IN THE SUPREME COURT
OF BRITISH COLUMBIA

Date: 20141007

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.,
ISL Engineering and Land Services Ltd. and Interlink Carrier Ltd.

Defendants

And

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

Third Parties

Before: The Honourable Mr. Justice
Voith

Oral Reasons for
Judgment

In Chambers

[1]           
THE COURT: The plaintiff, Jorin Dann-Mills,
through his litigation guardian, Ms. Robbin Williams, has applied for an
advance payment in the amount of $50,000 from the Insurance Corporation of
British Columbia. The Insurance Corporation would pay that amount on behalf of
the defendants, Sharon Tessier and Dan Mills, from their policies of insurance.
These monies would be paid out to and held by the Public Guardian and Trustee
of British Columbia (“PGTBC”) on the terms and conditions that are set out in
the notice of application together with the specific revisions to those terms
that have been proposed by the PGTBC.

Background

[2]           
The general facts
which underlie this application are straightforward. Ms. Tessier and Mr. Mills
are Jorin’s mother and father respectively. Jorin is now nearly eight years old.
On August 14, 2008, when Jorin was about 17 months old, he and his mother were
involved in a serious motor vehicle accident. The various issues arising from
that accident, including issues of liability, are presently scheduled to be
heard in a trial that is to commence January 11, 2016, and continue for a
period of 67 days. I have been assigned to case manage both this action and a
related action, in which Ms. Tessier is the plaintiff and which will be
heard at the same time as the instant action.

[3]           
It is argued that the
infant plaintiff suffered a serious traumatic brain injury and multiple other
injuries including, without limitation, cranial fractures, seizure disorders
and various adjustment disorders. Though I clearly make no findings of any sort
on such issues, I simply observe for present purposes that the presence of each
of these difficulties or injuries is supported by the expert reports that have
thus far been filed on behalf of Jorin. Similarly, when I describe other
matters of fact, I do so simply on the basis of the materials that have been
filed on this application.

[4]           
It is argued that
as a result of the accident and his subsequent injuries, Jorin requires 24 hour
supervision. Jorin is not presently potty trained. He requires help getting
dressed and supervision when he is eating. As he suffers from seizures, he also
requires supervision for safety reasons. Though he attends elementary school,
he can only manage to do so for half days.

[5]           
Jorin’s parents
are separated, and he lives primarily with his father. Mr. Mills is a
short-haul truck driver whose current work hours are from 4:00 a.m. to 3:00 p.m.
Accordingly, he requires help getting Jorin to and from school.

[6]           
Ms. Tessier
herself suffered a brain injury. For a period of time, she was only permitted
to have supervised access to Jorin. Though these supervision conditions have
been lifted, Ms. Tessier continues to be an unreliable source of support
for Jorin. Her scheduled access amounts to little more than one day on
alternate weekends.

[7]           
Ms. Williams
is Jorin’s grandmother. She currently works two jobs and has some health issues
of her own. Thus, she too is curtailed in the assistance she can provide Jorin.

[8]           
As a result of
these various circumstances, Mr. Mills has been required to hire
individuals to care for and supervise Jorin. His significantly strained
financial circumstances limit who he can afford to hire. Thus far he has been
able to hire either friends or other persons, who effectively serve as nannies.
He has hired three different persons in the last 18 months and has paid these
individuals between $1,000 and $1,500 monthly, an amount that is considerably
less than the cost of professional in-home care.

[9]           
The following
additional facts or considerations are relevant:

1.       Virtually all
defendants consent to the application. The defendant Emil Anderson Construction
Ltd. takes no position. The application is opposed only by the defendant Mr. Dhaliwal.

2.       Counsel for Mr. Dhaliwal
accepts that Mr. Dhaliwal would suffer no prejudice of any sort if I were
to make the order that the plaintiff seeks. Instead, the concerns raised on
behalf of Mr. Dhaliwal are principled in nature and turn on the question
of whether the present circumstances support making an advance to the
plaintiff.

3.       The $50,000 advance
being sought is to be held in trust by the PGTBC for the plaintiff and is to be
used for the benefit of Jorin. The PGTBC either consents to various terms in
the proposed draft order before me or takes no position on other terms. The PGTBC,
in a letter dated September 22, 2014, proposed certain revisions to clause 1(g)
of the proposed order. Counsel for Jorin has incorporated those proposed
revisions into the form of order he now seeks.

4.       Counsel for Jorin
accepts that there is no immediate or pressing need for the advance funds being
sought. Instead, those monies are intended to be in the nature of a contingency
fund, which would be overseen by the PGTBC and dispersed as and when the PGTBC
considers appropriate or necessary.

Analysis

[10]       
I was provided with various authorities that describe the limited
circumstances in which a court can order an advance. In particular, counsel for
Mr. Dhaliwal, argued, largely on the basis of Lines v. W & D
Logging Co. Ltd., 2009 BCCA 107 at para. 13, that the Rules of
Court do not grant this Court the jurisdiction to make a stand alone order
for an advance payment of damages. Instead, an order for an advance must be
combined with some other order, such as, for example, an adjournment. Further, Mr. Dhaliwal
argued that this court lacks the inherent jurisdiction to make the form of
order that is being sought; Lines at paras. 22-27.

[11]       
For the purposes of this application, I do not question either of these
propositions. I consider, however, that their application to the present
circumstances is misconceived. This is not a case where I am ordering a party
to make an advance over their opposition to do so. Instead, Mr. Mills, Ms. Tessier,
and their insurer, the Insurance Corporation, all consent to the order, albeit
on specific terms. Each sees or accepts the wisdom, in the present
circumstances, of having a contingency fund available to deal with Jorin’s
requirements. Those circumstances include Mr. Mills’ precarious finances,
the limited care options available for Jorin, and his significant need for
continuous supervision. They are apparently collectively satisfied that there
need not be an immediate or pressing crisis before they establish a contingency
fund. Rather, they are satisfied that it is prudent to do so at this time and
are willing to have the PGTBC exercise its good judgment if and when it becomes
necessary to access the monies in question.

[12]       
The present application is brought, in the main, because court approval
is required for the agreement that has been made on behalf of Jorin with Mr. Mills,
Ms. Tessier, and the Insurance Corporation. In particular, s. 40(1.1)
of the Infants Act, R.S.B.C. 1996, c. 223, provides:

(1.1)  A guardian may make a binding agreement for an infant,

(a)  if the agreement involves a
consideration not greater than $10,000, with the consent of the Public Guardian
and Trustee, or

(b)  in a case other than one referred to in paragraph (a),
with the approval of the court by order made on the petition of a party to the
agreement.

[13]       
The case law that addresses s. 40 of the Infants Act
generally pertains to settlement agreements, but that need not be so. It also
clearly extends to approval of contingency agreements or payment of counsel’s
fees; see e.g. E.B. v. Basi, 2012 BCSC 1550 at paras. 2, 35. Furthermore,
it is telling that s. 41(1) of the Infants Act provides:

(1)  Section 40 does not apply to
a lease, surrender or renewal of a lease referred to in sections 32 to 39.

[14]       
If it were manifest that the ambit of s. 40 was curtailed in some
specific fashion, or was limited to settlement agreements, there would be no
need for s. 41. Still further, I did not understand counsel for Mr. Dhaliwal
to argue that s. 40 did not, or could not, extend to the present agreement
made between Jorin’s guardian and Mr. Mills, Ms. Tessier, and the
Insurance Corporation.

[15]       
Accordingly, I do not consider that the usual admonition or caution that
“special circumstances” need be present before a court can order an advance is
relevant; Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 at para. 11
(C.A.). Further, I do not consider that I am limited, from a jurisdictional
perspective, from approving an order that is consented to by the only parties
that have any real interest in that order.

[16]       
I am prepared to make the order being sought, subject to the various
terms contained in the notice of application, and the revisions proposed by the
PGTBC in its letter to counsel dated September 22, 2014.

[17]       
Costs are to be in the cause.

[18]       
Anything arising that, counsel?

[19]       
MR. MACDONALD:  No, My Lord. I have a draft order here.

[20]       
THE COURT:  Thank you, counsel.

“Voith J.”