Challenges With Removing a Matter From Fast Track Litigation
November 29, 2021
November 29, 2021
Previously printed in The Lawyer’s Daily, a LexisNexis Canada publication.
A matter may qualify for fast track litigation under Rule 15-1 of the B.C. Supreme Court Civil Rules if the plaintiff is seeking to recover less than $100,000 or the case can be tried within three days. Fast track litigation limits the recovery of legal costs to $11,000, unless the court orders otherwise.
A litigant whose case is straightforward, is seeking to recover a smaller amount, or who has limited resources to expend may see fast track litigation as their best option for pursuing or responding to a claim. This was the belief of the plaintiff, Brenton Bean, in Bean v. Emco Corporation 2021 BCSC 2047 (Emco). Bean, a 64-year-old account manager who had been an employee of the defendant Emco for 37 years, filed his notice of civil claim alleging wrongful or constructive dismissal, and also issued a notice of fast track litigation pursuant to Rule 15-1.
The defendant employer Emco argued that the matter should not proceed as fast track litigation for three reasons (para. 15):
- Bean was claiming more than $100,000;
- the case could not be tried within three days; and
- Emco would be prejudiced with respect to discovery rights and costs.
Master Bruce Elwood considered the purpose of Rule 15-1 which is to provide a process for efficient and economical litigation for cases that are straightforward, can be prepared and tried relatively quickly and do not require as extensive a process as more complex cases. This goes to proportionality: a simpler process for simpler matters (para. 17 citing Shaker v. Chow 2012 BCSC 617 at para. 27).
Master Elwood then considered “two stages of analysis for whether an action is, or should remain, a fast track action” (para. 18). Citing Bagri v. Bagri, 2015 BCSC 2132: an action is not a fast track action simply because a party has filed a notice of fast track action. A fast track action occurs in the circumstances set out in Rule 15-1. Further, even actions that qualify as fast track actions may be ordered to proceed as regular actions if there are factors warranting such an order. One such factor is the risk of prejudice to a party, including prejudice with respect to costs (para 18).
Master Elwood agreed with Bean that so long as there is a “rational possibility” that the trial can be completed within three days or the damages awarded would be less than $100,000, the action qualifies for fast track litigation (para. 27). Master Elwood then stated a “holistic analysis” that considers potential prejudice to other parties is also required. In other words, whether the fast track is fair to both parties in light of the purpose of Rule 15-1 and the principle of proportionality (para. 28).
In his analysis, Master Elwood concluded that the matter did qualify for fast track litigation. While Bean’s damages were likely to exceed $100,000 (based on his annual salary with Emco, that his new position paid significantly less, and that his length of service was 37 years), there was a “rational possibility” that the trial could be completed within three days (paras. 30-40).
However, even matters qualifying for fast track litigation may be removed from the fast track.
Emco’s arguments for removing the matter from fast track were that it required more time for discovery; that it would be significantly prejudiced with respect to costs; and that it was fair to both parties if the case proceeded to trial on a normal timeframe (paras. 45-46). Master Elwood found Emco’s concerns to be “largely speculative,” stating that timelines could be extended, discovery could go smoothly and the parties could streamline the issues (para. 47).
Master Elwood was more persuaded by Bean’s reasons for seeking the “procedural advantages” of fast track litigation: that his age, education, limited skill set and financial limitations warranted a swifter resolution to the matter (paras. 48-49).
In conclusion, master Elwood found it was in the interests of justice to keep the case in fast track litigation, although this could be reassessed as the matter evolved over time. The prejudice to Bean of an order removing the case from fast track litigation outweighed the potential prejudice to Emco of remaining under fast track litigation (paras. 51-52).
Emco highlights some challenges with applications to remove a matter from fast track litigation:
- As long as there is a “rational possibility” that the matter qualifies for fast track litigation, it is likely that it will qualify for fast track litigation, absent factors requiring otherwise.
- The reason(s) for opposing fast track litigation should be grounded in something more than speculation. This may require waiting to oppose the fast track litigation until later in the proceeding when it becomes more certain that the matter either does not qualify for the fast track or that there are other reasons, such as prejudice to the parties with regards to costs, for removing the matter from the fast track.
- A higher likelihood of real prejudice to one party is likely to outweigh potential prejudice to the other.
Working primarily as a litigation lawyer with Roper Greyell, Mike Hamata assists employers with discipline and policy grievances, wrongful dismissals, employment standards complaints and collective bargaining. E-mail him at email@example.com. Katelin Dueck is a lawyer at Roper Greyell. She works all areas of workplace law, including employment, labour, workplace human rights and privacy law. E-mail her at firstname.lastname@example.org.