Lastly, I do not agree, as suggested in
Royal Bank v. Stonehocker supra, that a chambers judge is obliged to remit a
case to the trial list just because there are conflicting affidavits. In this
connection I prefer the view expressed by Taggart J.A. in Placer, quoted supra,
at p. 15 of these Reasons. Subject to what I am about to say, a judge should
not decide an issue of fact or law solely on the basis of conflicting
affidavits even if he prefers one version to the other. It may be however,
notwithstanding sworn affidavit evidence to the contrary, that other admissible
evidence will make it possible to find the facts necessary for judgment to be
given. For example in an action on a cheque, the alleged maker might by
affidavit deny his signature while other believable evidence may satisfy the
court that he did indeed sign it. Again, the variety of different kinds of
cases which will arise is unlimited. In such cases, absent other circumstances
or defences, judgment should be given.

56  But even if
there is a conflict of evidence which cannot easily be resolved on affidavits,
as is often the case, the chambers judge is still not required to remit the
case to the trial list. He could, for example, adjourn the application and
order cross-examination on one or more affidavits, or he could order the
deponents to appear to be cross-examined before him or another judge after
which time it may be possible to find the facts necessary to give judgment. The
chambers judge also has the option of employing any of the other procedures
included in Rule 18A (5) instead of remitting the case to the trial list.

[20]        
The plaintiff also referred to Marine Masters
Holdings Ltd. v. Greater Victoria Harbour Authority, 2009 BCSC 953. There,
in a case where all parties consented to try an issue under Rule 18A, Macaulay
J. observed:

[2]  Rule 18A is intended to
provide a more cost-effective, proportionate route to final judgment than the
regular trial process. But not every case is suitable for final determination
under the rule. Complex cases involving factual disputes are rarely suitable.
The court must not resolve factual disputes simply by preferring one deponent’s
version of the facts over that of another: Royal Bank of Canada v.
Stonehocker (1985), 61 B.C.L.R. 265 (C.A.); Inspiration Management Ltd.
v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202, at para. 56.

[3]  Further, the court must be
cautious in determining discrete issues under the rule as doing so may not
dispose of the entirety of the proceedings yet result in considerable delay and
uncertainty pending the outcome of an appeal. Depending on the outcome of the
particular appeal, it may eventually be necessary to continue the proceedings
to deal with the other issues. Such a result is time consuming, expensive and
runs the risk of defeating the end goal of a just, speedy and inexpensive
determination on the merits of all issues. The Court of Appeal has
repeatedly warned of the danger of litigating “in slices” for these
reasons: Bacchus Agents (1981) Ltd. v. Philippe Durand Wines Ltd., 2002
BCCA 138, at para. 7; B.M.P. Global v. Bank of Nova Scotia, 2003 BCCA 534;
and Dahl v. Royal Bank (2005), 46 B.C.L.R. (4th) 342 (C.A.).

[4]  There
is, however, no doubt that the rule contemplates summary determination of
discrete issues.

[21]        
From the authorities the following principles
emerge:

(1)  For an issue to be severed there must
be extraordinary, exceptional or compelling reasons;

(2)  Subject to that test, severed issues
may be heard under the summary trial Rule (now 9-7), if it is otherwise
appropriate to do so;

(3)  Where a summary trial application is brought
on an issue rather than on the whole case, the analysis requires a
consideration of the issue of severance first.

[22]        
In the present case there is a direct conflict
on the affidavits about where the collision between the vehicles took
place. There is also an issue respecting the traffic at the intersection which
may have a bearing on the question of whether the plaintiff bore full or only
partial responsibility for the collision.

[23]        
There are no eye witnesses other than the
parties. There are engineering reports based on the assumptions that the
plaintiffs’ evidence is correct.

[24]        
An assessment of whether there are exceptional
circumstances justifying severance may turn in part on whether the credibility
of the parties is an integral part of both the liability and quantum sides of
the case, or whether, on the material placed before the court, liability may be
determined on the basis of the available evidence, apart from the conflict in
the parties’ evidence. Inspiration Management makes it clear that it is
not appropriate to simply “choose” one version over another (regrettably this
is precisely the test sanctioned by the Court of Appeal in Superintendent of
Motor Vehicles cases (See: Nagra v. British Columbia (Superintendent of Motor
Vehicles), 2010 BCCA 154, but I digress.).

[25]        
It is possible to “prefer” the plaintiffs’
version of events in this case, on the basis that it reflects how accidents commonly
occur. It is, however, important not to confuse what may be legitimately decided
on the basis that one version is “inherently implausible,” from what may be
“unusual” but susceptible of proof that the unusual is actually what occurred.

[26]        
On balance, I am of the view that credibility is
at the heart of this case and, that, as such, there should not be severance of
liability from quantum. The applications in both actions are accordingly
dismissed.

[27]        
One issue that was not submitted to the court,
but is so bound up with the proper administration of justice that I will deal
with it, is the question of trial dates. Due to the commonality of the issues,
these two applications were brought together and heard together. The material
suggests, however, that two separate trials have been set, on dates in May and
June of this year for five days each. These matters cannot be left to proceed on
this basis. The possibility of conflicting judgments on the same set of facts must
be avoided. Accordingly, I order, ex mero motu, that the trials of the
two matters be heard at the same time and place and that the parties notify
trial scheduling accordingly.

[28]        
Costs will be in the cause.

“McEwan J.”

_______________________________

The Honourable Mr. Justice McEwan