ICBC Law

Helpful reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, dismissing a defence application to have a Plaintiff assessed by a neurosurgeon.  In short the Court found the application was brought too late in the claim and that there was insufficient evidence to justify a physical exam for a truly ‘responsive‘ medical report.

In the recent case (Dhaliwal v. Owens) the Plaintiff was injured in a 2009 collision.  The injuries included low back pain.  Surgery was anticipated but as time went on the Plaintiff experienced some symptom improvement and surgery became less likely.

In the course of the lawsuit the Defendants put the matter into fast track litigation (Rule 15).  They failed to obtain a medical report in a timely fashion.  When they finally did apply the 84 day service deadline set out in Rule 11-6(3) had come and gone.  The Defendants argued that they needed the report for responsive purposes and further that the cancellation of the Plaintiff’s anticipated surgery amounted to a change of circumstances justifying the late application.   Master Keighley rejected both of these arguments and dismissed the application.  In doing so the Court provided the following reasons:

[7]  Now, I had indicated earlier that it is likely that had this matter come to light a year ago, this application would not have been before me today.  What causes the problem is Rule 11-6(3) which requires that an expert report, in general terms, be delivered at least 84 days prior to the scheduled trial date.  The 84th day, I am told by counsel who have done the arithmetic, passed…almost a couple of weeks ago…

[14]  Now, this is not a situation, and we do sometimes see it, where the physician has either directly or indirectly provided evidence with respect to the necessity of a physical examination of a party.  There is nothing before me in the material to explain why a physical examination is required in this case other than the statements from the paralegal that I have referred to.

[15]  In the case of Wright v. Brauer, a decision of Mr. Justice Savage reported as 2010 BCSC 1282, Justice Savage considering similar circumstances said at paragraph 22

“In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4)”

Justice Savage dismissed the application and is reference to Rule 11-6(4) harks back to his remarks at paragraph 12 of that decision where he said:

“Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.”

He noted that in the case before him, the defendants were, as here, limited by the Rule to what referred to as Justice Williamson in the case of Kelly v. Kelly (1995), 20 BCLR (3d) 232 “truly responsive rebuttal evidence” by virtue of the provisions of Rule 11-6.

[16]  Similarly, Mr. Justice Cullen in the case of Ludecke v. Hillman, 2010 BCSC 1538, considered an appeal from a master’s order which has allowed an examination to provide “truly responsive” evidence.  Justice Cullen upheld the master’s order determining that the necessary evidentiary foundation for the examination was found in the material before him.  In reaching that conclusion, he said:

“To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.”

[17]  The plaintiff’s injuries, it seems to me, have not really changed in this case.  She has more or less since the outset complained of low back pain, low back problems.  What has changed, if anything, in recent months is the decision of the medical practitioners treating her with regard to the advisability of surgery.  It appears that they have decided for the meantime that surgery is the less desirable option.  Notwithstanding that decision, the plaintiff continues to suffer pain to the extent that she remains, apparently, unable to work.  There has been ample time int his litigation, even before this change in the plaintiff’s circumstances, for the defence to seek and obtain evidence from a neurosurgeon or other specialist with respect to her condition.  Although the provisions of Rule 7-6 and its predecessor Rule were enacted to attempt to affect a level playing field between the parties with respect to medical evidence, I do not see that the defence will be prejudiced by being restricted to an opportunity to have Dr. Turnbull or another practitioner of their choice examine the available evidence and render an opinion at trial as to the appropriate treatment of the plaintiff’s injuries.  Overall, of course, I have been considering the issue of proportionality and in the particularly refined context of an application brought in a case governed by Rule 15-1.

[18]  The application is dismissed.

As of today this case is unreported but, as always, I’m happy to provide a copy of the reasons for judgement to anyone who contacts me and requests these.

If you purchase Theft of Fire Damage coverage from ICBC and need to take advantage of this insurance can ICBC force you to provide a statement under oath before processing your claim?  The answer is yes and reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, dealing with this area of the law.

In this week’s case (Cort v. ICBC) the Plaintiff had fire insurance coverage with ICBC.  On September 18, 2010 his vehicle was destroyed by fire.  He asked ICBC to pay his loss but ICBC refused to respond until he provided them with an “Examination Under Oath“.  He refused to do so and sued ICBC.  ICBC brought an application for various pre-trial relief including an order to ‘stay‘ the lawsuit until the Examination Under Oath was provided.  Master Keighley granted this order finding that the lawsuit could not move ahead until this ‘investigative’ step took place.  In doing so the Court provided the following reasons:

[28] Sections 6 and 8 of the Prescribed Conditions to the Insurance (Vehicle) Regulation B.C. Reg. 156/2010 read as follows:

6(1)      If required by the insurer, the insured must, on the occurrence of loss or damage for which coverage is provided by this contract, deliver to the insurer within 90 days after the occurrence of the loss or damage a statutory declaration stating, to the best of the insured’s knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others in the vehicle, the encumbrances on the vehicle, all other insurance, whether valid or not, covering the vehicle and that the loss or damage did not occur through any wilful act or neglect, procurement, means or connivance of the insured.

(2)        An insured who has filed a statutory declaration must

(a)        on request of the insurer, submit to examination under oath,

(b)        produce for examination, at a reasonable time and place designated by the insurer, all documents in the insured’s possession or control relating to the loss or damage, and

(c)        permit copies of the documents to be made by the insurer.

8(1)      The insurer must pay the insurance money for which it is liable under this contract within 60 days after the proof of loss or statutory declaration has been received by it or, if an arbitration is conducted under section 177 of the Insurance (Vehicle) Regulation, within 15 days after the award is rendered.

(2)        The insured must not bring an action to recover the amount of a claim under this contract unless the requirements of conditions 4, 5 and 6 are complied with and until the amount of the loss has been ascertained by an arbitrator under section 177, by a judgment after trial of the issue or by written agreement between the insurer and the insured.

(3)        Every action or proceeding against the insurer in respect of loss or damage for which coverage is provided under this contract must be commenced within 2 years from the occurrence of the loss or damage.

[29] Accordingly, says ICBC, since the insured may not commence an action to recover the amount of his claim until he has, inter alia, submitted to an examination under oath, at the very least he should be enjoined from proceeding with the claim…

[32] ….The purpose of an EUO, on the other hand is investigative. The insured is contractually bound to co-operate with his insurer by submitting to an examination which may assist the insurer in determining its response to the claim. The insured may not, as a matter of contract, seek to attach conditions to his attendance.

[33] In the circumstances the contract claim will be stayed until the plaintiff has complied with the requirements of the Prescribed Conditions. In the event that the parties cannot resolve the issue of compliance by agreement, they will have liberty to apply.

This case is also worth reviewing for the Court’s discussion of transfer of claims to Small Claims Court under section 15 of the Supreme Court Act and further the severance of bad faith claims from breach of contract claims pursuant to Rule 22-5(6) and 12-5(67) of the Supreme Court Rules.

(Note: The case discussed below was upheld on appeal in July, 2011 by Madam Justice Ker)

As previously discussed, Rule 15 is the new BC Fast Track Litigation Rule and it is mandatory for cases for damages seeking less than $100,000 and for cases that “can be completed within 3 days“.

Rule 15-1(15) generally limits costs awards for fast track lawsuits to no more than $11,000.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether this limit applies to non-fast track cases that settle for less than $100,000.  In short, Master Keighley held that it can, however, when a case has been removed from the fast track the costs restriction does not apply.

In today’s case (Johnson v. Axten) the Plaintiff started the lawsuit under the former Rule 68.  The parties consented to remove the case from Rule 68 prior to trail and obtained a Court order to that effect.  The case then settled after the new Rule 15 came into force.  The settlement was for $90,000 plus costs and disbursements.  The Defendant argued that the Rule 15 cap on costs should apply.  Master Keighley disagreed finding that while it could apply, it should not in the circumstances of this case.  The Court provided the following useful reasons:

[17]         The Majewska case does, however, contain this helpful observation on the issue of “opting out” of Rule 66, at para. 34:

Moreover, it is important to recognize that parties to a R. 66 action are not compelled to remain in the fast track process. If the spectre of “special circumstances” emerges at any time during the action, whether in the form of complex issues, offers to settle, increased trial time, or any other situation, the parties may consent to removing the case from R. 66, or obtain an order to that effect under R. 66(8). Thus, if a concern arises that costs under R. 66(29) will not be adequate, this can be remedied by taking appropriate action during the proceeding.

and at para. 36:

“Here, if the plaintiff was concerned that R. 66 was no longer appropriate, the proper response was to apply for removal from the fast track litigation. If she chose not to take that step, she should have no basis for complaint that her costs are limited by R. 66(29).”

[18]         In other words, a party who opted out of Rule 66 prior to trial was not limited by Rule 66(29). It is noteworthy that Rule 68, which governed this action prior to the parties “opting out” contained no limitation on costs. Also noteworthy is that Rule 15‑1 as well as the case with its predecessors, provides for opting out of the provisions for the Rule and in this case the parties did so.

[19]         Ms. Deane-Cloutier says that although Rule 15-1 does not, on its face, contemplate settlement, neither did Rule 66(29), but that did not prevent the court from holding that the subrule applied to settlement of cases governed by the Rule. That submission, with respect, ignores however the very clear statement of the Court of Appeal in Majewska: that once Rule 66 ceased to apply to an action, a party would not be limited to costs recoverable under Rule 66(29).

[20]         The plaintiff’s costs will be assessed pursuant to Schedule B of the Supreme Court Civil Rules. While I agree that Rule 15-1(1) provides that cost limitations apply to cases which were not “fast tracked” but should have been (regardless of the intentions of the parties), the rule nonetheless provides that even if otherwise applicable, it will not apply to cases where the court has ordered that it will cease to apply. The court did so here, with the consent of the parties and, as a result, the cost limitation set out in Rule 15-1, does not apply.

If parties to a lawsuit can’t agree which disbursements were reasonably incurred they can ask the Court to decide the issue.  As recently discussed, it is important for parties to bring appropriate evidence to Court to justify their disbursements.  This was further addressed in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.

In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC motor vehicle collision.  In the course of the lawsuit ICBC made a formal offer to settle the claim for $75,000.   About 16 months later the Plaintiff accepted the offer.  The formal offer had a declining value reducing its amount by ICBC’s ‘costs and disbursements‘ incurred following the delivery of the offer.

After the offer was accpeted ICBC produced a bill of costs totalling almost $28,000.   Once of the biggest disbursements included in this total were the accounts of a private investigator who was retained to conduct video surveillance of the Plaintiff.  These accounts totalled almost $20,000.

The Plaintiff argued that ICBC’s disbursements were unreasoble.  Eventually the BC Supreme Court was asked to decide the issue.  Master Keighley sided largely with the Plaintiff and reduced ICBC’s account to just over $6,000.  In doing so the Court provided the following reasons refusing the disbursements related to the private investigator and addressing the need for parties to come to Court with adequate evidence:

[11]         As a general proposition, the party claiming reimbursement for sums expended in the course of litigation bears the burden of establishing the reasonableness of the charges claimed.

[12]         I have suffered, on this assessment, from a paucity of evidence offered by the defendants in support of the disbursement claims. With respect to the Lanki Investigations Inc. invoices I have no evidence before me as to the necessity for or results of these investigations. I am told by counsel that the investigations, which consisted largely of video surveillance, were instrumental in resolving this claim. I have no evidence as to this effect, however, only records of the amount of time spent by various individuals. I note that the surveillance took place after the delivery of the offer to settle and in the last two weeks prior to trial. Mr. Smith says that the surveillance materials were of little value and that the case settled when it did because of a clarification in the law of costs and a change in his client’s employment. The former, he says, meant that his client would potentially net more money as a result of accepting the offer than he had previously anticipated, and the second meant a substantial limitation of his claim for loss of future earnings. These details are confirmed to some extent by the plaintiff’s affidavit of February 6, 2009. In the circumstances, while I am not prepared to say that the defendants’ expenses for surveillance were entirely unreasonable, I am compelled by the tariff item and the case law to allow them only if settlement was achieved as a result of the services provided. In the absence of any evidence from the defendants on this point, I cannot do so. The Lanki accounts are disallowed.

One of the changes under the New BC Supreme Court Civil Rules relates to setting a matter down for trial.  Under the former rules a Notice of Trial was to be delivered “by a plaintiff after the time has expired for the delivery of a statement of defence or by any party after the close of pleadings“.  Under the new Rule 12-1(2) any party may deliver a Notice of Trial at any time after the commencement of a proceeding.

There has been some debate whether Notices of Trial filed under the former rules remained valid under the new rules or whether parties need to file a new Notice of Trial in these circumstances.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this procedural issue ruling that a new Notice of Trial is not necessary in circumstances where one was filed under the former rules.

In this week’s case (Sim v. Learmouth) the Plaintiff was injured in a motor vehicle accident.  The lawsuit was started under the former rules.  ICBC, as statutory third party, filed a Notice of Trial and Jury Notice in May, 2009.  The Plaintiff did not file their own jury notice in the time lines required under the former rules.  When the New Rules came into force the Plaintiff served a new Notice of Trial and Jury Notice.  The Plaintiff argued that Rule 12-1(6) requires party’s to file a new Notice of Trial.  ICBC disagreed and argued that the Plaintiff’s jury notice was invalid.

Master Keighley agreed with ICBC and struck the Plaintiff’s Jury Notice.  In doing so the Court explained that party’s do not need to file a Notice of Trial under the New Rules if one was filed under the former rules.  The Court provided the following useful reasons:

[17]         It only remains to be considered whether the transitional provision is effective to allow delivery of a further Notice of Trial and a re-setting of the clock with regards to the filing and serving of a Jury Notice.

[18]         In my view, it is not, for the following reasons:

(a)      The applicant’s delivery of their Notice of Trial and Jury Notice were “steps taken before July 1, 2010”;

(b)      Any right or obligation arising out of delivery of the Notice of Trial had effect on the day of delivery, namely the trial date was secured, subject to an adjournment by agreement or order. It had no other effect thereafter;

(c)      Delivery of the Jury Notice was effective to notify the parties of records as to the applicant’s intention to have a trial by judge and jury on the date of delivery. It had no other effect thereafter, although a jury trial would only be secured by a further step, the payment of jury fees prior to trial. The Notice itself, however, was fully effective on delivery.

Under both the old and the new BC Supreme Court Civil Rules parties to a lawsuit could ask the opposing side to make binding admissions through a “Notice to Admit”.  If the opposing side fails to respond to the Notice in the time lines required they are deemed to have made the sought admissions.  Once the admission is made it cannot be withdrawn except by consent of the parties or with the Court’s permission.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, considering when deemed admissions could be withdrawn under the New Rules.

In today’s case (Weiss v. Koenig) the Plaintiff was involved in a 2006 motor vehicle collision.  He claimed he sustained various injuries including bilateral hearing impairment.  In the course of the lawsuit ICBC asked the Plaintiff to make various admissions including an admission that his hearing was not affected as a result of the collision.  The Plaintiff failed to respond to the Notice to Admit in time thus was deemed to make the admissions.  The Plaintiff brought a motion to set these admissions aside and ICBC opposed.

Master Keighley granted the motion and set aside the admissions.  In doing so the Court noted that the admissions were made by inadvertence and that there was little prejudice to ICBC if these admissions were set aside.

This is the first decision I’m aware of applying Rule 7-7(5) of the new Rules of Court.  The Court noted that the new rule is almost identical as the old rule and implies that the precedents developed under the old Rule 31 remain good law.  Master Keighley set out and applied the following test in addressing the application:

Is there a triable issue which in the interests of justice should be resolved on the merits and not disposed of by deemed admission? In applying the test, all of the circumstances should be taken into account including:

1.         That the admission has been made inadvertently, hastily, or without knowledge of the facts.

2.         That the fact admitted was not within the knowledge of the party making the admission.

3.         That the fact admitted is not true.

4.         That the fact admitted is one of mixed fact and law.

5.         That the withdrawal of the admission would not prejudice a party.

6.         That there has been no delay in applying to withdraw the admission.

When an infant (for the purposes of civil lawsuits anyone under 19 years of age is considered an ‘infant’ in British Columbia) is injured and wants to sue for damages they can’t start a lawsuit on their own.  They must do so through an adult ‘litigation guardian‘.

For obvious reasons, it is common for a parent to fill the role of litigation guardian.  Oftentimes in infant injury claims Defendants argue not only that the child is to blame for the accident but also that the child’s parents are to blame for failing to adequately supervise their children.  If this defence is raised against a parent litigation guardian it can place them in a conflict of interest.  So what can be done in this situation?  Reasons for judgement were released demonstrating one possible outcome to such a fact pattern.

In today’s case (Gill v. Morin) the Plaintiff was “grievously hurt” when his ATV struck or was struck by a car driven by the Defendant.  He started a lawsuit against the motorist with his mother acting as litigation guardian.  The Defendant denied fault and argued that the Plaintiff’s mother was to blame for “failure to adequately supervise (her) son”.

Once placed in this conflict of interest the Plaintiff’s mom applied to the Public Guardian and Trustee (”PGT”) and asked them to take over the lawsuit.  The PGT refused to do so unless they were “insulated from any claim for costs” in the event it turned out to be a losing lawsuit.

The parties turned to the Court for a solution.  The Plaintiff asked the Court to order that the PGT act as litigation guardian.  The PGT opposed this arguing that the lawsuit should simply be put on hold until the infant becomes an adult.  The Defendant opposed the PGT’s position arguing this would result in unfair delay.

The Court ultimately sided with the PGT and held that the lawsuit should be put on hold until the infant’s 19th birthday and from there he could decide whether to carry on with the lawsuit.  Master Keighley provided the following analysis:

[32] It is indeed regrettable that this defendant, who may eventually be found to be blameless with respect to this accident, may be obliged to wait several more years for the issues of liability and perhaps quantum to be resolved, but in the absence of any specific evidence, I am not prepared to find that the defendant is prejudiced by a stay of this action until the plaintiff obtains the age of majority. The limitation for this cause of action will not begin to run against the infant plaintiff until he reaches the age of majority on February 2, 2012 and it seems to be the defendant is no more prejudiced by a stay of proceedings then he would be had the plaintiff waited until then to commence this action.

Result

[33] In the result then, Piar will be removed as litigation guardian forthwith. The third party’s application to appoint the PGT as litigation guardian is dismissed. The action will be stayed until the infant plaintiff reaches the age of majority. Should counsel be unable to resolve the issue of costs, that issue may be brought back before me.

If you are faced with a similar dilemma this case is worth reviewing in full as the Court summarizes a handful of useful precedents disposing of similar applications at paragraphs 16-30 of the reasons for judgement.

Reasons for judgement were released this week by the BC Supreme Court considering the issue of timing of applications for compelled medical exams in the context of an ICBC Injury Claim.

Under the current BC Supreme Court Rules expert evidence that is not ‘responsive‘ is required to be served on opposing parties 60 days before it is tendered into evidence.  This requirement is set out in Rule 40A.  (As of July 1, 2010 a new set of BC Supreme Court Rules will come into force and Rule 11 will govern the admissibility of reports which makes some changes to timelines for exchange of expert evidence).

When a Defendant comes to court asking for a compelled exam BC Courts have considered the issue of timing and if the application is inside the timelines for service of a report the Defendant may have an uphill battle.  Reasons for judgement were released today demonstrating this.

In today’s case (Moore v. Hind) the Plaintiff was injured in 2 motor vehicle collisions.  Both trials were set to be heard together.  ICBC brought an application to compel the Plaintiff to be assessed by Dr. Ray Baker, a doctor who specializes in so-called ‘addiction medicine‘.  This application was brought late in the litigation process.  ICBC argued that the medical evidence served by the Plaintiff’s lawyer gave a “clear and emphatic indication that the plaintiff may suffer a drug addiction problem” and as a result the need for the late application.

The Plaintiff disagreed arguing that ICBC could have pursued this line of inquiry earlier in the process.  Master Keighley agreed with the Plaintiff and dismissed the motion.  In doing so the Court placed weight on the late timing of this application and this proved fatal to ICBC’s argument.  Specifically the Court stated as follows:

[10] This application raises certain practical difficulties.  One is the question of whether a further examination and the likely preparation of a report at this time will jeopardize the existing trial date.  There is certainly very little time left now between the date of this application and the trial.  It is unlikely that the plaintiff would have sufficient opportunity to in any way rebut the findings in a report prepared by Dr. Baker.  It seems to me there is a substantial likelihood that should the order sought be granted, an application may be made to adjourn the trial.

[11] It also seems to me that this application is unnecessarily brought at a late date.  There was, to my mind, a significant indication of overuse or misuse of prescription drugs as early as a year ago, and arrangements might then have been made in a more orderly fashion to have an examination by Dr. Baker or another, with respect to these issues.

[12] Having read portions of Dr. Smith’s report, it seems to me, however, that the third parties may well be afforded an opportunity to yet achieve a level playing field by having their own expert, Dr. Smith, consider the reports, the clinical records and other information relating to the claim with regard to assessing the issue of the plaintiff’s prescription drug use and its impact potentially upon her claim.

[13] In this regard it seems to me that the prejudice to be suffered by the third party in not having an opportunity to have a further assessment is minimized, whereas the potential prejudice to the plaintiff is substantial.  She is depicted in the medical reports as being a highly tense, anxious individual, and it would seem, and indeed she suggests that she will be extremely prejudiced if this claim is not resolved at the earliest possible date.  There is also an issue of inconvenience which is of a relatively minor nature, in that she has another medical examination scheduled for the morning of the proposed examination and would be obliged to cancel that if ordered by the court to attend for an appointment with Dr. Baker.  She also then had made plans to visit with her mother in the Christmas holidays, beginning on the night of December 22nd.  Those issues of inconvenience are of a relatively minor nature and would not be conclusive in themselves.

[14] I am satisfied that the application should be dismissed.  It is simply brought at too late a date and it is likely that it will result in an adjournment of this trial, which the material before me indicates, if adjourned, would likely not be rescheduled until perhaps June of 2011.

If you are involved in 2 separate car accidents and start 2 separate Injury Claims in the BC Supreme Court is it possible to have the trials heard at the same time?

The answer is yes and such applications are governed by BC Supreme Court Rule 5(8) which states that “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“.

Today reasons for judgement were released by the BC Supreme Court (Miclash v. Yan) considering an application under Rule 5(8).  In granting the Plaintiff’s request to have multiple claims heard at the same time Master Keighley concisely set out the principles to be considered in these applications.  The Court summarized the law as follows:

[15] The application is brought pursuant to Rule 5(8) of the Rules of Court…

[16] The order sought is discretionary.

[17] Exercise of this discretion is governed by the principles set out in the decision of Master Kirkpatrick, as she then was, in the case of Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 at para. 18 and 19:

18.       None of the submissions of counsel address the real issue to be determined. That is, are the issues raised by the pleadings sufficiently similar to warrant the order sought and will the order make sense in the circumstances? An application to have actions tried at the same time thus requires an examination of circumstances which may be of a more general nature than is made under R. 27 or 19.

19.       I accept that the foundation of an application under R. 5(8) is, indeed, disclosed by the pleadings. The examination of the pleadings will answer the first question to be addressed: do common claims, disputes and relationships exist between the parties? But the next question which one must ask is: are they “so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense”? Webster v. Webster (1979), 12 B.C.L.R. 172 at 182, 10 R.F.L. (2d) 148, 101 D.L.R. (3d) 248 (C.A.). That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed outside the pleadings:

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

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

(3)        What is 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?; and

(4)        Will there be a real saving in experts’ time and witness fees?

This is in no way intended to be an exhaustive list. It merely sets out some of the factors which, it seems to me, ought to be weighed before making an order under R. 5(8).

[18] To these considerations, Master Joyce, as he then was, added two more in the case of Shah v. Bakken, [1996] B.C.J. No. 2836, 20 B.C.L.R. (3d) 393, at para. 15:

Other factors which in my view can be added to the foregoing list are:

(5)  Is one of the actions at a more advanced stage than the other? See: Forestral Automation Ltd. v. RMS Industrial Controls Inc. et al. (No.2), unreported, March 6, 1978, No. C765633/76, Vancouver (B.C.S.C.).

(6)  Will the order result 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?

In my continued effort to cross reference civil procedure cases with the new BC Supreme Court Rules which will take effect on July 1, 2010 Rule 5(8) is replicated in full under the New Rules and can be found at Rule 22-5(8).  Accordingly, the principles set out above will likely continue to be useful in considering similar applications once the new rules come into force.