Court denies ICBC request to remove 7-day trial from Fast Track; says "aggregate effect" applies to trial length and quantum

In reasons for judgment released this week, the court in De Jesus v. John Doe, 2017 BCSC 723, dismissed ICBC’s application to remove a 7-day trial from fast track.  In De Jesus the plaintiff had been involved in two separate car accidents which were both set to be heard together and for which the plaintiff had filed fast track on both actions.  ICBC applied to remove them from fast track in order to file a jury notice.  Master Baker rejected the defence arguments and held that the aggregate effect of the rule applies to both quantum and trial length:

[1]             THE COURT:  This is an application brought by the defence in motor vehicle accident proceedings in respect of two accidents and, as a consequence, two actions.

[7]             These actions were commenced at different times as a consequence of two accidents, as I say. At the request of the defence, a consent was given to try the matters together. They are now set for seven days. Two days after a notice of trial was taken out, Mr. Nairne, counsel with conduct of the case, designated the actions as fast track.

[9]             Mr. Kahs says, that indicated the defence intentions to have a jury and that the subsequent -- two days after the notice of trial and jury notice, I guess -- receipt of a designation that the matter is fast tracked is gamesmanship, and it is an overt attempt to avoid the jury. I do not accept that at all.

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[12]         I emphasize that because repeatedly Mr. Kahs said, this cannot be considered fast track because it is seven days; it exceeds the three days. With respect, that is a failure in logic. There is nothing in the rule that does not, in my understanding, allow for an aggregate effect. Much today has turned on that concept. I am surprised there is not clear law on the subject. I will get to it in a second, but if counsel had agreed on six days’ trial, that would have been two fast track actions together. Two times three equals six. I would have seen nothing in that that violates the fast track intent or procedure.

[13]         You can have an aggregate effect in other areas. We all agreed to that today, that, for example, there is an aggregate effect with costs, that if you have two fast track actions heard together, you can get, and should get, two separate costs orders, or at least two separate assessments of costs that have an aggregate effect, obviously, greater than one.

[14]         You can double up on the allowable discovery without order. Because you have two actions, you are allowed, essentially, two discoveries together. That is the aggregate effect. I cannot see why that would not apply, firstly, in respect of time estimates, if it is six days, and now we are at seven. So that is hardly an egregious excess.

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[20]         Mr. Kahs says, “Look, this extrapolates to an absurdity. You could have four trials, say four actions heard together, possibly $400,000”. Frankly, and with respect, I do not regard that as absurd. It is the obvious and logical application of the rule. If the Rules Committee and the Legislature had intended otherwise, probably they would have said so. But is that any more absurd than requiring, as a consequence, four separate trials so that a party can maintain their right in the appropriate circumstance, and possibly an advantage under the Rules, to the fast track procedure?  That would be absurd too.

[21]         The efficiencies obtained by hearing two cases or three cases together should not somehow quietly militate against a party relying upon their rights under the fast track procedure. I do not see it. Again, I said earlier, I am surprised there is not clear law on this, but there is not, and that may be because the rule is fairly clear.

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[23]         So as a consequence of all this, the application is dismissed.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0723.htm