McVea et al v. T.B. et al Date:, 2003 BCSC 539

Citation: McVea et al v. T.B. et al Date: 20030327 2003 BCSC 539 Docket: C966558 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment Master Barber March 27, 2003 BETWEEN: AIDAN DAVID MCVEA AND SAIGE LA-TESIA MCVEA, INFANTS, BY THE GUARDIAN AD LITEM , AIDAN MCVEA AND THE SAID AIDAN MCVEA PLAINTIFFS AND: T.B., DONALD FRED MCLAUGHLIN AND THE ATTORNEY-GENERAL OF BRITISH COLUMBIA DEFENDANTS AND: THE ATTORNEY GENERAL OF BRITISH COLUMBIA AND A.S. AND CHRISTOPHER MCBRYAN THIRD PARTIES Counsel for Plaintiffs B.R.

Brooke Counsel for Attorney General of British Columbia and Christopher McBryan H.J. Roberts No other appearances Place and Date of Hearing: Vancouver , B.C. March 27, 2003 [ 1 ] THE COURT: This is an application by the Attorney General for a stay both of Mr.

Justice Pitfield’s order, pronounced October the 19th, 2001, and Madam Justice Smith’s order, pronounced October the 3rd, 2002 , the first determining liability, the second determining damages. [ 2 ] The application is opposed by the plaintiffs on the basis that the judgment of both justices, previously mentioned, related to a motor vehicle accident which occurred in 1996. They say that there has been hardship because of the long time that this matter has taken to get to trial, and they wish to have the proceeds of judgment in order to be able to deal with life issues, as set forward in the affidavit of Mr.

McVea, number two, sworn March the 26th, 2003. [ 3 ] I have no question but that the monies would be very helpful to the family and I have no reason to be critical, in the least, of anything that Mr. McVea says in his affidavit. [ 4 ] The reason that the Attorney General asks for a stay is that they wish to have a third party proceeding determined prior to paying out the other sum that is being requested. They have paid out 10 percent on the judgment and they are now being requested to pay out the other 90 percent.

[ 5 ] ICBC has refused to pay out that sum, and that is the issue to be determined in the third party proceedings, as to whether or not they must contribute, that is, ICBC, to this judgment. [ 6 ] There have been delays, so far as I can tell, by ICBC in having this matter determined. Now, I say that without having had the benefit of hearing from ICBC, that is based solely on the representations of Ms. Roberts and the material set before me, but, if that material is all correct and there is no other way of viewing it, then it appears that ICBC is simply delaying having the matter determined. [ 7 ] I asked Ms.

Roberts how long it would take to have an 18A heard, and she said that she would be able to unilaterally have it set down for hearing sometime before June 30th, but, due to her own schedule, she would not be able to have it heard much before that. [ 8 ] Under Rule 18, of course, a stay could be granted if there had been an order in that way, with respect to third party proceedings. This is not a Rule 18 matter.

Nevertheless, it can give me some guidance, but extremely limited guidance. [ 9 ] I looked to see whether there are any special circumstances, and I think there are some special circumstances in this case, being that, if the matter is not determined prior to the applicant here paying out, there could be a difference, in law, as to the applicant’s liability to pay than if the third party proceedings were determined in their favour. [ 10 ] Secondly, as to the balance of convenience, I am looking at a delay of approximately three months time, slightly over that, I should say, and whether that is going to be of such inconvenience to the plaintiffs that it would tip the scale.

In this case, I do not think it would be, primarily because any stay that I do order would be only to that period of time and not an unlimited stay. [ 11 ] As to the relative prejudice between the parties, I have, in effect, dealt with that, and there is no outstanding appeal. It does give the judgment debtor sufficient time to prosecute not a counterclaim but a third party proceeding, which is somewhat akin, but, of course, quite different.

As counsel for the plaintiff has pointed out, in the counterclaim the plaintiff has some interest in it, i.e. a counterclaim, whereas in the third party claim they do not. [ 12 ] Here I also take into account that it is not a question of the applicant having a problem in paying the judgment at anytime. Therefore, putting it a different way, the plaintiff is really in a secured position.

It is just a matter of time of payment rather than whether or not payment does occur, and I think that is a somewhat relevant factor. [ 13 ] There are no cases exactly on point that I have been referred to, and I am not exactly surprised at that, but, based on the applicant’s position that there would be a difference, potentially, in law, as to what their contribution might be, as to whether the third party proceeding is determined first or not, I think the stay ought to be granted, but limited to June 30th. [ 14 ] Now, I purposely have not gone into detail on what the difference in law might be, due to the implied request of the applicant, and I would leave it to her to explain that, if this matter needs to go further. [ 15 ] I should say that I am not intending, by saying it goes to June 30th, to indicate that that time could be extended as a matter of course, and certainly I did not intend, in any way, to make a stay that would go to the end of an appeal process, only to the end of an 18A, which, if it cannot be done before June 30th, unless there is a matter of a few days, I would not expect that there will be any extension past that time. “Master R.

Barber”