IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160308

Docket: M125112

Registry:
New Westminster

Between:

Andrew James
Willis

Plaintiff

And

A.G. Woodward
Roofing & Drainage Ltd.

and David R.
Hilton

Defendants

Before:
Master Caldwell

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This application before me is a particularly
difficult one because of the potential consequences and the conflict between
the authorities that continue to reflect the general view that severance is a
very unusual relief granted in if not exceptional circumstances, then
circumstances which go a long way towards being exceptional. It is a battle
with efficiency and allowing people access to the courts and as Rule 1 says a
just and speedy, we can eliminate that in this particular case, but
determination of the matter on its merits, a phrase that is often left off many
of these considerations. But enough about the preliminary comments.

[2]            
The matter arises out of a motorcycle accident from February of 2008. I
stress that date because it is already a long time ago. It is now more than
eight years, it will be eight and a-half years by the time we get to the July
27, 2016 trial date, a date that was obtained more than a year ago, almost a
year and a-half ago, in December of 2014, at which point the date was set to
accommodate both liability and quantum.

[3]            
There are very real issues arising with respect to both liability and
quantum of damages.

[4]            
Counsel for the plaintiff has gone a long way to minimize the amount of
dispute there will be on the quantum question and has in that regard pointed to
the defence medical examination by Dr. Kokan that acknowledges that there were terrible
and debilitating injuries suffered by the plaintiff as a result of this
accident and injuries which will continue to plague the plaintiff for the
balance of his natural life. It will have an impact on his ability to earn
income and, for want of a better phrase, he just simply is not going to get
over them.

[5]            
He is dealing with one leg that is shorter than the other; he has
weakness in both arms due to severely fractured wrists. To his credit, he was
off work a surprisingly short period of time, something less than a year, and
is now working at two occupations and battling through to do so. He is earning
decent income and as plaintiff’s counsel has said – I think it was plaintiff’s
counsel – he is making hay while the sun shines before the matters clearly
serve to slow him down any more than he has. He has led a very active life. I
take it, although nobody told me, that he is still a reasonably young person. He
has been engaged in what can best be written I suppose as extreme sports such
as skydiving and the like and is unable to continue those activities. The
plaintiff’s counsel points to all of these things to indicate it and they are
acknowledged by the defence expert in his report and accordingly a quantity
assessment basically is going to cause less difficulty than it normally would.

[6]            
Defence counsel has taken a different track and has said no, there will
still be significant issues about credibility and there will still be
significant issues about the extent of the injuries.

[7]            
On the basis of the submissions, I must say that I lean in favour of the
plaintiff with respect to the quantification. It is clear to me that the extent
of the injuries is far-reaching and although the numbers may be high, it will
be difficult for experienced counsel to not come within a reasonable range for
the damages which are done, particularly in keeping with Dr. Kokan’s report
that acknowledges that not only have all these injuries been suffered, they are
all attributable to the accident.

[8]            
The more troublesome issue is that of liability. There is a dispute as
to whether the plaintiff, who was riding a motorcycle at the time apparently
not at particularly high speed, the question is whether he passed on the left
which may have been legal although he was passing over a double solid line I am
told – a single solid line, all right, sorry – it may have been allowable for
him to pass.

[9]            
The defence says no, he was passing on the right. That would be an
entirely different situation. As I take it, the collision occurred when he had
completed his pass and got back into the lane and found that there was a
vehicle in front of him. He laid his bike down and came into collision with the
vehicle that was in front of him and suffered these injuries. I imagine part of
the submissions even if he is found to have been passing on the left will be a
paraphrasing of lines out of "Jurassic Park;" it is not a matter of
whether he could, it is whether he should. But be that as it may, the big issue
will be liability.

[10]        
The test for liability, which I reviewed in a previous case that I wrote
on late last year and I do remember the case, not having an opportunity to
review it, it was strangely similar to this. It was a motorcycle accident as
well. In that case, it was the defence applying for severance and the claimant
was, while recognizing the significant expense of proceeding on all matters,
was wishing to have their full day in court so that they would have a better
chance of being believed. I quoted in that case the decision of Justice
Martinson in Nguyen v. Bains as to the judge’s discretion in dealing
with severance issues such as this and the tests are not hotly disputed by the
lawyers here.

[11]        
Those general tests say that a judge has discretion to sever but it
should not be exercised lightly unless there is a real significant savings in
time likely; the matter that the issue to be tried first could conceivably put
an end to the action; severance is most appropriate when it is by trial judge
alone; and not considered when matters are interwoven with other issues at
trial. It does say that the parties’ financial circumstances are one factor to
consider and that any pre-trial severance ruling will be subject to the
ultimate discretion of the trial judge.

[12]        
It is pretty much an even split in terms of the various tests and I do
not read those tests as being cumulative such that all of them need to favour
it. I need to consider in my view each one of them individually.

[13]        
I must say I am not overly convinced that there will be undue savings of
court time. I am told that this will take two to three days. If the parties
thereafter can come to agreement on the damages, there will be a savings of the
additional damages time but that is by no means what in everyday parlance could
be referred to as a slam dunk. There appears to still be a dispute on that
although I think there is room for that to be resolved. If that is the case and
if it is resolvable, it would be doable in much less than the total of nine
days.

[14]        
Severance being appropriate if the issue to be decided first could be
determinative. That is a difficult phrase to interpret because any finding
could be determinative. Whether or not it will depends on whether there is
going to be appeals or the like, but I cannot consider that unduly because
there could be an appeal just as likely after the final decision if the matter
is all heard together.

[15]        
So I disregard for most purposes a delay or further costs associated
with an appeal because that option lays open to the parties regardless of which
way we go. This is a judge alone situation so it is favoured by Justice
Martinson’s tick list.

[16]        
Is the matter of liability really interwoven with the issue of damages?

[17]        
Unlike the Desharnais case where, in recalling it, the plaintiff
in that case was seen to have been passing a line of several cars at a fairly
high rate of speed. There were witnesses that saw the passing occur. The
motorcycle then went out of sight of those witnesses and they heard the crash. They
came upon the scene, the witnesses who had been on the side I believe and the
witnesses in a car that had been passed, to find the motorcycle basically in
its final few tumbles and coming to rest. No one saw anything untoward other
than the motorcycle down.

[18]        
The motorcyclist claimed that a black vehicle that no one had seen who
may have had its lights on cut him off and clipped his foot peg sending him
pirouetting into a dive. It was perhaps an unlikely situation because the
witnesses came onto it within seconds and no one saw the other vehicle. In that
particular case therefore much was going to turn on the whole case on the
believability of the plaintiff.

[19]        
Here, it does not seem to me that the same can be said. There are
witnesses to this incident, there are engineering reports which were absent in
the other case, and I specifically recall asking counsel in Desharnais
if there were engineering reports and the like that would bolster credibility
and the answer was in the negative.

[20]        
So we are forging ahead on this one in a situation where I do think
there is a pretty clear delineation or break between the two issues, that is,
liability which will be a self-contained chunk of evidence, and quantum which
as well if it is pursued will be not as dependent on credibility as would the Desharnais
situation which as I say was a very unique set of facts.

[21]        
The parties’ financial circumstances was pointed out to me by defence
counsel, particularly when addressing I believe it was the Hemmerling case
which had been handed up by plaintiff’s counsel, a decision of Master Hyslop. There
are other cases I believe that were pointed out where the plaintiff was in
fairly dire financial situations and was unable to finance.

[22]        
Here, I do not think that can be said. The plaintiff is not in dire
financial circumstances, they are not impecunious. Having said that, this is
set for nine days and the nine days will involve significant disbursement
expense for the trial time, it will include significant amounts for additional
medical evidence should it be led, and realistically the nine days will be
expensive by all accounts. If that can be shortened, it is probably better to
do that.

[23]        
That brings me to the ultimate issue of the role of the Court in this. While
it is true that cases have said that this is not a normal order to be granted
and should only be granted in somewhat exceptional circumstances or as I say
ones which mitigate towards exceptional, I also think it is a situation where
we cannot turn a blind eye to the fact that access to courts is an important
right for the parties and to an extent forcing this ahead for nine days in June
may also be a misuse of court resources.

[24]        
I am sensitive to the fact that setting the trial down the road again if
we need to deal with quantum is something that I have battled with on other
applications and on this one over the last three quarters of an hour as I
considered the matter in my chambers. It is a matter of more than inconvenience
for the Supreme Court schedulers to have to try and coordinate two trial dates
for one action, but it is also the case that I must consider that if this can
stand a significant chance of being resolved in two or three days, without the
need for the use of another week plus of court time, that that is a benefit to
the court system itself. I recognize that if I make that order there may still
be a significant delay into next year for the quantum to be resolved.

[25]        
I can tell both counsel that this has been a – I have certainly reserved
on matters and come to difficult decisions, but this matter needs to be
answered and it has been one of the more difficult ones that I have had to
decide because there are issues that mitigate both ways. I am not in favour of
severing quantum and liability except in what I consider to be very appropriate
and quite exceptional circumstances. In spite of the able submissions of Mr.
MacDonald, I think this case mitigates ever so slightly into that category.

[26]        
The costs to be saved to both litigants to determine the issue of
liability up front will at the very least enhance the opportunity for
resolution and they may avoid the need for further court resources. It will
make the issue of determination of the one issue far more accessible to both
parties in terms of money outlay. If there is a delay in the defendant having
to pay out, that is at the behest of the plaintiff in any event because it is
highly likely that if this goes ahead in June on the issue of liability, a
decision will not be forthcoming for some time and thereafter it probably will
presumably have to be set and the plaintiff will be waiting for their money
beyond what might normally have been the situation.

[27]        
I do not think I can say an awful lot more. I can tell you as I have
already said as I went back there I talked myself into and out of this decision
a couple of times and I only did so because it is such a tight shot between
these two parties. On the one side, the defence rightly raises the uniqueness
of these kind of situations for severance, but I think in all of the
circumstances it mitigates slightly in favour of the plaintiff and so the order
will go.

[28]        
I am going to leave costs in the cause though. Because it is so hotly
contested, I am not going to hive this out as a one off. You can deal with the
costs down the road on the basis of the liability trial.

[29]        
All right? I even went so far as to see whether Desharnais had
been appealed because I heard a rumour that it was going to be, but I could not
find that it had been overturned.

[30]        
MR. MACDONALD: Thank you, Your Honour.

[31]        
MR. MCHARG: Thank you very much for all your time, Your Honour.
It has been a long day.

[32]        
THE COURT: All right. There you go.

“Master
Caldwell”