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"Proportionality" Given First Judicial Interpretation, Severance of Liability and Quantum Considered

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, Civil Procedure, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).
In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006.  The Plaintiff was the front seat passenger in a vehicle being driven by her daughter.  The Plaintiff sued the drivers of both vehicles.  ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party.  The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury.  The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.
Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities.  Specifically Mr. Justice Wilson held as follows:

[22]         The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23]         Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24]         Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25]         Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26]         Rule 12-5(67) confers a power on the court in these words:

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27]         Rule 12-5(68) confers a power on the court in these words:

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28]         There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29]         I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30]         The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court.  This is the first case I’m aware of addressing this principle.  Mr. Justice Wilson provided the following comments:

[48]         To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[49]         Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50]         First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51]         This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52]         Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53]         For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54]         Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55]         Third, I would not characterize this action as one of complexity.

[56]         Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57]         No other factors (other than economical) were identified.

[58]         In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).

ICBC Claims and the Seperation of Fault and Quantum

Written by admin on . Posted in Civil Procedure. 47 Comments on ICBC Claims and the Seperation of Fault and Quantum

While there are a host of issues involved in most ICBC injury claims (tort claims), the issues can be broken down into 2 broad categories 1. Who is at Fault (Liability) and 2. How much is the ICBC claim worth (quantum).
In a case where the issue of fault is hotly contested, is it possible to have that matter heard first before spending time (and in all likelihood a lot of money) presenting the medical evidence addressing the extent of injury?  The answer is sometimes.
Reasons for judgement were released today considering exactly such an application.
The Plaintiff was injured in a motor cycle accident in 2006.  He brought a personal injury claim.  He asked the court to determine the issue of fault ahead of the issue of quantum of damages.
Rule 39(29) of the BC Supreme Court Rules allows such an applicaiton, particularly it holds that:
39(29)  The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
Some of the factors a court will consider in such an application include the following:

a.         A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.

b.         Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.

c          Severance is most appropriate when the trial is by judge alone.

d.         Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.

e.         A party’s financial circumstances are one factor to consider in the exercise of the discretion.

f.          Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge.

In today’s case, the application was dismissed.  Madam Justice Holmes of the BC Supreme Court held that:
[16]            Even if a case need not be exceptional to support an order for severance, it must disclose some compelling reason for such an order.  Compelling reasons must arise from the circumstances of the particular case.  Although I have considerable sympathy for Mr. Biggs’ personal situation, I find no compelling reason for separate trials of liability and damages.  Difficult though Mr. Biggs’ personal circumstances undoubtedly are, I am not persuaded that, in the context of the litigation as whole, they support a departure from the general practice by which all issues are determined in a single trial.