Tag: Rule 9-7(2)

Credibility Cases Not Suitable for Severance of Issues and Summary Trial


Earlier this year Mr. Justice McEwan provided reasons for judgement finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial.   Today, reasons for judgement were released confirming this point and finding that where credibility is an issue a case will likely not be suitable for severance or summary trial.
In today’s case (Erwin v. Helmer) the Plaintiff alleged injuries in a trip and fall incident.  She sued for damages under the Occupiers Liability Act.  The Defendants applied to dismiss the case via summary trial.  Mr. Justice McEwan dismissed the application finding that a a summary trial was not appropriate.  In doing so the Court provided the following reasons regarding credibility, severance and summary trials:



[9] This case inherently turns on credibility. While counsel for the plaintiff has not objected to severance, the court must still be concerned with the proper application of summary process and with the sufficiency of the evidence on which it is expected to rule that a party will be deprived of a full hearing.

[10] It appears from what is before the court that the precise nature of the “hole” into which the plaintiff alleges she stepped will not be established with any precision. There nevertheless appears to be a question to be tried on the balance between the risk assumed by the plaintiff and the duty imposed on the defendants to ensure that the premises were reasonably safe. There is simply not enough material presently before the court to reliably make that call. The defendant relies on the fact that the plaintiff had been drinking as if that essentially speaks for itself, but the presence of drinking invitees on the defendant’s premises was, on the material, foreseeable. There is little, if any evidence as to what efforts, if any, were made to render the premises reasonably safe for those who attended the wedding in those circumstances, including, for example, whether paths were designated or lighting was supplied.

[11] The application is accordingly dismissed and, the whole matter will be put on the trial list. The question of severance, if it arises again, should be the subject of an application. Where credibility is a significant issue it should generally be decided on the whole case, not on the fraction of it, unless the test for severance has specifically been met. Otherwise the trier of fact may be deprived of useful information relevant to the over-all assessment of credibility.



Summary Trials and the Severance of Issues


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with an interesting question: is a Court order for severance of issues required prior to a Court adjudicating an issue (as opposed to the entirety of a claim) in a summary trial?
The reason why this is an issue is due to two competing Rules of Court.  Rule 9-7(2) permits a party to “apply to the court for judgement…either on an issue or generally“.  On the face of it this rule seems to permit a party to apply for only part of a case to be dealt with summarily.  However, Rule 12-5(67) requires a Court Order to sever issues in a lawsuit stating that “the court may order that one or more questions of fact or law arising in an action be tried and determined before the others“:.
In this week’s case (Chun v. Smit) the Plaintiff was injured in a motor vehicle collision.  He brought a motion for the issue of liability to be addressed on a summary trial.  The Defendant opposed arguing that a summary trial was not appropriate.  Mr. Justice McEwan agreed and dismissed the application.  In doing so the Court provided the following useful reasons finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial:

[7] The question is really whether Rule 9-7 merely describes a mode of trial, while the claim or cause of action remains otherwise subject to the rules that govern trial, or whether the trial of an “issue” under Rule 9-7, where that issue is the severance of liability from quantum, somehow bypasses Rule 12-5 (67) and falls to be decided on a lower standard.

[8] In the brief passage excerpted from Bramwell (above), three different approaches are apparent. It seems to me, however, that whether the test for severance, or of a trial of an “issue” is rationalized as within or outside Rule 9-7, it must meet the standard set out in Bramwell. Rule 9-7 is, in itself, a departure from the ordinary mode of hearing a trial, and proceedings within it are contingent upon the court accepting that the compromises inherent in that process will not impair the courts’ ability to do justice. That being so, it would be illogical that collateral to the compromises inherent in proceeding by summary trial, other aspect of the process were similarly downgraded. If a trial of an issue is found to be an appropriate way to proceed, it may be tried under Rule 9-7, if Rule 9-7 itself is properly applicable.  Where a party seeks to proceed on only part of a case under Rule 9-7, the first question is whether there should be severance at all, and the second is whether Rule 9-7 is appropriate. The correct approach is set out in Bramwell, which would bind me in any case (see Hansard Spruce Mills Ltd. (Re), [1954] 4 D.L.R. 590 (B.C.S.C.)).

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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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