



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Garcia v. Drinnan,









2013 BCCA 53




Date: 20130131

Docket:
CA040585

Between:

Amadeu Garcia

Appellant

(Plaintiff)

And

Wayne Drinnan

Respondent

(Defendant)




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Lowry





The Honourable Mr. Justice Harris




On appeal from: Supreme
Court of British Columbia, January 23, 2013
(
Garcia v. Drinnan
, Vancouver Registry M094091)

Oral Reasons for Judgment




Counsel for the Appellant:



M. Azevedo &
  A.C.K. Oh





Counsel for the Respondent:



J. Lindsay,Q.C. &
  T.P.K. Tsang





Place and Date of Hearing:



Vancouver, British
  Columbia

January 31, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 31, 2013








[1]

LOWRY J.A.:

The plaintiff applies on
short leave to vary the order of Mr. Justice Groberman denying leave to
appeal the order of a Supreme Court judge allowing an appeal from a master and
adjourning the trial of this action which was set for 15 days to commence in
four days time.

[2]

The plaintiff contends the order denying leave
was based on an error of law which led to Groberman J.A.s determination
that the reasons for granting the adjournment are unassailable such that
there is no merit in the proposed appeal.

[3]

The plaintiff was seriously injured in two motor
vehicle accidents three years apart: April 2009 and April 2012.  This action
for damages in respect of the first accident was commenced in August 2009 and
was first to have been tried in January 2011.  Liability is to some degree in
issue.  The trial was adjourned by consent.  The action was then to have been
tried in March 2012.  The trial was adjourned again to February 2013.  Although
it was adjourned for the second time because of the plaintiffs failure to
disclose relevant documentation, it was a term of the adjournment that he be
paid $100,000.  An action in respect of the second accident was commenced this
month.  This action was adjourned for what is then the third time to the first
available date (January 2014) on terms whereby the plaintiff is now to be paid
an additional $50,000 and the two actions are to be tried at the same time. 
Some of the injuries for which the plaintiff claims damages in the two actions
are indivisible; others are attributable to one accident or the other.

[4]

The judge who allowed the appeal from the master
and adjourned the trial recognized that two factually related actions can in
some circumstances be tried separately but considered it would be erroneous to
proceed in that way in this instance as the master had ordered.  He said:

[9]        The question of whether it is advisable to do that
in circumstances of this kind was not, on the record at least, considered by
the master, and in the colloquy I have had with counsel on this occasion, I
think it is evident that I foresee considerable problems and a possibility for
embarrassment in the administration of justice in the potential for overlapping
or inconsistent treatments of the same facts, not to mention the fact that what
will, in practical terms, be required, is overlapping forms of proof.

[10]      Those, I think, are
compelling in the circumstances of this case, and it appears to me to be
obvious that these matters should be heard at the same time and place and that
because the second proceeding is at a very early stage, the requirements for an
adjournment are plain and obvious.

[5]

In refusing to grant leave to appeal, Groberman J.A. said:

[13]      It is well established that this court ought not
generally to interfere with the trial court in its management of its own case load,
and for that reason, appeals from either successful or unsuccessful adjournment
applications, are rarely heard by this court. The issue of principle here is
whether the judge erred in finding that separate trials with respect of the two
accidents might result in inconsistent findings of fact and orders or
unfairness to the parties. I have heard counsel at some length on this issue.

[14]      I have concluded that it is not arguable that the
judge erred in concluding that inconsistent findings or unfairness were very
real possibilities if the two actions are heard separately.

[15]      The issue of the extent of the indivisible
injuries, as well as the assessment of the damages suffered as a result of them
are issues that must be answered in both actions, as will be the issue of
whether the plaintiff has appropriately mitigated his damages. On the face of
it, it is possible for the finder of fact in each case to come to a different
conclusion on those issues. That may well be embarrassing to the administration
of justice.

[16]      Even if, as Mr. Azevedo has argued, the
factual determinations in the first case would bind the parties in the second
(a proposition which does not appear to me to be completely correct), there is
possibility of significant unfairness to one or other of the defendants, who
would become bound by findings of fact in proceedings to which they were not
parties.

[17]      In the circumstances,
the legal analysis carried out by the judge appears to me to be unassailable.
This Court could not, realistically, overturn the decision of the trial judge
in the absence of a finding that his legal analysis was flawed. It is not our
role to evaluate the judges exercise of discretion.

[6]

The plaintiff contends both the Supreme Court judge and
Groberman J.A. erred in stating categorically there is a real risk of
inconsistent findings of fact or unfairness if the two actions are not tried
together.  He maintains the Supreme Court judges statement to that effect is
not unassailable and he cites authorities addressing the legal implications of
injuries being divisible or indivisible to support his contention that there is
no risk of double recovery if the actions are not tried together.

[7]

Quite apart from any question of double recovery, I
consider the Supreme Court judge was entitled to take the broad view of the
circumstances he did following on what he said was the colloquy he had with
counsel with respect to the advisability of trying one action before the other
where he foresaw considerable problems and the possibility of judicial
embarrassment.  As Groberman J.A. observed, this was for the judge a
matter of trial management  a matter of discretion  in respect of which this
Court is loath to interfere.  I consider trying the two actions separately when
both raise issues concerning the plaintiffs health, abilities, and enjoyment
of life before and after each accident could well lead to unfairness and the
kind of problems the Supreme Court judge and Groberman J.A. recognized
.  I see no error in what either has said.  Nor do I see any
prospect of the proposed appeal being successful.

[8]

It follows that I would dismiss the application.

[9]

NEWBURY J.A.:
I agree.

[10]

HARRIS J.A.:
I agree.

[11]

NEWBURY J.A.:
The application is dismissed.

The Honourable Mr. Justice Lowry


