Law and Equity Act Does Not Require Separate Crash Claims to be Heard Together

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, confirming that it is discretionary, not mandatory, for a court to order injury claims arising from separate crashes to be heard together.

In today’s case (Hendricks v. Xie) the Plaintiff suffered profound injuries in a collision.  Her claim was scheduled for trial.  Prior to trial she was involved in a subsequent albeit less severe collision.

The Defendant brought an application saying both claims must be heard at the same time. 

The Court rejected this argument finding it was wholly a discretionary issue and in the circumstances there would be unfair prejudice to the Plaintiff requiring the claims to be joined for trial.  In dismissing the defence application Master Muir provided the following reasons:

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

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

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

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

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

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

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

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

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