IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111202

Docket: S22959

Registry:
Chilliwack

Between:

Jagjeet Sandhu

Plaintiff

And

Davin Roy

Defendant

– and –

Docket: S21828

Registry:
Chilliwack

Between:

Jagjeet Sandhu

Plaintiff

And

Richard John
Blades and Margaret Joan Blades

Defendants

Before:
The Honourable Mr. Justice Grist

Reasons for Judgment

[1]            
The plaintiff, Jagjeet Sandhu, sues for damages in action S21828, the
first action, alleging he was run down by the defendant in a crosswalk on
November 6, 2008. The plaintiff asks for this action to be heard together with
the second action, S22959, brought in respect of a motor vehicle collision on
August 13, 2010. In the second action, the plaintiff pleads that he was injured
when his vehicle was rear-ended by a vehicle driven by one of the defendants to
that action.

[2]            
The application for consolidation is appropriate and consented to by the
counsel acting for the defendants in both actions.

[3]            
The plaintiff also applies for an order that the consolidated actions be
removed from Rule 15-1 of the Supreme Court Civil Rules which stipulates
rules for Fast Track Litigation, and for adjournment of the trial date set in
the first action, March 5-7, 2012.

[4]            
The defendants in both actions have denied liability and delivered Rule
15-1 Notices of Fast Track Action. Following delivery of the first Notice of
Fast Track Action, counsel for the plaintiff sent a number of letters to
counsel for the defendants objecting to the Notice. She contended that the
action now contested on liability and to be subject to consolidation with the
pending second action, was not appropriate for the fast track designation.

[5]            
The defendant did not reply to these letters objecting to the Fast Track
Notice and the next correspondence from counsel for the defendants was to
propose trial dates for a three-day trial. The plaintiff continued to object to
the fast track designation and argued that the three days proposed for the
trial of the anticipated consolidated actions was not appropriate in light of
the contests on liability. On April 8, 2011, counsel for the plaintiff proposed
a seven-day trial in July 2012.

[6]            
Not satisfied with this, on April 21, 2011, the defence set down the
March 5-7, 2012, trial dates unilaterally.

[7]            
Ultimately, plaintiff’s counsel set down a Case Planning Conference and
obtained leave to bring this application.

[8]            
Plaintiff’s counsel says that a quantum assessment likely can be done
within the three days set aside for trial. She intends to call the plaintiff,
the treating GP and a physiatrist. She also intends to call the plaintiff’s
wife and, potentially, three employers the plaintiff has worked for since the
first collision. If, however, she has to meet two cases on liability, she says the
trial time estimate is inadequate. She anticipates the trial will involve her either
calling the defendants, or cross-examining them if they are called by the
defence. She would also want to present evidence from an accident
reconstruction engineer. These additional elements of the case would require
more trial time than the three-days presently reserved. She says 5-7 days are
required.

[9]            
Defence counsel says that liability is “not seriously in dispute” and
that the three days set aside are sufficient. He says that he set down the
trial unilaterally because plaintiff’s counsel did not respond to his request
for dates for a three-day trial, and that even should the trial estimate be
insufficient and the present trial adjourned, a longer trial estimate alone
does not disentitle a party from giving a Fast Track Notice. The defence
position is that, as set out in Hemani and Hillard, [2011] B.C.J. No.
1924 (S.C.) [Hemani], Rule 15-1(1) is disjunctive in listing
characteristics which will allow for a party to give a Fast Track Notice, and
the fact the action is likely to take no more than three days at trial is not a
pre-condition for giving the Notice.

Analysis

[10]        
In my view, neither the Court nor a plaintiff can take notice of or rely
on an assurance that liability is “not seriously in dispute.” Litigation is
defined by the pleadings and the defences filed, in both cases, deny the facts
set out by the plaintiff as the circumstances of the two events founding the
lawsuits, and each defence alleges the plaintiff was solely at fault in a
number of enumerated ways.

[11]        
Plaintiff’s counsel has not given a specific accounting of hours for the
witnesses likely necessary to deal with the issues plead, but I find enough in
her material to conclude that three days will not be enough as the pleading now
stand. I agree that at least 5 days are required.

[12]        
The defendants’ point that the prerequisites for a Fast Track Notice are
listed disjunctively is sound. In Hemani, Master Bouck recognized the
disjunctive list of criteria in Rule 15-1(1), as allowing for a case requiring
more than three days to be set on Fast Track, and held that an action will not
be removed from Fast Track on an application under 15-1(6) for that reason
alone. Rule 15-1, however, presents something of a conundrum on the question of
removal of an action from Fast Track as a result of an estimated trial length
beyond three days. If the action proceeds to a Trial Management Conference,
Rule 15-1(14) applies:

If trial will require more than 3 days

(14)      If, as
a result of the trial management conference in a fast track action, the trial
management conference judge considers that the trial will likely require more
than 3 days, the trial management conference judge

(a)        may adjourn the trial to a date
to be fixed as if the action were not subject to this rule.

[13]        
In a case like this one, where only three days are set aside for trial
and the circumstances indicate that significantly more days are required, should
the matter proceed to a Trial Management Conference, the court would in most
cases be forced to require a second trial date be set, and may often be called
on to remove the action from the strictures of the Rule.

[14]        
In Hemani, the plaintiff set the proceeding for Fast Track and
the objection came from the defence. The plaintiff in that case was willing to
forego the extra costs of a trial exceeding three days. There is no mention of
a liability defence in Hemani and the concession likely was of some
singular significance. Here, the case was set on Fast Track by the defence and
plaintiff’s counsel, if forced to defend liability, wants to pursue the full
costs of the proceeding. Further, pleading a full defence while otherwise
taking an ambiguous position on liability does nothing to promote the
simplified procedure under Rule 15-1, or the Rule 1-3 general objective of promoting
a just, speedy and inexpensive determination of every proceeding.

[15]        
 I find 2 points of distinction between this application and the
decision in the Hemani action:

1)       In the Hemani case the
proceedings had not advanced to the stage of setting trial dates and there may have
been the prospect of simplification of the case before that step was taken,
whereas in this matter the actions as plead will not only require more than
three days, they are presently set for that inadequate length of trial and
subject to adjournment under Rule 15-1(14).

2)       Here the party
objecting to the Fast Track proceeding can demonstrate that significant costs
may be denied if forced into a longer trial than the 3-day costs provision
under Fast Track can compensate.

[16]        
I find merit in plaintiff’s application and would accede to the
adjournment of the trial and removal of the action from the Fast Track Program.
I consider, however, that the orders may not ultimately be necessary if
liability for the two collisions were to be admitted. Defence counsel should be
given the opportunity to re-assess his position once the effect of this
decision is known. Accordingly, I will stipulate that the two orders will
become effective should the liability issues not be settled within 14 days of
these Reasons.

[17]        
The consent order for consolidation will be granted and the plaintiff
should have the costs of this application in any event of the cause.

“W.G.
Grist J.”