Category: Summary Trials

Court Discusses Area Of Law Of Summary Trial Applications

In Cook v. Klassen, the Plaintiff was injured as a motorcyclist when he collided with a motor vehicle, and subsequently brought an ICBC claim for damages for pain and suffering, as well as various other types of damages. The Plaintiff sued the driver of the other vehicle, as well as the Corporation of the City of Coquitlam for failure to properly design, construct, and maintain the intersection where the collision occurred. The Defendant driver third partied the Corporate Defendant as well. The Corporate Defendant brought a summary trial application for an order dismissing the Plaintiff’s action and the third party claim against the Corporate Defendant brought by the Defendant driver. The Court granted the Corporate Defendant‘s application on both counts, thus relieving the Corporate Defendant of any liability whatsoever with respect to the Plaintiff‘s claim for damages. The Plaintiff had also brought an application to have the Court declare that the Corporate Defendant had caused or contributed to the Accident, which was dismissed by the Court. The Court commented on the area of law of summary trial applications

[26] A summary judgment will not be granted where the judge hearing the matter is unable to find facts sufficient to warrant judgment. In most cases where an application for summary trial is not suitable it is because the affidavit material in support or against contains conflicting evidence on significant factual issues and the judge is not able to resolve those conflicts.

[27] The law regarding summary trials was recently summarized by Madam Justice Ker in McVeigh v. Boeriu, 2011 BCSC 400 at paras. 42-44

[42] Whether a matter is suitable for disposition by means of the summary trial procedure has generated a significant amount of jurisprudence over the years. The proper approach on a summary trial under the former Rule 18A was set out in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. , (1989), 36 B.C.L.R. (2d) 202 (C.A.) [Inspiration Management]. This test remains the same under the new Rule 9-7 of the Supreme Court Civil Rules, and whether a matter is suitable for disposition can be distilled to consideration of two critical factors:

i. Are there sufficient facts before the Court in which to make the necessary findings of fact?

ii. Is it unjust to decide the case on a summary trial application?

[43] Where the court is able to find the facts necessary to decide the issues before it, and it is not otherwise unjust to decide the matter summarily, the court should give judgment. At para. 7 of his decision in Mariotto v. Waterman, (1996), 32 B.C.L.R. (3d) 125 (C.A.), McEachern C.J.B.C. stated the following with respect to Rule 18A applications: “Where possible it is always to be hoped that judges will give judgment and I repeat that admonition here.”

[44] Rule 18A(11) of the former Supreme Court Rules provided that judgment may be granted generally or on an issue unless the Court is unable to find the necessary facts to decide the issues of fact or law or it would be unjust to decide the issues summarily. Rule 9-7(15) contains identical language to the former Rule 18A(11).

[29] The fact there is conflicting evidence in the affidavit material on a summary judgment application does not mean a judge should not proceed to hear and determine the matter. The question in each case is whether, notwithstanding such conflicting evidence, there is other admissible evidence which makes it possible for the judge to find the facts necessary for judgment be given: Inspiration Management Ltd. v. McDermid St. Lawrence Ltd, (1989), 36 B.C.L.R. (2d) 202 (B.C.C.A.) at 216 and Charest at paras. 54-62.


Court Determines Liability In Summary Trial Application In Advance Of Trial

In Shao v. Swanson, the Plaintiff was injured as a passenger in a violent rear end collision, and brought an ICBC claim for damages for pain and suffering, wage loss, cost of future care, and other heads of damages. Prior to the originally scheduled five day trial, counsel for the Plaintiff brought a motion to determine the issue of liability summarily. ICBC’S lawyer raised the issues of whether or not it was appropriate to sever liability from quantum, whether or not the liability issue is suitable for a summary trial application, and whether or not the evidence presented actually showed liability against the Defendant in question who the Plaintiff alleged was solely responsible for the accident. The Court would eventually rule that the Defendant was solely responsible for the collision and, as such, liability was assessed against the Defendant on a summary basis, meaning that the assessment of damages would proceed on its own at trial, without the need to determine liability.


[11]        On the question of severance of the liability and quantum issues, it is to be noted that there is no stand-alone application to sever the trial of these issues. Apparently all parties initially agreed that a summary trial of the liability issue was appropriate, but Mr. Horne’s instructions were subsequently changed.


[19]        I am satisfied that there will be considerable savings in time and expense to all parties by deciding the liability issue summarily and separately, and that all the probative relevant evidence on that issue is before the court. Notwithstanding the adjuster’s comment that the possibility of seeking a reconstruction expert has been referred to counsel, that does not appear to be likely at this late date considering the dearth of empirical data. Counsel did not suggest otherwise.


[20]        I find the issue is capable of being determined on summary trial and, on the evidence before me, the plaintiff has established a prima facie case of negligence against Swanson. This casts an onus on the defendant, Swanson, to provide an explanation of how this collision could have occurred without negligence on his part: Spiering v. Trevor, 2012 BCSC 1653 (CanLII), 2012 BCSC 1653 and the cases cited therein. No such explanation emerges from the evidence. I find that the defendant, Swanson, is liable to the plaintiff for damages to be assessed at trial.


Court Orders Pedestrian Accident Case To Be Heard Via Summary Trial Procedure

In Sandhu v. Ahmed et al, the Plaintiff was injured as a pedestrian, and brought an ICBC claim for damages. The Court ruled that the matter would be suitable for a summary trial matter, despite the objections of the Plaintiff. The Court was of the opinion that the affidavit evidence of the parties was sufficient to rule on the issues of liability and apportionment. Also, the Plaintiff was not seeking a determination with respect to quantum.


[13]        The plaintiff submitted that this matter was not suitable for a summary trial. Applying the principles enunciated in Inspiration Management Ltd. v. McDermid St. Lawrence Ltd., 1989 CanLII 229 (BC CA), 1989 CanLII 229 (BCCA), I find that this matter is appropriately dealt with summarily under Rule 9-7. In my view the affidavit evidence is sufficient to find the facts necessary to decide the question of liability and apportionment thereof. The plaintiff is not seeking a determination of quantum. There is no conflicting evidence in the affidavits of the plaintiff and Ahmed that is material to the determination of the issues.


[14]        Plaintiff’s counsel challenged the credibility of some of the affidavit evidence of Ahmed such as the speed that his vehicle was travelling, his failure to observe the plaintiff before she crossed, and his evidence that the vehicles that stopped had activated their turn signals; however, there is no conflicting evidence nor is there any basis to discredit his evidence on those points.

Court Rules That Cases Where Credibility Is At Issue Are Not Appropriate For Summary Trial Applications

In Erwin v. Helmer, the Plaintiff was injured in a slip and fall accident, and consequently brought an injury claim under the Occupiers Liability Act. The Defendant’s lawyer brought an application to dismiss the claim via the summary trial procedure, however the Court refused to grant the application, holding that cases where credibility is at issue are not appropriate for severance applications and summary trials.


[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.

Court Refuses To Grant Plaintiff’s Summary Trial Application To Sever Liability And Quantum

In Chun v. Smit, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim. The Plaintiff’s lawyer brought an application to have the Court determine liability at a summary trial. ICBC’S lawyer objected to this. The Court agreed, and ruled that a Court order arising from a separate application for severing (separating) liability and quantum would be required before a Plaintiff could proceed via the summary trial route on only the issue of liability or quantum.


[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.)).

One Day Trial Shows Effectiveness Of Summary Trial Procedure

With respect to ICBC claims, Rule 9-7(2) of the British Columbia Supreme Court Civil Rules permits claimants to bring their ICBC claims through a summary trial procedure. In a summary trial, no witnesses are called to the stand, with the evidence before the judge being in the form of sworn affidavits. Plaintiff’s counsel and ICBC’S lawyer will then make submissions, and the judge will rule on the outcome of the ICBC claims. By proceeding to trial in this fashion, a great amount of time and cost can be saved.


A problem with proceeding via the summary trial route is that credibility of the parties or witnesses cannot be assessed. As such, when there are ICBC claims dealing with a Plaintiff whose credibility is in question, or where the ICBC claims involve competing versions of events of what actually happened in the motor vehicle accident in question, the ICBC claim will very likely not proceed to a summary trial.


Proceeding with a summary trial in ICBC claims can be appropriate, for example, where liability is admitted, and quantum needs to assessed.


Such was the case in Smith v BhanguThe Plaintiff was an infant who was injured in a motor vehicle accident. Liability was admitted by ICBC’S lawyer on behalf of the Defendant, leaving quantum of the ICBC claim to be adjudicated upon by the Court. The case is a fine illustration of the effectiveness of a summary trial in action with respect to an ICBC claim, as the trial only took about one day to complete.


[20]            The defence takes the position that there is insufficient evidence to establish a causal link between the motor vehicle collision and the onset of lower back problems, and further, that the Plaintiff’s condition would have been significantly mitigated should she have lost weight and improved her physical conditioning.


[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.