Swamy v. Schell et al., (2000) 269 A.R. 66 (QB)

• Judge: Moreau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 26, 2000
• Citations: (2000), 269 A.R. 66 (QB);2000 ABQB 437

Swamy v. Schell (2000), 269 A.R. 66 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JL.112

Bhagya Swamy (plaintiff) v. Kenneth Adolf Schell (defendant)

Bhagya Swamy (plaintiff) v. Giovanna Anita Zumbo (defendant)

(Action Nos: 9403-16614; 9403-16615; 2000 ABQB 437)

Indexed As: Swamy v. Schell et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moreau, J.

June 26, 2000.

Summary:

A plaintiff commenced five separate law­suits arising from her involvement in five separate car accidents. The proceedings respecting the first four accidents were consolidated prior to the fifth accident hav­ing occurred. The defendant in the third accident applied to have the issue of his liability severed and tried alone.

The Alberta Court of Queen's Bench dis­missed the application.

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The plaintiff's lawsuits respecting four car accidents were consoli­dated - The defendant in the third accident applied to sever the issue of his liability - The Alberta Court of Queen's Bench dis­missed the application - The liability aspects might have to be tried again in the main action - Because of factual disputes and credibility questions, it was difficult to evaluate the probability of success - Although the defendant's further involve­ment might be saved, there was no sug­gestion that there would be a meaningful difference to the time set aside for the main trial - If the plaintiff appealed an unfavourable finding, the appeal would likely have to be completed prior to com­mencing the main trial - Any costs sav­ings was dependent on the defendant being found not liable - The factual inquiry did not appear to be simple and straight for­ward - Considerations of injustice favoured non-severance.

Cases Noticed:

Canadian Cancer Society v. Bank of Montreal (1966), 57 W.W.R.(N.S.) 182 (Alta. C.A.), refd to. [para. 18].

Esso Resources Canada Ltd. et al. v. Stearns Catalytic et al. (1991), 114 A.R. 27; 79 Alta. L.R.(2d) 1 (C.A.), refd to. [para. 20].

Karlsen Shipping Co. v. Sefel J. & Asso­ciates Ltd. (1978), 9 A.R. 341; 7 Alta. L.R.(2d) 13 (C.A.), refd to. [para. 21].

Emma Silver Mining Co. v. Grant (1879), 11 Ch.D. 918, refd to. [para. 21].

Tanguay v. Vincent, [1999] A.R. Uned. 510; 75 Alta. L.R.(3d) 90 (Q.B.), refd to. [para. 22].

Vandevelde v. Smith et al. (1997), 203 A.R. 279; 50 Alta. L.R.(3d) 361 (Q.B.), refd to. [para. 22].

R. v. Duhamel, [1984] 2 S.C.R. 555; 57 N.R. 162; 57 A.R. 204, refd to. [para. 24].

R. v. McLean (1989), 35 O.A.C. 150; 50 C.C.C.(3d) 326 (C.A.), refd to. [para. 24].

Redlack et al. v. Vekved et al. (1993), 39 B.C.A.C. 23; 64 W.A.C. 23 (C.A.), refd to. [para. 26].

Vanderlee v. Doherty (2000), 258 A.R. 194 (Q.B.), refd to. [para. 26].

Counsel:

Alex J. Kotkas, for the defendant Kenneth Adolf Schell;

Helmut Berndt, for the plaintiff Bhagya Swamy.

This application was heard by Moreau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of judgment on June 26, 2000.