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.
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:
 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,  BCLR No. 2836, and Insurance Corp. of British Columbia v. Sam,  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?
 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.
 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.
 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.
 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.
 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.
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:  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.  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.
If you are involved in 2 separate car accidents and start 2 separate Injury Claims in the BC Supreme Court is it possible to have the trials heard at the same time?
The answer is yes and such applications are governed by BC Supreme Court Rule 5(8) which states that “proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day“.
Today reasons for judgement were released by the BC Supreme Court (Miclash v. Yan) considering an application under Rule 5(8). In granting the Plaintiff’s request to have multiple claims heard at the same time Master Keighley concisely set out the principles to be considered in these applications. The Court summarized the law as follows:
 The application is brought pursuant to Rule 5(8) of the Rules of Court…
 The order sought is discretionary.
 Exercise of this discretion is governed by the principles set out in the decision of Master Kirkpatrick, as she then was, in the case of Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 at para. 18 and 19:
18. None of the submissions of counsel address the real issue to be determined. That is, are the issues raised by the pleadings sufficiently similar to warrant the order sought and will the order make sense in the circumstances? An application to have actions tried at the same time thus requires an examination of circumstances which may be of a more general nature than is made under R. 27 or 19.
19. I accept that the foundation of an application under R. 5(8) is, indeed, disclosed by the pleadings. The examination of the pleadings will answer the first question to be addressed: do common claims, disputes and relationships exist between the parties? But the next question which one must ask is: are they “so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense”? Webster v. Webster (1979), 12 B.C.L.R. 172 at 182, 10 R.F.L. (2d) 148, 101 D.L.R. (3d) 248 (C.A.). That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed outside the pleadings:
(1) Will the order sought create a saving in pre-trial procedures, (in particular, pre-trial conferences)?;
(2) Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?;
(3) What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest?; and
(4) Will there be a real saving in experts’ time and witness fees?
This is in no way intended to be an exhaustive list. It merely sets out some of the factors which, it seems to me, ought to be weighed before making an order under R. 5(8).
 To these considerations, Master Joyce, as he then was, added two more in the case of Shah v. Bakken,  B.C.J. No. 2836, 20 B.C.L.R. (3d) 393, at para. 15:
Other factors which in my view can be added to the foregoing list are:
(5) Is one of the actions at a more advanced stage than the other? See: Forestral Automation Ltd. v. RMS Industrial Controls Inc. et al. (No.2), unreported, March 6, 1978, No. C765633/76, Vancouver (B.C.S.C.).
(6) Will the order result a delay of the trial of one of the actions and, if so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have?
In my continued effort to cross reference civil procedure cases with the new BC Supreme Court Rules which will take effect on July 1, 2010 Rule 5(8) is replicated in full under the New Rules and can be found at Rule 22-5(8). Accordingly, the principles set out above will likely continue to be useful in considering similar applications once the new rules come into force.
If you would like further information or require assistance, please get in touch.
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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