Civil Procedure – BC INJURY LAW

Browne v. Dunn Not Violated Where It is “Obvious That The Cross‑Examiner Intends To Impeach The Witness’s Testimony”

Written by ERIK MAGRAKEN on June 16, 2020. Posted in Civil Procedure.

Today reasons for judgment were published by the BC Court of Appeal upholding a trial decision finding a motorist in breach of his insurance coverage due to impairment. In doing so the Court outlined limitations on the successful use of the Rule in Browne v. Dunn.

The rule in Browne v. Dunn generally requires that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross‑examination while he or she is testifying.

In today’s case (Hamman v. ICBC) the Appellant caused personal injuries and property damage in a motor vehicle collision. ICBC denied coverage arguing he was impaired. Following the collision various evidence was gathered documenting the appellants possible impairment. At trial ICBC relied on the evidence of a Sgt. who “made observations of the appellant consistent with impairment“. The notes of this Sgt. were shared with the appellant prior to trial.

During the course of trial the appellant testified and in cross examination the Sgt.’s observations were not put to him for comment. He argued this violated the rule in Browne v. Dunn. The BC Court of Appeal disagreed noting in some cases it is so obvious that testimony impeachment is in play that the rule is not violated. In reaching this conclusion the court provided the following reasons:

Court of Appeal Upholds Jury Chronic Pain Award Despite Inappropriate Submissions by Counsel

Written by ERIK MAGRAKEN on January 23, 2020. Posted in Civil Procedure, ICBC Chronic Pain Cases, Jury Trials.

Reasons for judgement were published today by the BC Court of Appeal dismissing an application for a new trial following a jury award in a chronic pain case.

In today’s case (Brown v. Goodacre) the Plaintiff was injured in a rear end collision that the Defendant was liable for. The crash resulted in chronic pain and a jury awarded the plaintiff $847,000 in total damages.

The Defendant appealed seeking a new trial arguing plaintiff’s counsel made inappropriate submissions during the trial including

(i) personalizing the case by bringing himself into the opening statement and closing submissions;

(ii) giving his personal opinion on the issues, including putting his personal stamp of approval on the merits of his client’s case;

(iii) giving engineering evidence in the guise of a common sense observation; and

(iv) in one case, quoting a statement from a medical report that was not in evidence at trial.

The Court of Appeal noted that while some of the comments were not appropriate a failure to object during trial coupled with the trial judge’s caution to the jury about many of these comments meant no new trial was warranted. In reaching this decision the Court of Appeal provided the following reasons:

No Mistrial For “Inapropriate” Comments to Jury Where Corrective Instruction Will Do

Written by ERIK MAGRAKEN on July 11, 2019. Posted in Civil Procedure, Jury Trials.

Reasons for judgement were published today by the BC Supreme Court, Penticton Registry, denying a mistrial request based on inappropriate closing submissions to a jury.

In today’s case (Johal v. Johal) the Plaintiff was injured in a collision and sued for damages. The court noted that throughout his closing submissions, plaintiff’s counsel made several references to the fact the defendants did not call a case. These included:

ICBC Not Allowed To Withdraw Admission of Fault Late in Litigation

Written by admin on December 11, 2018. Posted in BCSC Civil Rule 7, Civil Procedure.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering a request to withdraw a formal admission of fault for a vehicle collision in the deep stages of litigation.
In today’s case (Bodnar v. Sobolik) the Plaintiff was involved in a 2014 collision. He sued alleging the Defendants were at fault. ICBC, the Defendant’s insurer, admitted fault in the course of the lawsuit. As the trial progressed the Defendants retained an engineer who viewed video of the crash and concluded “the speed of the plaintiff vehicle as 74 km/hr in a 50 zone“. Based on this the Defendants sought to withdraw the admission of fault. In refusing the request the Court noted the litigation was mature and it would not be in the interests of justice to allow it. In dismissing the application Mr. Justice McEwan provided the following reasons:

[13] The Notice of Civil Claim was filed October 11, 2016. The Response to Civil Claim was filed January 12, 2017, formally admitting liability. On May 30, 2017, Mr. Bo Baharloo assumed conduct of the file.

[14] ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.

[15] At this late stage both cars have been written off and are no longer available for inspection.

[16] It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

[17] The application is dismissed. In saying that I say nothing about contributory negligence or whether it is possible to plead or amend the pleadings to raise the issue.

[18] I should say that I have considered the cases Boyd v. Brais, 2000 BCSC 404 and Miller v. Norris, 2013 BCSC 552 as nearest to the present situation.

[19] The application is dismissed with costs to the plaintiff.

Is Evidence of a Withdrawn Ticket Admissible in a Personal Injury Prosecution?

Written by admin on May 9, 2018. Posted in Civil Procedure.

This week the BC Court of Appeal had the opportunity to decide if it is appropriate for a jury deciding fault for a crash in the context of a personal injury lawsuit can hear evidence that a motorist was issued a ticket by the police which was ultimately withdrawn before trial.
Unfortunately the BC Court of Appeal sidestepped the question finding that if such evidence is inappropriate, any harm caused by it can be cured by a warning to the Jury.
In today’s case (Jones v. Frohlick) the Plaintiff was injured in a collision and sued for damages. A jury assessed the Plaintiff’s claim at $30,200 but then cut this down to $4,530 on the basis that they found the Plaintiff 85% at fault for the crash.
In the course of the trial the Defendant introduced evidence that the plaintiff was issued a ticket at the scene for failing to yield the right of way to the Defendant. The ticket was subsequently withdrawn. The Plaintiff sought a mistrial but this request was rejected. In finding no mistrial was warranted and a warning to the jury about the significance of a withdrawn ticket was sufficient the BC Court of Appeal provided the following reasons:

[18] In his ruling, the judge found that the evidence elicited from Mr. Jones on cross-examination regarding the traffic ticket was relevant as it was part of the narrative of the events that occurred at the scene of the Accident, and that any prejudice it may have caused Mr. Jones could be remedied by an instruction to the jury that they could not place any weight on the fact that the ticket was issued or that it was ultimately withdrawn or dismissed. He also noted that counsel for Mr. Jones would be able to cross-examine the attending officer about the ticket and its withdrawal or dismissal, which might even benefit Mr. Jones’ claim.

[19] In his instructions to the jury, the judge stated:

I will deal at the outset with the fact that you heard evidence that Mr. Jones was initially given a ticket at the scene of the accident and that the ticket was later dismissed or withdrawn. Neither the fact of the initial ticket nor the fact of the subsequent dismissal is relevant to your determination of liability here. Your obligation is to determine the issue based on the evidence that you heard in court and the legal principles that I will explain to you.

…

[25] Mr. Jones raises an interesting issue of whether the traffic ticket was incorrectly characterized by the judge as “narrative” evidence given that the traffic ticket was unnecessary to explain the context or background of the events at the scene of the Accident as they unfolded, was disputed by him, and was subsequently withdrawn or dismissed. In support of these submissions he relies on R. v. Taweel, 2015 NSCA 107. He submits that, in these circumstances, the evidence was irrelevant and should not have been admitted as its prejudicial effect outweighed its probative value, or lack thereof, and it went to the ultimate issue on liability that was for the jury to decide.

[26] However, even if the admission of that evidence was erroneous, that is not determinative of the appeal. The determinative issue is, assuming but not deciding that the impugned evidence was inadmissible, whether the prejudice caused by its admission could be remedied by an appropriate and adequate limiting instruction to the jury.

[27] That brings me to the second ground of appeal: whether the admission of the impugned evidence was so prejudicial that even with an appropriate corrective instruction it would have caused a substantial wrong or would have resulted in a miscarriage of justice.

[31] The impugned evidence in this case was not inflammatory. Nor was it in my view highly prejudicial as it was potentially open to both unfavourable and favourable inferences to Mr. Jones’ claim, the latter including that the ticket was withdrawn because it had no merit or, as was noted by the judge in his ruling, that it was misguided from the start. In these circumstances, I find no error in the judge’s exercise of his discretion in deciding that a corrective instruction was appropriate to alleviate the potential of any prejudice that may have been caused by the admission of the impugned evidence.

[32] In my view, the instructions were also adequate. The direction to the jury that they should not consider the fact of the traffic ticket or its subsequent withdrawal or dismissal as part of their deliberations on liability, as it was not relevant to their determination, was clear and unambiguous, and therefore forceful. The instruction could not have been misunderstoods by the jury as permitting them to consider the impugned evidence, not only in assessing the evidence as a whole, but also in assessing the credibility of the witnesses and of Mr. Jones’ evidence in particular. As this Court stated in Paskall v. Scheithauer, 2014 BCCA 26 at para. 37:

…once it is determined that a corrective instruction was appropriate and adequate, the matter ends. This Court must assume that juries act judicially and responsibly, that is, the instructions of trial judges are followed “unless there is a clear basis for finding otherwise” (Hovianseian v. Hovianseian, 2005 BCCA 61 at para 25). It is not appropriate for this Court to speculate on whether the jury may have disregarded the judge’s corrective instruction.

[33] The adequacy of the judge’s instructions is also evident in the final award by the jury. While undoubtedly not embraced by either side, it cannot be said that the award for non-pecuniary damages of $24,000 would not meet the test in Nance v. British Columbia Electric Railway, [1951] 3 D.L.R. 705 (P.C.) in that it was inordinately high or low, or that the total award of damages was “wholly disproportionate or shockingly unreasonable” (Young v. Bella, 2006 SCC 3 at para. 64).

[34] In the result, I would dismiss the appeal.

BC Supreme Court Discusses When Short Leave Applications Should Be Granted

Written by admin on December 4, 2017. Posted in BCSC Civil Rule 8, Civil Procedure.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, providing a general overview of when a short-leave applications should be granted and criticizing the frequency with which such applications are brought by defence lawyers in personal injury lawsuits.
In today’s case (O’Callaghan v. Hengsbach) the plaintiff claimed physical and psychiatric injuries from a collision and sued for damages. The Defendant had the plaintiff assessed by a neurologist. After the time limit for delivery of expert reports the Defendant brought sought to have the Plaintiff examined by a psychiatrist and requested short leave to bring the application. The Court dismissed the request and in doing so Master Baker provided the following reasons of the protocol that should be followed when seeking short leave –

[16] The Masters in chambers, almost daily, are asked to give short leave under Rule 8-5(1). I have heard three of these applications in 1 ½ days of chambers; in one application, plaintiff’s counsel told the court that it was the third short leave application by the defence in that case since October 17. Interestingly, on a quick search I found no authorities to guide the court in granting or refusing applications for short leave. The rule itself offers little guidance, other than an application may be made in circumstances of “urgency”.

[17] Such applications should be restricted to emergent circumstances and should not reward inefficiency, inattention to a particular case, or a lack of oversight. To abridge the time limits imposed by the Supreme Court Civil Rules is, presumably, to prejudice the other party who is, naturally, entitled to rely on timelines imposed by the Rules and to expect the opposing party to do likewise.

[18] In the absence of guiding authorities, I suggest the following considerations, non-exclusive, should guide the parties and the court in considering short leave applications:

a) The application, of course, is to be made by Requisition, usually without affidavits, and may be made before a Registrar, Master, or Judge.
b) While undue formality in the application is discouraged, the application should be made in court, on the record (even if by video or telephone) and not online as an e-filed application.
c) Applicant’s counsel should notify the opposing counsel or party of an intention to apply for short leave so that counsel can appear. At the very least applicant’s counsel should canvass with his or her friend their availability on the proposed chambers date and whether he or she is opposed to the short leave.
d) The applicant should be prepared to give a full accounting of the facts, circumstances, context, and chronology leading to the application for short leave, all of which should establish that the applicant has been affected or surprised by events or developments not reasonably foreseeable.
e) If opposing counsel is not present should, as in the case of without notice applications, be prepared to give both favourable and unfavourable details.
f) If any important or pivotal fact or element is disputed by opposing counsel the applicant should be prepared to offer affidavit evidence on the point and, as always, counsel should not speak to his or her own affidavit if the matter is contested.
g) Busy schedules for the applicant counsel will usually not be sufficient reason for short leave; in that case counsel should arrange for a colleague or agent to speak to the chambers application on the usual notice required by the rules.

[19] Ultimately, taking these points into consideration, the court will balance the prejudice both to the other party by potentially disrupting their schedules and trial preparations as well as service to other clients and to the applicant by virtue of reasonably unforeseen facts, circumstances, or developments that have inhibited the applicant’s preparation in the normal chronology that the rules contemplate and mandate.

[20] Some areas of the law tend to offer more emergencies or crises than others; family law would likely fall in this category. Despite this, however, of late more applications for short leave seem to arise from personal injury/motor vehicle accident cases than in any other. And most of those applications for short leave seem to be on behalf of the defence, seeking short leave to bring an application for an IME close to trial. In that respect, this case is completely typical of that growing practise.

[21] In many cases, the applicant can point to genuine circumstances giving rise to surprise or the advent of claims or circumstances the applicant could not have reasonably anticipated. This, and many similar applications, is not in that category. In too many cases, in my view, the defence, either assuming that settlement is likely or simply by applying triage or prioritizing in busy offices with large caseloads, have not given due attention and focus in a timely way to the possible claims and damages of the plaintiff. Lawyers are extremely busy professionals. They have many cases other than the one specifically before the court. Every master and judge knows that. Still, that cannot be permitted to affect the other party’s right to due process and adherence to the rules unless clearly justified; it is the court’s function to prevent that.

[22] I have opined often, from the bench, about the template nature of pleadings in personal injury cases[3]. Often, it seems, the only change to pleadings are the names of the parties and the date and location of the accident. The damages claimed and particulars of alleged negligence are almost rote. Still, when a party specifies concussion, cognitive impairment, nightmares, sleep disruption, and driving related anxiety (which, to be fair, not all plaintiffs claim), it should be an obvious announcement to the defence that psychiatric enquiry is justified.

[23] With the advent of standardized pleadings, an obvious problem for the defence arises: what really are the damages (if any) to this particular plaintiff? It is my conclusion that very often the true issues in the claim are not established until expert medical (and sometimes economic) reports are delivered. And, yes, very often these reports are delivered at or very near the 84-day deadline. I do understand the defence dilemma in that, but even when faced with standardized pleadings, nothing prevents the defence from, as here, conducting the usual steps for disclosure and discovery. The chronology or timing of that is very much for the defence to decide and control.

[24] In this particular case, Ms. Stewart is right; there were multiple indications to the defence that Ms. O’Callaghan was not only making a claim for psychiatric injuries, but that she was firm in her allegation and that in her view the damages were significant and long-lasting. Both the clinical records and her discovery evidence should have reinforced that assertion. Her denial of the facts contained in the defence notice to admit was a further obvious sign. But preceding all of those indicators was the NOCC which, despite my complaints of template pleadings in general, was clear in alleging specific psychiatric or psychological injuries and consequences of the accident.

BC Court of Appeal Confirms Limited Small Claims Appeal Rights

Written by admin on October 18, 2017. Posted in Civil Procedure.

Reasons for judgement were released today by the BC Court of Appeal confirming the limited appeal rights from small claims lawsuits.
In the recent case (Jacques v. Muir) the Plaintiff brought a medical negligence claim in small claims court that was dismissed based on a previous release that was signed. The Plaintiff appealed to the BC Supreme Court where the claim dismissal was upheld.
The Plaintiff then further appealed to the BC Court of Appeal who confirmed that the Supreme Court order was final and no further right of appeal exists in the circumstances. In upholding the claim dismissal the Court provided the following reasons:

[15] Section 13 of the Small Claims Act sets out the powers of the Supreme Court on an appeal in a small claims action. Section 13(2) states “there is no appeal from an order made by the Supreme Court under this section.”

[16] The chambers judge properly held that s. 13(2) precludes an appeal to this Court of the order dismissing Ms. Jacques’s application. As this Court said in Pour, “no order of the Supreme Court made in appeal proceedings in a small claims action can be appealed to this Court” (at para. 7).

[17] Moreover, s. 5 of the Small Claims Act sets out the avenues for appeal from an order made by a Provincial Court judge:

Right of appeal

5 (1) Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial.

(2) No appeal lies from any order of the Provincial Court made in a proceeding under this Act other than an order referred to in subsection (1).

[18] As the order of Judge Low was not made “after a trial”, arguably pursuant to s. 5(2) of the Small Claims Act the order was not appealable at all, but I need not decide this issue in the circumstances.

[19] For these reasons I would dismiss the application to vary.

Mistrial Declared After Late Record Production and Late Report in ICBC Injury Claim

Written by admin on August 29, 2017. Posted in Civil Procedure, Jury Trials.

Reasons for judgement were recently published by the BC Supreme Court, Vernon Registry, declaring a mistrial in an ICBC injury claim proceeding before a jury.
In the recent case (Hilton v. Brink) the Plaintiff was involved in a collision and sued for damages.
The Plaintiff produced additional medical records close to trial resulting in an updated defense report addressing the Plaintiff’s injuries. A trial was underway with a jury being selected and the Plaintiff objected to the late report being admitted.
The Court ruled that the report, with some corrections, would be admissible but doing so would prejudice the Plaintiff and a mistrial was the only sensible outcome. In reaching this result, which nether party wanted, Mr. Justice Abrioux noted there was “blame to go around” and provided the following reasons:

[38] I will now address the issue regarding the additional records which were provided to Dr. Pisesky well after his First Report.

[39] Perhaps not surprisingly, both the plaintiff and the defendant blame each other for the situation which has developed. In my view there is more than enough blame to go around.

[40] Without reviewing all the correspondence and what occurred between the parties, the plaintiff shares significant responsibility in my view, in light of the allegations of chronic pain, for not having obtained in a timely way documents from prior health care professionals, particularly for the two years or so prior to the Accident. Had the plaintiff provided an MSP printout commencing two years prior to the Accident, as had been requested as early as the fall of 2015 and on several occasions thereafter, the records obtained after March 31, 2017 would have been produced to the defence much earlier than that. This would also apply to Dr. Newmarch’s records which contained Dr. Oyler’s 2011 Consultation Report.

[41] But the defence shares a significant part of the blame as well. When I review the correspondence, the requests made for records, and the plaintiff’s transparent replies, this was a case which cried out for a chambers application well before early July 2017, that is a month before the scheduled trial date.

[42] There is also the fact that the plaintiff did refer at her examination for discovery in January 2016 to the difficulties she was having pre accident. It will be up to the trier of fact to determine if she concealed the true nature of her pre accident condition but that is certainly not for me to do on this application.

[43] The defence does appear to have moved in an appropriate manner regarding Swirski interviews and the like, but only in June and July 2017. In my view the defendant should have been much more proactive at an earlier stage.

[44] The primary relief sought by both parties would have draconian consequences on the other were it to be granted.

[45] If I were to rule the Supplementary Report inadmissible, then the defence would only be able to rely on Dr. Pisesky’s First Report and the trier of fact would be misled as to Dr. Pisesky’s actual opinions based on the additional documentation provided to him in July 2017. It is not in the interests of justice for the trier of fact to be deliberately mislead. The practical effect would be that the defence would have no expert medical evidence in a case where the plaintiff who, as I understand it , has continued to work essentially full time since the Accident served a report at the 84 day deadline which assesses her loss of earning capacity arising from the injuries sustained in the Accident at $300,000.

[46] On the other hand, if I admit the report into evidence in whole or in part, the plaintiff would not have the opportunity to properly address the opinions in the Supplementary Report which was only received on July 26, 2017.

[47] There is also the fact that the plaintiff should, in my view, have the opportunity to consider obtaining a report from an orthopaedic surgeon, which is Dr. Pisesky’s field of expertise to deal with the issues raised in the Supplementary Report, including his review of what appears to be a CT scan report. This may well not be an issue which can be addressed by a physiatrist or a general practitioner, albeit one with the qualifications of Dr. Etheridge.

[48] The plaintiff’s submission was that if the Supplementary Report were admitted in whole or in part that the trial should be adjourned. That cannot occur. The jury has been selected.

[49] I appreciate that both the plaintiff and the defendant would prefer this trial to proceed, but in light of the positions they have taken on this application, I see no other alternative to a mistrial. This, in my view, will provide fairness to both parties. They will now have the opportunity to put before the trier of fact the evidence they consider necessary based on the recently obtained records.

[50] A new trial will also provide the defence to address some obvious deficiencies in the Supplementary Report, in particular Dr. Pisesky’s statements regarding the plaintiff’s credibility.

[51] I declare a mistrial.

BC Court of Appeal Discusses the Unique Limitation Periods in Local Government Act

Written by admin on May 31, 2017. Posted in Civil Procedure.

Reasons for judgement were published today by the BC Court of Appeal discussing the unique nature of the notice limitation period for suing local governments.
In today’s case (Anonson v. North Vancouver) the Plaintiff was injured when her bicycle was struck by a truck. After starting a lawsuit she obtained an order allowing her to add the City of North Vancouver as a Defendant. The City was never given notice under the 2 month provisions required by the Local Government Act. The question was whether the City could rely on this defense after being added to the lawsuit because ” It is settled law that the addition of a party to an action pursuant to R. 6-2(7) of the SCCR on the basis that it is “just and convenient” to do so generally will engage s. 4(1) of the Limitation Act and eliminate a party’s accrued limitation defence”
The Court of Appeal held that the notice limitation period is unique from the Limitation Act and a local government can indeed still take advantage of this defense even after being added as a party to an existing lawsuit. In reaching this conclusion the Court of Appeal reasoned as follows:

[38] In British Columbia, notice provisions for local government have been interpreted as substantially different from limitation period provisions. The Legislature chose to treat local government differently from other litigants by requiring that local government be given notice within a short period following an incident to allow the City to investigate the potential claim.

[39] Unlike the Limitation Act, s. 736 of the LGA (and the former notice provisions in s. 286 of the LGA and s. 755 of the Municipal Act) are not akin to a lapse of time in which to bring an action. The notice provisions do not function in the same way as limitation period provisions for the following reasons: (1) non-compliance with s. 736 of the LGA or its predecessors does not prevent a plaintiff from commencing or maintaining an action; (2) unlike the more objective language of s. 4(1) of the Limitation Act, the discretionary saving provision of s. 736(3) may or may not act as a bar to an action; and (3) the trial or appeal court must determine whether the discretionary saving provision applies based on the evidentiary record.

[40] The notice provisions of the current and former legislation have never been captured by s. 4(1) of the Limitation Act when a party is added to an action because the trial or appeal court must first determine whether the saving provision applies. Neither Bannon, which interprets differently worded legislation, nor Neilson, which assumes that s. 4(1) of the Limitation Act is engaged, are applicable to this issue.

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

Written by admin on April 28, 2017. Posted in BCSC Civil Rule 15, Civil Procedure.

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: