IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151120

Docket: M083817

Registry:
Vancouver

Between:

Sharanjeet Bagri

Plaintiff

And

Sodhi Bagri and
Kwok Keung Tam

Defendants

– and –

Docket: M102466

Registry:
Vancouver

Between:

Sharanjeet Bagri

Plaintiff

And

Todd Lance and
Shelley Irene Meadows

Defendants

Before:
Master Scarth

Reasons for Judgment

[1]            
These two personal injury actions are proceeding to trial together in
January 2016, pursuant to a consent order of October 21, 2010.

[2]            
The plaintiff applies for an order to strike the jury notices filed by
the defendants in both actions. The defendants apply for an order removing the
actions from Rule 15-1.

[3]            
The issue on the cross-applications is whether the trial will be by
judge alone or by judge and jury.

I.                
Background

[4]            
Ms. Bagri alleges injuries arising from two motor vehicle
accidents: September 23, 2007 and August 16, 2009.

[5]            
Ms. Bagri filed an action related to the first accident on
September 2, 2008, under former Rule 68 which provided for expedited actions. The
defendants filed a statement of defence admitting liability for the accident. On
July 8, 2009, on application by the defendants, Leask J. made an order
removing the action from Rule 68. The defendants then filed a notice requiring
trial by jury pursuant to Rule 12-6(3) for the trial set for November 23, 2010.
There appears to be no dispute that the jury notice was valid at the time it
was filed.

[6]            
Ms. Bagri filed the second action on May 25, 2010 as an expedited
action under former Rule 68. Again, liability was admitted by the defendants.

[7]            
The new Supreme Court Rules came into effect on July 1, 2010. On
July 5, 2010, Ms. Bagri filed a notice of fast track action in the second
action pursuant to Rule 15-1(2)(a). On July 28, 2010, she filed a similar
notice in the first action.

[8]            
On October 21, 2010, the parties consented to an order that the actions
be heard together for trial.

[9]            
 The trial was repeatedly delayed due to multiple applications and
because of Ms. Bagri’s impending shoulder surgery. There have been three
adjournments, three case planning conferences, and numerous applications.

[10]        
In June 2012 the defendants filed notices requiring trial by jury in
both actions.

[11]        
On November 14, 2013, the plaintiff applied in each action for an order
striking the defendants’ jury notice. The applications were adjourned, as was
the trial date of November 18, 2013.

[12]        
On July 4, 2014 the defendants filed additional notices requiring trial
by jury in each action for the trial set for January 11, 2016.

[13]        
On August 12, 2014 the defendants served notices seeking an admission that
the damages do not exceed $100,000 in either action. The plaintiff responded
with a denial.

[14]        
On December 18, 2014, the defendants brought their application for an
order that these actions be removed from Rule 15-1 and for an order that the
jury notices are valid.

II.              
Issues

[15]        
The issues on these applications are as follows:

(a)           
Are these actions fast track actions under Rule 15-1?

(b)           
If no, are the jury notices, or any of them, valid?

III.            
Discussion

[16]        
Pursuant to the rules for transitional pleadings set out in Rule 24-1,
the current Rules apply to both actions notwithstanding that they were
started under the former court rules. Rule 15-1 (entitled “Fast Track
Litigation”) replaces former Rule 68 and provides a “process for a more
efficient and economical litigation of those cases that are relatively
straightforward, can be prepared for trial and tried relatively quickly, and do
not require as extensive a process as the more complex cases”: Shaker v.
Chow, 2012 BCSC 617, at para. 27.

[17]        
The material provisions of Rule 15-1 are set out below:

(1) Subject to subrule (4) and unless the court otherwise
orders, this rule applies to an action if

(a) the only claims in the action
are for one or more of money, real property, a builder’s lien and personal
property and the total of the following amounts is $100,000 or less, exclusive
of interest and costs:

(i) the amount of any money claimed
in the action by the plaintiff for pecuniary loss;

(ii) the amount of any money to be
claimed in the action by the plaintiff for non-pecuniary loss;

(iii) the fair market value, as at
the date the action is commenced, of

(A) all real property and all
interests in real property, and

(B) all personal property and all
interests in personal property claimed in the action by the plaintiff,

claimed in the action by the
plaintiff,

(b) the trial of the action can be
completed within 3 days,

(c) the parties to the action
consent, or

(d) the court, on its own motion or
on the application of any party, so orders.

(2) If this rule applies to an action,

(a) any party may file a notice of
fast track action in Form 61,

(a.1) the filing party must serve a
copy of the filed notice of fast track action on each of the other parties or
record, and

(b) the words “Subject to Rule
15-1” must be added to the style of proceeding, immediately below the listed
parties, for all documents filed after the notice of fast track is filed under
paragraph (a) or the court order is made under subrule (1)(d), as the case may
be.

(3) Nothing in this rule prevents a court from awarding
damages to a plaintiff in a fast track action for an amount in excess of
$100,000.

(6) This rule ceases to apply to a fast track action if the
court, on its own motion or on the application of any party, so orders.

(10) The trial of a fast track
action must be heard by the court without a jury.

[18]        
An action is not a fast track action simply because a party has filed a
notice of fast track action. Rather, a fast track action occurs in the
circumstances set out in Rule 15-1(1): see Musgrove v. Elliot, 2014
BCSC 40 at para. 17, quoting Narain v. Gill, 2012 BCSC 1468 at para. 17.
An action can be fast tracked as long as one or more of the criteria in
Rule 15-1(1) are met: see Hermani v. Hillard, 2011 BCSC 1381 at paras. 10-17.

[19]        
Even if an action qualifies as a fast track action, pursuant to Rule
15-1(6), a court may order that the action is to proceed as a regular action. When
determining whether or not an action should proceed as a fast track action, the
court has considered numerous factors, including:

             
(i)                   
the time required for trial: Shaker, at para. 21;

            
(ii)                   
whether all parties have consented or acquiesced to use fast track
procedures: Musgrove at paras. 19-21;

           
(iii)                   
the risk of prejudice to a party, including prejudice with respect to
costs: Shaker at paras. 33-34;

          
(iv)                   
whether a party is using the application of fast track for an improper
purpose, for example as a back door method to strike a jury notice: see Tong
v. Lanser, [2012] B.C.J. No. 2956 at paras. 45-46, 51 (S.C.); and
Beckett v. Tong, [2013] B.C.J. No. 1434 at para. 15 (S.C.);
and

           
(v)                   
the interests of justice and the purpose of Rule 15-1, which was
designed to provide a more efficient and economical procedure for more
straightforward or less valuable cases: Shaker at paras. 24-26; and
Tong at paras. 32-33.

[20]        
If an action is a fast track action, Rule 15-1(10) applies to require
that the “trial of a fast track action must be heard by the court without a
jury”. The process for obtaining a jury trial set out in Rule 12-6(3) is expressly
subject to the restriction in Rule 15-1(10). Therefore the parties to a fast
track action cannot file a valid jury notice as long as Rule 15-1 applies to
the proceedings. A jury notice that is not filed in compliance with the Rules
is a nullity: see Lanci v. Marpole Transport Ltd., 2000 BCSC 1227 at
paras. 33-35.

IV.           
Are these Fast Track actions?

[21]        
Subrule (1)(a) provides that Rule 15-1 applies to an action where the
plaintiff’s damage claim has a value of not more than $100,000. Ms. Bagri
submits that given that there are two actions, this limit is doubled to
$200,000, and further, that pursuant to Rule 15-1(3), the court has discretion
to award more than that amount. In Shaker, the Court proceeded on the
basis that the action qualified as a fast track action under Rule 15-1(1)(a)
because, although the plaintiff’s claims were not limited to $100,000, the
plaintiff asserted that his damages would likely not exceed $100,000. Here, Ms. Bagri
has declined to admit that her claims will not exceed the limit in Rule 15-1(1)(a).
The calculations on past income loss provided by plaintiff’s counsel in
submissions on this application suggest an amount over $200,000 (6 years of
lost income of $40,000 per year). Further Ms. Bagri has obtained an expert
report which assesses her costs of future care and loss of future income at
more than $440,000. While the expert evidence is not definitive as to what
damages will be awarded, it provides an indicator that the plaintiff’s claims
exceed even a doubled monetary limit under Rule 15-1(1)(a).

[22]        
In the circumstances, it is fair to conclude that the actions do not
fall within the monetary limit specified in Rule 15-1(1)(a).

[23]        
A second circumstance in which an action can be appropriately placed in
fast track is where the time required for trial is 3 days or less: Rule 15-1(1)(b).
In a Reply to Notice to Admit filed on May 28, 2012, the plaintiff estimated
that the trial would last 6-7 days. Ms. Bagri had previously estimated an
8-day trial at the trial management conference on May 11, 2012. The defendants have
estimated a 10‑day trial. The trial is now set for 10 days commencing
January 11, 2016. Again, even assuming that the length of trial specified in Rule
15-1(1)(b) should be doubled on the basis that there are two actions involved,
the limit set out in the rule is not met.

[24]        
A third circumstance is where the parties consent to proceed as a fast
track action: Rule 15-1(1)(c). The plaintiff asserts that the defendants here
should be found to have consented given that they acquiesced in the actions
proceeding as fast track actions. In support of her position the plaintiff
cites the fact that until this application was filed in December 2014, the
defendants made no move to have the actions removed from Rule 15-1 — either
when the notices were filed in July 2010 or when the actions were ordered to be
heard together in October 2010. Further, the defendants filed several
applications as “Subject to Rule 15-1”. Taken together, the plaintiff asserts
that these facts support a finding that the defendants acquiesced to use fast
track procedures.

[25]        
The defendants dispute that they have consented to these actions being
fast track. They rely, in part, on the affidavit of Lori Hall, a paralegal for
the defendants’ counsel who deposes that that the applications were filed “Subject
to Rule 15-1” in error. Further the defendants submit that the evidence
supports a conclusion that they consistently objected to proceed as a
judge-alone trial.

[26]        
Musgrove was a decision addressing the plaintiff’s costs
following a trial decision. There the defendant had filed notices of fast track
action. The plaintiff never objected to the defendants’ assertion that the
actions were fast track actions, and the parties conducted discoveries as if
Rule 15-1 applied. Johnston J. held that a party who acts in compliance with
the fast track procedures will be deemed to have acquiesced unless they have
voiced some disagreement reasonably promptly. He stated as follows:

[20]      At a minimum, when a
party is served with a notice in Form 61, that party should be expected to turn
their mind to whether they agree that the action should proceed under the fast
track regime, and, if they do not agree, to say so reasonably promptly and not
lie in the weeds to see how things turn out with respect to costs.

[27]        
Based on Musgrove, while a party should not be allowed to proceed
as if Rule 15-1 applies and then change his or her mind when the application of
the rule becomes less favourable, if a party has clearly objected to the
procedures that would apply under Rule 15-1, they cannot be viewed as
acquiescing to its application. Here, there is no evidence that the defendants
consented to the fast track procedure. They had applied to have the first
action removed from the expedited process under the former rules. Further, by
requesting a jury trial, both before and after the fast track procedures were
invoked, the defendants made it clear that they did not agree to a core part of
the fast track procedures.

[28]        
There are other factors which support a finding that these actions are
not fast track actions. Given that the earlier accident is from almost 8 years
ago, the fast track procedures have not assisted the parties in resolving the
disputes quickly or efficiently. In contrast, applying fast track procedures
restricts the defendants’ right to proceed as a jury trial and caps their
potential costs. While it has not been made out that the plaintiff has invoked
Rule 15-1 specifically to defeat the defendants’ jury notice, it is fair to
conclude that, in the circumstances, using fast track procedures would
negatively impact the defendants more than it would positively assist the
plaintiff or advance the purposes of Rule 15-1.

[29]        
In my view, taking all these factors into account, it is fair to
conclude that Rule 15-1 does not apply to these proceedings. Accordingly the
application by the defendants to remove the actions from fast track is allowed.

V.             
Is there a valid jury notice?

[30]        
There is no dispute that the jury notice filed in the first action,
following the order of Leask J. removing the action from Rule 68, was
valid at the time it was filed. The various jury notices filed following the
filing of the notices of fast track action were arguably not valid. Given that,
by this order, the actions are now removed from Rule 15-1, it is appropriate for
the defendants to file a jury notice in each action to confirm their election
to proceed with a jury trial.

[31]        
The application by the plaintiff is dismissed.

[32]        
Costs to the defendants in any event of the cause.

Master
S. Scarth