Tag: summary trials

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.)).

Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?


When you slip and fall and get injured on someone else’s property are you entitled to compensation?  The answer is not necessarily.
Injury in a slip and fall accident is only half of the equation.   The other half is fault.  The ‘occupier‘ of the property (or another defendant who owes you a duty of care) needs to be at fault for the slip and fall otherwise no successful claim for compensation can be brought.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.
In today’s case (Schray v. Jim Pattison Industries Ltd.) the Plaintiff fell (apparently on water) at a Save on Foods Grocery Store which was owned and operated by the Defendant.  The Plaintiff sued for her injuries alleging that the Defendant was at fault.  The Defendant brought a motion under Rule 18-A of the BC Supreme Court Rules to dismiss the case.  Madam Justice Arnold-Bailey denied the Defendant’s motion finding that the case was not suitable for summary dismissal.  Before reaching this conclusion, however, the Court summarized some of the legal principles behind a successful slip and fall lawsuit.   I reproduce these here for your convenience:

[21]        I agree that the prior summary trial judge set out the correct law in the previous application at paras. 5-10, as follows:

[5]        The duties of an occupier are set out in s. 3 of the Occupier’s Liability Act:

3(1)      An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1) applies in relation to the

(a)      condition of the premises,

(b)      activities on the premises, or

(c)      conduct of third parties on the premises.

[6]        The Act does not create a presumption of negligence against an occupier whenever a person is injured on the premises.  To establish liability, a plaintiff must point to “some act (or some failure to act) on the part of the occupier which caused the [plaintiff’s] injury”: Bauman v. Stein (1991), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.).

[7]        A similar test applies under the common law.

[8]        An occupier’s duty of care does not require the occupier to remove every possibility of danger.  The test is one of reasonableness, not perfection.  Thus, an occupier may avoid liability if it establishes that it had in place a reasonable system of inspection:  Carlson v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252 (C.A.).

[9]        The plaintiff also bears the burden of proving that the hazard in question caused the injury: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d) 228, 67 D.L.R. (4th) 475 (C.A.).

[10]      An occupier’s duty under the Act in relation to slips and falls in grocery stores was described as follows by Trainor J. in Rees v. B.C. Place (25 November 1986), Vancouver C850843 (B.C.S.C.) (quoted with approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988), 32 B.C.L.R. (2d) 212 at 214, [1989] 2 W.W.R. 264 (C.A.)):

The proceedings are brought under the Occupier’s Liability Act and that Act provides that an occupier has a duty to take that care that is reasonable in all the circumstances of the case to see that a person, in using the premises, will be reasonably safe.

The first requirement to satisfy that obligation is to take the kind of steps that were taken by the Defendants here to put into place a system to safeguard against dangerous substances being allowed to remain on the surface of the concourse. And then secondly to be sure that there was compliance by the people who were carrying out that responsibility with the system in place.

The bottom line is that the issue of fault is key.  When considering whether to sue for a slip and fall injury thought should be put to the issue of what the defendant did wrong to cause the incident or should have done to prevent it.

In my continued efforts to cross-reference the current BC Rules of Court with the soon to be in force New BC Supreme Court Civil Rules I will point out that Rule 18-A is kept intact under the new Rules and is reproduced almost identically at Rule 9-7 “Summary Trial“.

Rule 18-A and Your ICBC Injury Case

One of the tools in a BC Trial Lawyers arsenal is BC Supreme Court Rule 18-A.
Rule 18-A permits claims to proceed to court via ‘summary trial’.   In summary trials no live witnesses are called, instead the evidence is put before the Judge by way of affidavit evidence.  From there the lawyers make their submissions and a ruling is made.  By this method the time, and therefore the cost, of trial can be cut down significantly.  
Rule 18-A is, however,  not without its shortcomings.  Without live witnesses taking the stand and getting faced down by a judge or jury it is difficult to weigh credibility.  Where there are 2 different sides to the story and credibility plays a central role Rule 18-A is usually not an appropriate way to proceed to trial.
In personal injury litigation the credibility of the Plaintiff is usually a key issue at trial and for this reason Rule 18-A is rarely used.  That said, this rule can be effective for certain ICBC and other personal injury claims and reasons for judgement were released today by the New Westminster Registry of the BC Supreme Court illustrating this fact.
In today’s case (Smith v. Bhangu) the Plaintiff was injured when she was 14 years old in a BC Car Crash.  The issue of fault was admitted.  This left the issue of quantum of damages (value of the ICBC case) to be decided by the trial judge.
Both lawyers agreed that Rule 18-A was appropriate for this case.  The Plaintiff;s MRI showed a herniated lumbosacral disc injury.  There was no dispute that the Plaintiff suffered from this condition, rather the key issue was whether the Plaintiff’s herniated lumbrosacral disc was related to the car accident.  In agreeing that it was, Mr. Justice Grist made the following findings:

[21]            I am satisfied that the evidence provides, on a balance of probabilities, a causal link between the motor vehicle collision and the lower back condition. I accept the Plaintiff’s evidence that the lower back complaints presented after a period of weeks or months from the motor vehicle collision and that there were no prior or subsequent events causing or contributing to the condition. Further, I accept that following the initial visit to the doctor, she did not present these continuing complaints for medical treatment until lower back spasms developed in 2004 and 2005. I also note Dr. Hershler’s comment that, based on the history and his physical examination, both the neck and lower back symptoms were referable to the motor vehicle collision.

[22]            The upper back condition continues to be symptomatic from time to time, but as in many cases, has shown improvement, and the overall effect of the assessments in the medical reports is an expectation of further progress.

[23]            The lower back condition, however, is more of a problem. The MRI shows a herniated lumbrosacral disk which continues to cause episodes of back pain, sometimes debilitating to the point of prompting attendance at an Emergency Ward. I accept that at age 14, this was not likely a degenerative condition and, as I have previously indicated, on the evidence, is most likely attributable to the collision.

General damages (money for pain and suffering and loss of enjoyment of life) were assessed at $65,000 and a further $80,000 was awarded for the Plaintiff’s diminished earning capacity to reflect the fact that her chronic condition will likely effect her vocationally over her lifetime.
What is remarkable about this case is that the trial took only one day.  Often times when ICBC Claims with serious injuries proceed to trial the process takes numerous days or even weeks.  Rule 18-A permitted this case to be adjudicated with one day of court time with costs savings to both parties.
While Rule 18-A is inaproppriate for many personal injury claims, this case shows that it can be used effectively in certain circumstances.  When prosecuting an ICBC injury claim this rule should not be automatically brushed aside and should be considered in appropriate circumstances.

Contact

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.

“Work hard, be kind and enjoy the ride!”
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