IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151216

Docket: M116410

Registry:
Vancouver

Between:

S.H.

Plaintiff

And

A.M.

Defendant

Before:
The Honourable Madam Justice Burke

Oral Reasons for Judgment

[1]            
These are my oral reasons for judgment. I reserve the right to edit
these reasons, but the substance will remain the same.

introduction

[2]            
The parties have requested this matter be set down for hearing on a
point of law pursuant to R. 9-4 of the Supreme Court Civil Rules, B.C.
Reg. 168/2009. The matter arises out of a motor vehicle accident whereby the
defendant rear-ended the plaintiff’s vehicle on July 13, 2010, in Port Moody, B.C.

[3]            
The plaintiff says R. 9-4 “is designed to eliminate claims that have no
hope of success,” as noted in Larsen v. Larsen, 2004 BCSC 284 at para. 5.

[4]            
The
defence, which the plaintiff takes issue with and which is the subject of this
proceeding, is set out in the pleadings as follows:

2.         Due to the conditions beyond the control of the Defendant
and notwithstanding the exercise of all reasonable care and skill on the part
of the Defendant, the Defendant was unable to prevent the accident. Particulars
of this inevitable accident are:

[a]        the Defendant suffers from a psychiatric
condition and was suffering a psychotic episode at the time of the accident.

BACKGROUND

[5]            
The plaintiff takes no issue with any of the facts set out in the police
report, the defendant’s statements, his examinations for discovery, or the two
expert opinions he relies on in maintaining the disputed defence. The two
expert psychiatric opinions in support of his defence are authored by Dr. Cheng,
the defendant’s treating psychiatrist, dated September 3, 2013, and Dr. Levin,
dated October 13, 2013.

[6]            
The plaintiff maintains if the defendant wants to deny liability on the
basis of mental illness, the defence must prove that, as a result of mental
illness, either he had no capacity to understand or appreciate the duty of care
at the relevant time or he had no meaningful control over his actions at the
time the relevant conduct fell below the objective standard of care: Fiala
v. Cechmanek, 2001
ABCA 169.

[7]            
The
plaintiff has accepted the defendant’s position that as a result of mental
illness, he was unable to appreciate or discharge his duty of care at the time
of the relevant conduct, as he had no meaningful control over his actions. The
plaintiff’s focus in this application is whether the onset of the incapacity to
control his actions was foreseeable and reasonable steps could have been taken
to prevent that, as per Fiala and Hagg v. Bohnet (1962), 33 D.L.R.
(2d) 378 (B.C.C.A.).

[8]            
The plaintiff relies in particular on Wenden v. Trikha, 1993 CarswellAlta 528
at para. 17 (C.A.), leave to appeal ref’d [1993] S.C.C.A. No. 126, as
follows:

[17]      In order to succeed,
the patient would have to prove a sudden reversal of facts. First, he would
have to prove that when he was well enough mentally that he could be liable for
negligence, he had no reason to foresee any danger from his possessing an automobile
or car keys or not taking his medication. Then he would have to prove a sudden
change in condition, his suddenly becoming too insane to be liable for
negligence, and that that condition continued without let-up until the time of
the collision. If he did not prove the first item, then he would be
negligent in having let himself slip into Insanity while having access to an
automobile (or vice versa). If he did not prove the second item, then the
defence of insanity would simply be irrelevant. It does not seem to us that
either was proved here. [Emphasis added.]

[9]            
The plaintiff essentially says there is ample evidence the defendant had
reason to foresee danger from his possessing an automobile or car keys or not
taking his medication. He had prior symptoms in September 2009, which resulted
in his driving privileges being revoked, as per Dr. Cheng’s report at p. 4.
These same symptoms resurfaced shortly before the accident.

[10]        
The
plaintiff reviewed the discovery evidence to argue the defendant was evasive on
the point as to whether he did not return to work as a taxi driver because of
his symptoms. The plaintiff says, however, the defendant admits this later in
his discovery. The plaintiff says the defendant was weaned over time from his
medication under the guidance of Dr. Cheng but told to report back if the
symptoms returned, and the defendant understood this.

[11]        
The plaintiff says at least four to five days before the accident, the
defendant had a period where he felt the return of symptoms, but not to the
point they overwhelmed him. The plaintiff says he was therefore in a position
where he should have reported those symptoms to his doctor and received
treatment, which would have prevented this accident. Accordingly, the plaintiff says by any
objective standard, the defendant failed to prove he had no reason to foresee
any danger.

[12]        
In
response, the defendant relies on his lack of insight as excusing him for not
recognizing his symptoms were signs of mental illness or that he should have
foreseen his relapse into psychosis and taken steps to prevent it. The
plaintiff, essentially, however, argues the discovery admissions refute such
claims and inconsistencies exist in the expert reports, such that the defence
should be struck from the defendant’s response to claim.

THE APPLICATION

[13]        
Rule 9-4 reads as follows:

Point
of law may be set down for hearing

(1) A point of law arising from the pleadings in an action
may, by consent of the parties or by order of the court, be set down by
requisition in Form 17 for hearing and disposed of at any time before the
trial.

Court
may dispose of whole action

(2) If, in the opinion of the
court, the decision on the point of law substantially disposes of the whole
action or of any distinct claim, ground of defence, set-off or counterclaim,
the court may dismiss the action or make any order it considers will further
the object of these Supreme Court Civil Rules

LEGAL PRINCIPLES

[14]        
Rule 9-4 is limited in its application. The jurisprudence establishes
the Rule is confined to points of law arising from the pleadings. Contested
facts or the need to weigh evidence prevent recourse to this Rule. This was
made clear in Golden Gate Seafood (Vancouver) Co. v. Osborn & Lange Inc.
(1986), 1 B.C.L.R. (2d) 145.

ISSUES

(1)           
Can this matter be determined without the need to weigh evidence or deal
with contested facts?

(2)           
If so,
is the defence of “inevitable accident” based on the defendant’s mental
condition maintainable in this case?

Issue One: Can this matter be determined without the need to weigh evidence
or deal with contested facts?

[15]        
The parties have agreed the application is to proceed on the basis the
plaintiff takes no issue with the facts and opinions set out in the material.
As noted earlier, those opinions include two expert psychiatric opinions.

[16]        
The
parties also essentially agree the legal analysis for the determination of
whether a person with a mental illness is liable for negligence includes
whether the act was a conscious act of the defendant and whether the onset of
the incapacity to control his or her actions was foreseeable and reasonable
steps could have been taken to prevent it: Hagg; Fiala.

[17]        
The nub
of the dispute between the parties is whether the nature of the defendant’s
paranoid schizophrenia was such that when he began to experience signs of psychosis,
he had the capacity to discern they were signs of his mental illness and
thereby had a foreseeable duty to prevent the onset of the psychotic episode.

[18]        
In
making the argument on this point, the defendant points to both of the
psychiatric reports, arguing the loss of insight is a hallmark of a major
mental illness such as schizophrenia and deprives an individual of knowing he
or she is ill. As per Dr. Levin’s report, it is difficult to assess the
degree of the defendant’s remission of psychotic symptoms, as he did not have
adequate insight into his condition. He still had underlying beliefs and a
preoccupation with aliens and conspiracy by aliens.

[19]        
Dr. Cheng
opines the defendant likely began losing insight between 5 and 13 days prior to
the accident. He also opines the defendant may have been suffering from a more
severe and persistent mental illness than the early prevention intervention program
was aware of at the time. This, Dr. Cheng opines, would cause a more
pronounced lack of insight into his illness, causing under-reporting or denial
of symptoms.

[20]        
The
plaintiff argues this is not the case. She points to the discovery admissions of
the defendant particularized in arguments that refute this claim. They establish
the defendant had a period of four to five days before the accident where he felt
the return of the symptoms, but not to the point they were overwhelming him.
The plaintiff argues, by any objective standard, the defendant has failed to establish,
on balance, that he had no reason to foresee any danger or that his step back
into symptoms was so sudden and continued without let up until the accident.

[21]        
The
plaintiff relies upon Hagg to argue the expert opinions must be
considered in light of all the other evidence, particularly that of the individual.
Judgment is a relative faculty and impairment is variable in degree.
Essentially, the plaintiff asks that I conclude, on the basis of the discovery
transcripts and the inconsistencies in the expert reports, that the defendant
did understand the duty to take care, which rested upon him.

[22]        
The
defendant disagrees with the interpretation of the expert reports and maintains
inconsistencies do not exist in Dr. Cheng’s report. Furthermore, the
defendant says the plaintiff overstated the discovery evidence concerning
whether he knew he should not drive.

[23]        
A review
of the judgment in Hagg is helpful in understanding what is needed to
come to a conclusion in this matter. At 390-91 of that judgment, while not
deciding the matter, the BC Court of Appeal states:

I find it unnecessary to
consider whether, as seems to be indicated in Roach, J.A.’s judgment in Buckley
& T.T.C. v. Smith Transport Ltd., a driver whose mind is so ravaged by
disease that he does not understand the duty which rests upon him to take care,
as distinct from one who is prevented from discharging that duty, cannot be
held liable for his acts and omissions in the course of his driving. I reserve
this for some future occasion. I am unable to find evidence establishing,
directly or by reasonable inference, that the appellant in the case at bar did
not understand the duty to take care which rested upon him. Likewise, I reserve
until the occasion arises the question whether insanity which does not result
in impairment of faculties and judgment to the full extent I have mentioned
will provide a defence to an action for negligence.

[24]        
The question I am in essence being asked to decide is whether the
defendant in this case had “a mind so ravaged by disease that he does not
understand the duty which rests upon him to take care, as distinct from one who
is prevented from discharging that duty.” In the former, the individual cannot
be held liable for his acts and omissions in the course of driving.

[25]        
It is
apparent to me that in order for a conclusion to be reached on this point, I
must weigh the evidence. The plaintiff argues the onset of the psychiatric
condition was foreseeable and reasonable steps could have been taken to prevent
it. The plaintiff asks me to reach that conclusion after reviewing the
discovery evidence and contrasting it with the psychiatric opinions. The
plaintiff also points to what she maintains is inconsistencies, in particular
in Dr. Cheng’s report, on the question of whether the defendant had
periods of lucidity where he knew or should have known that he should have
taken steps to ensure his psychotic state did not happen or that he should not
get in the car, as per the situation in Wenden. He also contrasts portions
of Dr. Levin’s report on the basis of his conclusion on this point and refers
to a time subsequent to the accident.

[26]        
All of
this makes clear I am being asked to weigh the evidence in order to come to a
conclusion as to whether the defendant understood the duty that rested upon him
to take care. In my view, that is not something that can be done under R. 9-4.
This Rule is reserved for the determination of points of law without the need
to weigh evidence.

[27]        
I note
further the inconsistencies that are pointed to could well be explained by
testimony of the experts. The discovery evidence in isolation is difficult to
reconcile with the differences between the parties. It is very difficult in
these circumstances to come to the conclusion on the evidence on this basis. In
my view, this is more appropriately left to the trial judge to determine.

[28]        
As noted
in Larsen, R. 9-4 can be used where the point of law arises on the
pleadings and can be determined without hearing evidence. While the plaintiff
says the facts in the pleadings are not in dispute, the reality is a conclusion
on a crucial point in this litigation can only be reached by weighing the
evidence provided in the affidavit material. This is not consistent with the
comments in Larsen and Golden Gate Seafood.

[29]        
While I
am sympathetic to the concern of costs of a 10-day trial raised by the parties,
I also note this is an important issue with far-reaching consequences. Jurisprudence
has been cited to me from Alberta and other jurisdictions. It has not, however,
been definitively dealt with in the B.C. courts. I also note it may be that the
parties are able to reach agreements on the evidence such that only the points
of contention are proffered for testing in a trial setting.

[30]        
The
application is therefore dismissed.

[31]        
In
closing, I thank counsel for their thorough and helpful submissions in this
matter.

“Burke J.”