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Tag: Rule 15

Rule 68 Denied for Historic Personal Injury Case

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.
In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash.  The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry.  The matter was set for Jury Trial.  As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.
Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:

9          The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent.  In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”.  He does not suggest that the defendant is misusing the process in withholding consent in this case.  The plaintiff relies on Bell v. Wood, [1927] 1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn., [1994] B.C.J. No. 2477 (C.A.), for the proposition set out above.

10        With respect, I do not agree that the principle set out applies here.  In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6).  The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question.  MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.

11        I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more.  Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum:  Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc., [2005] O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.).  It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d [1981] 2 S.C.R. 561.

12        There is no gap in the present circumstances.  Rule 68 expressly requires the consent of the defendant.  It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.

This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010.  (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).

More on BC Injury Claims, Proportionality and the Mandatory Nature of Rule 68

Further to my previous postings on Rule 68 in ICBC and other Injury Claims, the Rules mandatory nature was further developed by the BC Supreme Court today.
First a brief background.  Rule 68 is a ‘proportionality’ based rule which limits and alters the types of pre-trial procedures available to litigants in the BC Supreme Court for certain types of cases.  Rule 68 also takes away the right to trial by jury for cases where the rule applies.
Subsection 2 of Rule 68 sets out when the Rule applies.  One type of action subject to Rule 68 is where a Plaintiff claims for pecuniary and non-pecuniary loss for less than $100,000.  This includes many ICBC and other Injury Claims.
Recent Court Decisions have interpreted Rule 68 as being mandatory when the factors in Rule 68(2) apply.  In the case of Foster v. Westfair Properties (Pacific) Ltd. Master McCallum of the BC Supreme Court held that:
Rule 68 is mandatory and requires that actions qualifying as expedited actions proceed under the provisions of the rule.  The absence of the required endorsement is an irregularity that may be remedied by amendment.  The commencement of a proceeding without the Rule 68 endorsement does not change the character of the proceeding to permit process outside the limits of the rule.
Reasons for judgement were released today by the BC Supreme Court illustrating just how far our Courts can go in applying the mandatory nature of this rule.
In today’s case (Uribe v. Magnus) the Plaintiff was allegedly injured in 2007 BC Car Crash.  The Plaintiff started a lawsuit but did not make the Claim subject to Rule 68.  As the lawsuit progressed the Defendant took advantage of the pre-trial steps available for lawsuits filed outside of Rule 68 including examinations for discovery.  Furthermore none of the Rule 68 pre trial requirements were adhered to.
The Defendant took out a Jury Notice and even paid the necessary Jury Fees.  The Plaintiff then valued his claim below $100,000 and as the trial neared brought an application for an order that the lawsuit was ‘subject to rule 68’.  The defendant opposed this motion arguing that the motion was brought too late in the lawsuit and that it would result in significant prejudice including the loss of right of trial by jury.
The Court granted the motion and noted that “there is no timiing limitation in (rule 68)“.   Master Caldwell went on to make the following comments:
The concept of proportionality is now formally ingrained in our law by the terms of Rule 68.  It is hard to imagine that a simple claim which the plaintiff’s counsel himself admits will not exceed $50,000 and which more likely falls in the $30,000 to $40,000 range can justify the overall expense of a three day jury trial.  While I accept the submissions of defendant’s counsel that the defendant has been prejudiced by the late date of the plaintiff’s application, the denial of a jury trial, the fact that they have prepared for a jury trial and the fact that they have had to undertake various steps and procedures which would not have been necessary had the matter been commenced subject to Rule 68 or placed into that rule at an earlier date I am satisfied that these issues can be compensated for by the appropriate order of costs to the defendant while at the same time maintaining and protecting the purpose and mandatory nature of Rule 68.
The Court went on to  balance some the Defence concerns by ordering that the Plaintiff be responsible for the costs for ‘all procedures undertaken to date which would not have been required or allowed under Rule 68“.  This case is worth reviewing in full for anyone interested in the development of the concept of ‘proportionality’ in BC Supreme Court Injury Litigation.
As readers of this blog may know, the current BC Supreme Court rules are being repealed and replaced with new Rules next summer.  Rule 68 will be repealed and replaced with Rule 15.  Rule 15 also utilizes the concept of proportionality and today’s case may be telling in the direction BC Courts will take under the new Rules when applying this concept to injury litigation.