Eight years after her husband died in a tubing accident that took him and two others to their deaths at Cascade Falls near Christina Lake, Carol Barrie will finally receive some court-ordered financial compensation from the government of British Columbia, which a judge has found to have dragged its feet since she first filed a civil suit against the province in 2014.
In an April 9, 2020 ruling, Justice Joel Groves of the Supreme Court of British Columbia ordered the province of B.C. to pay Barrie $150,000 to partially compensate her for provable loss and for legal fees spent thus far, as the province has repeatedly forced trial dates to be postponed.
Barrie’s husband Andrew and Christina Lake residents Ronald and Jacqueline Legare died on July 28, 2012, when they were tubing with a larger group down the Kettle River from Gilpin Grasslands Provincial Park. Barrie’s son first reportedly saw the Legares get swept away near the Great Trail’s trestle bridge at Cascade, before managing to save himself and his mother. Andrew Barrie’s body was recovered from the river seven days later, approximately a kilometre downstream.
Barrie’s initial suit, filed on behalf of herself and her children, names as defendants the province, the Regional District of Kootenay Boundary (RDKB), the City of Grand Forks, as well as the Legare estate and fellow tubers Scott MacNeill, Kathy MacNeill, Jacqueline MacNeill and Jamie MacNeill, whom Barrie’s claim alleges should have known of the danger of Cascade Falls. Nevertheless, the court determined in January that liability lays with the province.
Barrie’s suit argues that the province ought to be responsible for warning signage along the Kettle River, leading up to dangerous sections such as Cascade Falls.
No trial in 10 years
The interim compensation, called a tort advance, was ordered by Groves in April 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.”
The case’s first trial date was set for 2016, but both parties agreed to postpone. Groves blamed the province’s inaction and mishandling of the evidence disclosure process for subsequent delays, in 2018 and more recently in April 2020.
Because B.C. appealed Groves’ January ruling that laid liability for the case on the province, April’s trial was cancelled too. Though Groves noted that COVID-19 pandemic would have delayed the April date anyways, because the province appealed in February, they are still on the hook, he said. The judge said that the matter would likely not come to trial again until 2022 – 10 years after Andrew Barrie and the Legares died.
Provincial delays pile up
In his April 9 ruling, Groves said that both the adjournments in 2018 and 2020 can be blamed on the conduct of the province. “Both relate to their failure to follow the Civil Rules in regards to disclosure of documents,” he wrote.
Before the 2018 trial date, the province apparently failed to offer a full disclosure of relevant documents, despite staff having twice sworn affidavits insisting that they had disclosed everything. In B.C., unlike some other jurisdictions, sworn affidavits of disclosure from parties aren’t necessary, but can be requested by a judge when they believe 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,” Groves wrote.
Barrie’s counsel was able to unearth more than 42,000 government documents deemed relevant to the case that were not shared by the province – many of which Groves said could be found in simple Google searches.
Beyond the documents, Barrie’s counsel also noted that the province offered a representative without sufficient knowledge to go through the discovery process. The provincial representative was from Recreation Sites and Trails BC (RSTBC), and reportedly said in his March 11, 2016 discovery session that “The [Barrie] incident on the river fell outside of our specific area of responsibility.” Instead, the RSTBC representative placed that responsibility on BC Parks.
Seeking compensation for six years of legal action, Barrie asked the court last summer to be awarded a $250,000 tort advance – approximately 30 per cent of what Andrew Barrie would have earned between 2012 and 2020. Groves had denied the request as recently as January, when it appeared that a trial was immanent. When the province appealed his January decision to lay liability at their feet, he re-evaluated.
From Barrie’s original ask for a $250,000 tort advance, Groves noted that “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,” adding that the evidence in her case was “significant.”
Still, $250,000 is well above what is usually awarded in a tort advance, Groves explained in his April decision, before settling on the $150,000 figure. Groves said in his decision that the evidence he’s seen so far “suggests a quantified loss well in excess of the requested tort advance.”
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