IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160226

Docket: M143808

Registry:
Vancouver

Between:

Robert Lamoureux

Plaintiff

And

Steven Grant
Lightburn

Defendant

– and –

Docket: M164494

Registry:
New Westminster

Between:

Ashley Elizabeth
McRae

Plaintiff

And

Steven Grant Lightburn,
Robert Lamoureux
and Heather Martini

Defendant

And

Heather Martini
and Robert Lamoureux

Third
Parties

Before:
Master Scarth

Reasons for Judgment

[1]            
These two actions arise from a three-car collision on September 25, 2012.

[2]            
The plaintiff in the New Westminster action, Ashley McRae, was driving a
Pontiac Torrent SUV. The plaintiff in the Vancouver action, Robert Lamoureux,
was driving a Volkswagen Jetta sedan. Steven Lightburn, a defendant in both
actions, was driving a Chevrolet S-10 pickup truck. All of the vehicles were
westbound on the Trans-Canada Highway at the time of the accident.

[3]            
On this application Mr. Lightburn, with the support of Ms. McRae,
applies to have the issue of liability in the two actions heard together (Rule
22-5(8)), and separately from the issue of damages (Rule 12-5(67)). The
applications are opposed by Mr. Lamoureux, both as plaintiff and defendant.

THE PLEADINGS

A.       Lamoureux Action

[4]            
Mr. Lamoureux’s version of events on September 25, 2012, is set out
in his amended notice of civil claim as follows:

3.         …the Plaintiff was
driving his vehicle west on Highway #1, near Brunette Avenue Exit, in the City
of Coquitlam, British Columbia, when the traffic in front of him came to a
sudden stop. The Plaintiff stopped his vehicle, and was subsequently rear-ended
by the Vehicle driven by the Defendant (Lightburn). The Plaintiff’s vehicle was
pushed to the lane to his right and struck the concrete embankment

[5]            
No mention is made of any contact between the McRae and Lamoureux
vehicles.

[6]            
In his response to civil claim, Mr. Lightburn denies liability and sets
out his position, under “Additional Facts”, as follows:

1.         The Accident occurred
when a motor vehicle owned and operated by Ashley McRae (the “McRae Vehicle”),
and travelling directly ahead of the Plaintiff’s (Lamoureux’s) vehicle, came to
a sudden stop, causing the Plaintiff’s (Lamoureux’s) vehicle to strike the
McRae vehicle.

[7]            
Mr. Lightburn alleges that the accident was caused or contributed
to by acts and omissions of Mr. Lamoureux, and relies on the provisions of
the Negligence Act, R.S.B.C. 1996, c. 333, with respect to contributory
fault and negligence.

B.       The McRae Action

[8]            
Ms. McRae’s notice of civil claim sets out her version of events as
follows:

5.         On or about September
25, 2012, the Plaintiff was the driver of a motor vehicle stopped in traffic on
westbound Highway 1 at Brunette Avenue in the City of Coquitlam, Province of
British Columbia, when a motor vehicle owned by the Defendant Martini and being
negligently driven by the Defendant Lamoureux rear-ended the Plaintiff (the “First
Collision”). Subsequently a motor vehicle owned and being negligently driven by
the Defendant Lightburn rear-ended the Defendant Lamoureux’s vehicle and pushed
it into the Plaintiff’s vehicle (the “Second Collision).

[9]            
In his response to Ms. McRae’s notice of civil claim, Mr. Lightburn
admits the First and Second Collisions as defined above occurred but denies
that they occurred in the manner alleged by Ms. McRae. Mr. Lightburn
sets out the same version of events as appears in his response to the Lamoureux
action, and pleads contributory fault and negligence by Ms. McRae, Mr. Lamoureux
and Ms. Martini.

[10]        
Mr. Lightburn has also filed third party proceedings against Mr. Lamoureux
and Ms. Martini.

[11]        
Mr. Lamoureux’s response to Ms. McRae’s notice of civil claim
denies liability and alleges that:

6.         On or about September 25, 2012, at Highway #1 or
near Brunette Avenue in Coquitlam, a collision occurred between a 2007 Pontiac
motor vehicle owned and operated by the Plaintiff, Ashely [sic] Elizabeth
McRae, a 2003 Chevrolet motor vehicle owned and operated by the Defendant, Steven
Lightburn, and a 2003 Volkswagen motor vehicle owned by the Defendant Martini
and operated by the Defendant Lamoureux (the “Collision).

7.         The Collision was not
caused by the negligence of these Defendants but was caused or contributed to
by the fault or negligence of the Defendant, Steven Lightburn.

[12]        
Mr. Lamoureux also pleads contributory negligence on the part of Ms. McRae.

THE POSITIONS OF THE PARTIES

[13]        
It is the submission of the applicant Mr. Lightburn that there is a
common issue of liability between these two actions and that separate trials on
the issue of liability would be undesirable and inconvenient. The applicant
submits that, given the parties’ different positions on the issue of liability
and the sequence of the collision, there is a risk of inconsistent findings on
liability: Schemenauer v. Smith, [1997] 71 A.C.W.S. (3d) 41, B.C.J. No. 1068
(Q.L.) (S.C.). Further, if there is a determination of liability in Mr. Lamoureux’s
action, Ms. McRae may be prejudiced by being bound by that finding in her
action.

[14]        
The applicant submits that, on a conservative estimate, three trial days
will be saved by severing the issue of liability. The severance would avoid a
duplication of witness fees and expert time. In addition there would be a
reduction in pre-trial procedures. The applicant says that he is ready for
trial but that the three-day trial booked for April 2016 does not allow
adequate time for the issues in the Lamoureux action to be addressed.

[15]        
It is Mr. Lamoureux’s position that there is no fear of an
inconsistent finding on liability if the actions proceed to trial separately. Firstly,
he submits that there is no evidence on this application from Ms. McRae as
to the sequencing of the accident. The only allegation impinging on Mr. Lamoureux
is Ms. McRae’s prior consistent statement, which is inadmissible, that she
felt two bumps. Secondly, even if there were two bumps, Mr. Lamoureux
submits that the evidence from the only engineering report available is that no
damage could have been done to Ms. McRae by the first impact. On the other
hand, Mr. Lamoureux submits that he was clearly injured by Mr. Lightburn
rear-ending him, not by him rear-ending Ms. McRae. It is Mr. Lamoureux’s
submission that the trial judge will not need to make a finding in his action as
to whether there were two bumps as even if there were, the first was much less
significant than the rear-end hit by Mr. Lightburn on Mr. Lamoureux which
propelled him into Ms. McRae. Mr. Lamoureux submits that it is not a
situation where the fault of Ms. McRae is at issue in his action.
Accordingly, inconsistent verdicts are not possible.

[16]        
Further, Mr. Lamoureux takes the position that he is prejudiced by
a delay to his action. He submits it is a modest claim which has been run as a
“fast track” action, although not within Rule 15-1. He is ready to proceed to
trial. He submits that the application is really an attempt to delay matters because
Mr. Lightburn is not ready to go to trial. Mr. Lamoureux submits that
a delay of a year is likely if the application is allowed.

[17]        
On behalf of Mr. Lamoureux as defendant in the McRae action, Mr. Thorpe
adopts the submissions of Mr. Lamoureux as plaintiff but adds that Mr. Lamoureux,
as defendant, reserves the right to file a notice requiring trial by jury in the
McRae action, no notice of trial having yet been filed. An order joining the
two actions for trial would preclude him from doing so.

DISCUSSION AND DECISION

[18]        
It is appropriate to begin by addressing the application to have the
proceedings heard together for trial. Rule 22-5(8) of the Supreme Court
Civil Rules provides that the court may order that proceedings be tried at
the same time or on the same day. In exercising the discretion to order that
two or more proceedings be heard at the same time for trial, the court will
consider whether there is a common question of law or fact bearing sufficient
importance in proportion to the rest of the action to render it desirable that
the whole of the matter be disposed of at the same time: Horwood v.
Statesman Publishing Co.; Child v. Statesman Publishing Co. (1928), 98
L.J.K.B. 450, cited in Shah v. Bakken (1996), 20 B.C.L.R. (3d) 393, 46
C.P.C. (3d) 205 at para. 12 (S.C.). In Merritt v. Imasco Enterprises
Inc., [1992] B.C.W.L.D. 513, 2 C.P.C. (3d) 275 (S.C.), the Court
stated the test as being whether common claims, disputes and relationships
exist between the parties (to be determined with reference to the pleadings);
and whether those claims are so interwoven as to make separate trials before
different judges undesirable and fraught with problems and economic expense (to
be determined with reference to the pleadings and matters disclosed outside the
pleadings).

[19]        
Here it is not conceded that the two actions have a common issue. Mr. Lamoureux’s
position is that the liability issues are distinct as between the actions. He
submits that the question of whether there was a “first collision”, as alleged
by Ms. McRae, has no bearing on his case and that Ms. McRae can address
that issue in her own action. This position may be correct to the extent that Mr. Lamoureux
does not seek a finding of liability on the part of Ms. McRae, but it is
based on an assumption that there was no initial impact between Mr. Lamoureux
and Ms. McRae or, if there was such a collision, it was negligible and did
not cause damage to either of them. While this appears to be the conclusion of Mr. Lamoureux’s
engineering expert, it remains untested.

[20]        
I do not accept the submissions of Mr. Lamoureux that evidence is
required on this application to support the “first collision” allegation. The
identification of common issues is to be made with reference to the pleadings: 
Merritt, p. 282. Given the various claims for apportionment and for
findings of contributory negligence, the trial judge will be required to determine
what occurred on September 25, 2012, who is at fault and to what degree. This,
in my view, will involve findings as to the accident as a whole, not its
concomitant parts. Accordingly it is fair to conclude that there are common
issues of fact and law between the two actions.

[21]        
Turning to the question as to whether the claims are so interwoven as to
make separate trials before different judges or triers of fact undesirable, I
will consider the factors set out in Shah, at paras. 14 and 15, and
in Schemenauer, para. 19.

[22]        
Factors which weigh in favour of joining the actions for trial are:

a)             
There will be a savings of trial time as liability will only be
addressed once. The lay witnesses in each case would be Mr. Lamoureux, Ms. McRae
and Mr. Lightburn. There will also be at least one expert witness on the
issue of liability. I accept the estimate of the applicant of a savings of
three trial days.

b)             
Any experts and witnesses as to liability would only have to testify
once.

c)              
Given the common issues of fact, it is fair to conclude that there is a
substantial risk that separate trials will result in inconsistent findings on
the issue of liability. In particular, were the actions to proceed separately
it is uncertain to what extent findings of liability in the Lamoureux action
will translate to who is liable (and to what extent, given the allegations of
contributory negligence) to Ms. McRae in her action.

d)             
Finally, Ms. McRae, who is not a party to the Lamoureux action,
consents to the application to try the actions together. She wishes to take
part in the determination of the issues of fact and liability which may
directly affect her and submits these should not be decided in her absence.

[23]        
As to factors weighing against the joinder of the actions, Mr. Lamoureux
submits that he would be prejudiced in that he would lose his right to a jury
trial in the McRae action. This was not given much weight in the submissions
made on his behalf as defendant. More significant is the prejudice arising to Mr. Lamoureux
as plaintiff by the fact that if the actions are joined for trial, the trial of
his action set for April 2016 will not proceed. Mr. Lamoureux made
submissions as to the prejudice of this delay which would defeat his efforts to
proceed expeditiously with his claim. The prejudice of delay was a significant
factor in Shah, where the Court dismissed the application to have the
actions joined for trial. However, Shah involved an allegation of fraud
against the defendant solicitor, and the prejudice of a delay was considerably greater.

[24]        
The question here is whether the benefits of a combined trial outweigh the
prejudice to Mr. Lamoureux. I accept the submission of the applicant that
they do. In my view, given the factual overlap between the claims of Mr. Lamoureux
and Ms. McRae, the interests of justice require that there be one trial on
the issue of liability for the accident. It may be that the concerns about the
resultant delay for the Lamoureux action can be answered by using the April
trial date for the combined trial. This leads me to the second part of the
application — whether liability should be severed from the damages claims for
purposes of trial.

[25]        
The common issues here are the manner in which the accidents occurred
and the liabilities stemming from them. While there may be overlapping
credibility issues, they are not such as to warrant requiring Mr. Lamoureux
and Ms. McRae to attend each other’s damages trials. Accordingly, it is
appropriate to make an order, pursuant to Rule 12-5(67), that the issue of
liability be tried separately and before the issue of damages. One example of
actions proceeding in this way is found in Strul v. Mondares, 2015 BCSC
284. There, six parties in three cars were involved in an intersection accident.
The accident led to three separate actions in which various passengers and
drivers sued the other drivers and owners of the three vehicles. The three
actions were heard together on the issue of liability (by way of summary
trial), with the issue of damages to be addressed at a later date. The case
authority makes it clear that severance is an extraordinary way of proceeding, but
here the “extraordinary or exceptional circumstances” cited by the Court as a
basis for severance can be found to exist: Schmenauer at para. 29,
citing Westwick v. Culbert, [1992] B.C.W.L.D. 2444, 11 C.P.C. (3d) 311
(S.C.) and Merritt.

[26]        
There will be an order that the two actions be heard together for trial
on the issue of liability only, subject to the directions of the trial judge. I
do not propose to make an order adjourning the trial in the Lamoureux action. As
stated above, the parties may wish to consider whether that date might be used
to address the issue of liability. Alternatively they may wish to convene a
case planning conference in order to set a schedule for the matters to proceed.

[27]        
The applications are allowed with costs to the applicant in any event of
the cause.

Master
S. Scarth