IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130801

Docket: 43541

Registry:
Kamloops

Between:

John Anhalt

Plaintiff

And

Monique Kathleen
Flowers also known as
Monique Kathleen McCardle, James Stewart,
Insurance Corporation of British Columbia
John Doe and James Jerrett

Defendants

And

Monique Kathleen
Flowers

Third
Party

Before:
The Honourable Madam Justice Hyslop

Reasons for Judgment

[1]            
On May 3, 2009, at Kamloops, British Columbia, Mr. John Anhalt alleges
that he was injured in a motor vehicle accident for which he seeks damages. He
claims that the other driver was negligent.

[2]            
After the collision occurred, the driver of the car that collided with
the vehicle that Mr. Anhalt was driving, asked Mr. Anhalt whether he could pay
for the damages. Mr. Anhalt declined the offer stating that he did not know the
extent of the damages to his vehicle. Within minutes of the accident, two
police officers arrived separately. Mr. Anhalt told one of the police officers
how the accident happened. That police officer spoke to the other driver. The
police officer gave Mr. Anhalt a piece of paper that had the other driver’s
name, the name of the owner of the other vehicle, the license plate number of
the other vehicle, and its insurance particulars. This vehicle had Alberta
license plates, the owner was Monique Kathleen Flowers, residing at Sherwood
Park, Alberta, and the driver was James Stewart, born July 25, 1974.

[3]            
Upon investigation, Mr. Anhalt learned that the vehicle which Mr.
Stewart had been driving was reported as stolen.

[4]            
On or about April 21, 2009, Ms. Flowers, also known as Monique McCardle,
embarked on a motor trip in her vehicle, which is the same vehicle that struck
Mr. Anhalt’s vehicle. Her intention was to drive to Toronto. On her way, at a
service station and in Saskatchewan, she encountered a man who identified
himself as John James Jerrett. Ms. Flowers decided to give Mr. Jerrett a ride
to Edmonton. Before doing so, he provided Ms. Flowers with his Saskatchewan
driver’s license with a photograph depicting his likeness, stating his name and
a birth date of July 25, 1978.

[5]            
Upon Ms. Flowers and Mr. Jerrett’s arrival in Edmonton, Ms. Flowers
offered Mr. Jerrett accommodation. Shortly after her arrival in Edmonton, Ms.
Flowers was arrested by the police on an Alberta mental health warrant, and she
was taken to hospital where she remained for about 18 days. She last saw her
vehicle in the care of Mr. Jerrett with her consent and she has not seen it
since.

[6]            
This background of events leads to the application brought by Ms. Flowers,
which is that Mr. Anhalt’s action and the Insurance Corporation of British
Columbia’s (“ICBC”) third party claim against her be dismissed with costs. The
dismissal is sought pursuant to Rule 9-6(4) and (5)(a) of the Supreme Court
Civil Rules (“Civil Rules”):

Application by answering party

(4) In an action, an answering party may, after serving a
responding pleading on a claiming party, apply under this rule for judgment
dismissing all or part of a claim in the claiming party’s originating pleading.

Power of court

(5) On hearing an application under subrule (2) or (4), the
court,

(a) if satisfied that there is no genuine issue for trial
with respect to a claim or defence, must pronounce judgment or dismiss the
claim accordingly,

[7]            
The basis of summarily dismissing Mr. Anhalt’s and ICBC’s claims is that
there is no genuine issue for trial. I received, on behalf of Ms. Flowers, an
extensive and well thought out submissions seeking dismissal of these claims
against Ms. Flowers.

[8]            
However, during submissions, Mr. Anhalt’s counsel advised me that he had
set up an examination for discovery of Mr. Jerrett, scheduled to be heard on
October 2, 2012 in Moose Jaw, Saskatchewan. He provided proof of the
arrangements. At the end of this application, I reserved my decision.
Subsequently, I sent a memorandum to counsel as follows:

Mr. Zak stated that he has taken
out an appointment to examine John James Jerrett on October 2, 2012 in Moose
Jaw, Saskatchewan. I have concluded that should the examination of Mr. Jerrett
take place on that date, the plaintiff may, with notice to Ms. McCardle
and I.C.B.C., appear before me on a date agreed upon no later than October 17,
2012. At that time, the plaintiff may provide any further evidence that arises
from the examination of Mr. Jerrett.

[9]            
In considering this application, I am reminded that Mr. Anhalt alleged
that he suffered a wrong, and damages flowing from that wrong.

[10]        
In Progressive Construction Ltd. v. Newton, [1980] B.C.J. No.
2112, 25 B.C.L.R. 330, Mr. Justice Esson, in considering an application
pursuant to the predecessor of Rule 9-6, previously Rule 18, stated:

[9] The most important of the basic principles which governed
applications under O. 14 was:

A litigant must be allowed his day
in Court, and must not be deprived of a trial in the ordinary way unless it is
manifestly clear that he is without a defence that deserves to be tried. It is
not the function of a Judge who hears an application under 0. 14 [predecessor
to Rule 18] to try disputed issues of fact or law. His duty and power are
limited to determining whether, on the relevant facts and applicable law, there
is a bona fide triable issue.

Re Hughes v. Sharp (1969) 5
D.L.R. (3d) 760 (B.C.C.A.)

[11]        
It is important to review the steps taken in this litigation up to the
hearing of this application.

November 20, 2009

[12]        
Mr. Anhalt, as plaintiff, issued a writ and statement of claim naming
Ms. Flowers, James Stewart, ICBC, and John Doe as defendants. In the statement
of claim, amongst other matters, Mr. Anhalt alleged that Mr. Stewart was the
driver of the car that struck his vehicle on the day of the accident, and that
the car was driven by Mr. Stewart with the consent of Ms. Flowers. In the
statement of claim, an alternate claim was made against an unidentified
motorist.

March 1, 2010

[13]        
ICBC filed a statement of defence, and as an alternative claim states
that the alleged injuries of the plaintiff were caused or contributed to by the
negligence of the defendants, Monique Flowers and James Stewart.

October 12, 2010

[14]        
A response to civil claim was filed by Ms. Flowers. In that response,
Ms. Flowers denied that Mr. Stewart was driving her vehicle with her consent.
In that response Ms. Flowers set out what I have described as her meeting with
John Jerrett. In that response she stated:

1.         In or about April 2009, Flowers met an individual
by the name of John Jerrett in or about Prince Albert, Saskatchewan. Flowers
gave Mr. Jerrett a ride to Sherwood Park, Alberta, on the understanding that
Mr. Jerrett had family or friends in Edmonton, Alberta. Flowers provided Mr.
Jerrett with lodging at her residence for a few nights.

2.         In or about late April 2009, Flowers lent the Ford
Escape (as that term is defined in the Statement of Claim) to Mr. Jerrett on
the express understanding that Mr. Jerrett was only to use the Ford Escape for
limited travel within Edmonton, Alberta.

3.         This was the last time Flowers saw Mr. Jerrett.

4.         This was the last time
Flowers saw the Ford Escape.

March 8, 2011

[15]        
Pursuant to a court order, an amended notice of civil claim was filed by
Mr. Anhalt. The amended notice of civil claim added Ms. Flowers’ other name
that she is known by, Monique Kathleen McCardle, and John James Jerrett. In the
amended notice of civil claim, it stated that James Stewart and/or the
defendant, John James Jerrett, was the driver of Ms. Flowers’ vehicle when it
struck Mr. Anhalt’s vehicle. The alternate claim states that John Doe was
driving when Mr. Anhalt’s vehicle was struck in the accident.

March 27, 2011

[16]        
Mr. Jerrett was served at 941 Athabasca Street East, Moose Jaw,
Saskatchewan, with the amended notice of civil claim. Mr. Jerrett did not file
a response.

May 27, 2011

[17]        
An examination for discovery of Ms. Flowers was conducted by ICBC’s
counsel.

June 9 and 16, 2011

[18]        
A third party notice and an amended third party notice was filed by ICBC
alleging that Mr. Stewart or John Doe drove the vehicle at the time of the
accident with the consent of Ms. Flowers.

July 18, 2012

[19]        
A notice to admit was issued by Ms. Flowers to ICBC and Mr. Anhalt. As a
result of the notice to admit, ICBC acknowledged that matters relating to
whether Mr. Anhalt or the police saw the driver’s identification, a description
of the individual, the vehicle leaving the scene and its whereabouts, and the
unknown driver, which ICBC stated “…are either outside the direct knowledge of
this defendant;”.

[20]        
Mr. Anhalt’s reply to the same notice to admit dated July 26, 2012 is
more extensive. Summarized, Mr. Anhalt states he has no recollection of the physical
appearance of the driver and the various details concerning the RCMP’s
activities when they attended the accident.

POSITIONS

Ms. Flowers

[21]        
Ms. Flowers’ statement of the law in considering whether to dismiss
claims under Rule 9-6(4) and (5)(a) is correct in that:

1)   
the importance of this Rule is that it weeds out those claims or
defences that have no chance of success;

2)   
the burden of proving “no chance of its success” rests with the person
seeking the dismissal of the claim; in this case, Ms. Flowers;

3)   
to meet success for a summary judgment under Rule 9-6(4) and (5)(a), it
must be demonstrated that there is no issue to be tried. Should the applicant
discharge this obligation, then the court must dismiss the claim;

4)   
if there are no material facts in dispute, then there is no issue for
trial. In this action, Ms. Flowers says that the driver of the vehicle is
unknown. If the driver of the vehicle is unknown, then the plaintiff, the
defendant, and third party – ICBC, cannot show that Ms. Flowers is vicariously
liable pursuant to s. 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318
[MVA], in that she gave her consent, either express or implied, to
operate her vehicle at the time of the accident;

5)   
the obligation of Mr. Anhalt, ICBC, and Ms. Flowers in this summary
application to the court is stated in Papaschase Indian Band No. 136 v.
Canada (Attorney General), 2008 SCC 14. The court stated:

[11] For this reason, the bar on a motion for summary
judgment is high. The defendant who seeks summary dismissal bears the evidentiary
burden of showing that there is "no genuine issue of material fact
requiring trial": … Each side must "put its best foot forward"
with respect to the existence or non-existence of material issues to be tried:
Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996),
28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), [2003] 1
S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of
fact based on the undisputed facts before the court, as long as the inferences
are strongly supported by the facts: Guarantee Co. of North America, at para.
30.

A summary trial judgment cannot be defeated by reference to
what might be pleaded in the future: Papaschase Indian Band No. 136;

[19] We add this. In the Court of Appeal and here,
the case for the plaintiffs was put forward, not only on the basis of evidence
actually adduced on the summary judgment motion, but on suggestions of evidence
that might be adduced, or amendments that might be made, if the matter were to
go to trial. A summary judgment motion cannot be defeated by vague references
to what may be adduced in the future, if the matter is allowed to proceed. To
accept that proposition would be to undermine the rationale of the rule. A
motion for summary judgment must be judged on the basis of the pleadings and
materials actually before the judge, not on suppositions about what might be
pleaded or proved in the future. This applies to Aboriginal claims as much as
to any others.

6)  the court,
in such a summary application as this, in Skybridge Investments Ltd. v.
Metro Motors Ltd. (c.o.b. Metro Ford), 2006 BCCA 500, stated:

[12] If sufficient material facts have been
pleaded to support every element of a cause of action, but one or more of those
pleaded material facts are contested, then the judge ruling on a Rule 18(6)
application is not to weigh the evidence to determine the issue of fact for the
purpose of the application. The judge’s function is limited to a determination
as to whether a bona fide triable issue arises on the material before
the court in the context of the applicable law. If a judge ruling on a Rule
18(6) application must assess and weigh the evidence to arrive at a summary
judgment, the "plain and obvious" or "beyond a doubt" test
has not been met.

7)  At the same
time, the state of the case may be, as Mr. Justice Harris stated in Veritas
Geophysical (Nigeria) Ltd. v. Energulf Resources Inc., 2010 BCSC 1253:

[34] There are, however, circumstances in which an
application for summary judgment pursuant to Rule 18 may be premature. Where,
for example, a party has not had an opportunity to develop evidence through the
discovery process on issues raised by the pleadings, it may not be appropriate
to grant summary judgment: Phillips Paul v. Malak Holdings Ltd., 2002
BCSC 1191.

Mr. Anhalt and ICBC

[22]        
Mr. Anhalt and ICBC oppose this application. Mr. Anhalt claims that
before this application can be heard, the mental competency of Ms. Flowers must
be addressed as it relates to her credibility. Mr. Anhalt states that “the
plaintiff cannot ascertain whether Flowers was or is mentally competent to
address the issues in this litigation.”

[23]        
Firstly, Ms. Flowers’ mental competency is not a factor as it is not an
issue raised in the pleadings. As to Ms. Flowers’ credibility, it is not
relevant. Ms. Flowers’ credibility is only relevant and considered as to the
claims against her once the identity of the driver is established; this is, who
was driving Ms. Flowers’ car when it struck Mr. Anhalt’s car.

[24]        
Both Mr. Anhalt and ICBC argue that before this application was heard,
the matter of severance must be adjudicated upon.

[25]        
This application by Ms. Flowers is brought pursuant to Rule 9-6 of the Civil
Rules, not Rule 9-7. Rule 9-7 is a summary trial wherein the court firstly
determines whether the issues are suitable to be disposed of by summary trial,
and, if so, the court will then dispose of those issues raised in the evidence
(usually affidavits) before it.

[26]        
Rule 9-6 and Rule 9-7 have very little in common with each other, other
than their place in the Rules, and the orders sought are final. Part 9 of the
Rules which is headed “Pre-Trial Resolution Procedures” is a misnomer as Rule
9-7 is a form of trial, a summary one.

[27]        
The matter of severance assumes that parts of the trial will be adjudicated
separately. In an application pursuant to Rule 9-6, the court does not weigh
the evidence.

[28]        
In each of the cases relied upon by Mr. Anhalt and ICBC that relate to severance,
the applications are made pursuant to Rule 9-7 seeking summary judgment on the
merits of the action deciding an issue of liability separate from the damages
stemming from liability. Severance simply has nothing to do with the
application before me. What the court is asked to do is to dismiss the
plaintiff and ICBC’s claim against Ms. Flowers as Ms. Flowers states that she
has demonstrated that neither ICBC nor Mr. Anhalt can prove the material fact,
which is: did Ms. Flowers give consent to either James Stewart, John Doe, or
John Jerrett to drive her car when the accident occurred so as to find
vicarious liability against Ms. Flowers pursuant to s. 86 of the MVA.

[29]        
As I stated earlier, counsel for Mr. Anhalt took out an appointment to
examine John James Jerrett in the Court of Queen’s Bench in Moose Jaw,
Saskatchewan on October 2, 2012. On September 21, 2012, Mr. Jerrett was served
with the appointment, together with conduct money. Mr. Jerrett was served at
#12 – 231 High Street West, Moose Jaw, Saskatchewan. Mr. Jerrett did not appear
at the discovery.

[30]        
Mr. Zak travelled to Moose Jaw, Saskatchewan, to examine Mr. Jerrett.
While there, he contacted Dave Wilson, a process server, who on three occasions
served documents in this action on Mr. Jerrett/Stewart. Mr. Zak took this
opportunity to take a statement from Mr. Wilson under oath. That statement was
transcribed.

[31]        
Mr. Anhalt seeks to enter an affidavit sworn by Mr. Wilson on October
29, 2012. Mr. Wilson said he attended the hospital where Mr. John James Jerrett
was a patient. He had a conversation with him. Mr. Jerrett told Mr. Wilson that
Ms. Flowers gave him permission to drive her vehicle. Mr. Jerrett told Mr.
Wilson he was in a car accident in Kamloops, and at the time of the accident he
was going by the surname of Stewart.

[32]        
On November 13, 2012, Mr. Anhalt brought an application seeking leave to
enter the affidavit of David Wilson sworn October 29, 2012, to further amend
their amended response dated September 24, 2012, and to make further
submissions on the summary application that was heard on September 27, 2012. Ms.
Flowers objects to the introduction of Mr. Wilson’s affidavit.

[33]        
The basis of that objection is that the evidence does not meet the conditions
of my memorandum dated September 28, 2012; the evidence sought to be introduced
does not meet the requirements of Rule 8-1(14), and the evidence that Mr.
Anhalt seeks to introduce is not evidence that is acceptable under Rule 9-6 of
the Civil Rules.

[34]        
This evidence of Mr. Wilson is admissible as against Mr. Jerrett and Mr.
Stewart, but not against Ms. Flowers as it would be hearsay. Mr. Anhalt can
rely on the admission in Ms. Flowers’ response to civil claim that she had
given Mr. Jerrett consent to drive her vehicle in the Edmonton area before she
was placed in hospital. Ms. Flowers admits in her response to civil claim that
at one point in time, she gave her consent to Mr. Jerrett to drive her vehicle.
Whether this consent extends to driving it to British Columbia is another
matter and it is a matter for trial.

[35]        
That admission in the response to the civil claim was before the court
at the hearing on September 27, 2012. The missing link is who was Mr. Stewart
and how did Mr. Stewart end up with possession of Ms. Flowers’ vehicle. Mr.
Wilson’s affidavit answers this question.

[36]        
Mr. Justice Esson was referring to in Progressive Construction Ltd.
comments on evidence that may not be in an admissible form:

[17] It was also held in
cases decided under O. 14 that information and belief affidavits were not
admissible in answer to a motion for summary judgment: W.H. Malkin Ltd. v.
Jackson (1963), 44 W.W.R. 63. It may no longer be necessary to prohibit a
respondent to a R. 18 application from relying upon information and belief. It
is obviously right that an applicant who invokes this extraordinary procedure
should not be allowed to rely upon anything but direct evidence. But to apply
the same rule to respondents may be unfair. The respondent, at that stage, need
only raise a doubt as to whether it is manifestly clear that his case is bad.
There are two bases on which he might now be permitted to rely on affidavits
deposing to statements by others as to material facts. One is that, by a
combination of R. 40(42) and 51(9), there is a discretion to permit statements
on information and belief. The other possible basis is that an affidavit
testifying to what somebody else has said may be direct evidence of a fact
which, on the application, is material for the respondent to prove, i.e., that
he has knowledge of a potential witness. Often it is impractical, by reason of
constraints of time or distance, to obtain affidavits from potential witnesses,
and sometimes it is impossible — there being no power equivalent to the subpoena
which can require a person to swear an affidavit.

[37]        
In Federal Business Development Bank v. Pallan, [1978] B.C.J. No.
1068, 9 B.C.L.R. 59, Mr. Justice Toy had before him an application pursuant to
Rule 18 of the then Rules. The plaintiff was seeking judgment on a guarantee of
the three personal defendants who opposed such a judgment. Mr. Justice Toy
stated:

[7] Plaintiff’s counsel correctly submitted to me that
an application under R. 18(1) is for a final order and consequently the
defendants may not rely upon information and belief or hearsay evidence, the
receivability of which is restricted to interlocutory applications pursuant to
R. 51(9). I am therefore bound to ignore the information and belief evidence
contained in paras. 9 and 10 of the Mr. Pallan’s affidavit.

[13] The facts upon which
the defendants must rely to establish this defence are not within the
defendants’ sphere of knowledge or activities and it is unlikely that the
evidence in support thereof could be obtained without a full disclosure by a
discovery of documents and examinations for discovery of the plaintiff’s
officers or agents. Accordingly, at this stage it is impossible for me to say
that on an application of this kind such a defence is devoid of merit.

[38]        
I recognize that the burden of proof is on the plaintiff, John James
Jerrett, also known as James Stewart, that he had the consent of Ms. Flowers to
drive her vehicle at the time of the accident. As a result of the
identification of James Stewart as John James Jerrett, it was Mr. Jerrett to
whom Ms. Flowers gave her vehicle for him to drive. The evidence contained in
Mr. Wilson’s affidavit is the kind of evidence that both Mr. Justice Esson and
Mr. Justice Toy had in mind with Progressive Construction Ltd. and Federal
Business Development Bank.

[39]        
Ms. Flowers argues that if I permit the introduction of the evidence of
Mr. Wilson’s affidavit and his sworn statement, “the utility of Rule 9-6 would
be seriously compromised.” She goes on to argue that this Rule prevents claims
or defences with no chance of success from proceeding to trial, thus avoiding
time and expense.

[40]        
The purpose of Rule 9-6 is not to prevent cases which have merit from
being heard. It is not sufficient to say that Mr. Anhalt can satisfy his claim
by the uninsured or unidentified motorist fund. That may not be open to Mr.
Anhalt as at this stage he has evidence that points to Mr. Jerrett driving Ms.
Flowers’ vehicle at the time of the accident.

[41]        
Dismissing Mr. Anhalt and ICBC’s claims against Ms. Flowers would be a
miscarriage of justice. It could be easily argued that at the time the
application was brought by Ms. Flowers, Mr. Anhalt had not completed his
investigation as to who was driving at the time of the accident.

[42]        
An examination for discovery took place of Mr. Jerrett on December 3,
2012. Counsel for Ms. Flowers and ICBC were present. Its introduction was the
subject matter of a hearing held on April 4, 2013.

[43]        
Ms. Flowers objects to the introduction of this examination for
discovery of Mr. Jerrett.

[44]        
By this time and on November 5, 2012, Mr. Anhalt sought a subpoena to be
issued under the Subpoena (Interprovincial) Act, R.S.B.C. 1996, c. 442
for service of a subpoena for Mr. Jerrett’s attendance at the trial of this
action which was to proceed before a jury on January 21, 2013. The subpoena was
adopted by the Court of Queen’s Bench in Saskatchewan.

[45]        
On December 6, 2012, the trial was adjourned.

[46]        
Mr. Anhalt argues that pursuant to Rule 9-6(5)(d) of the Civil Rules,
that the court has the discretion to consider the examination for discovery of
Mr. Jerrett:

Power of court

(5) On hearing an application under subrule (2) or (4), the
court,

(d) may make any other order it considers will further the
object of these Supreme Court Civil Rules.

[47]        
In addition, Mr. Anhalt argues that the court retains the discretion to
reopen this hearing for the admission of additional evidence: Strachan
(Guardian ad litem of) v. Reynolds, 2006 BCSC 362. Mr. Anhalt argues that
it is not the function of this court on a summary application which has been
brought pursuant to Rule 9-6 to weigh the evidence or to decide on conflicting
evidence. Mr. Anhalt argues it would be a serious miscarriage of justice in the
event this evidence was not admitted.

[48]        
I was of the view that with the introduction of Mr. Wilson’s affidavit,
his sworn statement, and Ms. Flowers’ response to civil claim, that Ms.
Flowers’ application should be dismissed. If I am wrong, I will now then
consider whether Mr. Jerrett’s examination for discovery, held on December 3,
2012, should be introduced. The only difference will be that Mr. Wilson’s
evidence is hearsay, and the contents of the examination for discovery, as it
relates to consent, express or implied, will no longer be hearsay (Ms. Flowers
alleges limited consent).

[49]        
It was not until this application was brought did Mr. Anhalt wake up to
the fact that they could not prove that Mr. Stewart had the vehicle with Ms.
Flowers’ consent. Ms. Flowers argues that this was a tactical decision made by
Mr. Anhalt. I agree that it is incumbent upon Mr. Anhalt to obtain evidence
about the identity of Mr. Stewart and Mr. Jerrett. Had he acted more swiftly,
Mr. Jerrett’s examination for discovery would have taken place earlier at which
time Mr. Anhalt, at trial, would be there to prove that Mr. Jerrett had Ms.
Flowers’ vehicle with her consent, and Ms. Flowers would be countering this
evidence that her consent was limited. As I stated before, for purposes of Ms.
Flowers’ application, the information from Mr. Wilson in his affidavit is
sufficient to defeat Ms. Flowers’ application. However, for purposes of trial,
it would be necessary to have examined Mr. Jerrett to hear from his mouth that
he was alleging that he had Ms. Flowers’ consent to drive her vehicle.

[50]        
In Veritas Geophysical (Nigeria) Ltd., Mr. Justice Harris said:

[34] There are, however,
circumstances in which an application for summary judgment pursuant to Rule 18
may be premature. Where, for example, a party has not had an opportunity to
develop evidence through the discovery process on issues raised by the
pleadings, it may not be appropriate to grant summary judgment: Phillips
Paul v. Malak Holdings Ltd., 2002 BCSC 1191.

[51]        
An application heard under Rule 9-6 of the Civil Rules is not for
purposes of deciding whether Mr. Jerrett had Ms. Flowers’ consent to drive her
vehicle at the time of the accident. The obligation is the burden of Mr. Anhalt
at the time of trial.

[52]        
In opposition to this application, Ms. Flowers relies on cases, save Litynsky
v. Litynsky, 2012 BCSC 1160, which seek to introduce new evidence, or
reconsideration of the decision by the court. This is an application not a
trial. These cases are not relevant, as the cases referred to by Ms. Flowers,
the court heard all the evidence at a trial and had ruled on the issues.

[53]        
I exercise my discretion and allow the introduction of Mr. Jerrett’s
examination for discovery.

[54]        
In permitting the introduction of Mr. Jerrett’s examination for
discovery and Mr. Wilson’s affidavit, Ms. Flowers has not been prejudiced. Her
defence has not changed in that she states she gave limited consent to Mr.
Jerrett to drive her motor vehicle. The issue has not changed. What has changed
is that Mr. Jerrett is one and the same as Mr. Stewart.

COSTS

[55]        
Counsel for Ms. Flowers has asked to speak to costs. My inclination is,
despite Mr. Anhalt and ICBC’s success, this application would not have been
made had Mr. Anhalt, upon learning of Mr. Jerrett’s existence, had proceeded
with some dispatch in pursuing Mr. Jerrett’s evidence.

[56]        
In the case of ICBC, their defence to this application has mirrored that
of Mr. Anhalt’s.

[57]        
I see no reason to order costs to Mr. Anhalt, or ICBC, or that each of
the parties bear their own costs. As a result, I order costs of this
application to Ms. Flowers, but only for the application and the appearance of
September 27, 2012, and not for the preparation and appearances for November
13, 2012 and April 4, 2013.

[58]        
These comments on costs do not prevent any of the parties from appearing
before me to argue the matter of costs. Ms. Flowers’ counsel may appear by
telephone. Counsel are to advise the Manager of Supreme Court Scheduling within
30 days if they wish to appear before me.

“H.C. Hyslop J.”

HYSLOP J.