2008 BCSC 1064 MacEachern v. Rennie

Before: The Honourable Mr. Justice Ehrcke

Reasons for Judgment

Counsel for the Plaintiff	R. B. Webster, Q.C. B. E. Webster-Evans
Counsel for the Defendants J. G. Rennie, Canadian National Transportation Limited and Canadian National Railway Company	E. A. Dolden
Counsel for the Defendant All Weather Products Ltd.	R. McLennan
Counsel for the Defendant Vancast Investments Ltd.	J. M. Moshonas
No One Appearing for the Defendant R. A. Duncan
Date and Place of Trial/Hearing:	July 25, 2008
	Vancouver, B.C.

[1] This is an application for the issue of liability to be tried separately from the issue of damages in this personal injury claim arising out of a motor vehicle accident. The trial by judge-alone is currently set for 20 days, commencing March 23, 2009.

[2] By notice of motion dated July 11, 2008, the defendants Canadian National Transportation Limited, Canadian National Railway Company, and John Rennie apply to have the issue of liability tried separately from and prior to the issue of damages. It is proposed that the liability trial would take place on the date currently set, March 23, 2009, with the issue of damages to be tried at a later date, most likely some time in the year 2010. The application is supported by all the other defendants. It is opposed by the plaintiff.

[3] The accident happened near 13237 King George Highway, British Columbia, on September 12, 2005. It is alleged that the plaintiff was either walking or riding her bicycle along the side of the road, facing traffic, when she came to a place where she had to go around a parked truck belonging to Richard Duncan. At about that time, a tractor-trailer owned by the CN defendants and operated by John Rennie drove past, and the plaintiff’s head struck the tractor-trailer. The plaintiff sustained serious brain injuries. It is alleged that the tractor-trailer was negligently operated, that the parked truck was negligently parked, and that Vancast and All Weather, the owners and the lessees of the property adjacent to the accident, were negligent in creating a dangerous parking situation in the area where the accident occurred.

[4] The plaintiff was 27 years old at the time of the accident. She suffered severe brain injuries and is claiming damages in the range of several million dollars.

[5] Each of the defendants denies any liability. If one or more of the defendants is found liable, issues will be raised of contributory negligence and of the apportionment of liability among the defendants.

[6] The defendants submit that it will save time and expense to try the issue of liability separately from the issue of damages. If one or more of the defendants is found not to be liable, those defendants will be spared the expense associated with trying the damages issue, which in this case, is likely to involve extensive expert opinion evidence. For those defendants who are found to be liable, knowing the extent of their liability will facilitate settlement negotiations. The defendants therefore submit that severing the issue of liability from the issue of damages will be beneficial to the plaintiff as well as to the defendants.

[7] The plaintiff, on the other hand, strenuously opposes severance. Her counsel argues that she is entitled to a prompt trial of all the issues, and that granting severance will mean that a final award of damages will be delayed by at least a year, and most likely considerably longer. The plaintiff is currently living in a locked ward at Bear Creek Lodge. Her father, who was appointed her committee on July 12, 2006, deposes that while the staff at that facility are compassionate, and provide general supervision and medical care, his daughter requires better and different treatment than they are able to offer. For example, he says she gets no exercise and has gained over 80 pounds. She has also developed diabetes, which went undiagnosed for several months. He says she needs various forms of rehabilitation and therapy, which she will not receive until this litigation is concluded with an award of damages.

[8] The present application is brought pursuant to Rule 39(29) of the Rules of Court, which provides:

39 (29) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.

[9] That Rule should also be considered in the context of the general direction in Rule 1(5):

1 (5) The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

[10] The defendants submit that the principles to be applied on an application under Rule 39(29) were correctly summarized by Martinson J. in Nguyen v. Bains, 2001 BCSC 1130, 11 C.P.C. (5th) 177, at para. 11:

Courts have considered the question of when some issues should be tried before others. These are some of the points that have been made:

a. A judge's discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.

b. Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.

c. Severance is most appropriate when the trial is by judge alone.

d. Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.

e. A party's financial circumstances are one factor to consider in the exercise of the discretion.

f. Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge.

[11] The defendants also rely on Enterprising Minds Technology Inc. v. Lululemon Athletica Inc. 2006 BCSC 1168, 152 A.C.W.S. (3d) 226, where Gerow J. said at para. 15:

Although the court's discretion to sever an issue or issues is not restricted to extraordinary or exceptional circumstances, there must be compelling reasons to order severance. Factors to be considered include whether it is just and convenient in the circumstances of the case, and whether there is a reasonable likelihood of a significant savings in time and expense, or even settlement....

[12] The plaintiff, on the other hand, points out that there is a long line of authority supporting the proposition that severance should only be granted in an extraordinary or exceptional case.

[13] In Westwick v. Culbert, [1992] B.C.J. No. 2121, 11 C.P.C. (3d) 311 (S.C.), Master Kirkpatrick, as she then was, carefully reviewed the authorities and concluded at para. 14:

I think that, on balance, the weight of the authorities requires that, on an application for severance, the applicant must establish that there exist extraordinary, exceptional, or compelling reasons for severance, and not merely that it would be just and convenient to order severance.

[14] More recently, in Hynes v. Westfair Foods Ltd., 2008 BCSC 637, a case where it was the plaintiff who was applying for severance, Bruce J. wrote at para. 33:

While there appears to be some divergence of opinion in regard to the test to be applied when considering an application to sever liability and damages, I am satisfied that the authorities support a higher onus on the plaintiff than merely showing it is just and convenient. In my view, the plaintiff must show that they have an exceptional or extraordinary case in which either the trial of liability or damages will not be complicated, where the issues of liability and damages are not intertwined, and where there is some evidence that makes it at least probable that a separate trial on the issue of liability will put an end to the action....

[15] In the present case, both the plaintiff and the defendants made submissions about the likelihood of their success on the issue of liability. On the material before me, the only conclusion at which I can safely arrive is that liability involves issues of fact and law that are not simple and whose outcome is not obvious. I am unable to say at this time that it is probable one or more of the defendants will be found to have no liability. That being the case, there is no compelling argument that severance would likely render a trial on quantum of damages unnecessary for one or more of the parties.

[16] The defendants submit that a negotiated settlement is more likely after they know with certainty who is liable and to what extent. I am not persuaded that this is true. As counsel for the plaintiff pointed out, settlement negotiations are an exercise in risk management. It is far from obvious that a party will be more willing to negotiate after that party’s degree of risk has been reduced by holding a liability trial. On the contrary, that might cause the party to harden its position.

[17] The defendants say that the issues of liability and quantum of damages are independent, and that there would be little overlap of the evidence to be called at separate trials. They say that the plaintiff, because of her brain injury, is unlikely to be able to testify about the circumstances of the accident, and for that reason, her credibility will not be in issue. Counsel for the plaintiff, on the other hand, argues that issues about the plaintiff’s lifestyle may well be raised both in connection with causation of her injuries and assessment of quantum. Thus, there is an interweaving of the issues of liability and damages.

[18] In all the circumstances, I am not persuaded that there is a compelling reason to order severance in this case. While it may be that holding a liability trial first could save time and money for one or more of the defendants, that is far from certain. The possible benefit to one or more of the defendants must be considered against the clear and certain detriment to the plaintiff of delaying a final award of damages.

[19] As counsel for the plaintiff submitted, if severance is granted, it is likely that the trial on quantum of damages would not be held until at least the year 2010, a delay of a year or more from the presently scheduled trial date. If there were an appeal from the outcome of a liability trial, the delay in assessing damages could be even longer.

[20] The application for severance is dismissed.

The Honourable Mr. Justice W. F. Ehrcke

Citation:	*MacEachern v. Rennie,*
	2008 BCSC 1064