IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150105

Docket: M133324

Registry:
Vancouver

Between:

Christine
Mocharski

Plaintiff

And

Quang Minh Ly, Thi
Muoi Mot Thi,
and Louise Isidore Paul Mocharski
and Rene Hahn

Defendants

Before:
Master Harper

Oral Reasons for Judgment

In
Chambers

[1]           
THE COURT: The plaintiff makes three applications today. The
first is that the defendants amend their response to civil claim; the second is
that the defendant Ly submit to a further examination for discovery and answer
particular questions; and third, that the defendants Ly and Mocharski provide
particulars in response to demands issued by the plaintiff.

[2]           
The action arises out of a motor vehicle accident involving the
plaintiff in 2011. It was a multi-vehicle accident. One lawyer was appointed to
represent all defendants, and a global admission of liability was made on
behalf of all defendants.

[3]           
I will first deal with the application for an order that the defendants
amend their response to civil claim.

[4]           
The notice of civil claim sets out the facts, in the plaintiff’s view,
of the circumstances of the accident. Paragraph 6 of the notice of civil claim
states as follows:

6. On or about the 26th day of
May, 2011 at or near the intersection of Fleming Street and 33rd Avenue, in the
City of Vancouver, in the Province of British Columbia, a collision occurred
between a motor vehicle driven by the Defendant Mocharski, in which the
Plaintiff was a passenger, a motor vehicle owned by the Defendant Ngo and
driven by the Defendant Ly. Because of the severity of the impact by the
Defendant Ly’s vehicle upon the vehicle operated by the Defendant Mocharski,
the Defendant Mocharski’s vehicle was spun into the Defendant Hahn’s parked
motorhome on East 33rd Avenue facing East, in the City of Vancouver, in the
Province of British Columbia. This motorhome owned by the Defendant Hahn was
parked within the T‑intersection of Fleming Street and 33rd Avenue. Further,
following this impact, the Defendant Ly, having exited his vehicle, this now
unoccupied vehicle rolled into the Defendant Mocharski’s vehicle causing
another impact to the Defendant Mocharski’s vehicle while the Plaintiff was
still sitting inside the vehicle.

[5]           
In their amended response to civil claim filed September 3, 2014, at
para.1 in Division 2 – Defendants’ Version of Facts, the defendants say:

1. The Defendants, admit for the
purposes of this action only, that a collision occurred on or about May 26,
2011 at or near the intersection of 33rd Avenue and Fleming Street, in the City
of Vancouver, British Columbia, and that it was the negligence of the Defendants
that caused the collision to occur, but denies [sic] that the Plaintiff
sustained any injury, loss, damage or expense as a result thereof.

[6]           
In submissions, it became clear to me that the only real issue with
respect to the response to civil claim was this para. 1 of Division 2 of
the amended response to civil claim.

[7]           
Pleadings, of course, are important, and notwithstanding the fact that
liability has been globally admitted, there is an issue with respect to
causation of the plaintiff’s alleged injuries. The defendants deny that the
plaintiff was injured at all, and the plaintiff takes the position that the
facts of the various impacts are relevant, insofar as determining how the
plaintiff was injured.

[8]           
I agree with that submission of the plaintiff and I make an order
that the defendants amend para. 1 of Division 2 of the amended response to
civil claim to provide the information required pursuant to Rule 3-3(2)(i) of
the Supreme Court Civil Rules.

[9]           
I want to make it clear that it is obviously the facts of the accident
that are relevant here, not liability.

[10]       
I will now deal with the issue concerning the examination for discovery
of the defendant Ly.

[11]       
Counsel for the plaintiff asked the defendant Ly various questions
concerning the accident. Unfortunately, the way the questions were asked would
raise an inference that the plaintiff was really trying to get at liability,
which was already admitted, and counsel for the defendant Ly objected to
questions that would go to liability. For instance, the defendant Ly was asked
a question along the lines of, “Did you do anything that caused the collision?”
That is not an appropriate question where liability has been admitted. However,
a general question, such as, “Tell me in your own words how the accident
occurred”, is an appropriate question because it gets to the facts of the
accident. While this is a broad question, presumably follow-up questions would
be asked so that further details of the accident could be elicited from the
defendant.

[12]       
The examination for discovery of the defendant Ly was adjourned very
shortly into the discovery because of a concern about the nature of the
questions being asked.

[13]       
The defendants relied on Joy v. Atkinson, 2009 BCCA 230, a case
that had to do with submissions being made in front of the jury about the
liability of the defendant when the defendant had admitted liability. The
purpose of the inflammatory remarks was to create sympathy for the plaintiff.

[14]       
The facts in Joy are different from the facts before me, because
statements made to a jury are different from questions being asked at an
examination for discovery, although the principle is really the same. It is not
fair to Mr. Ly to have him answer questions which go to establishing his
liability or fault for the accident when liability has already been admitted on
his behalf. It looks like badgering, it does not help the plaintiff, and it is
not fair to Mr. Ly.

[15]       
The causation of the alleged injuries is relevant and the dynamics of
the collision are therefore relevant. I am advised in submissions that
there were in fact three impacts amongst the various vehicles. I think it
is relevant for the plaintiff to explore the accident dynamics and, to put it
in the vernacular, what happened to which vehicle at which point in time.

[16]       
Therefore, I will make an order that the defendant Ly submit to a
further examination for discovery and answer questions which go to the facts of
the accident, but not to liability. Counsel for the plaintiff will have to be careful
when crafting his questions in order not to violate this order.

[17]       
I am turning now to the application for particulars.

[18]       
In this case, there was a blurring of the distinction between
particulars and evidence. I am going to go through the demand for
particulars and give my decision on a line-by-line basis.

[19]       
The first demand is for particulars of how the accident occurred.
I am dismissing that application because it is addressed in the order
I have just made requiring the defendants to amend their response to civil
claim.

[20]       
The next demand is for particulars of the allegations that the plaintiff
failed to wear, to properly adjust, and to fasten securely the complete seat
belt assembly. I am dismissing that application. The pleading contains the
facts. The facts might not be found to be the case at trial, but the demand for
particulars is really a demand for evidence, which is not the proper use of
particulars.

[21]       
The next demand is for particulars of the allegations that the plaintiff
failed to properly adjust the headrest device. I make the same ruling as
I did with respect to the seat belt. The response to civil claim sets out
a fact. Again, it might not be a fact that is accepted at trial. The request
for particulars is really a request for the evidence that the defendants have
that the plaintiff failed to properly adjust the headrest device, and evidence-gathering
is not a proper use of a demand for particulars.

[22]       
The next demand is for particulars of the allegation that the plaintiff
failed to follow medical advice in respect of treatment or exercise. Counsel
for the plaintiff says that clinical records have been provided and the
plaintiff has provided evidence at a full-day examination for discovery, so the
defendants should be in a position to provide particulars of these allegations.
In my opinion, that is not the end of the story, since the defendants would
need to know what the medical advice was that they are alleging that the
plaintiff failed to follow.

[23]       
The affidavit evidence in this application was deficient, but I assume
that medical expert reports have not yet been provided because the trial is not
until 2016. I will adjourn generally the application for the particulars
of the allegations that the plaintiff failed to follow medical advice in
respect to treatment or exercise, with liberty to reapply.

[24]       
The next demand is for particulars of the previous and/or subsequent
accidents, injuries, or conditions involved or affecting the plaintiff, or
congenital defects and/or pre-existing injuries or conditions alleged. We know
from the particulars provided by the plaintiff that she alleges an aggravation
of a pre-existing injury. Therefore, it is clear that there are pre-existing
injuries. Counsel for the plaintiff correctly argues that the plaintiff’s
original position is the condition that existed at the time of the accident. However,
it remains to be seen whether her pre-existing condition was active and
debilitating at the time of the accident or not. I have no information in
front of me concerning that. Therefore, I am going to make the same order
as I did with the immediately preceding application, which is to order
that the application for the particulars of the allegation be adjourned
generally with leave to the plaintiff to reapply.

[25]       
To summarize the issue concerning particulars, as Madam Justice
Arnold-Bailey said at para. 28 in Gulamani v. Chandra, 2009 BCSC
1487, “… the decision to order particulars is extremely discretionary and
heavily fact dependent.” In this case, I have found that statement to be
particularly appropriate.

[26]       
It was clear in the Gulamani decision that there were several pre-trial
applications made on various subjects. At para. 37, Madam Justice
Arnold-Bailey cites paras. 7 and 8 of Cominco Ltd. v. Westinghouse Canada
Ltd.(1978), 6 B.C.L.R. 25 at 27 (S.C.), where Mr. Justice Bouck said:

[7] Occasionally parties can get caught up in the fascination
of the interlocutory process and lose sight of the fact that some day the
matter must go to trial even though a “perfect” framework does not exist for
its presentation. Sometimes as well one side or the other is merely replying to
the overzealousness of his opponent and motions or their opposition are meant
to let one another know it will be a long hard fight.

[8] I mean no criticism of
counsel by these remarks. They are honestly trying to pursue every recourse for
the benefit of their respective clients. That is their right and their duty.

[27]       
 All I can say about that quotation from Mr. Justice Bouck in
the present case is that, although the response to civil claim in this case was
generic and somewhat deficient and counsel for the defendants probably should
not have taken such serious objection to the examination for discovery, there
was perhaps a little bit of overkill in the way these applications were
pursued.

[28]       
I mean no criticism of counsel, but it does seem to me that somehow
the heat of battle has caused counsel’s temperature to rise. I hope
I have made some practical decisions here that will assist the parties in
moving forward, and I hope that further applications will not be
necessary.

[29]       
My closing remark is that I do not see any real victor in this
application. I see it pretty much as a draw, and therefore, I am not going
to make any order as to costs.

[30]       
MR. VON ANTAL:  Your Honour, there is one point that I should make,
and I note it arises in my material. I had sought that each party
bear its own costs of the discovery that had taken place or the next — one of
the discoveries that is now admittedly going to result in an order for costs,
we are going to have separate orders regarding one discovery, so I had
sought that one of those be borne by the parties. I appreciate that there
is some divided success here today and so I just want to point out that
I have put that out there, and I am in the court’s hands in that
regard, but it is an issue that will arise at the end of the day when costs are
pursued.

[31]       
THE COURT:  Right, so the costs of this application do not include the
disbursements for any discoveries, and I think you are going to have to
deal with that in terms of costs of the overall action, when the case is
concluded.

[32]       
MR. VON ANTAL:  Good, thank you.

[33]       
THE COURT:  And see where the chips fall when the case is concluded. So
I am not including any disbursements about discoveries at this point.

“Master Harper”