Tag: Rule 22-5

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. 

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Court Orders Several Injury Claims Tried Together Due to Fraud Allegations

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering several lawsuits to be heard together due to allegations of fraud.
In today’s case (ICBC v. Singh) the court reviewed an application requesting that seven personal injury actions involving motor vehicle accident claims related to three separate collisions be tried together.
In addition to the injury claims ICBC sued the individuals alleging that they “knew each other and conspired to stage the accidents to make false personal injury claims.
ICBC applied to have all the lawsuits tried together. In granting the application Madam Justice Duncan provided the following reasons:

[34]        The authorities provide a non-exhaustive list of facts to consider when making a determination on consolidation or, as in this case, ordering that actions be heard together. The factors are derived from Merritt, as well as Shah v. Bakken, [1996] BCLR No. 2836, and Insurance Corp. of British Columbia v. Sam, [1998] BCJ No. 947:

1.       Will consolidation create a saving in pre-trial procedures?

2.      Will there be a real reduction in the number of trial days taken up by the actions heard together?

3.      What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which they only have a marginal interest?

4.      Will there be a real saving in experts’ time and witness fees?

5.      Is there a common issue of fact or law that makes it desirable to dispose of both (all) actions at the same time?

6.      Will consolidation avoid a multiplicity of proceedings?

7.      What are the relative stages of the actions?

8.      Would consolidation delay the trial and prejudice one or some of the parties?

9.      Would there be a risk of inconsistent results?

[35]        In this case, an order that the actions be heard together should result in a saving in pre-trial procedures. There would be one discovery of ICBC representatives concerning the fraud allegations rather than separately scheduled days of discovery, one per defendant. There would likely be a real reduction in the number of days required for trial if the actions were heard together, rather than as seven tort actions and one fraud action, as a repetition of evidence could be avoided. Parties could be excused for the portions of the trial which do not relate to them, saving their time and expense in that regard.

[36]        Conversely, the actions could be heard in stages with the ICBC fraud action scheduled first as it might determine, in whole or in part, the viability of the individual tort actions. This, of course, would be dependent on the views of a judge at a case planning conference or a judicial management conference.

[37]        The common issues of fact or law as between these actions is manifest in the pleadings and in the documents placed before the court by ICBC. The question is whether these accidents were staged by the parties. The parties knew one another, or at least knew one person with connection to more than one of the collisions. Mr. Haghmohammadi has some involvement in Collision #1 as he gave Ms. Prakash the vehicle she was driving at the time. Mr. Inderjit Singh, who drove the vehicle which allegedly injured Ms. Prakash and Ms. Mehran in Collision #1, had business dealings with Mr. Haghmohammadi in the sale of rebuilt motor vehicles and was in fact involved in Collision #3 with him.

[38]        If individual trials were held, inconsistent results could ensue. It is no answer to say that Ms. Prakash’s trial would create res judicata in relation to issues of alleged fraud arising from Collision #1, as Ms. Mehran has a separate proceeding arising from the same accident and Mr. Inderjit Singh is also a litigant in relation to Collision #3. Determining what issues were adjudicated in the first trial would not be straightforward and might visit unfairness on others who were not parties at Ms. Prakash’s trial.

[39]        I acknowledge that Ms. Prakash’s action is set for hearing in February and an order that the matters be heard together will necessitate an adjournment of that trial; however, I am satisfied of a high degree of interconnectedness between the parties and that it is in the interests of justice that the matters be heard together, or as directed following the case planning process or by judicial management, if a judge is appointed to hear the matter.

Consolidation of Trials Not Appropriate With Multiple Quantum of Damage Assessments

Although the BC Supreme Court has discretion to consolidate different claims for trial in cases where competing claims are “so interwoven as to make separate trials at different times before different judges undesirable” this is a discretion rarely exercised when there are separate plaintiffs with distinct injury claims that require individual quantification.  This reality was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (MacMillan v. Shannon) 4 occupants of a vehicle were involved in a collision with another vehicle   All sued for damages in separate claims.  Liability and damages were disputed in all claims.  ICBC brought an application seeking to have all trials heard together.  This application was dismissed with the key factor in derailing the application being the individual quantum claims being advanced.  In addressing this point Master Caldwell provided the following reasons:
[8]             Finally, other than on the issue of liability, no one is arguing that there will be a significant or any saving on the presentation of expert evidence. Each of the plaintiffs has a different family doctor. Two of the plaintiffs now live in Quebec so if there is any further expert evidence it is unlikely to overlap and may have to be provided by way of teleconferencing to minimize expense. Again, it is clear that there are ways of reducing complexity, duplication and inconvenience; it will be up to counsel to determine whether that happens or not.
[9]             In short, I am of the view that none of the second arm of tests arising in the Merritt case (supra) or the subsequent case of Bhinder v. 470248 B.C. Ltd., 2007 BCSC 805 is met in the present cases. The application for consolidation and related relief is dismissed as is the application for removal of any or all of the actions from Rule 15-1 fast track.

Theft/Fire Loss Claims and ICBC "Examinations Under Oath"


If you purchase Theft of Fire Damage coverage from ICBC and need to take advantage of this insurance can ICBC force you to provide a statement under oath before processing your claim?  The answer is yes and reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, dealing with this area of the law.
In this week’s case (Cort v. ICBC) the Plaintiff had fire insurance coverage with ICBC.  On September 18, 2010 his vehicle was destroyed by fire.  He asked ICBC to pay his loss but ICBC refused to respond until he provided them with an “Examination Under Oath“.  He refused to do so and sued ICBC.  ICBC brought an application for various pre-trial relief including an order to ‘stay‘ the lawsuit until the Examination Under Oath was provided.  Master Keighley granted this order finding that the lawsuit could not move ahead until this ‘investigative’ step took place.  In doing so the Court provided the following reasons:

[28] Sections 6 and 8 of the Prescribed Conditions to the Insurance (Vehicle) Regulation B.C. Reg. 156/2010 read as follows:

6(1)      If required by the insurer, the insured must, on the occurrence of loss or damage for which coverage is provided by this contract, deliver to the insurer within 90 days after the occurrence of the loss or damage a statutory declaration stating, to the best of the insured’s knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others in the vehicle, the encumbrances on the vehicle, all other insurance, whether valid or not, covering the vehicle and that the loss or damage did not occur through any wilful act or neglect, procurement, means or connivance of the insured.

(2)        An insured who has filed a statutory declaration must

(a)        on request of the insurer, submit to examination under oath,

(b)        produce for examination, at a reasonable time and place designated by the insurer, all documents in the insured’s possession or control relating to the loss or damage, and

(c)        permit copies of the documents to be made by the insurer.

8(1)      The insurer must pay the insurance money for which it is liable under this contract within 60 days after the proof of loss or statutory declaration has been received by it or, if an arbitration is conducted under section 177 of the Insurance (Vehicle) Regulation, within 15 days after the award is rendered.

(2)        The insured must not bring an action to recover the amount of a claim under this contract unless the requirements of conditions 4, 5 and 6 are complied with and until the amount of the loss has been ascertained by an arbitrator under section 177, by a judgment after trial of the issue or by written agreement between the insurer and the insured.

(3)        Every action or proceeding against the insurer in respect of loss or damage for which coverage is provided under this contract must be commenced within 2 years from the occurrence of the loss or damage.

[29] Accordingly, says ICBC, since the insured may not commence an action to recover the amount of his claim until he has, inter alia, submitted to an examination under oath, at the very least he should be enjoined from proceeding with the claim…

[32] ….The purpose of an EUO, on the other hand is investigative. The insured is contractually bound to co-operate with his insurer by submitting to an examination which may assist the insurer in determining its response to the claim. The insured may not, as a matter of contract, seek to attach conditions to his attendance.

[33] In the circumstances the contract claim will be stayed until the plaintiff has complied with the requirements of the Prescribed Conditions. In the event that the parties cannot resolve the issue of compliance by agreement, they will have liberty to apply.

This case is also worth reviewing for the Court’s discussion of transfer of claims to Small Claims Court under section 15 of the Supreme Court Act and further the severance of bad faith claims from breach of contract claims pursuant to Rule 22-5(6) and 12-5(67) of the Supreme Court Rules.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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