IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130829

Docket: 80021

Registry:
Kelowna

Between:

Vahida Bajramovic

Plaintiff

And

Stephen Michael
Payne and
Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Mr. Justice Barrow

Reasons for Judgment

[1]            
This is an application by the defendant Stephen Payne to have the issue
of liability severed from the other issues in this litigation. If successful on
the severance application, he seeks to have the issue of liability resolved by
way of summary trial.

[2]            
The plaintiff has sued both the defendant Payne and the Insurance
Corporation of British Columbia for damages arising out of a motor vehicle
accident that occurred on April 5, 2007. On that day the plaintiff was
westbound on the Okanagan Lake Bridge. She was travelling in the centre lane.
Traffic in that lane came to a stop. The defendant Payne was travelling
immediately behind her. There was a rear-end collision. The defendant Payne has
deposed that he stopped when the plaintiff’s vehicle came to a stop but he was
rear-ended by an unidentified driver following him on the bridge. The force of
that collision propelled him into the plaintiff’s vehicle. Although the
plaintiff has no direct personal knowledge of whether the defendant Payne was
in fact rear-ended by an unidentified driver, she disputes the defendant’s
contention.

[3]            
The trial of this matter has been adjourned twice. The first trial date
was adjourned at the plaintiff’s request. The second trial date, which was in
January 2012, was adjourned for a combination of reasons. The plaintiff’s
counsel had become ill and was unable to attend a trial that month, but the
trial would have been adjourned in any event because shortly before it was
scheduled to begin the plaintiff applied to join the Insurance Corporation as a
defendant. Because of the potential conflict between the interests of the
defendant Payne and the interests of the Insurance Corporation, the two
defendants thought it necessary to have independent counsel. In those
circumstances an adjournment of the trial was inevitable.

[4]            
The case is now scheduled to be heard in December 2014. The trial was
expected to last 9 days.

[5]            
When faced with an application for severance and an application to
determine the severed issue by way of summary trial, the appropriate approach
is to deal first with the question of severance and then with the question of
whether the issue severed may appropriately be resolved by way of summary trial
(Chun v. Smit, 2011 BCSC 412 at para. 8; Element v. Del Mar,
2012 BCSC 868 at para. 98). I will, therefore, deal with the question of
severance before turning to the issue of whether the question of liability is
suitable to be resolved by way of summary trial.

Should the Issue of Liability be Severed from the Issue of Damages?

[6]            
Rule 12-5(67) provides that a court “may order that one or more
questions of fact or law arising in an action be tried and determined before
the others.” The predecessor to Rule 12-5(67) was Rule 39(29) of the former Rules
of Court. Allan J. dealt with an application for severance under the
former rules in Bramwell v. Greater Vancouver Transportation Authority,
2008 BCSC 1180. She concluded after reviewing a number of authorities that an
applicant for severance “must establish that there exist extraordinary,
exceptional or compelling reasons for severance, and not merely that it would
be just and convenient to order severance” (at para. 11). A savings in time
and expense may qualify as a compelling reason, but in order to do so there
must be “a real likelihood of a significant savings” (Bramwell at para. 12).

[7]            
One reason severance orders are only exceptionally granted is that they
can give rise to embarrassment or to unnecessary obstruction of the trial of
the remaining issues. As Punnett J. pointed out in Element v. Del Mar,
when the credibility of the same witness or witnesses is at issue in both the
severed issue and the remaining issues, then severance is unlikely to be
appropriate.

[8]            
In the matter at hand the defendant Payne’s credibility will not be an
issue in relation to the assessment of the damages to which the plaintiff might
be entitled. Further, and subject to the observations below regarding the
suitability of this matter for summary trial, the plaintiff’s credibility as it
relates to the circumstances of the accident may not be a significant issue.
Thus, this is not a circumstance in which there is a significant risk of
inconsistent findings based on the assessment of any witness’s credibility. I
express these conclusions tentatively because it is impossible in this case to
predict with confidence how the evidentiary conflicts might interact.

[9]            
Finally, when determining or considering a question of severance, the
purpose and object of the Supreme Court Civil Rules must be borne in
mind. Rule 1‑3(1) provides that the object of the Rules is to “secure the
just, speedy and inexpensive determination of every proceeding on its merits.” It
seems to me that these goals are recognized in the test for severance. The
presumptive rule is that all issues in a proceeding are tried together. The
rule is displaced if there are exceptional reasons for doing so. The test is
set reasonably high because severance gives rise to the risk of real or
perceived injustice to the extent it creates the possibility of inconsistent
findings of fact based on differing assessments of credibility. Such a risk is
sometimes warranted, but only when there is a genuine likelihood of significant
savings in time and expense. Thus the test encompasses and requires a balancing
of the three objects of the rules.

[10]        
This trial is scheduled to last 9 days. The issue of liability is not
particularly complicated, nor will it be particularly time consuming.
Resolution of the issue will turn on the evidence of three witnesses: the
plaintiff, the defendant and Thomas Nutter, a material damage estimator
employed by the Insurance Corporation. All of this evidence can be heard in a
day, if not less than a day. Argument on the issue of liability may take an
hour. In the result, the time saved by severing the issue of liability might
amount to 1 day in a 9-day trial. I recognize that if the defendant Payne is
successful in defending the issue of liability on his summary trial application
he will avoid the expense of counsel participating in the other 8 days of the trial.
I recognize that the question of severance and the question of suitability for
summary trial are distinct issues. Having said that, and for reasons I will set
out below, I am not persuaded this matter can be resolved on the basis of a
summary trial. When that circumstance is borne in mind, the potential savings
that severance may otherwise achieve are even less significant.

[11]        
In summary, I am not persuaded that this case is either exceptional or
extraordinary nor I am satisfied there is any other compelling reason for
ordering severance.

[12]        
Before leaving this issue, I note one further argument advanced by
counsel for the plaintiff. He argued that while it may be convenient to sever
the issue of liability it would not be just to do so if, in the result, the
question is resolved in favour of the defendant. His argument is based on his
interpretation of s. 24(5) of the Insurance (Vehicle) Act. It is
predicated on the assertion that while the plaintiff may not have taken “all
reasonable efforts” to attempt to identify the unidentified driver, the
defendant Payne did make some effort to do that. Counsel argues that it is only
the “reasonable efforts … by the parties” which can be taken into
account in assessing whether s. 24(5) of the Insurance (Vehicle) Act
affords the Insurance Corporation a defence. If the action is dismissed as
against the defendant Payne then the plaintiff will be deprived of the
evidentiary value of any efforts he may have made to identify the other driver.

[13]        
This issue was advanced in the plaintiff’s written submissions. It was
not identified in the application response. Although counsel for the Insurance
Corporation was present at the argument of this application, she took no role
in the proceeding because, from the Insurance Corporation’s point of view, the
issue of severance is a matter of little moment. It was only during argument
that counsel for the Insurance Corporation realized that the interpretation of
s. 24(5) of the Insurance (Vehicle) Act might be an issue. On
coming to that realization she sought the opportunity to make submissions on
the point in the event I concluded that the question of severance should be
decided either in whole or in part on the basis of the plaintiff’s argument on
this issue.

[14]        
I have decided the issue of severance without regard to this argument
and thus pass no judgment on the merit of it.

Is this Matter Suitable for Summary Trial?

[15]        
Although I have dismissed the defendant’s application for severance, I
will deal with the issue of suitability for summary trial. I do so because it
brings into focus the extent to which the plaintiff and defendant’s credibility
may be in issue. It is through an appreciation of that aspect of the matter
that the risks that severance creates can best be appreciated.

[16]        
The parties do not disagree on the law applicable to the determination
of whether a particular matter is suitable for disposition by way of summary
trial. They disagree on the outcome when the law is applied to the
circumstances of this case.

[17]        
The leading authority on determining suitability for summary trial
remains Inspiration Management Ltd. v. McDermid St. Lawrence Ltd.
(1989), 36 B.C.L.R. (2d) 202 (C.A.). In that case McEachern C.J.B.C. wrote
that:

[53]      The test for Rule 18A [now Rule 9-7], 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 [now Rule 9-7] 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.

[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. … 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.

[18]        
The defendant Payne argues that there are almost no conflicts in the
affidavit evidence touching on the issue of liability and to the extent there
are conflicts they are essentially immaterial. Therefore, he argues that this
matter is suitable for a summary trial.

[19]        
The plaintiff argues that there are some significant conflicts in the
affidavit evidence. More importantly, however, he argues that the credibility
of the defendant is central to the issue of liability. The defendant asserts
that he was struck from behind by an unidentified driver. The plaintiff argues
that that proposition should be rejected. It is that issue which will be
central to the resolution of the question of liability.

[20]        
At the time of the accident the Okanagan Lake Bridge consisted of three
lanes: one lane for eastbound traffic, one lane for westbound traffic, and the
centre lane which, depending on the time of day, served as either an eastbound
or westbound lane. The plaintiff was westbound in the centre or counter-flow
lane at the time of the accident. The defendant Payne was immediately behind
her. The accident happened at 4:15 p.m. on a sunny day. The road surface was dry.
Traffic in the centre lane was moving slowly. Just before the accident the
light controlling the direction of travel of traffic in the centre lane changed
from green to yellow, signifying that the centre lane would soon become an
eastbound lane. As a result, the vehicles in the centre lane all began to merge
into the right hand, or westbound, lane. This had the effect of further slowing
the already slow moving westbound traffic. A black vehicle which was
immediately ahead of the plaintiff’s vehicle in the centre westbound lane
stopped. The plaintiff then stopped. The defendant Payne, who was operating a
van, “appeared to also stop”, according to the plaintiff. She was then
rear-ended.

[21]        
The plaintiff has deposed that she did not hear a collision prior to
being struck by the defendant’s vehicle. She has deposed that the force of the
impact of the collision between the defendant Payne’s vehicle and her vehicle caused
her vehicle to move forward perhaps 2 or 3 meters, at which point it collided
with the black vehicle she was following. According to the plaintiff, after the
collision the defendant Payne pulled into the right hand lane and proceeded to
cross the bridge. He pulled over on the western approaches to the bridge as did
the plaintiff. The driver of the black vehicle also pulled over on the far side
of the bridge.

[22]        
Once all three vehicles were stopped on the western side of the lake,
the woman driving the black truck determined that she was not injured and there
was no damage to her vehicle so she left. No one obtained her contact
information. According to the plaintiff, the defendant Payne said that he had
been rear-ended by a vehicle that subsequently left the scene. The plaintiff
took him at his word. The plaintiff has deposed that no one called the police
because the defendant Payne said it was not necessary in that no one was
injured. The plaintiff, who is of Bosnian decent and has a limited grasp of the
English language, has deposed that she had never been involved in an accident
prior to this one and simply accepted the defendant’s explanation.

[23]        
The defendant Payne has deposed that he was on his way home from work at
the time of the accident. He said that he had stopped, or was “almost at a
complete stop” behind the plaintiff when his vehicle was struck from behind. He
has deposed that he did not “immediately look” in his rear-view mirror to see
who had hit him, but when he did he could not see any vehicles behind him. He
noted that the traffic in the centre lane on the bridge was merging to the
right lane which was “flowing with traffic”. His account of what took place
once all three drivers reached the far side of the bridge is more or less
consistent with the account offered by the plaintiff. He provided a statement
to the Insurance Corporation six days after the accident. In that statement he
repeated his assertion that he had been rear-ended by a vehicle that left the
scene.

[24]        
As noted above, Thomas Nutter is a material damage estimator employed by
the Insurance Corporation. He examined the defendant Payne’s vehicle on April
11, 2007. He noted there was minor damage to the front end and damage to the
right rear bumper. To the extent such things can be determined on the basis of
a physical examination, it is Mr. Nutter’s opinion that the damage to the
defendant’s right rear bumper was consistent with having been caused by
vehicle-to-vehicle contact. He is also of the view that it had happened
relatively recently. Mr. Nutter was cross-examined on his affidavit and
acknowledged that at best he could provide a rather broad estimate of the
timing of the damage. On cross-examination he said that the damage was anywhere
from between a few days to perhaps a month old at the time he examined it. He
also acknowledged that it was possible that the damage was not the result of a vehicle-to-vehicle
impact, although I think on balance his opinion is that it likely was.

[25]        
The plaintiff argues that there are a number of inconsistencies, either
in the defendant’s own evidence or as between his evidence and that of the
plaintiff. Some of those inconsistencies are, in my view, immaterial. For
example, according to the plaintiff the defendant told her that a “white truck”
had hit him. The defendant denies that he said that, and denies that he saw the
vehicle that hit him. This inconsistency is of no moment. Further, the
defendant Payne gave evidence on discovery that after leaving the western
approaches to the bridge he stopped at a convenience store and was approached
by a man who said he had seen the accident. He did not get the man’s contact
information. He explained that he thought it unnecessary because the man told
him he had not seen anyone hit the defendant. Again, this circumstance seems of
little value to the resolution of the outstanding issue. Finally, the defendant
gave evidence on discovery that he could see the plaintiff’s eyes as he looked
through her back window and into her windshield-mounted rear-view mirror. The
plaintiff has deposed that she was wearing sunglasses. Again, this is an
inconsistency or contradiction that is of no significance to this analysis.

[26]        
There are, however, two potential inconsistencies in the defendant
Payne’s evidence. The first relates to whether his vehicle had ever sustained
damage to the right rear bumper area. He said on examination for discovery that
it had not. Mr. Nutter said he found body filler in the back right corner
of the defendant’s vehicle. This may or may not be significant. Mr. Payne’s
evidence on the point was less than clear.

[27]        
The second relates to the significance or force of the impact that he
maintains caused him to hit the plaintiff. In his affidavit the defendant has
deposed that he was “struck hard from behind”; the force was such that
notwithstanding that he had his foot on the brake, it caused his vehicle to
jump forward and contact the plaintiff’s vehicle. On discovery the defendant
said (question 94) that the impact was “not hard”; rather it was a “slight
jolt”. He also said that the traffic in the right lane was moving at a slow
speed. Earlier he said that both lanes appeared to be congested. The plaintiff
argues that if the impact with the defendant’s vehicle by the unidentified
driver was merely a “slight jolt”, it seems improbable that it would be
sufficient to propel the defendant into the plaintiff’s vehicle with sufficient
force to then propel the plaintiff’s vehicle the 3 to 6 meters that she says she
was behind the vehicle in front of her.

[28]        
I would not likely conclude that this case is unsuitable for summary
trial on the basis of these inconsistencies in the evidence. There are, however,
other factual issues arising from the evidence which, in my judgment, make it unjust
to resolve this matter on a summary trial. Those factual issues are only
partially the product of contradictions in the affidavit material. The more
substantial issue is the inherent probability or improbability of the accounts
offered by the parties. The defendant maintains that his vehicle was struck
with sufficient force that it pushed him into the plaintiff’s vehicle which was
struck with sufficient force that it collided with the black truck two vehicles
ahead of the defendant’s vehicle. This happened at a time of relatively heavy
traffic on the bridge. The traffic congestion was being further compounded by the
need for vehicles in the centre lane to merge into the right lane. No one was
moving particularly fast. The defendant’s vehicle was equipped with both
exterior and interior rear-view mirrors. His van had windows on all horizontal
surfaces. The plaintiff argues that it is improbable, in these circumstances,
that the defendant would not have been able to see who hit him. Even if the
defendant did not see the vehicle he claims hit him at the point of impact, the
plaintiff argues he would have had a reasonably lengthy opportunity to observe
the vehicle as it proceeded slowly past him in the right-hand westbound lane.

[29]        
Further, the plaintiff argues that the defendant’s account about whether
the police should be involved is improbable. The defendant had a working cell
phone with him at the time of the accident. On discovery he gave evidence that
once the three drivers reached the western approaches to the bridge he asked
them whether he should call the police. He gave evidence that, “They said no
one was harmed”, and thus they should simply exchange insurance information
without involving the police. The plaintiff’s counsel argues it is unlikely she
said anything of the kind because she has always maintained she was injured in
the accident and that she knew she was injured from the moment of impact. There
may be merit in this contention. In any event, the plaintiff argues it is
unlikely that the defendant would not phone the police given that he had just
been victimized by a hit-and-run driver. There may be merit in that contention
as well. In addition, the plaintiff argues that although the defendant
maintains he did phone the police, albeit not until he got home and after he
had stopped for gas on route, the police have no record of the accident being
reported to them. It may be that the police do not keep a log of every
telephone call they receive, particularly if they are not asked to open a file.
It does seem unusual though that the defendant would have been satisfied not to
phone the police while at the scene of the accident and yet thought it
necessary or prudent to do so later after he arrived home.

[30]        
All of these are questions which, the plaintiff argues, cannot justly be
resolved without the court hearing the defendant’s evidence. Counsel for the
plaintiff argues that the defendant was evasive on discovery. I accept that the
transcript of the discovery might support that contention. Perhaps more
significantly, however, I accept that a transcript is often a poor substitute
for observing a witness responding to the kinds of questions that the
circumstances of this accident provoke.

[31]        
For the foregoing reasons, I am not persuaded that I am able to “find
the facts necessary to decide the issues” on the basis of affidavit evidence. I
reach this conclusion not because of conflicts in the affidavit evidence,
although some of those are troubling, but rather because of the need to hear
and see the defendant testify and be cross-examined.

[32]        
In the result, the defendant Payne’s application is dismissed. I leave the
costs of this application to the discretion of the trial judge.

“G.M.
Barrow J.”
The Honourable Mr. Justice Barrow