ORIGINAL

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20200409
Docket: 8145732
Registry: Vancouver

Between:

Carol Barrie in her own right, as Personal Representative of
Andrew Barrie, deceased, and as Executrix of the
Estate of the said Andrew Barrie; Andrew Barrie Jr.
by his Litigation Guardian, Carol Barrie; Mary Barrie;
Craig Vallance; and Stuart Vallance

Plaintiffs .-
And

Her Majesty The Queen in Right of the Province Of British Columbia as
represented by the Minister Of Forests, Lands and Natural Resource
Operations, and as represented by the Minister of Jobs, Tourism and S_l_<ills
Training; Destination BC Corporation; Regional District of Kootenay
Boundary; City of Grand Forks; City of Christina Lake; Scott MacNeill; Kathy
MacNeill; Jacqueline MacNeill; Jamie MacNeill; the Estate of Ron Legare, by
his Personal Representative; the Estate of Jacqueline Legare, by her Personal
. Representative; Government Entity Government Entity Government
Entity Government Entity and Government Entity #5

Defendants 
. .
Before: The Honourable Mr. Justice Groves
in Chambers
Oral Reasons for Judgment
Counsel forthe Plaintiffs appearing by - D.K. Miura
teleconference: R.W. Richardson
Counsel forthe Defendant Her Majesty The M.J. Kleisinger

Queen in Right of the Province of British
Columbia appearing by teleconference:

No other appearances

not" T0 3e nanoveo
seen nits QPFECE

e~

lil'

nIIls

Barrie v. British Columbia Page 2

Place and Date of Trial/Hearing: Vancouver, 8.0.
April 2, 2020
Place and Date of Judgment: Vancouver, 
April 9, 2020

THE COURT: By way of notice of application date-stamped February 25,
2020, the plaintiffs in this action requested two prayers for relief. The application was
heard before me by telephone conference on Thursday, April 2, and judgment was
reserved to today's date. 

The two prayers for relief are, first and importantly, the request for a tort
advance in this litigation in the amount of $250,000. The second prayer for relief is
set in. the alternative and is a r?ij?uest that in the event the respondent, Her Majesty
The Queen in the Right of the Province of British Columbia (the ?Province"), is
successful on their pending appeal. That prayer for relief was not argued
significantly before me, though it was referred to. I commented on the fact that 

believed it was speculative and that, in fairness, did not really allow argument on it.

The second prayer for relief, the alternative application, should be, and 
direct, that it be adjourned generally.

This litigation has a long history. it is a family compensation action. it is a
wrongful death action. It relates to the circumstances surrounding the death of
Andrew Barrie in British Columbia on July 28, 2012, who was the spouse of the main
plaintiff in this action, Carol Barrie. As Of note, that is close to eight yearsago. I

On that date, the plaintiff Carol Barrie, her husband Andrew Barrie, and
numerous other individuals set out on a tubing adventure on the Kettle River near
Grand Forks. The Berries were from Scotland. They had never been to this area
before. They were in the Grand Forks area with their friends the MacNeills, who
were from Alberta. The Berries and the MacNeills were visiting relatives of the
MacNeills by the name of Legare who were Ms. MacNeill's parents and who appear
to have resided in the Grand Forks area.

i

Barrie V. British Columbia Page 3

July 28, 2012 turned out toi be a tragic day. As a result of the tubing activities
on the Kettle River, the Legares were killed, as was Andrew Barrie. They were killed
when their tubes entered into a crevasse and propelled them onto the very
dangerous Cascade Falls.?Cascade Falls is a rough and deadly waterway. The

suggestion in the evidence is that if you enter into Cascade Falls, you die.

Before I get into the history of this litigation and the direct issue before me, it
is important to set out the theory of liability against the Province and other
defendants. The plaintiff confirmed to me during this application that their theory of
liability against the Province was that the tubing activity that the Berries and others
were engaged in on that fateful day started on land owned and controlled by the
Province in a provincial park called Gilpin Grassland Provincial Park. They state that
the tubers were encouraged in this activity, as were others, by the tourism strategy
of the Province in the area which encouraged tubing along the Kettle River. They
state that the Province was aware of the dangers of Cascade Falls. I

For all intents and purpose, Cascade Falls is owned by the Province.
Additionally, and despite this knowledge, the Province created no marking and no
warning as to when it was appropriate to exit the Kettle River or risk being swallowed
up by Cascade Falls. Additionally, all the'land surrounding this activity, which as 
noted started in Gilpin Grassland Provincial Park, is owned by the Crown.

The tubers in the river leave the park at some point and continue through land
which is perhaps un-surveyed Crown land, and of course the plaintiffs note that the
Province, by virtue of the Water Act, owns the water on which this activity took place.

[10] ln regards to the other defendants, there are local government defendants,

both the City of Grand Forks and the Regional District of Kootenay Boundary. The
theory of liability against those local government entities is their encouragement of
tourism through their tourism strategy despite, it is alleged, their knowledge in this

area and their knowledge of the dangers associated with Cascade Falls. This is in

part similar to liability initially alleged against the Province, but of course it is a

Barrie British Columbia Page 4

different yet complementary tourism strategy absent any control that the Province
has overland, over water, and ownership thereof.

[11] The estate of the deceased Legares are also two defendants. They were
locals who in theory should have ?known the dangers of Cascade Falls and should
have warned the Berries. Additionally, the MacNeills are defendants. It is alleged
that they encouraged the tubing. They were also aware of the dangers of Cascade
Falls from previous year, or years of tubing on the same water. I

[12] raise all. of this to deal with the concern of the Province in their submissions.
In opposing the application for the tort advance, the Province says, amongst other
things, that there is a possibility of joint or several liability amongst the government
defendants. That is, in my view, not a possibility. The only area in which there is a I
similar theory of liability relates to the encouragement of tourism. I note this appears
to have been done through separate-alleged methods of tourism engagement with
different or defendant-unique knowledge of the dangers. There is, I conclude, no
possibility of a joint or several liability problem.

[13] The litigation history in this matter is a concern. As noted earlier, the death of
Mr. Barrie occurred on July 28, 2012. The action was commenced in 2014, shortly
before the expiry of the limitation period. The Province was not-served for close to
one year, being served in the summer of 2015. At that point, there had been a
unilaterally~set trial date for 2016 and that trial was adjourned by agreement.

[14] A second trial date was taken out in 2018. Prior to that, numerous problems
began to develop in regards to the governmental defendants' collective disclosure of
documents. It is perhaps better put, problems arose as a result of theirfailure to
disclose documents. The 2018 trial was adjourned because of disclosure of
documents problems and it was reset for April 2020.

have conducted numerous case management conferences in regards to this
case. Those case planning conferences, should say, have for the most part

Barrie v. British Columbia Page 5

focused on the lack of disclosure of documents by the Crown, though other issues
have arisen.

[16] The problem first became germane and real when plaintiffs' counsel were
able to locate governmental documents, documents that did not appear on any
governmental list of documents, by simple Google searches and the like. It was

apparent to me on the face of it that these documents were clearly relevant to the
plaintiffs' theory of liability.

[17] There was an extensive back and forth about documents. There were
numerous orders about documents. As a result of these orders, on two occasions a
provincial representative swore affidavits confirming documents, an unusual

requirement under the Supreme Court Civil Rules [Civil Rules]. This requirement or
obligation is imposed generally only when the court becomes concerned about the
lack of attention to an obligation of a party to disclose documents. The purpose of
swearing a list of documents is to require the party to turn their mind as to the extent
of their document search and production and place them on an obligation by making
the sworn statement that they have in fact complied with their obligation.

[18] Otherjurisdictions require an affidavit confirming a list of documents as a
matter of course. British Columbia does not. Judges and masters of this court will
often make this order on application when they are satis?ed that a party needs to be
reminded of the significance of their obligation and needs to be reminded that

consequences can flow from?the failure of that obligation to disclose documents.

[19] Despite these two occasions on which a representative of the Province sWore
an affidavit confirming documents, numerous documents were disclosed in the latter
part of May and June 2019. In fact, this document disclosure comprised over 42,000
more documents. That is, 42,000 more documents after two affidavits had been

sworn by the Province confirming that all documents had been disclosed;

[20] on July 23 and August 15, 2019, I heard an application to strike the defence
of the Province as a result of their failure to disclose and their subsequent late

Barrie v. British Columbia Page 6

disclosure. With that application, there was a first application for a tort advance. The
tort advance was not argued before me on July 23 or AugusttS. My reasons

resulting from those two applications were rendered on January 6, 2020 indexed at
2020 8080 10.

[21] I will not review those reasons at any length, save and except to say that as a
result of my determination of the application, the statement of defence of the
Province was struck. As noted earlier, there was an application for a tort advance, .
but that was not advanced by way of argument in July or August 2019, Despite that,
I stated in my reasons on January 6, 2020, that was not inclined to make a tort
advance, it being the case, at least in my mind and clear on the record, that the trial
was scheduled for April 2020, some three months later.

[22] The Province appealed my decision of January 6, 2020. As a result of that
appeal and with the plaintiffs' desire to ensure that the trial in April actually
proceeded, the plaintiff, who was the respondentin the appeal, requested an
expedited appeal. The Crown chose to oppose that application. The matter was
referred by the registrar to a judge of the Court of Appeal who refused'the

application for an expedited appeal. This was in the latter .part of January 2020. It

has never been made clearto me what the basis was forthe Crown's decision to
I oppose an expedited appeal.

[23] In light of that decision to have the appeal proceed in the usual manner, on
February 10, 2020, at another case planning conference, the Crown advanced an
application to adjourn the trial set for April 2020. The basis of that was, of course,
that the appeal needed to be heard prior to the trial. Plaintiffs? counsel, recognizing
the circumstances that they were faced with, did not oppose the adjournment
application on the understanding that they would be at liberty to apply for remedies
consequential to the' adjournment, including a tort advance, at a later date. The order
to adjourn the trial on those terms was granted.

[24] lt now appears, in all the circumstances, that it is unlikely that this trial will be

heard sometime before 2022. That date will be seven years after service upon the

Barrie British Columbia Page 7

Crown and a full ten years after the date of Mr. Barrie's death. Consequential to the
adjournment application, the plaintiff now applies for-a tort advance.

[25] Before I deal with the substance of that application, 1 would like to deal with
two issues raised in the response of the Province, one of which was not significantly
advanced, but one of which was at least. suddenly advanced.

[26] The ?rst of these relate to the Crown's suggestion that my reasons of January
6, 2020, respecting my comment about a tort advance, create an issue estoppel or
that the application now for a tort advance is res judicata. I will repeat what I said
earlier, that at the hearing leading up to the reasons of January 6, 2020, the issue of I
the tort advance was not really argued. Additionally, my reasons for pre?ernptively
rejecting a suggestion of a tort advance when issued my reasons on January 6,
2020, was my reasonable expectation that the trial of this matter that was scheduled -
for April 2020 would proceed.

[27] - As the trial has not proceeded and as there has been a further application

and a successful application to adjourn, the underlying circumstances have changed
significantly.

[28] The second issue relates to the suggestion in the materials by the Crown that
somehow liability is still at Issue. lt' is not. My reasons for January 6, 2020, and the
subsequent court applications and orders filed after that related to my reasons,
specifically the entering of judgment against the Crown, confirm that.

[29] In this litigation and for the purpose of this application and the conduct of this
litigation generally, my reasons of January 6, 2020, have determined that liability
vis?a-vis the Province is no longer a live issue. I repeat here, as was noted in the
response of the plaintiff, the language of the Court of Appeal in Carter v. Canada
(Attorney General), 2012 BCCA 336 at para. 8 reads as follows:

the general proposition that successful parties are entitled to what

are referred to as ?the fruits of theirjudgment?; that is, they are entitled to the

benefit of the order under appeal unless, and untii, it iS set aside. ..This :3

consistent with another general proposition of law that an order is presumed
to be correct unless and until it is set aside.

Barrie v. British Columbia Page 8

[30] As such, my consideration of the issue of the tort advance is based on the

proposition, the fact that as this application is being heard, liability against the Crown
has been determined.

[31] The law of tort advance or on the issue of tort advance appears to be the
following Previous cases of this court and the British Columbia Court of Appeal
have confirmed that Rule 13-1(19) founds the basis of the court's jurisdiction to

make a tort advance.

[32] Serban v. Casselman? (1995), 2 B.C.L.R. (3d) 316 (BCCA) confirms that under

former Rule 1?12, such jurisdiction exists. Rule 1-12 is the precursor of Rule


[33] Paragraph 9 in Serban is particularly germane to the circumstances before
me:

I think it clear that there is jurisdiction under Rule 1(12) and Ruie 35(3)
to impose terms in granting an adjournment but the term must be in all of
the circumstances. Since the Rules have the force of law I do not think it
matters that the term imposed is one of substance but again I say it must be
just. The real question on this appeal is whether an order that payments be
made on account of damages prior to the assessment of damages is a just
one. The question put in another way is whether it was a proper exercise of
discretion to make the order. The appellant submits that if there is jurisdiction
under the present rules to impose as a term of an order that the defendant
pay advances to a plaintiff it is not just to do so in circumstances where the
adjournment was brought about through no fault of the appellant.

[Emphasis In original]

[34] in Serban, there was also an application for an adjournment of trial which was
the foundation of the tort advanced, as is the case here.

[35] in Wood Atkinson v. Murphy, 2011 8080 1766, Associate Chief Justice
MacKenzie, as she then was, is on point and germane to my analysis of the law
here. In considering the 'Serban decision, MacKenzie A.C.J. noted that the advance
must be just in all of the circumstances, and a judge must be satisfied that there is

no possibility the final assessment of damage would be less than the amount of the
advance.

Barrie v.-Brftish Columbia Page 9

[36] Associate Chief Justice MacKenzie relies on Tieu v. Jaeger, 2003 8080 906,

where Master Barber at para. 17 states asfollows:
[17] With respect to the advance itself, I beiieve there are some cases
where, when the piaintiff has applied for an adjournment an advance has
been made, even though the adjournment is not due to any action on behalf
of the defendant. If i am wrong in that regard, then the principle on which-i
view this is this; first- of all, it is conceded that liability is not an issue. 
Secondly, it is conceded that in all probability the plaintiff wilt obtain a
judgment for in excess of $50,000. $14,500 has been paid. in my view, I

- would order an advance of $20,000 at this time, which is less than what the

plaintiff is asking for, $50,000, but the principle on which do it is this: With
liability not being in issue, the plaintiff should be put in funds at the earliest
possible time. That is a reasonable thing for the plaintiff to ask for. The only
thing that is stopping her from getting this money is not a determination of
whether she is entitled to it, but as to how much. When it has been conceded
that the sum of $20,000 is probably going to be less than or at least one?haif
of what the future amount she will obtain of $40,000 plus is, I can see no
reason not to give her at least $20,000 at this time. To keep her out of pocket

means that, especially when need is shown, as it has been in her affidavit,
would be a refusal of justice.

[37] In Wood Atkinson, it is further noted that liability had been resolved and that it
would be almost seven years from the date of the accident to the date of the trial,
when an actual determination of the amount of damages would ultimately be
determined. As noted here, it will be ten years in the case before me.

[38] I note, as well, the general proposition that in order for the court to consider a
tort advance as part and parcel of an adjournment application, in addition to a
potential requirement that there has been a delay, it is necessary to
establish on the evidence that there is some need or some valid reason for the
advance.

[39] I reviewed the affidavits of Carol Barrie filed in this application. She described
circumstances which I consider to be hardship, circumstances that she has faced
since the loss of her husband and the loss of his income to support their family. This
has been for over seven years. I agree with'the submissions of her counsel that that
evidence before me is significant. I am also satisfied generally that she has had to
struggle to maintain the assets owned by her and Mr. Barrie as part of theirjoint

financial plan. I am satisfied additionally, not that it is germane to my decision, that

.Bam?e British Columbia . Page 10

the assets are in a jurisdiction where reciprocal enforcement of judgments regularly
occun 

[40] Further, a review of the actuary evidence in this family compensation claim
suggests that a provable loss is well in excess of the amount of the tort advance
request. I note as well, with interest, this submission of counsel for the plaintiff which
was not disputed by counsel for the Province, that there exists contrary actuary
evidence created or advanced or obtained by the Province, which hasbeen
disclosed to the plaintiff as part of litigation disclosure, but has not been put before
the court in this application. That expert evidence, the plaintiff suggests and the
Province did not dispute, apparently does not significantly differ from the numbers or
?the dollar figure advanced by the plaintiff. That dollar figure or those numbers
suggest that the actuarial loss related to the loss of income from the deceased
Andrew Barrie, as I read it, for a trial scheduled in 2020 is a loss in the
neighbourhood of 600,000 British pounds, close to $800,000 CDN.

 

[41] Liability has been established. The Province is liable.\ihe Province sought an
adjournment of the trial and the plaintiff either reluctantly agreed or took no position.
The source of both thisadjournment and the 2018 adjournment is the conduct of the
Province?th relate to their failure to follow the Civil Rules in regards to disclosure

of documents. The most recent adjournment relates primarily to a decision of the
Province to oppose the plaintiffs' application for an expedited appeal so as to save

the trial date for April 2020. All that means is that a trial will likely occur now in 2222

[42] I add here that, in my view, it is no benefit to the Province to argue now that
the unforeseen circumstances of a worldwide pandemic somehow alleviates the
Province's responsibility for the recent adjournment, because with this pandemic the
trial would unfortunately have to have been adjourned in any event. That is not

relevant to the consideration today. it aroseafter the adjournment was necessitated.

[43] At the end of the day, I agree with counsel forthe plaintiff that there is a
substantial likelihood that the trial in this action will not be set or heard until 2022..As

Barrie v. British Columbia Page 11

I have said, that will be ten years after the date of the loss for Which the Province is
liable. That will be seven years afterthe Crown has been served in thisproceeding.

[44] The actuarial evidence before me suggests a quantified less 'well in excess of
the requested tort advance. That being said, I agree with the Crown that a tort
advance of $250,000 is well outside the normal range of a tort advance which is
designed to partially compensate a plaintiff for their provable loss and is designed to
ensure that the costs associated with a delay in having the matter effectively

resolved are not too onerous for an aggrieved plaintiff.
-

[451? In all the circumstances, am satisfied that the plaintiff has met the test for a

tort advance. I am ordering a tort advance in the amount of $150,000 to the plaintiff
Carol Barrie.

[46] The plaintiff has been-su'ccessful in this application and they are entitled to
their costs. The second request in the plaintiffs? notice of application, as noted
earlier; is adjourned generally. As I have indicated, it was not seriously argued and it
is at this point speculative. 

ROVES J.