In this continuing personal injury saga the claimant’s left foot and ankle were struck by a rolling mounted truck tire from an unidentified vehicle, while he was riding a motorcycle on Highway 1 near Chilliwack, British Columbia(Walker v. Doe, 2014 BCSC 746). The Insurance Corporation of British Columbia, ICBC, was a nominal defendant in this lawsuit, pursuant to s. 24 of the Insurance Act. ICBC denies that he was injured by a tire or that any collision occurred due to the negligence of the unknown driver.
The claimant brought a summary trial pursuant to Rule 9‑7(15) of the Supreme Court Civil Rules, seeking one, to have the court dismiss ICBC’s assertion that the collision was not caused by the negligence of an unknown driver, and therefore ICBC is not liable to the claimant; and two, dismiss ICBC’s assertion that the claimant had pre‑existing medical conditions and injuries which were active at the time of the accident.
Importantly in response to a notice to admit ICBC had already admitted that according to the records provided to date of the last trial the claimant had no pre‑existing medical conditions or injuries which were active.
Amazingly, the judge refused the claimant’s summary trial application. This is the second BC Supreme Court case that has practically ignored the comments of the Supreme Court of Canada in Hryniak which I reviewed extensively in the my recent article in which a settlement agreement was upheld in a summary trial. In refusing the application Judge Fleming stated:
 In N.J. v. Aitken Estate, 2014 BCSC 419, Ehrcke J. considered the recent Supreme Court of Canada decision in Hyrniak v. Mauldin, 2014 SCC 7, observing that despite its suggestion there should be a change of culture to allow more matters to be determined by summary trial, the decision also recognized that not all cases are suitable for summary trial determination.
 As noted by Ehrcke J. in N.J. at para. 36, Hyrniak reiterated that a summary trial is only appropriate if it is in the interests of justice. The Supreme Court recognized that a summary trial may not be in the interests of justice if it results in litigation by slices. Ehrcke J. concluded that Hyrniak does not change the law regarding summary trials in British Columbia (at para. 33).
It appears that it is the view of the BC Supreme Court that Hyrniak does not change the law regarding summary trials in British Columbia, and does not render the jurisprudence from our BC Court of Appeal obsolete.
Posted by ICBC Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.