August 24, 1992 

REASONS FOR DECISION

This is an application by both claimants in these proceedings for an order that the hearing of these two claims for compensation take place at the same time. It is requested under Rule 11 of the board's Practice & Procedure Regulation (B.C. Reg 452/87). The claimants say that, due to the similarity of these claims, time and expense will be saved if they are heard together. The respondent says that to face two different counsel at such a hearing would be prejudicial and that, in any event, no time or expenses will be saved.

BACKGROUND

The claimant, Shirley Eleanor Devick, commenced proceedings before the board on May 4, 1990. Acting on her behalf is Mr. Robert W. McDiarmid of the Kamloops firm of Morelli Chertkow. The claimant in the other proceeding, Reon Management Services Inc., filed its claim on July 11, 1991 and is represented by Reinhard Burke of another Kamloops firm, Gillespie Renkema Burke.

From the pleadings and other material filed, it is clear that these two applications for compensation have much in common. In the Devick claim, a number of properties consisting of part of what is known as the "Devick Ranch" have been expropriated. The Reon claim involves only one property. That property is contiguous to several of the expropriated Devick properties. All of them were required by the Respondent to permit the widening and upgrading of No. 5 Highway North, the Yellowhead Highway. They are very near the property that was subject of an earlier determination of compensation by this board in the case of Seventh-Day Adventist Church v. Ministry of Transportation and Highways (1991), 46 L.C.R. 254.

It is not surprising therefore, that not only are the legal issues in both proceedings similar, but also that much of the evidence to be called by both the claimants and the respondent will be the same. Expressed as a percentage, all counsel agreed that an overlap of at least 80% exists with respect to both the evidence to be called and the legal issues to be resolved in these two claims. Most of it is directed at what is to be the "highest and best use" of these properties for purposes of the application of Section 32 of the Expropriation Act, S.B.C. 1987, c.23, to the determination of the compensation in these two claims. There was general agreement that these proceedings would take 20 to 25 days if heard separately and 15 days if heard together, as requested by the claimants.

POSITION OF THE PARTIES

The claimants raise the following arguments in favour of having the claims heard together:

(1)	There would be savings of time and expense.
(2)	It is appropriate for the two claims to be heard together because there are questions of law, and fact common to both claims.
(3)	Closely related to (2) is that the same questions of law and fact must be resolved in order to determine compensation in both claims.
(4)	Having both claims heard at the same time will avoid the "embarrassment" that could result if, with two separate hearings, there were different findings of fact or different legal results from what are essentially very similar claims.

The respondent's position was as follows:

(1)	There is a rule of practice that co-plaintiffs (or "co-claimants") in a consolidated action must be represented by the same lawyer.
(2)	The respondent will be prejudiced by having to argue the case against two separate counsel.
(3)	There will be no savings of time or expense.
(4)	If the order is not granted, the second case to be heard will probably settle quickly after the results of the first case are known, thereby saving time and expense.

3.  REASONS FOR DECISION

(a)  Respondent's Position

I will deal first with the position of the respondent. Each claimant is represented by a different lawyer from different law firms. Ms. Reder says that if both cases are heard at the same time, the "rule" against having more than one lawyer representing co-plaintiffs would be offended. Relying upon the comments of Lord Justice Pearson in Lewis v. The Daily Telegraph (No. 2) [1964] 2 Q.B. 601 (Eng. C.A.) at 620 and 621, the respondent asks us to read Rule 11 of our Rules as if the words "so long as all the claimants are represented by the same lawyer" were part of the Rule.

The rationale behind this rule of practice against separate representation is stated at p. 621 of the Lewis case as follows:

Many difficult problems would arise. How would the opening speech (or speeches) be made? Would it be right that the plaintiffs should have as against the defendants the advantage of two opening speeches instead of one? Then, in the conduct of the case, if there were two plaintiffs separately represented, would each plaintiff be allowed to cross-examine the other plaintiff's witnesses and have the advantage of being able (as Lord Gardiner pointed out) to put leading questions to a witness who would be substantially on the same side? Again, when the defendants' witnesses were called, would it be right that both plaintiffs, separately represented, should be allowed to cross-examine those witnesses? The same problem would arise in respect of the final speeches at the end of the case. Would separately represented plaintiffs be allowed to have two speeches?

Strictly speaking, the Lewis case deals with consolidation and not merely having the trial or hearing take place at the same time.¹ While the "rule" has been followed in Canada (see Attorney General of Canada v. Canadian Pacific Railway and Marathon Realty Ltd. (1981) 30 B.C.L.R. 230), it certainly has not met with unanimous approval. See Levin v. Feintuch [1931] 3 W.W.R. 459 at p. 364 (Man. C.A.) where Truman J.A. took the view that the reasonableness of counsel will overcome these potential difficulties.

I do not accept the proposition that, before making an order under our Rule 11, all claimants must have the same counsel. To accede to it would restrict the application of the rule to the fortuitous situation where all claimants had the same lawyer. The alternative of requiring one of the parties to change solicitors offends the principle of freedom of choice. The practical result of accepting the respondent's argument is that the utility of Rule 11 would be greatly diminished. Since the overall policy behind Rule 11 is to save money - money that most likely will be paid by public authorities to claimants in costs - I cannot accept that such a restriction should be placed upon application of the Rule.

Counsel for the respondent then argued that to proceed in this manner, with separate counsel representing each claimant, the respondent would essentially be "outgunned". Surely the Crown is able to muster adequate resources to meet the case for the claimants even if it is coming out of two barrels at roughly the same time. I find there is no merit to this argument.

Respondent's counsel then argued that there would be no savings of time or expense by having these two claims heard together. I will deal with this argument below.

Finally the respondent argued that if one case were heard and decided before the second case commenced, settlement of the second case would likely occur on the basis of the outcome of the first case. During argument, I put this proposition to counsel for Mrs. Devick. His response was that it would depend upon the outcome of the first case. He would certainly not throw in the towel just because, from his client's point of view, things did not go well in the first case. It is clear that he would proceed in the manner most beneficial to his client and, should this result in a second hearing, then of course, there would be a second hearing. I think that the prospect of a settlement of the second case would be improved in the situation we have here, but this is not, in my opinion, a good reason for turning down this application.

(b)  Claimants' Position

Counsel for both claimants agreed that cost savings would result if these two matters were heard at the same time. All counsel agreed that 15 days would be required if the two claims for compensation were heard together. Further, it was agreed that if there were two hearings, each one would take 10 to 12 days for a total of 20 to 24 days. Since experience has shown that counsel tend to underestimate time rather than the reverse, I will assume that 24 days is the appropriate figure for two separate hearings of 12 days each.

Legal Costs

Taking the claimants' legal costs first, we have 15 days for each lawyer or 30 days of counsel fees, if the claims are heard together and there is one lawyer representing each of the claimants. Here, simultaneous hearings would be more expensive, though I believe it was Mr. Burke who suggested that counsel for the claim being heard last would want to be in attendance throughout the hearing of the first proceeding. Whether that desire would be affected by any ruling under s. 44 of the Act with respect to the costs of such a "watching brief", it is too early to say. Suffice it to say that, in these proceedings, no great savings in counsel time will result if there is one combined hearing.

Witnesses

Take, however, the situation with respect to an expert witness. Suppose a half a day were required to give direct evidence followed by a full day of cross-examination. Here the saving is much more obvious. Assuming only one of the claimants' counsel will lead in the cross-examination², the respective times are as follows:

(1)  Separate Hearings
Direct examination:	.5 day x 2	=	1 day
Cross-examination:	1 day x 2	=	2 days
TOTAL:			3 days
(2)  One Hearing
Direct examination:	.5 day x 1	=	.5 day
Cross-examination:	1 day x 1	=	1 day
TOTAL:			1.5 days

For witnesses common to both claims, the time involved is half, if the two claims are hard together. I should add that this is the best case scenario. It is likely that directions of the panel hearing the claim would permit cross-examination by the other claimant's counsel on matters peculiar to his client's claim. In this case, it is agreed that 80 per cent of the evidence will overlap. I am satisfied, therefore, that it is likely there will be cost savings if these two hearings take place at the same time. Certainly it is not going to cost more.

As well, it is clear that the witnesses will not have to testify twice. This may not be a serious problem for the experts, who are being paid by the parties, but I understand that there will several other witnesses who are not connected in any way with this litigation. Their time will be saved and they will not be subject to the rigors of cross-examination on more than one occasion.

The second and third arguments of the claimants are quite similar. Here, everyone agrees that there are common issues of law and fact. As well, it is clear that common matters will certainly be resolved before compensation can be determined in both cases. This militates in favour of having both hearings take place at the same time. (See McLaughlin & Taylor, British Columbia Practice, (2nd ed.) Vol. 1, 1990, Butterworths at pp. 5-42-50 and 51 for pertinent authorities.)

Finally, the claimants say that if the cases are heard separately, perhaps before differently constituted boards, it is possible that different results could obtain following different findings of fact or a differing resolution of the legal issues. This, it is said, could be "embarrassing" and could bring the administration of justice into disrepute. Mr. Burke indicated that he had experienced such an occurrence in a previous expropriation case. I gather, this was quite "embarrassing" for everyone involved. If two owners see themselves being treated differently in two very similar cases, it would not be surprising that their views on the administration of justice, as it affected them in these cases, would be very disrespectful indeed. Avoiding this possibility is particularly important in an expropriation case where both the authority and the adjudicating tribunal may both be seen as emanations of government.

DECISION

Accordingly, it follows that I am ordering that these cases be heard at the same time, subject to, and in accordance with the directions of the panel hearing the matter.

With respect to those directions, I note that both counsel for the claimants expressed a willingness to take advantage of the single hearing to keep costs down. For example, they indicated that they would take turns leading in cross-examination with respect to matters that are common to both claims.

EXPROPRIATION COMPENSATION BOARD

Clifford S. Watt, Q.C.,
Vice-Chair

¹ See Fraser & Horn, The Conduct of Civil Litigation in British Columbia, Vol. 2, Butterworths, 1990, at p. 1571 for a discussion as to the difference between "consolidation" and merely having "things" heard at the same time.

² See supra, p. 12