IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150213

Docket: M131020

Registry:
Vancouver

Between:

Bradley Gaebel

Plaintiff

And

Gordon Lipka and
Stacy Gaebel

Defendants

Before:
Master Muir

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application by the
defendants to change the venue of this trial from the Vancouver Registry to the
Powell River Registry.

[2]            
Paragraph 2 of the notice of application with
respect to WorkSafeBC is adjourned generally.

[3]            
This is an action that stems from a motor
vehicle accident said to have occurred on March 11, 2011 in Powell River. The
plaintiff and both defendants reside in Powell River. The parties anticipate a 10-day
trial, although on looking at the proposed witnesses I question whether
that is sufficient. A 10-day trial in any event has tentatively been scheduled
for June 2016 in Vancouver.

[4]            
It is said that the plaintiff’s credibility will
be a major issue at trial. His claim for wage loss is significant.

[5]            
The plaintiff was a deckhand/boom man, which
means he worked on a small boat or tugboat, arranged floating logs into a form,
either manually or using the boat. He has to get off the boat, walk on a
floating log, and create bundles of floating logs by securing them with 65 to
70 pound chains so the tugboat can drag the form and the logs.

[6]            
The plaintiff complains of a significant right
shoulder injury as a result of the accident and he has recently had surgery for
that. Prognosis is iffy, if I can put it that way. It is questionable
whether he will be able to continue on in his employment given the injuries
that he has to his shoulder.

[7]            
The defendants’ position is that the shoulder
injury was not caused by the accident but was caused either by subsequent
intervening events, pre-existing degenerative changes, the repetitive and
physical nature of the kind of work that the plaintiff does, or all of those.

[8]            
The plaintiff’s former employers will be called.
It is said that numerous of his treating physicians will also be called,
although frankly I question whether that will be necessary. I suspect
that the issues that the defendants have regarding the clinical records of the
plaintiff’s treating physicians can be dealt with either by a notice to admit
or by a document agreement. None of the plaintiff’s treating physicians are
being called as experts. Regardless, there are four of them and they all reside
in Powell River.

[9]            
As I said, the plaintiff and defendants
reside in Powell River. One of the employers resides in Powell River.

[10]        
However, there are other witnesses that reside
in Nanaimo, Campbell River, Langley, and then there is the question, of course,
of experts. The majority of the experts, if not all of them, will be attending
from Vancouver.

[11]        
The test relied upon by the defendants is set
out in Sadler v. Sadler (1991), 45 C.P.C. (2d) 272 (B.C.S.C.). It
is not disputed. It comes from the decision in McPhatter v. Thorimbert (1966),
56 W.W.R. 497 (B.C.S.C.), an old decision of Kirke Smith J.

[12]        
Paragraph 24 of Sadler sets out the
principles as follows:

It is
established by a line of decisions binding on me that the only two grounds for
ordering a change of venue on the application of a defendant are those based on
(a) the interests of justice, or (b) the preponderance of convenience. The
plaintiff has otherwise a right to have the trial in the venue of its choosing
if I can put it so succinctly.

[13]        
The plaintiff submits that there must be a
preponderance of convenience that overwhelms his right to have the trial in
Vancouver. He submits that the simple cost of experts will overcome the costs
of bringing the witnesses from Powell River, even if the four treating
physicians are required to attend, as the defendants submit.

[14]        
The costs of having experts travel to give
evidence, even if they are willing or available to do so, is considerably
greater than that of lay witnesses.

[15]        
There was an issue as to the appropriateness of
a jury trial given that the plaintiff resides in Powell River. The plaintiff was
concerned that he would not be able to get a jury that was unfamiliar and
unbiased with regard to the events in issue.

[16]        
The defendants take that by the horns and advise
that they will not have this matter tried as a jury trial if it proceeds in
Powell River. So that is no longer a consideration.

[17]        
The primary position advanced by the defendants
was that the costs of the lay witnesses and the convenience to the plaintiff’s employer
and others coming from Powell River overwhelmingly overbalance the plaintiff’s
right to have the trial in Vancouver.

[18]        
The plaintiff disputed that and, as I noted, provided
evidence of where other witnesses actually reside. It appears that there are a
number of witnesses who, although they may work occasionally in Powell River,
do not reside there.

[19]        
Given the overwhelming cost of expert evidence,
it is my view that the test has not been met and the application is therefore
denied.

[20]        
THE COURT:  Costs?

[SUBMISSIONS
RE COSTS]

[21]        
THE COURT:  Certainly the defendants were unsuccessful
but I do not see any real reason for taking this outside of the normal Rules.
The plaintiff will have his costs in the cause.

“Master Muir”