IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100127

Docket:
S58701

Registry: Nanaimo

Between:

John Bruce Wilkinson

Plaintiff

And

Allan Martin, Insurance Corporation
of British Columbia

Defendants

Before: The Honourable Mr. Justice B.D. MacKenzie

Reasons for Judgment

[1]            
Mr. Wilkinson is self represented.  He filed a
statement of claim on January 7, 2010 seeking damages from the defendants.  He
claims his friend Mr. Martin ran over his foot with his automobile when they
were leaving a drinking establishment. 

[2]            
The notice of motion is for immediate payment by
the defendant I.C.B.C. of $10,500.

[3]            
He also seeks an order that there be a Rule 18A
summary hearing of this matter.  He says this is a simple matter.  He says it
should not take very long for the court to conclude that he was injured as he
claims.

[4]            
Mr. Wilkinson says his affidavit should be
sufficient evidence for the court to make an award of damages in his favour.

[5]            
Counsel for the defendants argues that the
application for immediate payment should be dismissed on the basis that
I.C.B.C. is denying liability in this particular action.  Mr. Wilkinson’s
application is based on the fact that an adjuster for I.C.B.C. in December made
an offer to settle Mr. Wilkinson’s claim in the amount of $10,000.  I.C.B.C.
acknowledges this offer was made.  The offer was made prior to the defendant
Mr. Martin providing I.C.B.C. with a statement regarding the alleged incident. 
In that statement and in his affidavit Mr. Martin said he did not hit him with
his motor vehicle.

[6]            
As a result of this significant new information,
Mr. Tait, the I.C.B.C. adjuster, withdrew his offer of settlement prior to
acceptance by Mr. Wilkinson.

[7]            
Having regard to the diametrically opposed
positions of Mr. Wilkinson and the defendants and the affidavit material of Mr.
Martin, I am unable to grant Mr. Wilkinson his order for advance payment given
that any liability is denied by the defendants.  As Prowse J. said in Andruschak
v. Helina [1993] B.C.J. No. 2678, “to make such an order would require a
determination of the issues that are the very subject – matter of the action.”

[8]            
As I have mentioned the facts are in dispute
between Mr. Wilkinson and Mr. Martin as to what exactly took place on the date
in question.  In addition, Mr. Wilkinson has produced very brief affidavits
from his father and another person which relate to alleged telephone
conversations between them and Mr. Martin that occurred shortly after the
alleged incident.  Mr. Wilkinson says these materials support his version of
what took place on the night in question.

[9]            
It is clear there will be potentially significant
disputed evidence between the parties and some witnesses.  Clearly the
credibility of the witnesses will be a crucial issue for the trial judge.

[10]        
In these circumstances I am unable to conclude
that these disputed questions of fact can be decided on affidavits or even
cross-examination on the various affidavits.

[11]        
In these circumstances it is appropriate that
the trier of fact have the opportunity to hear the various witnesses and
consider their evidence both in-chief and in cross-examination in order to
access the credibility of these witnesses.

[12]        
I am therefore not satisfied the court would be
able, given the evidence before the court on this application, to find the
facts necessary to decide the matter.

[13]        
I am also of the opinion that it would be unjust
to both the plaintiff and defendants to decide the issue by way of a summary
proceeding.

[14]        
I am mindful of the factors outlined in CIBC
v. Charbonnoges de France International S.A. [1994] 10 W.W.R. 232.  These
include the amount of money probably involved in this case, the complexity or
lack therefore of the trial, the cost and how long a relatively short trial
will take to get heard.

[15]        
Given all these points, this hearing may very
well be better suited in Provincial Court, with a jurisdiction of $25,000 and
given the provisions of s.57(10) of the Supreme Court Rules.

[16]        
In any event, for these reasons Mr. Wilkinson’s
application for a summary trial under Rule 18A is dismissed as is his
application for immediate payment.

[17]        
There will no order for costs of this
application.

 ____________________________

  
Mr. Justice B.D. MacKenzie