Votour v. Tucker, 2013 ABQB 207

Court of Queen ’ s Bench of Alberta Citation: Votour v. Tucker, 2013 ABQB 207 Date: 20130405 Docket: 1203 17261 Registry: Edmonton Between: Victoria Votour, Jazmine Votour by Her Next Friend Victoria Votour; Haleigh Votour by Her Next Friend Victoria Votour; Damien Votour by His Next Friend Victoria Votour Plaintiffs - and - Brian J. Tucker, Shane Smith and Alan Smith Defendants _______________________________________________________ Memorandum of Decision of W.S.

Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application to have liability and quantum split into two trials. [ 2 ] A bull belonging to Shane Smith and Alan Smith got out of its fenced pasture and was standing on highway 646 just after midnight on June 3, 2007. The bull was the colour of night. It weighed about 3,000 pounds. [ 3 ] Brian Tucker was heading east in his van carrying his wife and three children. The road was hilly and curved in places. Mr.

Tucker dimmed his lights because of an oncoming vehicle. He thought he was doing about 90 kph. He said there was no time to brake. [ 4 ] No one else in the vehicle is of much help about the accident. All of the Plaintiffs were injured; Damien seriously. There is some question about whether Damien, who is now a teenager, was properly strapped into his seat. The evidence about the extent of his injuries is likely to be fairly extensive. [ 5 ] This is the Defendants ’ application pursuant to Rule 7.1. It is opposed by the Plaintiffs. [ 6 ] Mr. Tucker says that T-boning the bull was inevitable.

But much depends on his own opinion evidence. Both sets of Defendants have put quantum into issue. They also point fingers at each other. [ 7 ] In December 2009, Mr. Tucker applied for

summary judgment. His application was not successful. Madam Justice Veit ’ s decision is reported at 2009, ABQB 722 . [ 8 ] Despite the fact that we are approximately six years post accident, the matter is not yet ready for trial. The parties indicate that most of the liability evidence has been canvassed and produced but there is a long way to go with respect to determining quantum. [ 9 ] The law in this area is well settled, most recently in Edmonton Flying Club v. Edmonton Regional Airport Authority , 2013 ABCA 91 . There, Mr.

Justice Slatter, writing for the majority of the Court of Appeal said: [15] The rules of civil procedure contemplate that every action will result in only one trial, where all issues will be decided: Judicature Act , RSA 2000, c. J-2, s. 8. Rule 7.1 does permit the severance of issues, but it is exceptional. Prospects of speed, efficiency and economy from severed trials have often proved to be elusive: Gallant v. Farries at paras. 13-14.

An applicant who proposes to sever issues must demonstrate that it is clearly desirable to do so, and the legal test for severance is set accordingly: there must be a “ real likelihood ” or “ good probability ” of savings: Gallant v. Farries at paras. 31, 48. [16] Therefore, a split trial must be one likely to achieve those aims which R. 7.1 lists: Gallant v. Farries at para. 25. In other words, severing the trial must be likely to result in disposing of all or part of a claim, or substantially shortening the trial, or saving expense, or some combination thereof.

As the chambers judge recognized at para. 29, if it appears that there will be a significant overlap in the evidence to be called at the two phases of the trial, that is presumptively fatal to the application: Gallant v. Farries at para. 54. See also Gallant v. Farries , 2012 ABCA 98 , especially at para. 13 et seq. [ 10 ] At the beginning of the application, I expressed reservations about whether a Master had jurisdiction to order that liability and quantum be split pursuant to Rule 7.1. Masters do not usually order judges what to do.

If a liability trial did not result in dismissal of the action, the same judge that heard the liability trial would also (presumably) be expected to hear the quantum portion of it. These sorts of scheduling issues are properly issues for the Chief Justice, or the Associate Chief Justice and not for a Master in Chambers. [ 11 ] This type of application mostly comes out of Case Management.

The Practice Note suggests that this type of procedural Order may be open to modification by the trial Judge. [ 12 ] However, Rule 7.1 says “ Court ” not “ Judge ” and I am mindful of Rule 6.9(2) which says that Applications may be decided by a Judge or a Master. Both sides indicated that they took no issue with the potential jurisdictional issue. So the application went ahead.

[ 13 ] The Defendants thought that a liability trial would last three to six days. The Plaintiffs thought it might take a little bit longer. The Defendants took the position that a liability and quantum trial would take in the area of two to three weeks. The Civil Trial Co- ordinator informs us that a three to six day trial, or a two to three week trial could be accommodated in the fall of this year. This speaks well of the efficiency of the civil trial system.

It is apparently not like the old days when a trial under five days could be had in fairly short order but a longer trial might mean a delay of more than a year. The conclusion to be drawn from this is whether the trial is liability only, or liability and quantum, it will make no difference to when the matter would be heard. This point is neutral from the Applicants ’ perspective. [ 14 ] At the

Summary Judgment application, Madam Justice Veit indicated that Mr. Tucker ’ s own evidence about when he first saw the bull is contradictory and his credibility will be in issue. Mr. Tucker believed that he was going approximately 90 km per hour (the posted limit) just before the collision. The expert accident reconstructionist ’ s opinion tendered by the Defendant was that the maximum speed a vehicle could be travelling in order to stop before hitting the bull would be 60 to 65 km per hour.

This is based on an opinion about how far away a dark coloured object could be seen at night and whether the vehicle lights were on high or low beam. Madam Justice Veit indicated that there were quite a number of issues of fact to be determined. The

Summary Judgment application was dismissed. [ 15 ] The parties concede that if there is likely to be an overlap between liability and quantum issues, a split trial is not an advantage. The difficulty with this particular case is that since the extent and quantum of the Plaintiffs ’ injuries are in issue, the precise details of the accident will be crucial to the determination of quantum. [ 16 ] It is conceivable that a trial Judge might simply find that the accident was inevitable for anyone going over 60 km per hour and that Mr. Tucker was not negligent in going the posted speed limit.

It might not be necessary to go beyond that fact finding and into the details of the collision. [ 17 ] Absolving Mr. Tucker for driving the speed limit would not determine the liability of the Smiths. Their liability does not depend very much on the details of the accident at all, other than that the bull got out and was standing on the road. [ 18 ] Mr.

Tucker, the driver, could also suffer exposure for the alleged failure to make sure that Damien was securely fastened into his seat. [ 19 ] Of the several possible outcomes forecast by the Defendants, there is only a clear advantage if the results of the quantum trial would be to excuse both sets of Defendants, which would make a quantum trial moot anyway. If there were a successful appeal, there would be no choice but to send the whole thing back for trial as the Court of Appeal would not have the benefit of a determination of quantum.

The other possible alternatives do not result in any advantage and may even create a disadvantage. [ 20 ] The Defendants argue that the matter is presently “ unsettleable ” because liability is in dispute and they have a strong position. However, the prospect of a two to three week trial may well prove to be a settlement incentive.

There may be a strong economic component for both sides, especially if there is a carefully considered formal offer. [ 21 ] The Defendants further say that there might be detailed findings about the collision at the liability trial and this would be an advantage to the experts on the quantum side of things, if the matter went that far, because the experts would no longer be relying on a set of hypothetical facts. But detailed findings about the accident are crucial and hardly guaranteed. [ 22 ] One of the metaphors used in the Gallant case was that a split would be “ cheap ticket on a big lottery ” (at para. 48).

However, the split in this case is more like purchasing an economy ticket in the hope of being bumped into first class. [ 23 ] Accordingly, given the overlap between liability and quantum in a case where the nature and extent of the injuries is in issue, there is no clear advantage, and possibly a disadvantage, to splitting the trial. In these circumstances, it cannot be said that there is a real likelihood or a good possibility that the aims of Rule 7.1(1)(

a) will be met. The application is dismissed.

Heard on the 13 th day of March, 2013. Dated at the City of Edmonton, Alberta this 5 th day of April, 2013. W.S. Schlosser M.C.C.Q.B.A. Appearances: Elvis Iginla and Michael McNichol Iginla & Company for the Plaintiff Ryan Krushelnitzky Field LLP for the Defendant, Brian Vince Ng Hajduk Gibbs LLP for the Defendants Shane Smith and Alan Smith