Najeb v. Lemky

2025 BCSC 729 Najeb v. Lemky

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Najeb v. Lemky, 2025 BCSC 729 Date: 20250402 Docket: M211495 Registry: Vancouver Between: Nadeen Najeb Plaintiff And Lloyd Raymond Lemky and Myrtle Elsie Lemky Defendants -and- Docket: M212114 Registry: Vancouver Between: Nadeen Najeb Plaintiff And Marnie Alayna Ramsdale and Ryan Alan Stephen Ramsdale and Amer Abdulrahim Defendants -and- Docket: M213297 Registry: Vancouver Between: Nadeen Najeb Plaintiff And Meghan Elizabeth Morris and Amer Abdulrahim Defendants Corrected Judgment: The text of the judgment was corrected at the front page on June 6, 2025. Before: Associate Judge Robertson Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: M. Milenkovic Counsel for the Defendants: N. Knezevic Place and Date of Hearing: Vancouver, B.C. April 2, 2025 Place and Date of Judgment: Vancouver, B.C. April 2, 2025 [1] THE COURT: When I issued these oral reasons for judgment, I reserved the right to edit them as to grammar, background and citations should a transcript be ordered. I have made such edits, without affecting the substance or final disposition. [2] The application before the court today is to have three actions, which by court order are being heard together for the purposes of trial, removed from Rule 15-1 Fast Track Litigation. Background [3] The plaintiff was involved in three motor vehicle accidents when she

was an infant, the first being on March 6, 2013, in which liability has been admitted; the second on April 21, 2014, in which liability is denied and I am advised hotly contested; and the third on October 26, 2018, again where liability has been denied, that accident involving a collision in a parking lot. [4] By way of the progress of this particular litigation, given that the plaintiff was an infant at the time of the accidents, notices of civil claim were not filed until April 15, 2021, June 4, 2021 and May 16, 2021 for each of the three accidents respectively. [5] The pleadings were closed generally a year later, with pleadings being closed in respect of all three actions by August 23, 2022. [6] The plaintiff filed a notice of Fast Track in all actions on February 21, 2023, with a notice of trial being delivered shortly thereafter by which a six day trial was scheduled to commence on November 25, 2024. That trial date was struck due to neither party filing trial briefs. [7] Thereafter, the defendant conducted its examination for discovery of the plaintiff on February 28, 2024, which was followed by a second examination on August 13, 2024. [8] The next day, on August 14, 2024, the defendants gave notice to the plaintiff of their intention to have the matters removed from Fast Track. [9] Subsequently, on December 5, 2024, a second notice of trial was filed by which a nine-day

trial is scheduled to commence in May, 2026, for all actions. Legal Framework [10] The general principles under which Rule 15-1 applies are guided by the general object of the Rules, namely Rule 1-3, that being to secure a just, speedy, and inexpensive determination of the proceedings on their merits. Rule 15-1 was enacted to aid in that objective by allowing a Fast Track for matters which are of lesser complexity and where it is proportionate to have a matter heard in a timely manner with the limitations therein. [11] Specifically, the requirements for which a matter may be put in Rule 15-1 include that the amount in issue is $100,000 or less (although nothing prohibits a larger award to be made) and that the trial of the matter can be completed within three days and that the parties either consent or there is a court order for the matter to be placed into Fast Track. The limitations on the action are that there can only be one expert report, costs are limited, in this case to $11,000, discovery length is limited and the trial must be by judge alone. [12] As the plaintiff noted, and I accept, those limitations are applied to each action such that, in this case, the cumulative effect is that the limits will each be tripled notwithstanding that trials will be heard together, meaning that the trial length can be nine days, as has been scheduled, the costs limit will be $33,000,

and each party will be entitled to rely on three experts. [13] As set out in Bagri v. Bagri, 2015 BCSC 2132 at para. 18, an action is not a Fast Track action simply because the parties filed a notice of a Fast Track action. Rather, the circumstances must be met as set out in Rule 15-1, as long as one or more criteria are met. [14] Nonetheless, even if an action does qualify as a Fast Track, pursuant to Rule 15-1(6), the court may order that the matter proceed as a regular action. In determining whether or not it should do so, the court considers numerous factors as including: a) the time required for the trial, b) whether all parties have consented to use Fast Track, c) the risk of prejudice to a party, including the respective cost, and d) whether a party is using the application of Fast Track for an improper purpose; for example; as a backdoor method to strike a jury notice. [15] Taken together, those factors will form the determination as to whether or not it is in the interests of justice to have a matter resolved under, or taken out of, R. 15‑1, again with the goal being to ensure that a matter can be efficiently and economically resolved following a full and fair trial on the merits. Analysis [16] In this particular matter, the primary considerations that the parties focused their arguments on were their respective prejudice, whether the use of Fast Track is being used

for an improper purpose and, from the plaintiff's perspective, the lack of evidence as to the proof regarding the length of the trial. [17] A secondary element in that respect was who bears the onus of proof on this application. Onus of Proof [18] There is some reference in caselaw that I was able to locate that the onus of proof under the previous Rule, R. 66, was on the party seeking to have the matter put into Fast Track to establish that Fast Track. However, one of the notable changes in the Rules and the enactment of R. 15-1 is that any party can now file a notice of Fast Track without the necessity of first obtaining a court order. It is only on an application, or on the court's own motion, that the court considers whether or not R. 15-1 should cease to apply. [19] That is a significant difference. The plaintiff argues that under the current Rules, the onus is on the applicant to establish that, having regard to the circumstances set out above, the matter is not appropriate for Fast Track. The plaintiff argues further that the materials filed by the defendants in support of this application are deficient to establish any of those factors sufficiently for this Court to make a finding that the matter ought not to continue under Rule 15-1. [20] In this respect, the plaintiff specifically relies on a decision that was decided under the prior R. 66, Ryan v. Welch, 1999 CanLII

5779 where, at para. 9, the court commented on the insufficiency of the evidence filed by the plaintiff who was applying to have the matter placed into Fast Track to establish that it was appropriate to do so, pointing specifically to the failure of the plaintiff to include sufficient details as to the plaintiff's injuries, wage loss, and special damages, or the witnesses and what evidence was likely to be presented at trial. [21] The plaintiff argues that the same can be said here, in that the defendant has not tendered any evidence as to the conduct of the trial itself, in terms of what evidence it will and will not be leadings. [22] The evidence tendered by the defendant was from two sources: a) The examination for discovery transcript setting out the plaintiff's sworn evidence and, b) two expert medical reports, one being an IME from the defendants' physiatrist and one being from the plaintiff's general practitioner. [23] In responding to the issue as to who bears the onus of proof on an application under R. 15-1(6), the defendant points out that the evidence available to them in these applications will inevitably be somewhat limited, particularly when a defendant is bringing the application to have the matter removed from Fast Track prior to an 84-day deadline for delivery of expert evidence. The plaintiff largely controls the evidence and what has been produced this far

in advance of the trial. The defendants can only rely on the evidence that has been served in accordance with the Rules of Court, and discovery evidence if it has been held. In this case, that is the evidence being relied upon, that being the two reports that are before the court and the examination for discovery transcript. [24] I agree with the plaintiff that the applicant generally bears the onus of proof on an application. [25] However, I also agree with the defendants argument that given that the anticipated trial date is more than a year away, it is premature to have trial particulars, including who the witnesses will be, confirmed. Trial Briefs are not required to be filed for many months from now. As such, the considerations as to the trial length itself cannot fully be before the court, there being a number of remaining moving parts to be put into place between now and trial, as the evidence evolves. [26] While I agree that it would generally be preferable to have evidence on every one of the factors for consideration before the court today, the fact that evidence on one factor is not yet available is not dispositive of the entirety of the application. It would not necessarily be in the interest of justice to wait until such evidence is available to bring this application, as doing so on the eve of trial may cause other considerations, such as delay and prejudice in

having advanced a case based on a strategy of the matter being under R. 15-1 only to have that changed on the eve of trial, to become the deciding factors. [27] Further, requiring some of that evidence at this stage may require the applicant to, as is often said, "throw open its file cabinet" and disclose matters that are otherwise, at this point, subject to litigation privilege. No applications should be decided on the basis that to properly or fully argue them one party must prejudice the rights they would otherwise have throughout the litigation process before its completion. [28] As such, while the applicant bears the onus of proof to establish that, having regard to the factors for consideration that it is in the overall interests of justice that the matter be removed from Fast Track, that onus is on a cumulative basis, not based on each individual factor some of which, having regard to the status of the litigation, may be less formed than others. Parties' respective Prejudice [29] The defendants argue that they will be prejudiced in not being able to have fully defend this matter if it is kept within FastTrack, emphasizing the complexity of the matters in issue in the plaintiff's claims, given the examination for discovery evidence and the findings of the doctors in this respect. [30] That evidence, in summary, is that: a) in the February 2024 discovery the plaintiff

deposed, specifically with respect to the liability involving the second motor vehicle accident, that she could not recall the colour of the traffic light. However, later she deposed that the light was green, meaning that there is some inconsistency in her evidence. b) In terms of her injuries, notwithstanding that the plaintiff argues on this application that the damages limit of $100,000 is likely to stay in place on the basis of the claim being one of simply a soft tissue injury one, she deposed at her examination for discovery as to more complex injuries, specifically anxiety, depression and, significantly, a stuttering following the first motor vehicle accident. She deposed during the second examination for discovery that only her bruising had resolved, leaving all of the other injuries still in play. c) She deposed specifically with respect to the first and second accident that she had struck her head. d) Her evidence at the time of the second discovery, that being approximately 11 years after the first accident, was that she had had constant back pain, vision problems, and depression since the first accident. e) The physiatrist retained by the defendants in his report finds that the diagnosis is likely related to mental health issues, with the descriptions of chronic neck and back pain being consistent with myofascial pain, which again has continued well over a decade

since the first motor vehicle accident. f) In addition, Dr. Berger, the physiatrist, commented that the causation or divisibility of the injuries is going to be a difficult thing to assert. g) The general practitioner in his report described the stuttering issue that has continued and was commented upon by the plaintiff in terms of one of the things that was factoring into some of her decision making with respect to vocations; for example; the concern that the need to be able to speak clearly would be an issue given her stutter in respect of a job in real estate, that that stuttering was a pre-existing stutter that she had in her childhood but recurred following the first motor vehicle accident. In other words, there may be an issue as to causation with respect to that particular injury that affects her employability in what she is intending to do, and specifically whether or not it does give rise to a claim for loss of earning capacity or future wage loss. h) As to the effect on her earning capacity generally, she also deposed: i. At the first examination that she had plans to become a realtor, which the defendants argue, could give rise to a significant wage loss claim given the plaintiff's current occupation as a server. ii. At the second examination, that she was considering a different career, that being in nursing or possibly the medical field, meaning a change within six

months. iii. When she attended at her GP, as indicated in his report, there was an indication of a further possible career path with respect to telephone work of some sort. iv. While there have been no expert reports on loss of earning capacity in that regard (a point the plaintiff makes) that does not necessarily mean that none will be delivered. [31] I do not necessarily see the changing career paths between the ages of 21 to 23, or so, as significant or indicative of a complicated wage loss claim, or a inconsistency in respect of evidence that will complicate issues, including as to credibility as suggested. It is not entirely unusual for someone of that age to not yet know definitively what their career path is going to be and, quite frankly, an equally plausible explanation is that she is trying to find a career that is consistent with her capabilities, whether those are diminished or not as a result of the motor vehicle accidents. [32] However, what the above evidence does reflect is that the nature of the injuries that will be claimed at trial and the potential impact they may have on the plaintiff's overall quantum and complexity of the trial could be significant. The inability to fully defend by not having sufficient experts or by being denied the right to a jury trial (which is addressed further below) is prejudicial. [33] As to its prejudice, the plaintiff points to

the fact that liability is in issue in two of the actions, most significantly in the second accident. Thus, the plaintiff argues that the risk of having no limit on costs, and the potential for the defendant essentially driving the costs up with more experts and jury fees, puts the plaintiff to such a significant risk of increased costs that prejudice lies on her favour. [34] The defendant failed to give any evidence at all, not even general amounts with estimates as to number of experts, as to the costs they will be incurring to take this matter to trial, i.e. that the $11,000 limit (x3) will be insufficient to reasonably cover their anticipated costs, or put another way, what the costs are that the plaintiff may be exposed to. As such, I am unable to determine the risk to the plaintiff on that particular factor. As the defendant has to onus in that respect, I will determine this on the basis that, if the matter is removed from Fast Track, the plaintiff will be at risk for a higher costs award against her if unsuccessful on liability. [35] However, that prejudice must still be balanced against the prejudice of the defendant being unable to answer or defence what the evidence suggests is a potentially complex claim with a significant damages exposure. Trial Length [36] As noted above, I am unable on this application to determine whether or not nine days will be sufficient for

trial. It may. It may not. The parties agreed that nine days, that being three days for each action, was sufficient when their notice of trial was filed. [37] I do have some concern that once the parties traversed into a nine-day trial as a result of there being three accidents, with the complexities that will arise here, specifically with respect to causation and divisibility amongst the different motor vehicle accidents given the liability issues that may be at play at trial, that nine days is sufficient. [38] However, given the onus comments above, I determine this application on the basis that trial length is sufficient under R. 15-1. Using/Removing Fast Track for an Improper Purpose [39] Turning then to whether or not the Fast Track, whether it be the striking of it, or the filing of it, is being used for an improper purpose. The two arguments from the parties are two sides of the same coin. The defendants specifically argue that the plaintiff's desire to keep it in Fast Track is a backdoor method to avoid a jury trial; whereas, the plaintiff argues that the reason to take it out is to solely seek a jury. [40] Both can be true. [41] Ultimately, one party may have a litigation advantage over the other if they want, or do not want, a jury, as a result of the matter being in or out of Fast Track. [42] However, I am unable to conclude on this application that either party is

taking a position for an improper purpose. Interests of Justice [43] Having regard to the overall interests of justice and the purpose of R. 15-1 when read with the object of the Rules as set out in R. 1-3 as to the timely and efficient resolution of matters, all of which is guided by the overarching principles of the importance of having a full and fair trial on the merits, I am satisfied that this should be removed from R. 15-1 Fast Track. [44] I agree that given the potential complexity, it would be more prejudicial to the defendant to be denied its ability to defend the claim without the limits imposed on them by virtue of R. 15-1. While there is some risk to the plaintiff as to increased exposure to costs, I do not find that such a risk outweighs the prejudice to the defendants. [45] In making this finding I do acknowledge that some of the arguments made by the defendants as to some of that complexity was exaggerated (for example the evidence as to changing career ambitions). [46] I will also comment on the fact that these matters have been outstanding for a significant period of time such that the benefit of a speedy and timely resolution through Fast Track is arguably moot. In this respect, the defendants specifically pointed to the nearly 12 years since the first accident occurred to illustrate that the matter will simply not be resolved in a timely or speedy way.

However, in considering that argument, I do not agree that the time to consider it falls from the date the cause of action arose, but when the claim was commenced as that is the time when the decision to litigate arises. [47] Nonetheless, the actions have been outstanding for close to four years. With a trial date of nine days, as I said, scheduled for May 2026, or five years since the filing of the claims. In short, the prosecution and history of these actions belies that the plaintiff was pursuing this on an expediated basis. Conclusion and Order Made [48] The order is granted as sought, in the three separate notices of application. [49] Each action shall be removed from Fast Track. [50] In addition, the applicants also sought, although it is not in the notice of application, leave to file a jury notice. I do not think I need to make that order. As a result of this order, I will say simply that the time for filling any jury notice commences as of today. [51] Any submission as to costs? [52] THE COURT: I am not going to comment on the previous applications or attendances before the court. That will have to be resolved at trial or some other way. But for the purposes of today's attendance, I will order that the costs of today's application be in the cause. This was not an obvious outcome. I can understand why the parties were not able to come to a consent in that respect. Thank you. "Associate Judge Robertson"