IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120726

Docket: M115401

Registry:
Vancouver

Between:

Jorin Dann-Mills,

by his Litigation
Guardian, Robbin Williams

Plaintiff

And:

Sharon
Tessier, Daniel Mills, Kulwinder Singh Dhaliwal, The City of Abbotsford, Her Majesty
the Queen in Right of the Province of British Columbia, Emil Anderson
Maintenance Co. Ltd., and ISL Engineering and Land Services Ltd.

Defendants

And:

Emil Anderson
Maintenance Co. Ltd., and Her Majesty the Queen in Right of the Province of
British Columbia as represented by the Ministry of Transportation and
Infrastructure and ISL Engineering and Land Services Ltd.

Third
Party

Before: The Honourable Mr. Justice
Masuhara

Oral Reasons for Judgment

In
Chambers

[1]            
The applications before me arise from a motor vehicle accident which
occurred in August 2008.

[2]            
Ms. Tessier was the driver of a Volvo sedan in which her 17-month
old son Jorin was a passenger, and that child is now six years old.

[3]            
Ms. Tessier was travelling along Simpson Road and turning left
where it intersects with Mt. Lehman Road to drive southward.

[4]            
She was struck broadside by a Freightliner flatdeck truck carrying a
half load of lumber and driven by the defendant Dhaliwal, who was travelling
northward on Mt. Lehman.

[5]            
Ms. Tessier suffered serious head injuries, as did Jorin.

[6]            
In regard to the latter, I am told that the medical evidence is that
there is no area of Jorin’s brain that did not suffer damage.

[7]            
Two actions were started as a result of the accident.

[8]            
Jorin has an action against several parties, including his mother, Ms. Tessier.

[9]            
Ms. Tessier has an action against Mr. Dhaliwal, the driver of
the truck that she collided with, as well as the City of Abbotsford (the
"City"), the Province of British Columbia ("British
Columbia"), Emil Anderson Maintenance ("Emil Anderson"), and ISL
Engineering and Land Services ("ISL").

[10]        
The claim against the parties other than Mr. Dhaliwal relates to
negligent design and maintenance of the highway where the accident occurred.

[11]        
In August 2011, counsel for the parties agreed that the trial of
both actions would take five weeks and a trial was fixed for June 3, 2013.

[12]        
In November 2011, the parties by consent agreed to have both
actions heard together.

[13]        
I am advised that the assessment of Jorin’s damages was not contemplated
to be included at the time the length of the trial was agreed to by counsel.

[14]        
The medical evidence regarding Jorin at this point is that an assessment
of the extent of his brain damage should optimally wait until he reaches 18 or
19 years.

[15]        
Subsequent to the fixing of the trial date, Mr. Rice, counsel for
Jorin, expressed the view to the defendants that the claim could be in excess
of $10 million dollars on the basis that the child is permanently and
totally disabled and will not be able to work.

[16]        
It is the view of defence counsel that there are complex issues related
to the claims of Ms. Tessier which include causation and pre-existing
condition.  The complexity, in the submissions of defence counsel, was not well
understood at the time the trial days were set.

[17]        
I am also told that Ms. Tessier has displayed suicidal tendencies
and that the Ministry of Children and Family Development have stepped in and
apprehended the child.

[18]        
The picture painted of Ms. Tessier is rather grim, though I did
note defence counsel’s characterization regarding the suicidal tendencies as
more a cry for help as opposed to an intent to actually harm herself.

[19]        
It is the position of the City, British Columbia, Emil Anderson, and ISL
that the liability portion of the two actions should go forward and that the
quantum portion of Ms. Tessier’s action be severed.

[20]        
The defendants say that they would agree to Jorin’s quantum claim being
severed if Ms. Tessier’s quantum claim were to be severed.

[21]        
I am not persuaded that there is a relationship between the two.

[22]        
The defendants say that there is insufficient trial time for quantum
issues to be heard.  They point to the amended case plan proposal filed by
counsel for Ms. Tessier which show that she will have eleven experts
consisting of a traffic safety engineer, engineering accident
reconstructionist, psychiatrist, neuropsychologist, physiatrist, neurologist, otolaryngologist,
vocational consultant, future care expert, and economist.

[23]        
It is also pointed out that there may be others.

[24]        
It is submitted that severance of liability and quantum in both actions
will assist in the just, speedy, and inexpensive determination of the
proceedings, and that the initial determination of liability would properly
consider the amounts involved and the complexity of the proceedings.

[25]        
It is also argued that severing the quantum in Ms. Tessier’s action
allows non-liable defendants to be excused from the quantum trial.

[26]        
One argument is that the court could find Ms. Tessier 100 per cent
at fault in the accident.  If that were to happen the initial liability
determination would result in significant savings of time and expense for all
parties.

[27]        
However, if liability issues for both actions and the quantum part of Ms. Tessier’s
action, were to go forward together, the defendants would then seek an order
that any amounts awarded to Ms. Tessier be paid into court.

[28]        
On the point of liability, the defendants express the view that Ms. Tessier
will likely be found to be 100 per cent liable and, at least, partially
responsible as a second position.  The defence provided cases to support their
contention.

[29]        
Moreover, they say that she will have insufficient coverage to meet her
apportionment of damages towards her son.

[30]        
The non-ICBC defendants say that if they are found liable they would be
jointly and severally liable with Ms. Tessier in regard to Jorin.

[31]        
The City submits that the payment into court of any amounts owed to Ms. Tessier
is required on the grounds of that:

(1)      in all the circumstances,
the allocation of insurance proceeds should be made on a pro rata basis
and their distribution delayed until the infant child’s claim is crystallized;
and

(2)      to allow Ms. Tessier
to collect the totality of any judgment against the non-ICBC defendants would
result in their inability to set off joint and several liability in regard to
the infant plaintiff Jorin’s claim which would result in an unfair procedural
advantage to Ms. Tessier.

[32]        
The unfairness is due, in the defendants’ submission, to what they call
an asymmetry that arises because they are non-ICBC defendants and as a result
do not have the pro rata benefit that ICBC insured defendants have under the Insurance
Motor Vehicle Act.

[33]        
In my view, though case plan proposals have been filed, none of the
parties have at this stage a clear view of how the trial will actually unfold
in terms of the evidence, the witnesses, and the issues.

[34]        
Against the concerns expressed by defence counsel regarding the ability
of the current trial schedule to even conclude liability issues, are the views
of Mr. Rice and Mr. Parson that the liability portion of the trial
could be done in three weeks and the rest used to complete the quantum portion. 
They sense that certain defendants may be released and admissions may be used
to shorten the trial.

[35]        
Placing confidence in estimates of counsel, through no fault of their
own, is not a particularly sound exercise, especially at this point in the
litigation.

[36]        
I am also cognizant of the medical concerns of Ms. Tessier and of
her counsel regarding her suicidal behaviours and the need to have this matter
proceed with some haste.

[37]        
I also note that severance is not an ordinary order.  Given that a case
management judge is to be assigned to this case, I think it is better that the
question of severing be addressed before her or him at a time when further
clarity in the case can be ascertained.

[38]        
I think Mr. Parsons, Mr. Rice and Ms. Hayman are alive to
the problem that if the positive view of the case being done in the time
allotted is incorrect or is off, their client may then be in a more difficult
position than if severance were to be ordered now and trial dates secured. 
However, that is their concern.

[39]        
In the result, the application at this point is denied without prejudice
to a future application being made before the trial management judge.

[40]        
In terms of the question of payment into court of monies, I recognize
that there is a concern regarding the asymmetry in the regimes.

[41]        
The first-past-the-post operating alongside the pro rata
principle is a real issue.  However, a departure from the existing approach
requires some good reason for departing from the basic rule that a successful
plaintiff is entitled to the fruits of his judgment.

[42]        
The assessment, in my view, is that it is premature to grant the order
sought.  The matter is one which can be assessed by the presiding trial judge
or perhaps the case management judge once further facts or the totality of the
evidence is known.

[43]        
As defence counsel have recognized, Ms. Tessier did sustain
significant injuries and there is evidence in the materials that support that
contention.

[44]        
It may well be that the trial judge having the benefit of the evidence,
and an understanding of the case far better than myself at this point, may
determine some partial payment to Ms. Tessier and some partial payment
being made into court.

[45]        
Presently, things are still in flux and I note the significant focus of
the defence in this hearing on the proposition that liability will be likely
found to rest entirely with Ms. Tessier.  In that circumstance, defence
concerns may not be so great.

[46]        
Also, it may well be that even if damages were to be awarded to Ms. Tessier,
the damage award because of her own role in the collision may be found to be
relatively small, thereby making the concerns less significant than the
scenarios that were outlined by defence counsel in the application before me.

[47]        
In the circumstances, then, the application for the payment of a
judgment into court is denied without prejudice to raise the matter before the
case management judge or trial judge.

[48]        
And, finally, the severance of the quantum part of Jorin’s case is
granted.

[49]        
That concludes my ruling.

[50]        
Are there any further submissions regarding this ruling?  Hearing none,
we are now concluded.

"The
Honourable Mr. Justice Masuhara"