IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151023

Docket: 14-0946

Registry:
Victoria

Between:

Maureen Elworthy

Plaintiff

And:

Paul George Tillit
and
Ean Holdings LLC dba Enterprise Rent-A-Car

Defendants

Before:
Master Bouck

Ruling at Case Planning Conference

[1]            
This action is one of two personal injury claims brought by the
plaintiff. In this proceeding, the plaintiff is alleged to have been injured in
a motor vehicle accident on July 5, 2013. The other proceeding, Elworthy
v.Stewart, Victoria Registry no. 15‑2263, concerns injuries
suffered by the plaintiff on March 13, 2015, while operating a bicycle.
Liability, causation and the quantum of damages are contentious issues in both proceedings.

[2]            
A notice of case planning conference was taken out by the defendants in
each action with the conferences being conducted at the same time. The
defendant Ean Holdings LLC did not file a case plan proposal but
instead adopts the Tillit proposal. Indeed, the defendants in both actions are
largely in agreement on the procedural orders to be sought at the conference.

[3]            
This action is scheduled to proceed to trial for ten days commencing May
2, 2016. Plaintiff’s counsel has circulated a consent order that would allow
the two proceedings to be heard at the same time. The defendant Stewart refuses
to consent to the order unless the plaintiff agrees to a further order that all
evidence, including that given at examinations for discovery in each action, be
admissible in both actions.

[4]            
Although the plaintiff agrees that all admissible documents disclosed by
her in each action can be used in both actions, she will not consent to the
same relief with respect to the evidence given at examinations for discovery.
Instead, the plaintiff submits that each of the defendants ought to agree to
adopt each other’s discovery evidence.

[5]            
Each party made submissions on the factual and legal basis for their
respective proposals. The primary legal issue to be determined by the court is
whether the implied undertaking rule ought to be waived. No affidavit material
was relied on by any party as the facts spoken to by counsel are largely
uncontroversial. On the facts, the plaintiff submits that there is no
commonality between the actions, apart from the plaintiff’s indivisible
injuries.

[6]            
The defendant Stewart led the submissions on the law with references to
several common law authorities including Gill v. Gill, 2013 BCSC 2365.
In that case, the court decided that the implied undertaking rule could be
waived so that a transcript of the plaintiff’s examination for discovery in a
Part 7 action could be used in the plaintiff’s tort action, and vice versa.

[7]            
Although not precisely the same factual matrix as the case at bar, I
find that the legal analysis and result in Gill v. Gill should be
followed here. The same concerns raised by the plaintiff in this case were
considered and rejected by the court in Gill. Here, the issues of
causation and indivisible injuries provide the commonality between the actions.

[8]            
The defendants differ on the language to be used in this particular case
plan order. In my view, the appropriate language is that found in Peel v.
Western Delta, 2003 BCSC 784
at para. 30. The order pronounced is that the evidence that is otherwise
admissible and relevant, obtained at the examination for discovery in Victoria
Registry action no.14-0946 (either concluded or future) will be admissible both
in that action and in Victoria Registry action no. 15-2263 as if the evidence
had been obtained in the other action.

[9]            
With this order granted, it only makes sense to have the actions heard
at the same time subject to the direction of the trial judge. I so order. This
order will allow the plaintiff to file a notice of trial in the Stewart action.

[10]        
The defendant Stewart asks that the issuance of the notice of trial be
delayed pending the plaintiff’s examination for discovery in early November
2015. Before a notice of trial is issued, Ms. Jaeb wants the opportunity to
obtain instructions from her client on the length of trial and any pleading
amendments. The defendant Stewart seeks an order that his response may be
amended without the necessity of obtaining leave from the court. I decline to
impose any restrictions on the plaintiff’s issuance of the notice of trial in
the Stewart action. If the trial length becomes controversial, any party may
apply for an adjournment. Furthermore, on my reading of the Supreme Court
Civil Rules, no party is entitled to carte blanche on pleading
amendments.

[11]        
A case plan order reflecting these rulings should be drawn in each
action.

                     “C.P.
Bouck”                    

Master
C.P. Bouck