IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Carson v. Stucchi, |
| 2015 BCSC 2309 |
Date: 20151210
Docket: M112757
Registry:
Vancouver
Between:
Galen Carson
Plaintiff
And
Andrea Gianna
Stucchi and
Mohsen Safari
Karahroudi
Defendants
– and –
Docket: M116773
Registry:
Vancouver
Between:
Galen Carson
Plaintiff
And
City of Vancouver,
Constable Marynick, Constable Stewart and
John Doe #3
Defendants
Before:
Master Muir
Reasons for Judgment
Counsel for the plaintiff in both actions: | R.L. Gantzert |
Counsel for the defendants in Vancouver Registry Action | D. Lavoie |
Counsel for the defendants in Vancouver Registry Action | F. LeTourneux |
Place and Date of Hearing: | Vancouver, B.C. November 26, 2015 |
Place and Date of Judgment: | Vancouver, B.C. December 10, 2015 |
introduction
[1]
This is an application for an order that this action (the first
action) and the Vancouver Registry Action S116773, Carson v. City of
Vancouver, Constable Marynick, Constable Stewart and John Doe #3 (the
second action) be tried at the same time and before the same trial judge.
[2]
Both the plaintiff and the defendants in the second action oppose the
application.
Background
[3]
In the first action, the plaintiff claims damages for injuries allegedly
resulting from two motor vehicle accidents that occurred on June 5, 2009 and
October 12, 2009.
[4]
The plaintiff claims to have suffered soft tissue injuries to his neck
and back as a result of the first accident that were aggravated by the second
accident.
[5]
Liability is denied for both accidents, however, I am advised that both
were rear-end type accidents and that liability is unlikely to be much of an
issue.
[6]
Discovery of the plaintiff in the first action is complete and trial is
scheduled to commence February 15, 2016 for 10 days.
[7]
In the second action, the plaintiff claims damages for injuries
allegedly resulting from an incident with the Vancouver Police on July 9, 2011,
where the plaintiff says he was assaulted and wrongfully arrested.
[8]
As a result of that incident, the plaintiff claims to have suffered
numerous injuries which include injuries to his neck and back and also:
a) concussion or
traumatic brain injury,
b) post-concussion
syndrome,
c) generalized
bruising, scrapes and cuts,
d) injury to his
face, forehead and nose,
e) distress,
anxiety, depression, humiliation and mental anguish,
f) loss
of reputation and dignity,
g) loss of
enjoyment of life,
h) increased
susceptibility to early death,
i) fear
and paranoia of the police,
j) post-traumatic
stress disorder,
k) sexual dysfunction
and lack of desire to pursue intimate and personal relationships,
l) confusion,
disorientation, nausea,
m) insomnia,
n) severe
nosebleeds,
o) photophobia and
agoraphobia,
p) amnesia,
q) floating spot in
eye,
r) headaches,
s) intolerance to
stress, sound, emotion and alcohol,
t) loss
of ambition to study and seek a gainful career, and
u) increased
susceptibility to future injuries.
[9]
There have been no examinations for discovery in the second action and
no trial date is set. Despite its age, the second action has not been pursued
beyond basic first steps.
[10]
As a result of his injuries, the plaintiffs position is that he will
never work again. His damages, if he is successful, are likely to be large. Presently,
he is not working and is living on a disability benefit.
[11]
By a letter dated March 25, 2015, counsel for the defendants in the
first action sought the consent of counsel for the plaintiff and counsel for
the defendants in the second action to have the two actions tried together.
[12]
Counsel for the plaintiff immediately advised that that was opposed. Counsel
for the defendants in the second action as well immediately advised not only
that that was opposed, but also that he was not available for the dates set for
trial in the first action.
[13]
Between November 18 and November 20, 2015, the plaintiff served all of
his expert reports in relation to the first action, in accordance with the Supreme
Court Civil Rules.
[14]
It is clear that, if the order sought is granted, the trial presently
scheduled in the first action will have to be adjourned.
Analysis
[15]
There is no dispute as to the proper legal test to be applied. It was
set out in Robak Industries v. Gardner, 2006 BCSC 1628 as follows:
[2] The parties agree that my decision is a
discretionary one to be exercised after weighing the factors set out in Merritt
v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 at 282 (B.C.S.C.). In Merritt,
supra, Master Kirkpatrick, as she then was, set out these two tests to
be met for separate actions to be heard together:
1. Do the
pleadings disclose common claims, disputes and relationships between the
parties?
2. Having
regard to matters outside the pleadings, are the claims so interwoven as to
make separate trials at different times before different judges undesirable and
fraught with problems and economic expense?
[3] If the first test is passed then I must go on to
consider the second test and specifically whether:
1. the order sought will
create a saving in pre-trial procedures;
2. there
will be a real reduction in the number of trial days taken up by the trials
being heard at the same time;
3. there
is a 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;
4. there
will be a real savings in experts time and witness fees;
5. one of
the actions is at a more advanced stage than the other;
6. the
order will result in a delay of the trial of one of the actions and, if so,
whether any prejudice which a party may suffer as a result of that delay
outweighs the potential benefits which a combined trial might otherwise have;
and
7. there is a substantial risk
that separate trials will result in inconsistent findings on identical issues.
[16]
The defendants in the first action submit that there is sufficient
commonality between the two actions that the first test is passed.
[17]
They point to expert evidence of the alleged cumulative effects on the
plaintiff of the motor vehicle accidents and the Vancouver Police incident.
[18]
They argue that the injuries allegedly suffered by the plaintiff are so
interwoven as to make separate trials at different times before different
judges undesirable and fraught with problems and economic expense. They point
out that, otherwise, the plaintiff will be required to give similar evidence at
each of the trials with the potential for inconsistent findings.
[19]
The defendants in the first action rely on the Court of Appeal decision
in Bradley v. Groves, 2010 BCCA 361 at paras. 32, 34 and 37 for the
proposition that, if the plaintiff is successful in proving indivisible
injuries resulting from the motor vehicle accidents and the Vancouver Police
incident, the plaintiff will be entitled to recover all of his damages from the
defendants in the first action.
[20]
As a result, the defendants in the first action claim that they will
suffer serious prejudice if the matters are not heard together. They argue
that if the plaintiff is successful and the actions are heard together, the
court can apportion the respective liabilities of all of the defendants. Otherwise,
the defendants in the first action will have to bring a separate action for
contribution and indemnity from the defendants in the second action raising the
potential for inconsistent verdicts.
[21]
I am not convinced that the commonality between the two actions is
sufficient to warrant the order sought. The second action deals with
allegations of false arrest, false imprisonment, intentional battery, gross
negligence, willful misconduct and breach of duty. That is a far cry from the
two rear-end motor vehicle accidents being dealt with in the first action.
[22]
Even assuming, however, that the first test is passed, I do not agree
that this is a proper circumstance for the exercise of the discretion to order
the two actions to be tried at the same time.
[23]
While the potential for inconsistent verdicts and inconsistent findings
of fact is a concern, it is only one factor to be considered.
[24]
Further, I am satisfied that the overlap between the injuries alleged in
this action and those in the second action is limited. The plaintiffs evidence
in this action will be directed to the alleged neck and back injuries. They are
but a small component of the injuries alleged from the Vancouver Police incident.
Thus, the risk of inconsistent findings is small.
[25]
Looking at the other factors, however, weighs heavily in favour of the
position of the application respondents.
[26]
There will be limited saving in pre-trial procedures as much of the
evidence to be canvassed is quite different.
[27]
For the same reason, I doubt that there would be a significant saving in
trial days.
[28]
There will be inconvenience to the defendants in both actions in having
to sit through parts of the trial in which they have no interest, being the
liability portions of both actions and a large damages component of the second action.
[29]
There is unlikely to be a saving in experts fees, as the order sought
would require an adjournment of the trial, likely meaning the reports already
produced will be outdated at the time of the new trial. Further, I assume
additional expert evidence will be required in support of the allegations of
injury that are specific to the second action.
[30]
The defendants in each action are unlikely to benefit from a savings by
using the same experts as they will each be trying to apportion blame to the
other. They will presumably retain separate experts to advance their position
in that regard.
[31]
The first action is significantly more advanced than the second action
and the plaintiff will suffer considerable prejudice in not having the first
action proceed to trial in February, 2016. As noted, the plaintiff is no longer
working and is living on a disability benefit. There would be delay in recovery
of any damages that he might be entitled to and there will be costs of trial
preparation that will be wasted.
[32]
Added to this is the unexplained delay on the part of the defendants in the
first action in making this application. The motor vehicle accidents occurred
in 2009. Examination for discovery of the plaintiff was conducted by counsel
for the defendants in the first action in November 2013 and questions were then
asked about the Vancouver Police incident. It was in March 2015 that counsel
for the defendants in the first action sought consent to having the actions tried
together. Even if there was a more compelling case for having the two actions heard
together, in my view, this delay would weigh heavily against the defendants.
conclusion
[33]
As a result, the application of the defendants is denied.
[34]
The plaintiff will have his costs in the cause. The defendants in the
second action will have their costs of this application payable forthwith.
Master Muir