IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110913

Docket: M005122

Registry:
Vancouver

Between:

John Gill

Plaintiff

And

Darcy West, Gill
Chen and Eugene Chen

Defendants

Before:
The Honourable Madam Justice Wedge

Oral Reasons for Judgment

[1]            
In this application the plaintiff has sought several orders. They are
the following:

1.              
That four actions involving 10 motor vehicle accidents in which the
plaintiff was involved be tried at the same time and that evidence tendered in
the one action be deemed to be tendered in each and every other action.

2.              
That a finding of liability be made in one of the actions against two
defendants concerning a motor vehicle accident on April 22, 2004.

3.              
That a finding of liability be made in the same action against two other
defendants concerning a second accident on April 27, 2004.

4.              
That the defendants and third party in all four actions be jointly and
severally liable to advance the plaintiff $150,000 forthwith on account of
damages, including but not limited to past and ongoing medical treatment and
ongoing living expenses.

[2]            
The central issue is whether the plaintiff is entitled to the order for
an advance payment of damages consequent upon any one, or all, of the first
three orders sought.

[3]            
The circumstances are quite unique. The plaintiff has brought four tort
actions arising from ten motor vehicle accidents which occurred between
November of 1998 and June of 2009. He was involved in two additional accidents
during this period but did not commence tort actions with respect to them.

[4]            
An order was issued in 2006 that the three actions that had been
commenced by that time be heard together.

[5]            
The defendant consented to add the fourth action, which arose from
accidents occurring in 2006 and 2009, but no formal consent order has yet been
entered.

[6]            
Despite the defendant’s consent, one of the orders sought by the
plaintiff in this application is an order to have that fourth action heard with
the other three.

[7]            
Liability has been denied in three of the four actions. Liability is
admitted in the one action involving two rear-end collisions, but the defendant
has specifically denied that those accidents caused any injury to the plaintiff.
It is on the basis of the admissions of liability in the one action that the
plaintiff seeks judgment on liability in that action.

[8]            
The plaintiff is frank to admit that it seeks the order concerning
liability in the one action, and the order to have the fourth action heard with
the other three, for the express purpose of obtaining the advance payment order.
The plaintiff acknowledged he cannot obtain an order for advance payment of
damages unless it is granted in conjunction with another order.

[9]            
In the case of Lines v. Gordon (2009), 90 B.C.L.R. (4th) 52
(C.A.), our Court of Appeal made it clear that the Rules of Court do not
give this Court jurisdiction to make a stand alone order for an advance payment
of damages, nor does this Court have inherent jurisdiction to do so.

[10]        
In the Lines decision, the Court referred to the wording of then
Rule 1(12), now Rule 13-1(19), which states as follows:  “When making an order
under these Rules, the court may impose terms and conditions and give
directions as it thinks just.” Based
on that wording — and specifically the words “when making an order under these
Rules,” — the Court in Lines stated that there must be a temporal
connection between an order for an advance payment and another order.

[11]        
The plaintiff argued,
however, that once it obtained one of the other orders it seeks, it is entitled
to seek an order for the advance payment.

[12]        
The plaintiff relied on medical evidence which will be led at trial to
establish his total disability from employment. Further, his affidavit evidence
filed in support of the current application is to the effect that his financial
circumstances are quite dire at the moment.

[13]        
However, it is important to note that the order for advance payment
sought by the plaintiff is as against all defendants in all four actions, as
well as a third party in one of the actions, on a joint and several basis. As
already noted, liability is denied in three of the actions involving seven of
the defendants and the third party.

[14]        
The defendants in all four actions will be raising pre-existing medical
conditions from a work-related injury which the plaintiff suffered before the
first accident in 1998. Further, the defendants will argue that the plaintiff
may have suffered injuries in the two accidents occurring in 2006 for which no
tort actions have been commenced. The defendants also challenge the extent of
the plaintiff’s injuries. Further, there are pleadings of contributory
negligence against the plaintiff in some of the actions.

[15]        
The plaintiff’s claims at trial will be that his injuries from the
various accidents are indivisible. That, of course, is an issue that will have
to be determined at trial. Further, there are divergent issues in the opinions
of the medical experts who have examined the plaintiff in relation to
diagnosis, prognosis and causation. Quantum of damages is very much at issue.

[16]        
The plaintiff has received, as at the time of this application,
approximately $33,000 in advances. He is currently receiving approximately
$3,000 per month in disability payments from his long-term disability insurer.

[17]        
I will now turn to the law governing this application. While Lines v.
Gordon states that there must be a temporal connection between the order
for advance payment of damages and the granting of another order, temporal
proximity is only one factor. More broadly, the order for advance payment must
be a just one in all of the circumstances: Serban v. Casselman (1995),
2 B.C.L.R. (3d) 316 (C.A.).

[18]        
The question is always whether the circumstances of the primary order,
in conjunction with which the advance payment order is sought, are sufficiently
compelling to justify an advance payment of damages. The authorities make clear
that a payment of damages in advance of trial is only to be made in exceptional
circumstances arising from the making of the primary order. For example, where
the defendant applies for an adjournment of a personal injury trial and the
plaintiff’s circumstances are financially tenuous, it may be just in the
circumstances to order an advance payment of damages in conjunction with the
order for an adjournment. However, such an advance payment order will not be
made unless the judge is completely satisfied there is no possibility the
assessment of damages at trial will be less than the amount of the advance
payment: Serban v. Casselman. Further, the court will exercise its
discretion to order an advance payment only where liability is not an issue: Andruschak
v. Helina (1993), 89 B.C.L.R. (2d) 320 (S.C.); Wilkinson v. Martin,
2010 BCSC 113.

[19]        
In the present case, there is no substantive connection between the
orders sought and the order for advance payment. The trial was recently
adjourned, but that was at the behest of the plaintiff, not the defendant. The
application for an order that the fourth action be heard with the other three was
not necessary, as the defendants consented to the order before the application
was brought. I note as well that the adding of the fourth action did not
necessitate the adjournment of the trial.

[20]        
Further, the application for the finding of liability in one action is
not of itself a proper basis for an advance payment order. There is nothing in
the circumstances of a formal finding of liability in the one action that would
make an order for an advance payment just or necessary in the circumstances of
this case. In short, there is simply no substantive trigger for an advance
payment.

[21]        
In addition, with seven of the ten defendants denying liability, I am
not persuaded it would be just in the circumstances to order that the defendants
in all actions be jointly and severally liable for the advance payment of
damages. Whether there ought to be joint and several liability on the part of
the defendants is an issue that must be determined at trial and should not be
determined on an application for advance payment.

[22]        
For all of these reasons, and despite the able and forceful submissions
of plaintiff’s counsel, the plaintiff has not satisfied me that the orders
sought ought to be granted, with the exception of the first order that all four
actions be heard together, which will go by consent. The application for the
remaining orders is dismissed.

[23]        
Thank you, counsel.

[24]        
MS. CHONG:  My Lady, with respect to costs for the application, the
defendants would like to request costs because all the actions are being heard
at trial together and liability is at issue then. Perhaps costs in the cause
would be appropriate.

[25]        
MR. MARAGOS:   That’s appropriate.

[26]        
THE COURT:  Yes. Costs will be in the cause. Thank you.

The
Honourable Madam Justice C.A. Wedge