IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120720

Docket: 17406

Registry: Cranbrook

Between:

Wesley Moll

Plaintiff

And:

Narinder Singh Parmar

Defendant

Before: The Honourable Mr. Justice
Abrioux

Oral Reasons for
Judgment

I         INTRODUCTION

[1]            
This is an application by the defendant before me in my capacity as the
assigned trial judge not to admit into evidence the report of the economist,
Robert Carson, dated June 28, 2012, served July 3, 2012. The defendant opposes
the admissibility of Mr. Carson’s report on the following basis. First, it was
not served within the time limits for serving expert evidence as per R. 11-6(3)
of the Supreme Court Civil Rules. Secondly, the opinion regarding the
value of the plaintiff’s financial dependency on his wife, Zlata Moll is not
relevant to any of the issues raised in the pleadings filed to date. In the
alternative, the defendant seeks an order adjourning the trial.

[2]            
This application
raises the issue as to whether a claim for damages arising from the alleged
loss of an interdependent relationship must be specifically pled.

The Parties’ Positions

[3]            
The defendant’s
position is that the plaintiff’s claim for damages arising from the loss of an
interdependent relationship (the “interdependency claim”) has arisen approximately
six weeks before the scheduled trial date. It was first raised in Mr. Carson’s
report. The defendant submits it is a claim which ought to have been
specifically pled. The defendant says he is greatly prejudiced by this claim
arising at this late stage. He requires time to conduct additional
investigations, further examinations for discovery of the plaintiff, an
examination for discovery of the recently appointed litigation guardian, and
one of the plaintiff’s wife, Mrs. Moll.

[4]            
The plaintiff’s
position is that firstly, an interdependency claim need not be specifically
pled. It forms part of the claim for future economic losses. That claim has
been pled. Secondly, the plaintiff says the facts required to prove this claim
have been known to the defendant for some time and he should have drawn the
necessary inferences and anticipated the interdependency claim was going to be
advanced. The plaintiff also points to the economist Mark Szekely being on the
defendant’s list of witnesses in its trial brief filed with respect to the
trial management conference which occurred on June 20, 2012. The plaintiff
rejects the defendant’s submission he has been taken by surprise by this claim
being advanced. It is submitted on the plaintiff’s behalf, and I quote directly
from his counsel’s written submission:

It
is common practice in British Columbia for economists’ reports to be delivered
after the appropriate deadline, in this case, the 84-day deadline. It is
submitted that an adjournment of the trial would be devastating for the
plaintiff.

II        BACKGROUND

[5]            
This proceeding
arises out of a motor vehicle accident which occurred on or about February 13,
2006, near Edgewater, British Columbia (the “Accident”). The writ of summons
and statement of claim were filed in the Cranbrook Registry on March 13, 2007. In
the statement of claim, the plaintiff claims, amongst other things:

(a)  damages for pain and suffering and loss of enjoyment of
life;

(b)  damages for past and present and future loss of income
and income-earning capacity, for future care costs, for loss of services, for
loss of insurability in the workplace and elsewhere, and out-of-pocket expenses;

(c)  aggravated, exemplary, and
punitive damages, costs, and interest.

[6]            
The claims for
present and future damages as particularized in the statement of claim include
loss of services and loss of insurability in the workplace. No interdependency claim
was specifically advanced.

[7]            
A statement of
defence was filed on October 1, 2007. Third party proceedings were then issued.
These have all subsequently been dismissed by consent.

[8]            
A continued
examination for discovery of the plaintiff occurred on
October 28, 2011. His wife, Mrs. Moll, was present during most of
that examination. The plaintiff was asked some questions regarding the state of
his relationship with his wife but that was in the context of the claim for
non-pecuniary damages. Following that examination, plaintiff’s counsel, Mr.
Robertson, offered to allow Mrs. Moll to have an "off-the-record
conversation" with defence counsel as to her husband’s condition. I was
provided with few details of this discussion, but it would appear the issue of an
interdependency claim was not raised.

[9]            
On July 4, 2012,
Mr. Robertson swore his affidavit number 4. The affidavit supported the
plaintiff’s application that the trial proceed with a jury. That application
was heard by me on July 12, 2012. On July 16, 2012, I gave reasons for judgment
with respect to that application. I granted the plaintiff an extension of time
to file and serve a jury notice. I understand this has now occurred and the
plaintiff has paid the jury fees deposit.

[10]        
To return to Mr.
Robertson’s affidavit number 4, he deposed to the following, which I consider
to be relevant to the issues before me on this application. Under the heading
"Change in Circumstances," he states:

30.       A significant change in the
plaintiff’s circumstances arose in April 2012. The accumulating stressors
affecting the plaintiff and his wife peaked. The most important stressor
appeared to be the changes in the plaintiff and the consequent changed marital
roles that had occurred following the accident. The plaintiff had not been able
to work since the accident and there were financial issues and his wife’s
recent work schedule adjustments did not dovetail well with her role at home. The
plaintiff’s parents were themselves experiencing difficulties.

31.       In
April, the plaintiff’s wife suffered a breakdown. She was taken off work by her
doctor and remains off work today under her doctor’s care and medication. At
one point, she and the plaintiff went to Vancouver for a defence IME, although
they had been informed by my office shortly before that the IME had been
cancelled by the defence. Both the plaintiff and his wife became emotionally
overwrought. Communications with me all but ceased and, for many weeks
thereafter, I was essentially without instructions.

[11]        
In his affidavit
number 5 sworn July 19, 2012, Mr. Robertson states:

7.         It
is my experience that an interdependence claim is economically founded and is
essentially based on the possible or actual loss by the injured party of the
shared income of his or her higher-income-earning existing spouse or future
spouse. In other words, it is closely related to the plaintiff’s claim for loss
of earning capacity and appears to be considered a part of such a claim.

[12]        
Mr. Robertson goes
on to depose that the defendant had been aware since the plaintiff was first
examined for discovery that he was married and had not worked since the Accident.
Furthermore, the defendant had been provided with various financial

documents pertaining to Mrs.
Moll including her income tax returns. He refers to the conversation which
occurred after the examination for discovery on October 28, 2011, and says this
at paragraph 13:

Subsequently,
the defendant never sought any further discovery of Mr. Moll on the status of
his marriage or on other interdependency issues including financial. More
recently, in June 2012, the defendant sought and it was promptly agreed to an
examination for discovery of the litigation’s now litigation guardian, Mr. Luyendyk.

III        DISCUSSION

A. Does an interdependency claim need
to be pled?

[13]        
Counsel were
unable to provide me with any authority in this province which specifically
deals with this issue. I was also unable to find any. Counsel for the defendant
did refer to Casasola v. Brainch, 2012 ONCA 318, [2012] O.J. No. 2096, a
decision of the Ontario Court of Appeal. There, the appellant had amended his
pleading at the commencement of the trial to abandon all claims for relief save
for those relating to the pecuniary value of the alleged loss of an
interdependent relationship, being his marriage. The amended pleading, however,
failed to allege facts regarding the nature of the injuries, how they
precipitated the breakdown of his marriage, and what the economic losses were. Accordingly,
the motion’s judge refused the amendment. In per curiam reasons for
judgment dismissing the appeal, it was stated:

[5] In sum, although the
appellant’s amended pleading invoked a claim for damages for the alleged loss
of the value of an interdependent relationship, it contained virtually no
material facts of any kind in support of this claim and was confined to bald or
conclusory assertions only. In these circumstances, the pleading was clearly
deficient and the motion judge was fully justified in striking it under Rule
21. Once the pleading was struck, there was no case to go to the jury.

[14]        
Casasola is of some assistance to me. Although
it would appear the interdependency claim was pled, whether it was required to
be pled was not the issue before the court. It could, however, be inferred that
a specific plea was required.

[15]        
The function of pleadings
was summarized in Homalco Indian Band v. British Columbia, [1998] B.C.J.
No. 2703:

[5] The
ultimate function of pleadings is to clearly define the issues of fact and law
to be determined by the court. The issues must be defined for each cause of
action relied upon by the plaintiff. That process is begun by the plaintiff
stating, for each cause, the material facts, that is, those facts necessary for
the purpose of formulating a complete cause of action: Troup v. McPherson
(1965), 53 W.W.R. 37 (B.C.S.C.) at 39. The defendant, upon seeing the case to
be met, must then respond to the plaintiff’s allegations in such a way that the
court will understand from the pleadings what issues of fact and law it will be
called upon to decide.

[6]
A useful description of the proper structure of a plea of a cause of action is
set out in J.H. Koffler and A. Reppy, Handbook of Common Law Pleading,
(St. Paul, Minn.: West Publishing Co., 1969) at p. 85:

Of course
the essential elements of any claim of relief or remedial right will vary from
action to action. But, on analysis, the pleader will find that the facts prescribed
by the substantive law as necessary to constitute a cause of action in a given
case, may be classified under three heads: (1) The plaintiff’s right or title;
(2) The defendant’s wrongful act violating that right or title; (3) The
consequent damage, whether nominal or substantial. And, of course, the facts
constituting the cause of action should be stated with certainty and precision,
and in their natural order, so as to disclose the three elements essential to
every cause of action, to wit, the right, the wrongful act and the damage.

If
the statement of claim is to serve the ultimate purpose of pleadings, the
material facts of each cause of action relied upon should be set out in the
above manner. As well, they should be stated succinctly and the particulars
should follow and should be identified as such: Gittings v. Caneco
Audio-Publishers Inc. (1988), 26 B.C.L.R. (2d) 349 (C.A.) at 353.

[16]        
An interdependency
claim while often considered with a claim for loss of earning capacity, is a
separate head of damages. Anderson v. Miner (1999), 57 B.C.L.R. (3d) 118
(C.A.), considered an award of damages arising from injuries sustained by an
infant plaintiff. On appeal, the plaintiff submitted the trial judge’s award
for impaired future-earning capacity was inordinately low and that he had also
erred in failing to make any award for the plaintiff’s loss of the opportunity
to form an economically advantageous interdependent relationship.

[17]        
Finch J.A., as he
then was, speaking for the court, stated:

[18]      There is, in my respectful view, more to the
capital asset of capacity to earn income than the physical and intellectual
components argued for by counsel for the defendants. Physical and intellectual
abilities may not amount to very much, without self-confidence, motivation and
ambition. Many people fail to achieve the potential their natural gifts would
suggest because they lack self-esteem, have low social drive, and find
themselves unwilling or unable to risk the chance of failure.

[18]        
Furthermore:

[22] There is
no way to measure objectively or with exactitude the measure of the loss
suffered by the plaintiff under this head. One cannot know how the plaintiff’s
economic life would have developed if she had not been injured, nor can one
know the extent to which her earning capacity has been impaired by the
undoubted psychological trauma she has suffered, not to mention the physical
scarring, with the consequent loss of self-confidence, self-esteem and ambition.
It is in my view essentially a matter of judgment, using at least in part the
"crystal ball" of which Mr. Justice Dickson (as he then was) spoke in
Andrews, supra. At this point I am prepared to say only that the award
of $26,000 is inordinately low, and out of all proportion to the extent of the
plaintiff’s probable economic losses.

[23]  Before
expressing my judgment on what a fit award would be under this head, I will
turn to the claim for loss of an economically advantageous permanent
interdependent relationship, and the plaintiff’s motion to adduce fresh evidence.
In my view, the plaintiff’s claim under this head is closely related to
her claim for loss of earning capacity, and the two heads of damage
should be considered together.

[24]  The
leading case in British Columbia on this issue is Reekie v. Messervey, supra.
Mr. Justice Lambert giving the majority judgment affirmed an award of $250,000
for future economic losses, which included the sum of $50,000 for loss of the
opportunity to form a permanent dependency. He said at 334:

My conclusion
is that diminishment of an opportunity to form a more or less permanent
relationship of interdependency has definite financial consequences, some
positive and some negative. Those consequences are closely associated with the
person’s employment status. So an endeavour should be made to assess the net
pecuniary effect of the interconnected financial consequences. Sometimes they
will be more significant than at other times.

The assessment will usually depend on
both statistical evidence and a particular assessment of the individual. And it
will, in most cases, be the best course to make the damage award reflect the
relationship between losses flowing from the loss of the opportunity to create
an interdependency on the one hand, and loss of earning capacity and
other income achieving capacity on the other hand, and to make only one
assessment covering the whole of the income side of the plaintiff’s future
loss, including cost savings forgone.

 [Emphasis added]

[19]        
The issue before
me, being whether the interdependency claim had to be specifically pled, was not
before the Court of Appeal in Anderson. I have concluded that while an
interdependency claim is “closely connected” to one for loss of earning
capacity, it is nonetheless a separate head of damages. It should be specifically
pled and accompanied, pursuant to the Supreme Court Civil Rules, R.
3-1(2)(a), by a concise statement of the material facts giving rise to the
claim.

[20]        
Accordingly, if
the plaintiff seeks to advance this claim, he is required to amend his statement
of claim. Absent the defendant’s consent, he will have to apply to do so. There
is no draft amended notice of civil claim before me and, accordingly, I am not
in a position to deal with a proposed amended pleading at this time.

B. The late service of Mr. Carson’s report

[21]        
The purpose of the
service provisions in Rule 11-6 of experts’ reports is clear. Notice
is required to ensure the fairness of the trial and to avoid ambush of the
opposing party (Skadberg Construction Ltd. v. Buchholz, 2010 BCSC 991 at
para. 10).

[22]        
I am not aware of
the "common practice" referred to by Mr. Robertson insofar as late
service of economists’ reports is concerned. Rule 11-6 applies to economists’
reports. I am aware of an "accommodation," if it can be called that, whereby
counsel may agree not to require strict compliance with the service
requirements of Rule 11-6 in so far as economists’ reports which relate solely
to loss-of-earning capacity or cost-of-care multipliers. This is not, however, what
Mr. Carson’s report does. Section 3.3 entitled "Value of
Interdependency" goes far beyond that.

[23]        
The plaintiff
submits the defendant ought to have anticipated the interdependency claim being
advanced. I disagree. The basis for this claim, according to Mr. Robertson’s
affidavit number 4, appears to have arisen in the spring of 2012. I can
appreciate the difficulties which Mr. Robertson may have had thereafter and
to which he has referred in his affidavit. Yet there is nothing before me which
explains why Mr. Carson was not approached with respect to this issue until,
apparently, early June 2012. The 84-day period for notice of any report which
was to be obtained from him had already expired by that time. In fact, Mr.
Carson’s report was not served on defendant’s counsel until a month later, less
than six weeks before the scheduled trial date. According to Mr. Carson, the damages
which could potentially be awarded for the interdependency claim are in excess
of $200,000.

[24]        
Under the
circumstances, fairness of the trial process and to the defendant requires the
trial be adjourned. I can advise the parties that I have contacted the manager
for Supreme Court Scheduling in Kamloops. He is confident this trial could proceed
commencing either on January 14, 2013, or February 12, 2013, even if it will
require more than the 20 days for which it is currently scheduled. This will
militate, to some extent, the plaintiff’s concerns regarding an adjournment of
the trial. In my view, the trial management process can be used such that
issues pertaining to the admissibility of certain experts’ reports can be dealt
with prior to the commencement of the trial. In that way, the best use can be
made of the scheduled time.

[25]        
Costs of this
application will be in the cause.

“Abrioux J.”