Wiseman v. British Columbia (Transportation & Highways)

Wiseman v. British Columbia (Transportation & Highways)

Section 6 of the Family Compensation Act requires a single proceeding for the statutory class; the first action (12206) commenced after the statutory waiting period is the dominant family compensation action and must govern. To reconcile competing interests where a plaintiff in one action is a defendant in another, the proper remedy is consolidation under the first action with an amended writ and statement of claim incorporating all claimants and defendants, permitting separate legal representation for hostile plaintiffs and staying the second action as an irregularity, with procedural directions (service anew, new defences, new third party steps) to preserve fairness and compliance with...

Citation
2007 BCSC 1447
Parties
Plaintiff and Defendant: Timothy Wiseman; Plaintiff (infant): Maeghan Wiseman; Plaintiff (infant): Tyler Blaisdell Wiseman; Plaintiff (litigation Guardian and Representative): Ruth Elizabeth Heuther; Defendant/third Party: Yellowhead Road & Bridge (Kootenay) Ltd.; Defendant/third Party: Her Majesty the Queen in Right of the Province of British Columbia (Ministry of Transportation & Highways)
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
1 October 2007
Procedural Posture
Wrongful Death (family Compensation Act) Civil Tort / Appeal From Master's Interlocutory Orders (hearing De Novo)
Outcome
Appeal allowed in part; Master Bolton's approach upheld and refined by judge: 12206 designated governing family compensation action; 12207 stayed as irregularity; consolidation under 12206 with specified procedural orders.
Legal Topics
Representative Proceedings, Conflict of Interest, Consolidation and Joinder, Stay as Irregularity, Third Party / Contribution and Indemnity, Rules of Court and Solicitor of Record
Source Language
English
Tort (negligence) Wrongful Death / Family Compensation Act Civil Procedure Representative Proceedings Conflict of Interest Consolidation and Joinder Stay as Irregularity Third Party / Contribution and Indemnity +1 more

Case Brief

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Parties

Timothy Wiseman

Plaintiff and Defendant

Maeghan Wiseman

Plaintiff (infant)

Tyler Blaisdell Wiseman

Plaintiff (infant)

Ruth Elizabeth Heuther

Plaintiff (litigation Guardian and Representative)

Yellowhead Road & Bridge (Kootenay) Ltd.

Defendant/third Party

Her Majesty the Queen in Right of the Province of British Columbia (Ministry of Transportation & Highways)

Defendant/third Party

Procedural Posture

Wrongful Death (family Compensation Act) Civil Tort / Appeal From Master's Interlocutory Orders (hearing De Novo)

Legal Issues

  1. 1 Whether s.6 of the Family Compensation Act permits multiple proceedings for the same subject matter
  2. 2 Whether a person who is a defendant can be included as a claimant in the single statutory family compensation action
  3. 3 Whether the first action (dominus litis) prevails and how to resolve competing family compensation actions

Ratio Decidendi

Section 6 of the Family Compensation Act requires a single proceeding for the statutory class; the first action (12206) commenced after the statutory waiting period is the dominant family compensation action and must govern. To reconcile competing interests where a plaintiff in one action is a defendant in another, the proper remedy is consolidation under the first action with an amended writ and statement of claim incorporating all claimants and defendants, permitting separate legal representation for hostile plaintiffs and staying the second action as an irregularity, with procedural directions (service anew, new defences, new third party steps) to preserve fairness and compliance with...

Court Disposition

Appeal allowed in part; Master Bolton's approach upheld and refined by judge: 12206 designated governing family compensation action; 12207 stayed as irregularity; consolidation under 12206 with specified procedural orders.

Orders

  • Action 12206 is the governing family compensation action and will continue
  • The writ of summons in 12206 shall be amended to include the plaintiffs from 12207 and the defendants from 12207, including Dr. Timothy Wiseman as defendant