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Court Discusses "Aggregate Effects" Of Joining Multiple Fast Track Cases

Update December 12, 2017 – Today the below decision was upheld on appeal with Madam Justice Russell providing the following reasons noting fast track cases can be aggregated –

[22]         Since the rule is clear that a fast track trial heard as a single action can exceed three days and remain under the Fast Track Rule, then it seems equally clear that where two fast track trials are heard together, the fact that they will consume seven days of trial would not exclude them from the Rule.

[23]         It appears to me that relatively simple cases that can be concluded within a short period of trial time and where the damages at least as calculated by plaintiff’s counsel, exclusive of costs, are $100,000 or less, must be conducted under the Fast Track Rule. I take this from the predecessor to Rule 15-1, Rules 66 and 68 of the former Supreme Court Rules, B.C. Reg. 221/90, as repealed by Supreme Court Civil Rules, B.C. Reg. 168/2009: Singleton v. O’Neil, 2010 BCSC 298.

[24]         The intention of the Rule is to provide for the quick and inexpensive resolution of comparatively simple actions with proportionality a specified and general objective of the Rules. The Rule is mandatory unless otherwise ordered by the court: Singleton, supra.

[25]         As a result, here the actions were at all times appropriate for being conducted under Rule 15-1, and therefore, the jury notices were, in effect, not applicable as soon as it became clear that the criteria under the Rule were met. Even before the Notice of Fast Track was filed, the two actions were fast track actions and Rule 15-1(10) dictates that the trial must be heard by the court without a jury.

[26]         There may well be situations where the action is so advanced as an ordinary action that the exercise of such discretion would not be appropriate and would result in serious prejudice to one party. I do not intend these reasons to remove that discretion where circumstances so dictate. But I do not find this situation to exist in the circumstances of this case.

[27]         The difference of two days in time between the defendants’ Notice of Trial and the plaintiff’s Notice of Fast Track is immaterial to the nature of the two actions.

[28]         Although the Master did not deal with the issue, counsel for the defendants raised the right to a jury trial and argued that it pre-empted Rule 15-1. Rule 12-6 deals with jury trials. However, Rule 15-1(5) states that in the event of a conflict between it and another rule, Rule 15-1 applies. This subsection appears to dispose of that argument.

[29]         I did not understand counsel for the defendants to argue that the common law right to a jury trial displaces the operation of the Rules of Court. In my view, and in these circumstances, that would not be a viable argument.

[30]         The decision of the Master to permit the two actions to continue to proceed under the Fast Track Rule is fact-based and discretionary and deserves deference.

[31]         The issue of whether the Rule permits aggregation follows from the nature of the actions that Rule 15-1 allows.

[32]         Particularly where two actions have been ordered to be heard together and both meet the criteria for the Fast Track Rule, it seems only sensible that they could both be dealt with under the Rule with the benefits of aggregating the time for trial and discovery and costs limits set out in the Rule.

[33]         This is consistent with the Object of the Rules and Proportionality.

Helpful reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing how matters such as trial length, the quantum cap and discovery timelines are aggregated when multiple fast track cases are joined.
In the recent case (De Jesus v. Doe) the Plaintiff was involved in two collisions and sued for damages.  The cases were scheduled for trial at the same time.  The Defendants brought an application to remove them from Rule 15 arguing that with a total of 7 days for trial these cases were no longer fast track appropriate.
The court disagreed and in doing so Master Baker provided the following helpful reasons about “aggregate effects” of joining fast track cases together:
De Jesus screenshot 1
De Jesus Screenshot 2

Full Fast Track Costs Awarded in "Simple" Case Settled 7 Months Pre-Trial

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff full fast track costs despite settlement 7 months pre-trial.
In today’s case (Yuan v. Fan) the Plaintiff was involved in a head on collision in 2012.  She sued for damages and fault was admitted.  7 months pre trial the case settled for $48,000 plus costs but the parties could not agree on their assessment with the Defendant arguing that full fast track costs should not be awarded as there was still significant trial prep work needed.  District Registrar Nielsen disagreed and awarded the full costs.  In doing so the Court provided the following reasons:

[9]             The defendants take the view that the plaintiff had significant work left to do in order to be prepared for trial. They submit the plaintiff would have to meet with her experts prior to trial and prepare lists of questions for their witness’s.  I agree.  However, that still begs the question of whether “significant preparation for trial” had taken place in the current circumstances.

[10]         In the present case liability was admitted, therefore work in that regard wasn’t needed. The plaintiff abandoned her claim for wage loss, and therefore, no pre-trial work was necessary in that regard.  Discoveries had been completed, document exchanges had been completed, and medicolegal reports had been obtained. Detailed settlement offers had been exchanged. All that remained to be done was the filing of a trial brief, attending a trial management conference, and immediate trial preparation. Immediate trial preparation is required in each and every case whether settlement occurs two weeks, or two months prior to trial.

[11]         This was not a complex case.  It was a simple case of assessing damages where there wasn’t a wage loss claim.  Simple cases require less work to be ready for trial.  The plaintiff’s case has met the threshold of being significantly prepared for trial in all the circumstances.  I award the full fast track cap.

Slow Moving Prosecution Plays Role in Fast Track Removal Application

Reasons for judgement were released today finding that a slow moving prosecution, in part, was a factor in removing a claim from Rule 15.

In today’s case (Bagri v. Bagri) the Plaintiff alleged injury as a result of two collisions, the first in 2007 and the second in 2009.   The matters were prosecuted subject to the fast track Rule (Rule 15) and the Defendants brought an application to remove the claims from this rule.
In finding that the claims were not suited for fast track prosecution, both based on the claims potential value and the likely length of trial, the Court also commented on the speed of prosecution.  In removing the cases from the fast track rule Master Scarth provided the following reasons:

[28]         There are other factors which support a finding that these actions are not fast track actions. Given that the earlier accident is from almost 8 years ago, the fast track procedures have not assisted the parties in resolving the disputes quickly or efficiently. In contrast, applying fast track procedures restricts the defendants’ right to proceed as a jury trial and caps their potential costs. While it has not been made out that the plaintiff has invoked Rule 15-1 specifically to defeat the defendants’ jury notice, it is fair to conclude that, in the circumstances, using fast track procedures would negatively impact the defendants more than it would positively assist the plaintiff or advance the purposes of Rule 15-1.

[29]         In my view, taking all these factors into account, it is fair to conclude that Rule 15-1 does not apply to these proceedings. Accordingly the application by the defendants to remove the actions from fast track is allowed.

Two Sets of Costs Approrpriate When Two Actions Are Combined for Trial

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing what costs are payable when two actions, set for trial at the same time, settle prior to trial.
In today’s case (Wang v. Dhaliwal) the Plaintiff was involved in two collisions and filed separate lawsuits both of which were set to be heard at the same time.  The cases settled for trial for an agreed sum plus costs.  The Plaintiff argued that two sets of costs were warranted while the Defendant suggested a single set of costs was appropriate given ‘the efficiencies achieved by having the cases joined“.  In agreeing that two sets of costs were appropriate District Registrar Nielsen provided the following reasons:
21]         Although the two actions were ordered to be tried together, by consent, they involved different defendants and the issues were not identical: liability had been denied in the December 15, 2010 action and an allegation of contributory negligence had been raised by the defendant in the June 14, 2011 action. Further, the defendants required two examinations for discovery of the plaintiff in the two separate actions and the plaintiff had to conduct an examination for discovery of each defendant in the two actions.
[22]         The only commonality in the two actions was the fact that they involved injuries to the same plaintiff. In the circumstances, it was appropriate to bring two separate legal actions involving the different defendants and circumstances. It was equally appropriate to eventually join the cases for the purposes of trial once it became apparent this approach was workable and efficiencies would be achieved…
[27]         There will be circumstances where two sets of Civil Rule 15-1 costs will not be appropriate. In the presence case, the defendants have had the benefit of the streamlined process of Civil Rule 15-1 and the benefit of the two actions having been combined for the purpose of being heard together. The defendants have also had the further benefit of two separate legal actions having been commenced, which allowed the plaintiff to be examined for discovery twice, once in each action. In both actions, trial preparation was substantially completed.
[28]         In the circumstances, the sum of $6,500 in fees is awarded for each action, with applicable taxes.

Pursuing "Unproductive Trains of Inquiry" Fatal in Request for Further Examination for Discovery

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the Court’s discretion to allow a party to conduct an examination for discovery beyond the 2 hour cap called for in Fast Track proceedings.
In today’s case (Henneberry v. Humber) the Plaintiff sued for damages following a collision.  The Plaintiff was examined for discovery for the full two hours allowed under the fast track.  The Defendant brought an application for further time but the court dismissed this finding the examination that was conduced pursued “unproductive trains of inquiry“.  In reaching this conclusion Mr. Justice Romilly provided the following reasons:
[3]             Counsel for the defendant in this particular case indicates there are many reasons for that. It is a complicated case, liability is in issue, and the plaintiff refused to sign a notice to admit certain facts which could have shortened the length of this examination for discovery.
[4]             Counsel for the plaintiff has taken me through the examination for discovery and pointed out many instances where counsel for the defendant has squandered the opportunity to fully take advantage of this two-hour limit that was placed upon these proceedings.
[5]             Two of the leading members of our court, if I could say that, in civil matters, Madam Justice Susan Griffin and Mr. Justice N. Smith, have both written judgments on these new rules. In one case, the case ofMore Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, Mr. Justice N. Smith, says this at paras. 12-13:
[12]      The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.
[13]      As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:
A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.
[6]             In this particular case, counsel for the plaintiff has taken me to the transcript and I am satisfied that there was far too much time spent pursuing unproductive trains of inquiry. As a result, the two-hour limitation passed by without counsel for the defendant being able to deal with all the issues with which they wanted to deal.
[7]             I am not satisfied that this is a case where I should exercise my discretion to give any further time for further examinations for discovery. The application will be dismissed. Thank you.

Doubling Up On Rule 15 Costs

When two Rule 15 claims are joined for the purposes of trial the Court has discretion with respect to the costs parties are entitled to.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing this and awarding the Plaintiff two sets of costs.
In today’s case (Harvey v. Tooshley)by order of the court, the trials in these actions were to be heard at the same time. The two actions were settled for a global figure about four days before the commencement of trial.”.  The parties could not agree on costs with ICBC arguing “ there ought to be a reduction in the fees claimed in each action to reflect the savings and efficiencies achieved by having these matters joined for the purposes of trial.”.  Master Bouck disagreed and ordered that the Plaintiff receive two sets of costs.  In reaching this conclusion the Court provided the following reasons:
30]         It is now well established that the registrar has some discretion to reduce the lump sum fee portion of costs allowed under Rule 15-1 if the action is settled before trial. That discretion is said to be a “rough and ready” exercise and allows the registrar to consider the steps been taken to the date of settlement. Nevertheless, the registrar is not expected to parse out those steps as if the tariff to Appendix B applies.
[31]         The approach by assessing officers has been to make some reduction for the costs that might be attributed to attendance at trial and allow the balance as so-called preparation costs. Assessing officers have allowed $6,500 for these preparation costs, whether the matter settled three months before or on the eve of trial. The court has endorsed this approach: Christen v. McKenzie, 2013 BCSC 1317.
[32]         Moreover, this approach is consistent with the purpose of Rule 15-1 which is to provide a simplified and streamlined litigation process, including the costs assessment process.
[33]         The plaintiff is entitled to two sets of costs, regardless of the efficiencies accomplished by joining these actions for trial: Peacock v. Battel, 2013 BCSC 1902.
[34]         I allow the sum of $6,500 in fees for each action.

Fast Track Removal Application Dismissed For Being Brought Too Late

When a claim is prosecuted under the fast track (Rule 15) the Court has discretion to remove the case in appropriate circumstances.  Reasons for judgement were recently published by the BC Supreme Court addressing such an application.
In the recent case (Peters v. ICBC) the Plaintiff was struck in a crosswalk by an unidentified motorist.  She sued ICBC for damages under section 24 of the Insurance (Vehicle) Act.  The case was prosecuted under Rule 15 and was set for trial.  The initial trial date was adjourned because there was no judge available.  The trial was reset and following this the Plaintiff applied to remove it from the Fast Track arguing damages in excess of $100,000 would be sought.  Mr. Justice Gaul dismissed the application noting it was brought too late in the litigation process.  In reaching this conclusion the Court provided the following brief reasons:
[28]         The plaintiff’s law suit has been in the fast track stream under Rule 15-1 since shortly after it was launched in the fall of 2011. The plaintiff’s examination for discovery has been completed. The matter was set to go to trial as a fast track trial in the fall of 2012 and would have but for a lack of judicial resources. The matter is now set for trial, again under Rule 15-1, for June of this year. I agree with the defendant’s argument that it is too late at this point to change tack and to remove the case from the provisions of Rule 15-1.
[29]         For all of the above reasons, the plaintiff’s application is denied.

Full Rule 15 Cap Amount is Appropriate For Settlement 3 Months Before Trial

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry,(Berekoff v. McMath) finding that full Rule 15 costs were appropriate where a matter settled 3 months before trial and the only meaningful work that was left related to witness preparation.
In finding costs of $6,500 were appropriate in these circumstances District Registrar Cameron provided the following reasons:
[2]             The parties are at odds as to whether or not the costs that should be awarded to the Plaintiff as mandated by Rule 15-1(15) should be reduced at all from what is called the “cap amount”, or $6,500, for a matter that settles before trial. The Plaintiff asserts that the full amount should be awarded and the Defendant argues for a significant reduction to take into account that not all of the preparation for trial had been done on behalf of the Plaintiff before the settlement…
[7]             In this case, I am satisfied on the evidence that very significant preparation had been done by Mr. Caissie on behalf of the Plaintiff. He submitted if the case had not settled all he would have been left to complete was the final preparation of his client to give evidence at trial, to prepare the Plaintiff’s family physician and his chiropractor to ready them for giving their evidence at trial, and lastly, an attendance at a trial management conference that would have been held on July 11, 2013.
[8]             With all of this I would have awarded the Plaintiff the entire cap amount of $6,500. However, Mr. Caissie had agreed before this hearing that a 10% reduction should be applied and as such I will allow the costs as claimed of $5,850 plus applicable taxes.

Costs for Fast Track Trials Exceeding 3 Days Discussed

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing assesable costs when a fast track trial exceeds 3 days.
In today’s case (Peacock v. Paul) the plaintiff was involved in two collisions.  Although only one of the cases was put into the fast track the Court deemed that Rule 15 applied to both actions.  The trial took a total of 5 days.   ICBC argued that costs should be capped at $11,000 but Mr. Justice Affleck declined to do so and used his discretion to increase costs by $1,500 for each additional day of trial.  In reaching this conclusion the Court provided the following reasons:
[20]         Madam Justice Neilson held that the formula set out in Anderson v. Routbard, 2007 BCCA 193 should be applied to determine what amount should be awarded. This formula involves first determining what portion of the lump sum provided for in the Rule is for pre-trial and trial costs. Madam Justice Neilson calculated this by taking the amount enumerated for a one day or less trial and subtracting it from the amount allowed for a two day or more trial. The difference is then multiplied by the number of days that the trial went over (paras. 31, 39). She concluded:
39        I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.
[21]         Similarly, this approach was used in Lam v. Chui, 2013 BCSC 1281 where the court considered the appropriate costs award in a fast track action where the trial took 13.5 days. The court held that the plaintiff was entitled to costs for 11.5 days after it deducted 2 days representing time wasted as a result of an error made by the parties concerning the date of the loan in question. Calculating the cost of a trial day at $1, 500 using the formula from Majewska, the court determined that the plaintiff was entitled to $23, 750 in costs ($11,000 for the first three days of trial and $1,500 per day for 8.5 days). The same approach was used inShiekh v. Struys, 2013 BCSC 1148.
[22]         In Coutakis v. Lean, 2012 BCSC 1447, the court considered a successful plaintiff’s claim for costs in a fast track action. The trial took five days including one day where trial did not proceed due to illness of the judge. The court held:
10        Under subrule 15-1(15), the court is given a wide discretion to order an amount of costs other than the fixed amounts set out therein. In my view, this is a case which clearly calls for the exercise of that discretion, in favour of the plaintiff. That the hearing of the evidence took three days, rather than two, was largely as a result of the defence’s cross-examination of four of the plaintiff’s treating physicians, and the defence’s tendering as opinion evidence of the consultation report of a neurosurgeon. Hearing the evidence of all of these physicians took more than three hours, and, as I stated in my judgment, all of it was ineffectual. Further time was spent hearing irrelevant evidence from the defendant.

13        Using the amounts prescribed in the subrule as reference points, I award the plaintiff base costs of $14,000, plus disbursements.
[23]         In the case at bar, the trial took two days longer than contemplated by R. 15-1(15)(c). Applying the authorities discussed above, in my view, the costs award should exceed $11,000 by adding a further $1,500 for each of the additional days of trial for a total costs award of $14,000 not including disbursements.

Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

In 2011 the BC Supreme Court confirmed that the factors listed in the overhauled fast track rule (case value and trial length) were exclusive of each other and if either was satisfied that was sufficient for a fast track proceeding.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, confirming this interpretation of the Rule.
In last week’s case (Foster v. Chandel) the Defendant brought an application to remove a case from Rule 15 arguing the claim was not suitable for fast track prosecution.  The Plaintiff conceded that the case “might exceed $100,000” but the Court noted that this in and of itself was insufficient to take a case out of Rule 15.  In dismissing the defense application Master Bouck provided the following reasons:
[25]         It appears on the evidence before me that the trial can be completed in three days. The plaintiff says that she can complete her case in just over one day. The defendants’ need to cross-examine the plaintiff’s two experts has not been firmly determined, but the time required for this purpose should not be more than one day. That leaves sufficient time to hear the defendants’ witnesses as well as closing submissions. In any event, the defendants are not even certain of the witnesses to be called or the medical evidence that will be led at trial. To a large extent, the defendants’ evidence concerning the length of trial is based on a yet to be determined witness list and trial plan.
[26]         The fact that the plaintiff’s claim for damages might exceed $100,000 is not in and of itself justification for removal of the action from Fast Track: Hemani v. Hillard, [2011] B.C.J. No. 1924 (S.C.).
[27]         Finally, the plaintiff is prepared to continue her examination for discovery for up to three hours beyond the time allowed under Fast Track. That concession removes any potential prejudice to the defendants who say that certain subject matters have yet to be explored. No order is made with respect to the examination time as the relief was not specifically sought. The defendants always have the opportunity to apply for an order extending the time if this remains an area of contention.
[28]         The defendants’ application for removal of this action from Fast Track is at best premature. As the evidence develops, it may become obvious to the parties that the action ought to be removed if only because the trial will certainly consume more than three days. In those circumstances, it might be in the plaintiff’s best interests to consent to the removal to ensure that a trial date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy, 2011 BCSC 1653.