IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Deo v. Vancouver School District No. 39, |
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2017 BCSC 1089 |
Date: 20170614
Docket: S106826
Registry: Vancouver
Between:
Isaac Deo, an
infant, by his
Litigation Guardian, Danny Deo
Plaintiff
And
The Board of School
Trustees of
School District No. 39 (Vancouver),
Kerri Wallin, John Doe, Jane Doe
Defendants
And
Gyan Deo
Third Party
Before: The Honourable Madam Justice Gropper
Oral Reasons for Judgment
In Chambers
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Counsel for the Plaintiff: |
P.D. Warnett M. Taghizadeh |
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Counsel for the Defendants The Board of School Trustees of School District No. 39 (Vancouver) and Kerri Wallin: |
T.C. Hinkson |
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Counsel for the Third Party: |
J.G. Barnum |
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Place and Date of Trial/Hearing: |
Vancouver, B.C. June 6, 2017 |
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Place and Date of Judgment: |
Vancouver, B.C. June 14, 2017 |
[1] The defendant, Board of School Trustees of School District No. 39 (Vancouver) (the “School Board") applies for a second time under Rule 9-7 for an order that the claim of the plaintiff and the third party alleging that the school board is vicariously liable for the negligence of the third party be dismissed.
[2] The application also sought that the plaintiff's claim be dismissed against Kerri Wallin ("Principal Wallin"). The parties have consented to that dismissal and I have made the order. The issue remaining from that application is costs.
[3] The issues in this application are:
1. Should the school board be granted leave to bring a second application for summary trial?
2. Is the matter suitable for summary trial?
3. If leave is granted and the matter is suitable, should the court dismiss the claims of the plaintiff and the third party that the school board is vicariously liable for the negligence of the third party in accordance with the definition of "volunteer" under s. 94 of the School Act?
[4] As noted, this is the second application for a summary trial by the school board. The first was heard and dismissed by Mr. Justice Sigurdson in October 2014, indexed at 2014 BCSC 2364.
[5] Mr. Justice Sigurdson set out the plaintiff's claim at paras. 8-11:
[8] The accident occurred [on April 21, 2010] in the school ground when the infant plaintiff, Isaac Deo, then seven years of age, went from a sandpit over to an area of the school ground near a tree where three girls of about the same age were playing, and during that play or activity, a branch of the tree apparently was pulled back and released and whipped and struck the eye of the plaintiff, causing serious damage.
[9] The plaintiff's claim is brought pursuant to the Occupiers Liability Act and in negligence, alleging a breach of the duty of care to reasonably supervise the plaintiff child. …
[10] It appears that the application of the standard of appropriate supervision and the issue of causation depend upon many factors, including the nature and size of the area to supervise, the ages of the children, the nature of the activity, and the nature of any risk from the activity.
[11] There were apparently three supervisors in attendance that day, but none of them saw the accident or apparently were aware of it immediately upon it occurring.
[6] Isaac's grandmother, Gyan Deo, (“Gyan”) was with him on the day of the incident while he ate lunch inside the school. Isaac finished lunch at 12:30 p.m. and went outside. Gyan watched him play in the sandbox. At about 12:45 p.m., Gyan told Isaac she was leaving. The three girls called Isaac over to the maple tree.
[7] As Gyan was walking off the school grounds, she heard Isaac scream and went back to where he was. Gyan took Isaac to the school office where they met with Susan Chan, an administrative assistant, and a first aid attendant at the school. Ms. Chan offered to call an ambulance for Isaac, but Gyan, according to the Principal Wallin’s affidavit:
. . . took charge at the time and declined an ambulance as best we could tell.
[8] Principal Wallin says that the policy of the school board is to allow parents and relatives on the school property during recess and lunch hours to visit with the students, to eat lunch with them and to watch them play.
[9] The notice of civil claim was filed October 14, 2010. The school board filed a third party notice against Gyan on October 16, 2012. On October 21 and 22, 2014, the school board and others brought the summary trial application before Sigurdson J., seeking dismissal of the action or, alternatively, dismissal of the claims against Principal Wallin and Susan Nichols. In the further alternative, they applied to sever liability and damages.
[10] Sigurdson J. dismissed the application for summary trial. He granted leave to reapply for dismissal of the claims against Principal Wallin and Susan Nichols and ordered severance.
[11] In dismissing the school board's summary trial application, Mr. Justice Sigurdson stated at paras. 15 to 17:
[15] My reasons for dismissing the summary trial application on this basis are as follows:
[16] First, the injury to the boy was very serious and life altering. I think that, although not determinative, is one relevant factor or consideration for having the case determined by a full trial, particularly where facts are unclear, there are gaps in the evidence, and the facts may well be much clearer at trial. Those uncertain or incomplete factual areas include the nature of the interchange between the boy and the girls near the tree, the nature of the playing or activity at the tree, and any possible risks to a young person of the activity, the nature and degree of any supervision, and the reasons why the accident was not seen by the supervision that was undertaken by the three supervisors at the relevant time.
[17] Secondly, and relevant to the aspects of the evidence that I have just mentioned, the plaintiff seeks to be able to cross-examine the three supervisors at trial. The plaintiff wishes to demonstrate that the supervision was inadequate and that with proper supervision the accident would have been avoided. The evidence of the supervisors is of course potentially very relevant, particularly given the defendants' position that there was no foreseeable risk of harm and the incident happened very quickly and could not have been avoided. The plaintiff challenges these propositions. The amount of time the boy played with the girls, whether the trees with young children playing was an activity that was risky, why, if adequate supervision was in place, the supervisors did not see the boy or become aware of the injury when it occurred are all largely factual and important questions that I find are relevant and not resolved or determinable on the state of the evidence on this summary trial application.
[12] There was a third reason that Sigurdson J. gave for dismissing the summary trial application which concerned the nature of the evidence provided by the defendants. That matter is not relevant to my consideration today.
[13] Sigurdson J. referred to the evidence that caused him to exercise discretion to dismiss the summary trial application at paras. 20 and 21:
[20] The only account of the accident then is the short affidavit of the young plaintiff.
[21] Moreover, there were steps taken by the school to prune the tree after the accident occurred, and there appears to be some dispute in the evidence as to the reason for that, which again is another factor in the whole of the evidence that I determined could not be resolved justly on the summary trial. However, even absent that aspect, I would still find the case unsuitable for summary trial.
[14] Sigurdson J. granted the school board liberty to bring on a further summary trial application in respect of the claim against Principal Wallin and Ms. Nichols.
[15] On May 10, 2016, the plaintiff applied to amend its notice of civil claim to include the following paragraph:
10. At all material times, the defendant Wallin, Jane Doe and John Doe and the third party, Gyan Deo were employees or volunteers of the defendant School Board and were acting within the scope of their employment and the defendant School Board is vicariously liable for the negligence of the defendants Wallin, Jane Joe, John Doe and the third party, Gyan Deo, pursuant to section 94 of the School Act, RSBC 1996 c.412.
[16] The school board opposed this amendment unsuccessfully on May 10, 2016. Master Muir allowed the plaintiff's application to amend the notice of civil claim and it was filed on May 13, 2016.
[17] On July 5, 2016, Gyan filed a response to the third party notice. In that response, she claims, in the alternative, that she was a volunteer of the school board acting within the course and scope of her volunteer position, and that the school board is vicariously liable for her negligence under s. 94 of the School Act.
[18] Examinations for discovery have taken place including that of Gyan on October 18, 2016. The deposition of one of the supervisors is scheduled for June 16, 2017, and an examination of another supervisor is scheduled for June 26, 2017. The liability trial is scheduled for eight days commencing August 8, 2017.
[19] As noted in the background, this is the second application by the school board.
[20] Rule 9-7(16) provides:
No further application without leave
(16) If the court does not grant judgment under subrule (15), the applicant may not apply again under subrule (2) without leave of the court.
[21] There is limited authority on the matter of leave to bring a further application for summary trial, including whether it should be brought at the same time as a summary trial application, or in advance of such application.
[22] Mr. Justice Voith considered the matter of leave to bring a subsequent summary trial application in Kitsul v. Slater Vecchio LLP, 2015 BCSC 1394. In that case, the plaintiff sought leave to apply for summary trial as a separate application from the application for summary trial; that is, leave was sought before the application for summary trial was made. In considering whether leave should be granted, Voith J. noted at paras. 11 and 12:
11 By virtue of R. 9-7(16) of the Supreme Court Civil Rules and Wong J.'s earlier determination, it is now necessary for the plaintiff to first obtain this Court's leave before being able to again proceed with his summary-trial application.
12 Both counsel agree there is very little guidance on what legal considerations or legal framework govern the application of R. 9-7(16). They further agree, and it seems self-evident, that in order for the plaintiff's summary application to proceed, some material circumstance or consideration which impeded or prevented the original application from proceeding, ought to have been addressed or removed.
[23] At paragraph 15, Voith J. considered the purpose and object of summary trial proceedings. He stated:
15 Ultimately, I consider that these competing submissions somewhat miss the central issue. The animating purpose and central object of summary-trial proceedings is to provide the parties with a potential means of determining a dispute efficiently and expeditiously. In Hryniak v. Mauldin, 2014 SCC 7, the Court emphasized the important role that summary-judgment proceedings can play in addressing access to justice concerns and said:
[34] The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial. With the exception of Quebec, all provinces feature a summary judgment mechanism in their respective rules of civil procedure. Generally, summary judgment is available where there is no genuine issue for trial.
...
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[24] Voith J. concluded that even if the first two of the three criteria referred to in para. 49 of Hryniak were satisfied, the third requirement was not. Voith J. noted that a summary trial application was expected to take three days and the conventional trial was expected to take five.
[25] Voith J. continued at paragraphs 17 and 18:
17 It is manifest that a conventional trial has numerous advantages. It would allow the judge to see the witnesses and, in particular, Mr. Schroeder. It would also obviate the prospect of some issue surfacing that was not canvassed adequately in the affidavit material and that might give rise to further delay. Still further, the issue of proportionality, to the extent that that issue engages a consideration of the amounts in dispute and the importance of those issues, also likely militates, as Wong J. noted, in favour of a conventional trial.
18 It is also not at all clear that a conventional trial would be more expensive in any meaningful way. …
[26] Because the summary trial did not provide the parties with any meaningful benefit, Voith J. declined to exercise his discretion to grant the plaintiff leave to bring a further summary trial application.
[27] Applying the Hryniak criteria here, even if the first two are met, (which I am not deciding) the third is not. The liability trial is scheduled two months hence, and all the matters related to liability, including vicarious liability, can be thoroughly canvassed.
[28] I note that in his reasons for dismissing the school board's earlier summary trial application, Sigurdson J. considered that there were gaps in the evidence which had to be clarified at trial, and I will repeat them for ease of reference. Those uncertain or incomplete factual areas included the nature of the interchange between the boy and the girls near the tree, the nature of the playing or activity at the tree, and any possible risks to a young person of the activity, the nature and degree of any supervision, and the reasons why the accident was not seen by the supervision that was undertaken by the three supervisors at the relevant time.
[29] I consider that those factual gaps are not yet filled, except perhaps the matter of the school board's vicarious liability for the actions of Gyan, which is the subject matter of this summary trial. Even if the school board succeeds in having this summary trial heard, and is successful in convincing me that the claims for vicarious liability for Gyan's actions ought to be dismissed, the reasons why the accident was not seen by supervision that was undertaken at the relevant time, remains a highly relevant area to be canvassed at trial.
[30] I accept that there have been certain changes in the pleadings and statements made in the examinations for discovery that were not before Sigurdson J. in October 2014. This may satisfy the change in material circumstances that impeded or prevented the first application from proceeding. However, I find that this is insufficient as a basis to grant leave to bring a second summary trial because the third criterion in Hryniak is not satisfied.
[31] As a matter of practice, in my view, it would have been better if the school board sought leave before this application was made. The matter of leave would not require significant time for hearing and could have been addressed in general chambers without requiring all parties to address the issues of suitability and the merits of the application for summary trial. I do not consider the failure to obtain leave before proceeding with this application for summary trial itself as fatal to this application. I merely say that would be the preferred practice.
[32] In the event that I am incorrect in denying leave to the school board to bring the summary trial application, I will go on to consider the issue of suitability.
[33] On every application for summary trial, the court must first consider the suitability of granting judgment in favour of any party for all or part of the claim. The court must be in a position to find the facts necessary to decide the issues in the summary trial, referring to Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.), at para. 49. The Court set out the factors to be considered in Gichuru v. Pallai, 2013 BCCA 60 and Dahl v. Royal Bank of Canada et al. 2005 BCSC 1263 at para. 12 (aff’d on appeal 2006 BCCA 369):
12 Cases since Inspiration Management set out additional factors that should be considered in deciding whether a matter is suitable for determination pursuant to Rule18A. The additional factors trial judges take into account in determining whether a case is suitable include:
*is the litigation extensive and will the summary trial take considerable time;
*is credibility a crucial factor - and have the deponents of the conflicting affidavits been cross examined;
*will the summary trial involve a substantial risk of wasting time and effort, and producing unnecessary complexity; and
*does the application result in litigating in slices.
Novin v. Novin, [2004] B.C.J. No. 2092 (C.A.); Bacchus Agents (1981) Ltd. v. Philippe Dandurand Wines Ltd., [2002] B.C.J. No. 377, 2002 BCCA 138.
[34] The factors to be considered in determining suitability of a summary trial on Rule 9-7 are:
1. the amount involved;
2. the complexity of the matter;
3. urgency;
4. any prejudice likely to arise by reason of the delay; and
5. the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings, credibility, whether the summary trial involves a substantial risk of wasting time and effort, and whether the reapplication results in litigation in slices.
[35] I also refer to the recent decision of the Court of Appeal in Kemp v. Vancouver Coastal Health Authority, 2017 BCCA 229, which makes clear that a court may proceed to a summary trial on a discrete issue in the litigation.
[36] I conclude that a summary trial, even on the issue of whether Gyan was a volunteer under the School Act, does not satisfy these factors. Whether the issue is resolved by summary trial will not affect the amount involved, the complexity of the matter, as outlined by Sigurdson J., remains in spite of the potential resolution of this one issue. Sigurdson J. referred to the evidentiary gaps which have not been filled. The examination for discovery and deposition of the two supervisors is imminent. There is no urgency in having this matter resolved, as an eight-day liability trial is pending. There will be no prejudice to the school board by reason of delay for the same reason. The conventional trial will take place. The time spent on addressing this single issue in a summary trial, most of one day, is not, in my respectful view, justified in the circumstances. This also goes to the factor of the risk of wasting time and effort which, with respect to this application on such a narrow issue, could be. While there are no issues of credibility, that one factor does not support proceeding to a summary trial.
[37] In respect of whether this application results in litigation in slices, I refer to the statement by Southin J. in Bacchus Agents (1981) Ltd. v. Philippe Dandurand Wines Limited, 2002 BCCA 138, at para. 7:
. . . "litigating in slices" . . . may become a hindrance to the "just, speedy and inexpensive determination" of the dispute "on its merits".
[38] I find that resolution of this one issue does not promote overall resolution of the action, or have any significant impact on the cost or length of trial. This militates against hiving off this issue and making a determination by way of summary trial.
[39] On that basis, even if I had granted leave to bring the application, the school board has failed to satisfy me that the issue is suitable for disposition by summary trial, and thus the application for summary trial is dismissed.
[40] The school board's application had two aspects including seeking dismissal of the plaintiff's case against Principal Wallin. The plaintiff and the third party in their application responses agreed to dismiss the case against Principal Wallin. The school board takes the position that had it not made this application for summary trial, the respondents would not have agreed to dismiss the case against Principal Wallin.
[41] Whether or not that is the case does not, in my view, provide a basis for awarding costs against the respondent for not doing so before filing their application response.
[42] In respect of the application for summary trial on the volunteer issue, I order the costs against the school board in any event of the cause.
“Gropper, J.”