In Desharnais v. ICBC, the Plaintiff was a motorcyclist who was injured when he hit a median and flipped. He maintained that an unknown motorist had clipped his motorcycle, thereby causing the accident. There were no witnesses to the accident. The Plaintiff brought a claim against ICBC as nominal defendant, given that it was a hit and run case.

 

Prior to trial, ICBC’S lawyer made an application to sever liability and quantum (amount of the claim) under Rule 12-5(67) of the Rules of Court. ICBC’S lawyer argued that should the Court find no liability against the Defendant, then that would be dispositive of the matter, as it would obviate the need for an actual trial.

 

The Court discussed the issues that a Court takes into consideration when ruling on a severance application, and noted that severance is the exception, rather than the rule.

 

The Court was quick to dismiss the application, noting that the affidavit filed in support of the application did not state anything about how the trial would be affected in the event of severance. Further, the Court noted that the Defendant failed to provide any evidence whatsoever as to how severing the issues of liability and quantum would result in a real likelihood of savings in terms of time and expense.

 

[9] The defence submits that this matter will be shortened considerably if liability can be determined first in a separate trial. More accurately, what he says is that if he succeeds and the plaintiff fails on the distinct liability issue then there will be no further trial time required. The same could be said of every case where there is a possibility that the plaintiff could be found entirely liable for the accident …

 

[12] The affidavit filed on behalf of the defendants says nothing about how this trial will be shortened or in any way affected should a finding of liability go in favour of the plaintiff. In Emtwo, Fenlon J. confirmed that the burden of proof is on the defendants (in this application) to demonstrate that there is a real likelihood of savings of time and expense if severance is granted. The defendants have thus not only failed in their evidence to prove such to be the case, they have failed to even address the issue or to provide any evidence on it at all.

 

[13] The defendants’ material simply fails to provide me with an evidentiary basis upon which to properly exercise my discretion, in a proper and judicious fashion, to grant the order sought.

Under certain circumstances, the Court will “sever” (separate) the issues of liability (fault) and quantum (amount of the claim). The main reason a party will want to sever the two is a financial one. If it is determined, for example, at the outset that a Defendant is not liable, then there would be no need for a full trial, which would have resulted in increased costs that the unsuccessful party may be responsible for.

 

In Dazham v. Nachar, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim seeking damages for pain and suffering, and other heads of damages as well. Prior to commencement of trial, the Plaintiff’s prognosis was still uncertain. As a result, a trial adjournment was sought, however the Court still decided to hear the liability aspect of the claim, thus severing quantum from liability.

 

[12]         Nevertheless, I have concluded that this is not one of those cases where the injuries can be said to have plateaued, that it is now just a matter of waiting. That is not the case to me at all. Both physicians have indicated further surgical intervention. They have also indicated that that is a contingency; in essence  a) whether the cortisone injections work; and b) whatever the MRI says.

 

[13]         So by no means are we at a point where the extent of Mr. Dazham’s injuries and their expected recovery can be given with satisfactory accuracy. I just do not think we are there yet.

 

[14]         As I say, the liability is very much in issue, and why it is generally the situation or circumstance that the court prefers not to sever issues, when we have a lay witness, when we have such an active issue. I think it is in everyone’s interest that that matter be resolved first, and then as a consequence, rather than adjourn the matter, that the issues of liability and quantum be severed and that the matter of liability proceed.

 

[15]         With respect, I adopt Mr. Justice Finch’s comments in Radke v. M.S., 2006 BCCA 12 at paragraph 24, in which he comments that:

 

If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories.

 

In Erwin v. Helmer, the Plaintiff was injured in a slip and fall incident. Defence counsel sought a dismissal of the claim via the summary trial procedure. The Court dismissed the application, holding that summary trial and severance applications are for the most part not appropriate where credibility is in issue.

 

[8]             The parties proceeded as if the severance of liability from quantum could be presumed. For reasons set out recently in Chun v. Smit, 2011 BCSC 412, a party who opposes summary disposition of an action, where the question of severance of quantum from liability arises, should address whether severance is appropriate. The principles were taken from Bramwell v. Greater Vancouver Transportation Authority, 2008 BCSC 1180, at para. 13-15. There must be “extraordinary, exceptional or compelling reasons for severance of liability from quantum”. The reasons for this standard respecting severance are set out in Chun:

 

24.       An assessment of whether there are exceptional circumstances justifying severance may turn in part on whether the credibility of the parties is an integral part of both the liability and quantum sides of the case, or whether, on the material placed before the court, liability may be determined on the basis of the available evidence, apart from the conflict in the parties’ evidence.

 

[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.

In Cayou v. Cayou, the Plaintiff sought an application for severance of liability and quantum, which ICBC’S lawyer opposed. The application was dismissed by the Court, which engaged in a discussion of the law of severance of liability and quantum.

 

[26]           Rule 12-5(67) confers a power on the court in these words:

 

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

 

[27]           Rule 12-5(68) confers a power on the court in these words:

 

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

 

[28]           There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

 

[29]           I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

 

[30]           The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

 

[31]           Initially, therefore, the framework for analysis under the current rule is the same as under the former rule. Some suggested matters for consideration, in a determination of the severance of questions of fact or law, were stated in Nguyen v. Bains, and adopted in Biggs v. I.C.B.C.:

 

[5]        …

 

            a.         A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.

            b.         Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.

            c.         Severance is most appropriate when the trial is by judge alone.

            d.         Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.

            e.         A party’s financial circumstances are one factor to consider in the exercise of the discretion.

            f.          Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge.

 

After applying the law to the fact of this case, the judge dismissed the Plaintiff’s application to sever liability and quantum.

 

[47]           In result, the plaintiff has not established, on a preponderance of probability, a compelling reason to sever the issue of liability from the issues of quantum.

 

[48]           To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

 

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

            (a)        the amount involved in the proceeding,

            (b)        the importance of the issues in dispute, and

            (c)        the complexity of the proceeding.

 

[49]           Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

 

[50]           First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

 

[51]           This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

 

[52]           Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

 

[53]           For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.