IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130322

Docket: M139206

Registry:
New Westminster

Between:

Nicholas Matthew
MacMillan

Plaintiff

And

Randall Arthur
Shannon, Landtran Logistics Inc.

and Penske Truck
Leasing Canada Inc./Location de

Camions Penske
Canada Inc.

Defendants

–
and –

Docket: M139207

Registry:
New Westminster

Between:

Erin Lindsey
Rodgers,

also known as
Quinn Lindsey Rodgers

Plaintiff

And

Randall Arthur
Shannon, Landtran Logistics Inc.

and Penske Truck
Leasing Canada Inc./Location de

Camions Penske
Canada Inc.

Defendants

–
and –

Docket: M139208

Registry:
New Westminster

Between:

Lief Ambrosia Hall

Plaintiff

And

Randall Arthur Shannon,
Landtran Logistics Inc.

and Penske Truck
Leasing Canada Inc./Location de

Camions Penske
Canada Inc.

Defendants

–
and –

Docket: M139218

Registry:
New Westminster

Between:

Asia Emma Robb

Plaintiff

And

Randall Arthur
Shannon, Landtran Logistics Inc.

and Penske Truck
Leasing Canada Inc./Location de

Camions Penske
Canada Inc.

Defendants

Before:
Master Caldwell

In
Chambers

Reasons for Judgment

[1]            
This application is brought by the defendants in four separate actions
to consolidate the actions for all purposes, remove them from the fast track
process and allow the defendants to add Nicholas Matthew MacMillan as a Third
Party to the consolidated claim.

[2]            
The actions arise from a motor vehicle accident which occurred on May 3, 2010.
A vehicle driven by plaintiff MacMillan and containing as passengers plaintiffs
Hall, Rodgers and Robb came into collision with a vehicle driven by the
defendant Shannon.

[3]            
Each of the plaintiffs have commenced fast track actions alleging that
the defendant Shannon was negligent and responsible for the accident and
seeking damages; the defendants allege that the plaintiff MacMillan was
negligent, responsible for the accident and is thus liable for the plaintiffs’
injuries, including his own.

[4]            
All plaintiffs are represented by the same counsel; all defendants are
represented by the same defence counsel.

[5]            
The parties do not disagree that the appropriate test to be applied in
these type of applications for consolidation or trial at the same time is as
articulated by Master Kirkpatrick, as she then was, in Merritt v. Imasco
Enterprises Inc. (1992) 2 C.P.C. (3d) 275 at paragraphs 18 and 19:

None of the submissions of counsel address the real issue to
be determined. That is, are the issues raised by the pleadings sufficiently
similar to warrant the order sought and will the order make sense in the
circumstances? An application to have actions tried at the same time thus
requires an examination of circumstances which may be of a more general nature
than is made under R. 27 or 19.

 I accept that the foundation of an application under R.
5(8) is indeed disclosed by the pleadings. The examination of the pleadings
will answer the first question to be addressed: do common claims, disputes and
relationships exist between the parties? But the next question which one must
ask is: are they "so interwoven as to make separate trials at different
times before different judges undesirable and fraught with problems and
economic expense"? Webster v. Webster (1979) 12
B.C.L.R. 172 (C.A.). That second question cannot, in my respectful
view, be determined solely by reference to the pleadings. Reference must also
be made to matters disclosed outside the pleadings:

(1)  Will the order sought create a saving in pre-trial
procedures, (in particular, pre-trial conferences)?;

(2)  Will there be a real reduction in the number of
trial days taken up by the trials being heard at the same time?;

(3)  What is the potential for a party to be seriously
inconvenienced by being required to attend a trial in which that party may have
only a marginal interest?; and

(4)  Will there be a real saving in experts’ time and
witness fees?

This is in no way intended to be
an exhaustive list. It merely sets out some of the factors which, it seems to
me, ought to be weighed before making an order under R. 5(8).

[6]            
Counsel for the defendants submits that, absent consolidation, there
will be significant duplication of pre-trial procedures and discoveries; that
will certainly be the case if counsel set their sights on such duplication but
need not be the case if there is appropriate planning, scheduling and
cooperation between opposing counsel. The Rules call for
proportionality, efficient and timely trials on the merits and the option of a
fast track system for determining disputes; counsel can either embrace and
support or sabotage these aims by their approach to litigation.

[7]            
In the present situation each of the four fast track actions are
estimated to take three-four days if liability is fully argued in each case. If
liability is determined in the MacMillan case first, or if liability were to be
severed, consolidated or ordered to be heard at the same time, three of those
estimates would likely be reduced. Counsel for the defendants acknowledges that
if consolidated, the matter would take 15-16 days without a jury and
significantly longer if he gets instructions to elect a jury trial. The result
would be that four plaintiffs who sought short, efficient resolution of their
claims would be dragged through 15 or more days of trial, most of which would
be of marginal interest or relevance to each of them, possibly with a jury,
with exposure to staggering costs for recovery of modest damages.

[8]            
Finally, other than on the issue of liability, no one is arguing that
there will be a significant or any saving on the presentation of expert
evidence. Each of the plaintiffs has a different family doctor. Two of the
plaintiffs now live in Quebec so if there is any further expert evidence it is
unlikely to overlap and may have to be provided by way of teleconferencing to
minimize expense. Again, it is clear that there are ways of reducing
complexity, duplication and inconvenience; it will be up to counsel to
determine whether that happens or not.

[9]            
In short, I am of the view that none of the second arm of tests arising
in the Merritt case (supra) or the subsequent case of Bhinder
v. 470248 B.C. Ltd., 2007 BCSC 805 is met in the present cases. The
application for consolidation and related relief is dismissed as is the
application for removal of any or all of the actions from Rule 15-1 fast
track.

[10]        
The application regarding the proposed Third Party process is
specifically sought only in reference to the “Consolidated Claim” and as can be
seen from the foregoing, there is no “Consolidated Claim”; accordingly I do not
know whether the defendants wish an order in the individual cases or only in
the event of consolidation. The application is dismissed with liberty to the
defendants to re-apply in the separate actions in the event that they wish to
do so.

[11]        
The plaintiffs are entitled to their costs in any event of the cause.

“Master Caldwell”