Consolidation – Actions to be tried at the same time

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We are going to review a recent defence application referenced as Hendricks v. Xie, 2019 BCSC 1034 (CanLii) seeking an Order to have two actions tried at the same time, which did not succeed.  We will summarize the arguments of both parties and take a look at the Court’s analysis and conclusion.

Facts:

Two MVAs

  • December 11, 2011 “2011 Accident”
    • November 26, 2013 claims, amongst other things, aggravation of pre-existing brain injury and aggravation of pre-existing spinal injury, headaches, injury to neck and right shoulder.
    • Mediation date: June 19, 2019
    • Trial date: Sept 13, 2019 (24 days)
    • Previously set for trial in 2016, and reset May 7, 2018 10 days (adjourned)
    • Aggravation from prior collision dated May 27, 2002
    • XFD were held
    • Expert reports exchanged
  • September 21, 2018 “Buckley Action”
    • Injuries: shock and confusion, memory difficulties, soft tissue injuries to the neck and back, and exacerbation of pre-existing conditions and injuries

Defence Arguments:

  • the injuries claimed in both actions are indivisible
  • the Order is a mandatory one pursuant to Section 10 of the Law and Equity Act, R.S.B.C. 1996, c. 253 (Court disagreed / this Order is a discretionary)
  • Alternatively, S. 22-5(8) of the BCSC
  • There are common claims, disputes and relationships and the pleadings in both matters are sufficiently similar that the defendant is entitled to the order sought (Court disagreed).
  • Damages include exacerbation of previous injuries (in both claims)
  • there is an indivisibility of injury that must be considered in each action, complicated by the injuries from the 2002 accident
  • there would be a substantial risk of inconsistent findings which would result in potential embarrassment to the administration of justice
  • there would be a substantial savings of witnesses’ time and experts’ fees if the two actions were heard together
  • there would be no serious inconvenience to parties having to attend while having only a marginal interest in parts of the proceeding
  • there will be a delay in the trial
  • there will be a delay in recovery of any compensation the plaintiff might be entitled to
  • such prejudice must be weighed against the benefits of a combined trial.

Defence Relied on:

  • Section 10 of the Law and Equity Act, R.S.B.C. 1996, c. 253, which provides:

Avoidance of multiplicity of proceedings

10  In the exercise of its jurisdiction in a cause or matter before it, the court must grant, either absolutely or on reasonable conditions that to it seem just, all remedies that any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters may be avoided.

  • Rule 22-5(8) of the Supreme Court Civil Rules, which provides:

Consolidation

(8) Proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day.

  • Gulamani v. Chandra, 2008 BCSC 179, as follows:

[52]      Based on the authorities, I must consider whether the pleadings in the two actions reveal common claims, disputes, and relationships, and if so, whether they are “so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense”(Merritt [v. Imasco Enterprises Inc. (1992), 2. C.P.C. (3d) 275 (B.C.S.C.] at p. 282).  With regard to the latter question, the authorities discussed provide a non-exhaustive list of factors to consider, namely:

(1) whether the order sought will create a saving in pre-trial procedures, (in particular, pre-trial conferences);

(2) whether there will be a real reduction in the number of trial days taken up by the trials being heard at the same time;

(3) the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest;

(4) whether there will there be a real saving in experts’ time and witness fees;

(5) whether one of the actions is at a more advanced stage than the other;

(6) whether the order will result in a delay of the trial of one of the actions and, if so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have;

(7) whether there is a substantial risk that separate trials will result in inconsistent findings on identical issues; and

(8) whether the order will likely deprive a party of their right to a jury trial.

  • Garcia v. Drinnan, 2013 BCCA 53 and Murray v. McIlmoyl, 2018 BCSC 2269 in support of her position that the court should order the trials to be heard at the same time.

Plaintiff Arguments:

  • If matters are consolidated, it will result in adjournment of trial
  • Previous application of defence to bring on a third party to the action was denied due to “want of time”
  • Plaintiff argues she suffered cognitive issues from the 2002 accident that affected her ability to work
  • chronic pain from the 2011 accident has eliminated any residual ability for her to work
  • there would be no possible award for wage loss or loss of future capacity in the Buckley action
  • the 2011 accident caused centralized sensitization pain in her neck and headaches
  • The main treatment she is receiving are ketamine infusions
  • These treatments are expensive and require hospitalization
  • future care costs of these infusions are over $2 million
  • ICBC has not paid for majority of these treatments, Plaintiff out-of-pocket 117K
  • these treatments are not attributed to the Buckley accident.
  • Time between two collisions is seven years
  • Plaintiff’s symptoms had plateaued
  • Plaintiff’s injuries had been diagnosed, and her loss was fully valued in the spring of 2018.
  • Both parties were prepared to go to trial
  • Injuries are divisible
  • Buckley action would require fewer witnesses, not as many expert evidence, and shorter trial.
  • There is minimal danger of duplication of evidence and of inconsistent findings of fact if two trials occur
  • If trials heard together, the Buckley defendant will need to be present for a substantial amount of evidence that will have no bearing on that action
  • Current action is further advanced than the Buckley action as was ready to proceed to trial in Spring 2018
  • Defence did not move without delay in seeking such an Order.
  • Plaintiff proceeded with steps immediately
  • Defence counsel was not retained immediately and there was a delay in ICBC providing file materials to the appointed defence counsel
  • If trial is adjourned, prejudice will result to the Plaintiff in needing to carry cost of treatments until date of trial
  • Adjournment will take matter post Dec 2019, which may suggest that Rule 11-8 may be relevant to the action – this means existing expert evidence may not be permitted at trial – prejudice

Plaintiff Relied on:

  • Expert opinion of Dr. Roy O’Shaughnessy, Psychiatrist:

Dr. O’Shaughnessy produced an expert report for the plaintiff dated January 14, 2019, which considers the impact of the Buckley accident. He noted:

The motor vehicle accident of September 21, 2018 was less severe than the 2011 accident. In this incident, she was driving when a car ran a stop sign, hitting her car in the right rear. Again there was nothing to suggest any blow to the head or loss of consciousness, awareness, or memory. Police arrived at the scene. She was able to walk the two blocks to her home. She did experience some increase in shoulder and neck pain although I have not seen updated medical records documenting whether in fact there is any physical findings associated with this accident.

From a psychiatric perspective, Ms. Myren does tell me that she has noticed increased symptoms of depression following the latter accident …

  •  Decision of Master Harper in Murrayas follows:

[9]        I put to both counsel the practice point as to how these types of applications can be avoided. Counsel for the defendant says it will be costly for ICBC to instruct counsel on every case where there is a second accident to apply for leave to file a third party notice. Counsel for the plaintiff says it is up to the defence to decide what to do in each individual case. In retrospect, I am sure the parties would both agree that a simple exchange of correspondence with respect to the plaintiff’s intentions early on would allow the parties to assess the situation in a way that preserves a trial date. I expect that, with the development of simple protocols in this regard, these types of applications can be avoided in the future.

[10]      It was risky strategy for the defence not to apply early on for leave to file a third party notice and, yet, by the same token, it was risky strategy for the plaintiff to assume that he could proceed to trial in January 2019 with a second accident and a second claim hanging over the entire trial. In my view, again, with the benefit of hindsight, the matter could have been handled differently so that the trial could have been preserved, but it was not. I do not have the benefit of any affidavit evidence on behalf of the instructing adjuster in this case to explain why a different strategy was not pursued. It is very difficult to understand why the defendant sat back and waited for the plaintiff to sue on the second accident.

 ANALYSIS

[45]         I do not accept the defendant’s position that s. 10 of the Law and Equity Act obliges me to grant the order sought. A similar argument was considered by the court in Rehmat v. Transamerica Life Canada, 2009 BCSC 495 and rejected at para 23. In my view, the authorities are clear that the order sought is a discretionary one and the considerations for the court are as set out above in Gulamani.

[46]         The primary underpinning of the application by the defendant in this action is that the injuries sustained by the plaintiff in the Buckley action are so similar as to provide a presumptive right to have the matters tried at the same time.

[47]         That position, however, is not supported by the evidence. I am satisfied by the plaintiff’s evidence that her injuries had plateaued and her losses quantified by the time of the second trial date in May 2018. She was unable to work at the time of the Buckley accident, hence, there can be no significant claim of loss of past or future income earning capacity in that action. The Buckley accident did not cause the need for the ketamine infusion treatment the plaintiff is receiving.

[48]         The Buckley accident appears to have been much less severe, with injuries that overlap to a minimal degree.

[49]         Thus, there will be little duplication of evidence, the risk of embarrassment due to inconsistent findings is low and, Mr. Buckley, the defendant in the Buckley action, would be seriously inconvenienced in having to sit through lengthy evidence regarding the impact of the more serious 2011 accident.

[50]         The actions are at totally different stages. This action is ready for trial, whereas the Buckley action seems unlikely to be able to be ready for the present trial dates in September 2019. I conclude that those trial dates will be lost if the order to have the two actions tried at the same time is made. I believe that would have been the case even if ICBC had proceeded more expeditiously,

[51]         The prejudice to the plaintiff if this trial is further delayed is obvious. She is unable to work. There will be treatment costs, expert fees, and the simple burden of having litigation stemming from a 2011 accident unresolved until nine or ten years later. The latter, in and of itself, is, in my view, unacceptable except in the most plain and obvious circumstances. There is a risk that the amendments to Rule 11-8 will negatively impact the plaintiff’s presentation of expert evidence in this action if the September 3, 2019 trial is further adjourned. The cost of future care report of $3.4 million in this action is indicative that proportionality would dictate that this claim should be heard without delay. 

[52]         There is no real prejudice to the defendant in this action if the trials are not heard at the same time. Even if the injuries are held to be indivisible, which appears unlikely, they are already prepared to bring an application to allow a third party claim and if leave is not granted, an action against Mr. Buckley could be commenced seeking contribution and indemnity.

CONCLUSION

[53]         The factors weigh heavily in favour of the plaintiff’s position. Therefore, the application by the defendant in this action is denied.

[54]         The plaintiff will have her costs in the cause.

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