IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160315

Docket: M103503

Registry:
Vancouver

Between:

James Harder

Plaintiff

And

Lee Poettcker

Defendant

Before:
The Honourable Mr. Justice J. Sigurdson

Reasons for Judgment

[1]           
On March 1, 2016, on the defendant’s application, I granted a temporary
stay of my order of November 26, 2015 [2015 BCSC 2180] pending a decision from
the Court of Appeal on the defendant’s appeal (CA 43352). These are the reasons
I said I would deliver subsequently.

[2]           
By way of brief background, in this civil jury trial, I decided that the
jury verdict was in conflict and judgment could not be entered. In the particular
circumstances, given the consent of the party seeking the jury trial, the
plaintiff, I decided I could decide the issues of liability and damages arising
from the motor vehicle collision that occurred in a parking lot on February 13,
2009.

[3]           
The defendant’s application was for a temporary stay of my decision to
decide those issues pending the determination of the appeal. On appeal, the defendant
seeks an order that judgment be entered in accordance with the jury’s verdict
apportioning negligence between the plaintiff and defendant at 85% and 15%
respectively and that the question of damages be assessed after a further trial
by jury. Alternatively, the defendant says that if on appeal the jury verdict
on liability cannot be entered, then there should be a retrial on both
liability and damages before a jury.

[4]           
The defendant’s central point underlying his application for a temporary
stay is that if he succeeds on either position on appeal and in the meantime I issue
reasons for judgment on liability and damages, there is a potential for
conflicting, embarrassing or purely hypothetical judicial decisions.

[5]           
In this case, the application for a temporary stay was opposed by the
plaintiff.

[6]           
Counsel agreed that I have jurisdiction to grant a stay of proceedings
before me. It is clear that the court has inherent jurisdiction to temporarily
stay proceedings (Zurich Indemnity Co. of Canada v. Western Delta Lands Inc.
(1997), 38 B.C.L.R. (3d) 273) (C.A.), leave to S.C.C. refused, [1997] S.C.C.A. No. 469).

[7]           
Section 8(2) of the Law and Equity Act, R.S.B.C. 1996, c. 253.
provides:

8(2)
Nothing in this Act disables the court from directing a stay of proceedings in
a cause or matter pending before it, if it thinks fit.

[8]           
In Mayer v. Mayer, 2011 BCCA 290, the court emphasized the role
of the trial judge in managing the proceedings still before the trial court. In
that case, the Court of Appeal rejected an application to it by the appellant
for an order staying proceedings at the trial level pending the disposition of
appeals from orders made by the case management judge. In doing so, the court
stated:

[12]      … We must respect the
right of the judges of the Supreme Court to manage their business and, except
perhaps in highly unusual circumstances, should confine our intervention to
review of past errors rather than attempt to prevent possible future errors. …

[9]           
In deciding whether to grant a temporary stay, the appropriate approach as
noted in Mayer should be whether the three-part test referred to in RJR-MacDonald
Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, is satisfied by the
applicant:

… First, a preliminary
assessment must be made of the merits of the case to ensure that there is a
serious question to be tried. Secondly, it must be determined whether the
applicant would suffer irreparable harm if the application were refused.
Finally, an assessment must be made as to which of the parties would suffer
greater harm from the granting or refusal of the remedy pending a decision on
the merits. …

[10]       
I agree with the submission that the use of the temporary stay is
exceptional, that the burden is on the applicant to show that the circumstances
justify a temporary stay, and that the exercise of the jurisdiction should be done
cautiously after a consideration of all relevant factors: see for example my
comments to this effect in Peh v. The Owners, Strata Plan LMS 3837,
2008 BCSC 291, paras. 60-63.

[11]       
Counsel referred me to the judgment in Garber v. Canada (Attorney
General), 2014 BCSC 835, where the court was asked to stay three
proceedings where there was a similar proceeding attacking the
constitutionality of laws and regulation affecting the use of medical marijuana.
The court said that in considering whether to grant a stay it ought to consider:
(a) whether the result in the related proceedings could effectively
resolve the litigation; (b) whether the stay will promote judicial economy
and efficiency by avoiding unnecessary and costly additional expenditures of
judicial and legal resources; (c) whether the stay sought is temporary or
permanent; (d) the length of delay caused by the temporary stay relative
to the length of time of the litigation in general; and (e) the risk of
inconsistent judgments.

[12]       
The plaintiff pointed out, as was also suggested in Garber, that in
the exercise of its discretion the court should also consider “other factors,
including fairness and prejudice, the balance of convenience, and the
appropriate conduct of the parties”.

[13]       
I think that these are all relevant considerations and form part of the
balance of convenience in the exercise of my discretion.

[14]       
First, I think that there is a fair question to be tried. The
defendant’s position on appeal that I do not have jurisdiction under the
relevant rules to decide the questions of liability and damages in light of the
jury verdict is not frivolous. Second, I think that there is potentially
irreparable harm if I do not grant the stay as there exists the possibility of
inconsistent or hypothetical decisions in the event that I decide the questions
of liability and damages, and either of the orders sought by the defendant on
appeal is granted. I think that this consideration is similar to the court’s concern
about avoiding inconsistent verdicts in parallel proceedings. It is potentially
embarrassing if the Court of Appeal upheld the jury verdict on liability and ordered
a new trial on damages and in the interim I issued reasons on those issues
that are inconsistent (see for example Roeder v. Lang Michener Lawrence
& Shaw et al., 2004 BCSC 80).

[15]       
As to the balance of convenience, including a consideration of the other
factors I have set out above, I am satisfied that the circumstances indicate
that a stay is appropriate. If the plaintiff succeeds on appeal, there should
be minimum delay in the judgment on liability and damages being issued. If I
issue reasons now, presumably that will result in a further appeal until the
instant appeal is determined which will increase rather than decrease costs. I
appreciate that the plaintiff and the defendant have gone to some work
preparing additional briefs following my November 2015 reasons, but if the
plaintiff succeeds on the appeal, that time and effort will not be wasted. I
have also considered that delay in the context of the delay in this matter
coming to trial and in my view it is not a factor that weighs against granting
a stay.

[16]       
I am satisfied, considering all of the factors, that the balance of
convenience justifies the granting of a temporary stay.

[17]       
In the circumstances I have decided that I will grant the stay on the
condition that the defendant proceeds expeditiously with the appeal. If he
fails to do so, I will entertain an application by the plaintiff to set aside
the stay.

[18]       
As to costs, the plaintiff says that the delay in bringing this
application should at least result in costs relating to the preparation of
further briefs following my November 2015 reasons being borne by the defendant.
Upon a consideration of all the circumstances, I disagree. Given the delay in
this matter, which is at least a shared responsibility, I think the appropriate
order is that costs of this application be in the cause.

“The Honourable Mr. Justice J. Sigurdson”