IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140411

Docket: M085239

Registry:
Vancouver

Between:

Jason Walker

Plaintiff

And

John Doe and
Insurance Corporation of British Columbia

Defendants

Before:
The Honourable Madam Justice Fleming

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application by the plaintiff, Mr. Walker,
brought by way of summary trial, for orders striking out and amending parts of
the statement of defence. At the hearing the plaintiff sought judgment on
specific issues.

Background

[2]            
In the action, the plaintiff alleges that on August 7, 2007, his left
foot and ankle were struck by a rolling mounted truck tire from an unidentified
vehicle, while he was riding a motorcycle on Highway 1 near Chilliwack, British
Columbia.

[3]            
His friend, Mr. Godwin, was riding slightly behind him on a separate
motorcycle. Mr. Walker caught only a brief glimpse of the tire. It was never
found. Mr. Walker suffered a serious injury to his left foot and ankle. He had
two subsequent surgeries. Mr. Walker claims the injury has permanently disabled
him from working at most forms of employment.

[4]            
The Insurance Corporation of British Columbia (ICBC) is a nominal
defendant in this action, pursuant to s. 24 of the Insurance Act,
R.S.B.C. 2012, c. 1. While ICBC agrees Mr. Walker suffered an injury to his
left foot on or about the date of the alleged accident, it contests that he was
injured by a tire or that any collision occurred due to the negligence of the
unknown driver.

[5]            
In late 2011, the plaintiff brought an application to strike portions of
the statement of defence which the court declined to hear. A jury trial of the
action took place in April 2012 before Mr. Justice Voith. After 13 days of
trial, he granted the defendant’s application for a mistrial, finding that many
and various remarks of plaintiff’s counsel during closing submissions unfairly
prejudiced the defendant in ways that could not be corrected by further
instructions. The plaintiff appealed that decision.

[6]            
On February 24, 2014, Justice Voith ordered increased costs against
counsel for the plaintiff, declining to award special costs, in part because
the explicit findings the court had made about his conduct already constituted
a serious reprimand. Although other counsel appeared for plaintiff’s counsel at
the cost hearing, there has been no change in plaintiff’s counsel.

[7]            
In response to a notice to admit dated March 14, 2014, ICBC has admitted
that according to the records provided to date of the last trial, on August 7,
2007, the plaintiff had no pre‑existing medical conditions or injuries
which were active. ICBC has an outstanding application for production of the
plaintiff’s updated clinical records that is apparently scheduled to be heard
by this court next week. A second jury trial is scheduled for 20 days,
commencing June 9, 2014.

Position of the Parties

[8]            
The plaintiff brings a summary trial application pursuant to Rule 9‑7(15)
of the Supreme Court Civil Rules, BC Reg. 168/2009, seeking
orders striking out and amending portions of the statement of defence.

[9]            
In oral submissions, however, the plaintiff clarified he was seeking
judgment on two issues in the action: one, ICBC’s assertion that the collision
was not caused by the negligence of an unknown driver, and therefore ICBC is
not liable to the plaintiff; and two, ICBC’s assertion that the plaintiff had
pre‑existing medical conditions and injuries which were active at the
time of the accident.

[10]        
The plaintiff made no submissions at the hearing in support of the
application to strike out portions of the statement of defence bearing on other
issues.

[11]        
Rule 9‑7(15) provides that a party may apply to the court for
judgment on an issue or generally. It reads in part as follows:

On the hearing of a summary trial application, the court may

(a) grant judgment in favour of any party, either on an
issue or generally, unless

(i)    
the court is unable, on the whole of the evidence before the court on
the application, to find the facts necessary to decide the issues of fact or
law, or

(ii)   
the court is of the opinion that it would be unjust to decide the issues
on the application

[12]        
The defendant challenges the suitability of this case for disposition by
way of summary trial on both grounds, although it focused on the assertion that
it would be unjust to decide the issues identified by the plaintiff on this
application.

Legal Principles – Suitability for Summary Trial

[13]        
The decision of C.J.B.C. McEachern (as he then was) in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) remains
the leading authority on the principles to be applied in deciding whether a
matter can be determined by summary trial. The factors the court may consider
in determining whether it would be unjust to give judgment include the amount
involved, the complexity of the matter, its urgency, any prejudice likely to
arise by reason of delay, the cost of taking the case forward to conventional
trial, and the course of the proceedings to date.

[14]        
Additional factors arise when the question of whether it would be unjust
to give judgment arises in the context of an application for judgment on an
issue or issues, rather than the whole of the claim.

[15]        
In Hussey v. McMillan, 2010 BCSC 342, the court observed the
authorities are clear that the jurisdiction to decide an issue, as opposed to
the claim generally, should be exercised with great caution. The court then set
out the law as summarized in Coast Foundation Society (1974) v. John Currie
Architect Inc., 2003 BCSC 1781in part as follows:

…

[13] The question of when the court ought to give judgment on
an issue, as opposed to on the claim generally, is more complex. The court is
justifiably reluctant to decide cases in a piecemeal fashion. In addition to
all of the concerns that arise when the entire claim is before the court, there
is a multitude of others. The result is that the court must exercise considerable
caution before coming to the conclusion that it should grant judgment on an
issue in a summary trial.

[15] The court must also be wary of making determinations on
particular issues on a Rule 18A application when those issues are inexorably
intertwined with other issues that are to be left for determination at trial … inter-relatedness
of issues is not always obvious, and caution is necessary whenever a party
seeks judgment on an issue as opposed to judgment generally

[16] It must be borne in mind that the primary purpose of
Rule 18A is the efficient resolution of disputes. Where the court does not
consider that the determination of an issue under Rule 18A will assist in the
efficient resolution of the dispute, it ought not to make the determination.

[17] There are at least two aspects to be considered in
gauging the efficiency of the summary trial process. First, this court must be
concerned about the allocation of its own resources … Summary trial
applications that will not, even if successful, reduce the length of trial,
should, in general, be discouraged. The court must recognize the reality that
judicial time is a scarce resource.

[18] Second, the court must
consider the efficiency of a partial determination from the standpoint of the
litigation itself. Piecemeal decision-making is rarely an efficient manner in
which to resolve a dispute. It raises the possibility of multiple appeals on
individual issues, and this will generally impede rather than hasten the
orderly determination of the action.

[16]        
In N.J. v. Aitken Estate, 2014 BCSC 419, Ehrcke J. considered the
recent Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC
7, observing that despite its suggestion there should be a change of culture to
allow more matters to be determined by summary trial, the decision also
recognized that not all cases are suitable for summary trial determination.

[17]        
As noted by Ehrcke J. in N.J. at para. 36, Hyrniak
reiterated that a summary trial is only appropriate if it is in the interests
of justice. The Supreme Court recognized that a summary trial may not be in the
interests of justice if it results in litigation by slices. Ehrcke J. concluded
that Hyrniak does not change the law regarding summary trials in British
Columbia (at para. 33).

[18]        
In Foreman v. Foster, 2001 BCCA 26, the Court of Appeal held that
if, at any stage of a summary trial application, a judge becomes satisfied that
the facts to obtain judgment cannot be found in the material before the court, it
would be unjust in the circumstances to render judgment, or the application is
not improving the efficiency of the trial process, he or she will thereupon
bring the hearing to an end (at para. 19).

Discussion

[19]        
I turn now to the issues which the plaintiff asks the court to decide.

[20]        
With respect to whether the runaway tire was the result of the
unidentified driver’s negligence, the plaintiff submits the only evidence on
this issue was provided by the plaintiff’s expert, Mr. Gough, whose report is
in evidence. Given the absence of any other evidence, the plaintiff argues this
issue ought to be decided on this application.

[21]        
In his report, Mr. Gough writes that the separation of a wheel typically
occurs due to fatigue failure of the wheel studs. When the lug nuts are not
properly tightened, the wheel studs are exposed to fatigue loading. He also
states that if separation of the wheel occurs on a vehicle fitted with two
wheels, the driver may not be aware that he has lost one of the wheels until
long after it occurs.

[22]        
At the first trial, Mr. Gough was cross-examined on this evidence and
the transcript indicates he conceded there were other potential causes for the
separation of a wheel unrelated to the negligence of the unidentified driver.

[23]        
ICBC argues it should not be deprived of the opportunity to cross-examine
Mr. Gough at the second trial. I note the plaintiff sought the admission at
this hearing of other transcript evidence, but not that of Mr. Gough in direct
or cross-examination. The defendant also argues, in the event the court were
proceed to determine this issue and find there is no negligence on the part of
the unidentified driver, the defendant may be prejudiced at trial by an
instruction to the jury, that although they are to determine whether or not
there was a runaway tire at all, if they find there was, they must assume it
was there negligently. I agree this is a risk.

[24]        
In addition, much of the defendant’s case turns on the credibility of
the plaintiff. His evidence about the tire, its appearance, its location, its
speed, and the direction appears to interrelate with the evidence regarding the
negligence of the unidentified motorist. As noted in Hussey,
interrelatedness of issues is not always obvious and caution is necessary
whenever a party seeks judgment on an issue as opposed to generally.

[25]        
The plaintiff also asks the court to decide the issue of whether or not
the plaintiff had pre‑existing injuries at the time of the alleged
accident. He does so in part based on a transcript of his own evidence at
discovery to show that he was not asked about pre‑existing injuries by
the defendant. The defendant objects to the admissibility of this and other
evidence, including the evidence of plaintiff’s counsel and transcripts of the
plaintiff’s evidence at trial.

[26]        
For the reasons that follow, it is unnecessary for the court to decide
this issue. The defendant has provided a partial admission on the issue of pre‑existing
injuries, namely that, based on the records so far provided, the plaintiff had
no pre‑existing injuries or medical conditions that were active at the
time of the alleged accident. The defendant has brought an application for
updated records that will be heard next week. The defendant points out that
clinical records often include references to a patient’s medical history,
including any pre‑existing conditions or injuries. Barring this, the
issue of pre‑existing conditions or injuries would occupy virtually no
time at the upcoming trial.

[27]        
The hearing of this application occupied the better part of a day. The
defendant submits that an additional two hours would be required to complete
submissions on the issues for which the plaintiff seeks judgment. In the
circumstances of this case, I am more than satisfied that it is not in the
interests of justice for the issues identified by the plaintiff to be dealt
with by way of summary trial.

[28]        
In this action, the plaintiff seeks significant damages. Counsel advised
that at the first trial, he sought an award of $1.5 million. The matter is set
for a 20‑day jury trial which will proceed in any event, so there is no
issue of urgency or prejudice arising by reason of delay. The cost of taking
the case forward is also not an issue, because of the ongoing need for the
trial. Setting aside further time to allow the defendant to make further
submissions would add to the cost of this matter.

[29]        
The defendant argued the court should pay particular attention to the
course of the proceedings to date. The reason for the second jury trial is the
misconduct of plaintiff’s counsel. The defendant is being put to the expense of
a second trial through no fault of its own. The plaintiff has chosen to bring
this application close to the date of trial.

[30]        
In any event, on the issue of whether the unidentified driver was
negligent, the defendant ought to have the opportunity to cross-examine the
expert. I am also concerned by the interrelatedness of the issue with other
issues not before me, and the potential prejudice to the defendant that may
arise by removing the issue from the jury. Most importantly, the rationale for
the summary trial rule is the efficient resolution of disputes. There is no
indication resolution of two issues by way of summary trial would significantly
reduce the length of trial, if at all.

[31]        
If the plaintiff has not abandoned those parts of his application to
strike out portions of the defendant’s statement of defence falling outside the
scope of the two issues on which he sought judgment, I conclude Rule 9‑7(15)
does not provide the court with the power to strike pleadings on a summary
trial application. While the court made such an order after a summary trial in Nicholls
v. Emil Anderson Maintenance Co., 2010 BCSC 1640, aff’d 2011 BCCA 422, the
issue of whether or not the court had the jurisdiction to do so was not argued.
In that case, the court dismissed the defendant’s application to dismiss the
plaintiff’s unidentified driver claim. There was no issue regarding the
suitability of the matter for summary trial. The matter was decided, in other
words, on the merits.

Conclusion

[32]        
For these reasons, the plaintiff’s summary trial application is
dismissed and the defendant will have the costs of this application.

“Fleming
J.”