IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120306

Docket: S088168

Registry: Vancouver

Between:

Allan James Scott Burgess

Plaintiff

And:

Buell Distribution Corporation,
Buell Motorcycle Company,
636221 B.C. Ltd., doing business as Barnes Harley-Davidson/Buell,
XYZ Companies, John Doe 1, John Doe 2, John Doe 3, and
Harley-Davidson Motor Company Group, LLC and
Fred Deeley Imports Ltd., carrying on business as
Deeley Harley-Davidson Canada

Defendants

And:

Harley-Davidson Motor Company Group,
LLC,
Fred Deeley Imports Ltd., carrying on business as
Deeley Harley-Davidson Canada

Third Parties

Before: The Honourable Mr. Justice
Grauer

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: I am going to give judgment this
morning.  I do not find it necessary after considering the matter to await what
is to be revealed in the subsequent applications scheduled before me.  My
judgment is as follows.

[2]            
Harley-Davidson
applies for leave to cross-examine the plaintiff’s expert, Mr. Mark Ezra,
on affidavits filed in support of an application by the plaintiff which I am to
hear shortly.

[3]            
The plaintiff’s
application, which provides the context for this application, is essentially
for an order compelling Harley-Davidson to produce further documents.  It is
framed, however, as an application for orders finding Harley-Davidson in contempt,
striking out Harley-Davidson’s defence and granting judgment to the plaintiff,
and other such relief, all for having failed to disclose the documents before
now.  I am advised by the plaintiff that he will not be proceeding with a
contempt application.

[4]            
The problem arises
because of a difference between the plaintiff and Harley-Davidson concerning
relevance.

[5]            
The plaintiff was
injured in a single vehicle accident when he lost control of the
Harley-Davidson motorcycle he was operating.  That motorcycle was equipped with
a sidecar.  The question, of course, is what caused that loss of control.  From
Harley-Davidson’s perspective, the answer is simple:  the plaintiff was
speeding recklessly and was impaired.  The plaintiff alleges, however, that it
occurred when the motorcycle began "vibrating and shaking, and unsafely
performing with wobble and/or weave instability…", as the result of
malfunction of the motorcycle products including the motorcycle itself, the
sidecar kit and the hydraulic steering damper, all manufactured by
Harley-Davidson.

[6]            
The plaintiff
maintains, based in part upon the expert opinion evidence of Mr. Ezra,
that documents believed to be in Harley-Davidson’s possession or control
concerning the handling characteristics of its non-sidecar equipped motorcycles
are relevant to this question of causation raised in the pleadings.  From Mr.
Ezra’s perspective, sidecar or not, the steering assembly is identical and the
oscillation or wobble of that steering mechanism will be identical.

[7]            
Harley-Davidson
asserts, based on the evidence of its own engineers, that a motorcycle with a
sidecar such as that operated by the plaintiff is a discrete three-wheeled
vehicle that operates, steers, handles, and brakes differently from two-wheeled
motorcycles, and that "documents pertaining to the stability of
two-wheeled motorcycles are not relevant with respect to the stability of a
sidecar equipped motorcycle".

[8]            
This particular
divergence in views confronted Associate Chief Justice Cullen when he heard an
application by the plaintiff for an order requiring a representative of
Harley-Davidson to answer specific discovery questions (as well as questions
arising from them) relating to standards and testing of handling characteristics
for two-wheeled motorcycles.

[9]            
Before Cullen A.C.J.,
the parties relied upon the same affidavits from Mr. Ezra and Harley-Davidson’s
engineers as are before me.  Harley-Davidson took the position that, based upon
its engineers’ affidavits, the questions that the plaintiff sought to ask could
not be relevant given the fundamental difference between the handling
characteristics of two-wheel and three-wheel vehicles.

[10]        
In his oral
reasons for judgment, indexed as 2011 BCSC 1831, Cullen A.C.J. concluded that
this was not a case where it could be said on the pleadings that there was no
relevance to the questions being posed.  His Lordship went on to say this:

[16]      In
my view, on that basis the order sought should go. If I am wrong in that
however, I am still not satisfied having considered the evidence put before me
that there is not some relevance to the questions being posed. There is a
difference between the views of the experts as to the possible cause of the
accident and whether it resides exclusively in the characteristics of the
vehicle as a three-wheeled vehicle or whether it has its source in the
component parts of the two-wheeled vehicle. And that is a question essentially
for the trial judge.

. . .

[18] 
I do not in any way wish to be taken as resolving the issue which undoubtedly
is a very complex one, I am simply not able to say that the characteristics of
some components of the two-wheeled vehicle as revealed by the questions posed
may not be germane to the effect upon the three-wheeled vehicle at issue in
this lawsuit and, accordingly, for those reasons, I will grant the application
of the plaintiff.

[11]        
The plaintiff
relies upon this decision as making the issue of relevance res judicata
or otherwise as constituting issue estoppel, and further argues that it is an
abuse of process for Harley-Davidson to seek, in essence, to re-litigate the question
in the present context.

[12]        
Harley-Davidson
submits that under the new Rules, the test for relevance is much wider for
examination for discovery, which is what was before Cullen A.C.J., than for
discovery of documents, which is what I must consider.  Relying upon More
Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166.  Given the
introduction of proportionality as a governing concept in the new Rules,
Harley-Davidson argues that it ought not to be obliged to go to the expense of
producing the documents in question, let alone defend an application that its
defence should be struck and that it should pay special costs, et cetera,
without first being given the opportunity to demonstrate the absence of
relevance through cross-examination of the plaintiff’s expert.

[13]        
In the context of
the rather Draconian relief that the plaintiff is seeking, Harley-Davidson
asserts that there has never been a Court order requiring it to produce the
sort of documents in question, and that it has consistently and openly asserted
that documents relating to the handling characteristics of two-wheel
motorcycles are irrelevant in the context of an accident involving a
three-wheeled vehicle.  To support the need for cross-examination, it submits:

The
only person who has given evidence that documents relating to the handling
characteristics of two-wheeled motorcycles are relevant in the context of Mr.
Burgess’s accident is the plaintiff’s engineer, Mr. Ezra, and his evidence
on this point is disputed in affidavits sworn by Harley-Davidson witnesses.

[14]        
In my view, this
submission misses the point made by Cullen A.C.J. that the relevance is
determined by pleadings, not by competing opinions.  In these circumstances,
the cases cited by Harley-Davidson in support of the proposition that the Court
should exercise its discretion to order cross-examination of an affidavit where
material facts are in issue are not helpful.  As Cullen A.C.J. pointed out, now
is not the time to resolve the factual issue of the role of handling
characteristics applicable to two-wheel vehicles in the causation of this
accident.  The relevance of documents concerning those characteristics is to be
determined by the pleadings and the pleadings alone. 

[15]        
When I hear the
plaintiff’s application, that question of relevance will be one that I will
have to determine and it will not turn on in-house opinions from
Harley-Davidson or, for that matter, on expert opinions obtained by the
plaintiff.  A party does not have to prove its allegations with evidence in
order to establish relevance.  That is putting the cart well in advance of the
horse.  Expert evidence may be helpful on an application to amend pleadings,
which is what happened here, and may assist in understanding, without resolving,
technical aspects of the issues.  But so long as the pleadings stand, they will
govern relevance.

[16]        
If the allegations
are hopelessly ill-conceived, then it is open to the other party to apply to
strike them out, to oppose an application to amend, or to apply for summary
judgment, or for judgment by summary trial.  On a summary trial,
cross-examination of an expert affiant may well be warranted, but I cannot
agree that it is warranted in the situation before me.  That Harley-Davidson may
have consistently asserted the irrelevance of documents or questions relating
to the handling characteristics of two-wheeled motorcycles, if correct, cannot
be determinative, although it may well be relevant to the question of the
relief to which the plaintiff is entitled, should I conclude that further
document production is required.

[17]        
Although it is not
necessary for my decision, it is my view that the order of Cullen A.C.J. did
not make this issue res judicata given the specific context in which it
was made.  Similarly, given the difference in the Supreme Court Civil Rules
between the scope for discovery of documents and the scope for examination for
discovery as submitted by Harley-Davidson, I do not think, though I do not
decide, that the order of Cullen A.C.J. quite meets the requirements for issue
estoppel (see Toronto (City) v. Canadian Union of Public Employees,
Local 79, [2003] 3 S.C.R. 77 at para. 23).  Harley-Davidson’s position
comes, however, at least perilously close to constituting an abuse of process
in the circumstances, given Cullen A.C.J.’s reasons for judgment.

[18]        
The application is
dismissed.

“GRAUER,
J.”