Plaintiff Denied Costs for Having No Sufficient Reason to Sue in the Supreme Court
One of the more difficult fact patterns to predict the outcome of is when will a Plaintiff be granted costs when they sue in the BC Supreme Court but are awarded damages below $25,000 (the monetary jurisdiction of the Provincial Court in BC). ¬†You can click here to read archived decisions addressing this. ¬†Adding to these, reasons for judgement were released this week considering such a scenario.
In this week’s case (Akbari v. ICBC) the Plaintiff was injured in a collision caused by an unidentified motorist. ¬†He successfully sued ICBC and was awarded damages of just over $13,000. ¬†Following this the Plaintiff sought costs of $17,000. ¬†Madam Justice Baker denied this finding the Plaintiff had no sufficient reason to sue in Supreme Court. In reaching this conclusion the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am not persuaded that there was sufficient reason to bring this action in Supreme Court.¬† As the plaintiff submits, the issue of liability was the primary issue at trial.¬† The Provincial Court is an entirely appropriate forum for determining that issue, the outcome of which largely depended on an assessment of the credibility of the witnesses.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms.¬†Berry of ICBC had no personal knowledge of the circumstances of the accident.¬† I can surmise that questions put to her on discovery may have related to contact by ICBC representatives with one of the plaintiff’s witnesses, Mr.¬†Nahun Chinchilla, whose testimony I rejected at trial as incredible and unreliable.¬† Mr.¬†Chinchilla voluntarily contacted both the plaintiff and plaintiff’s counsel and so far as I am aware, volunteered to be interviewed by plaintiff’s counsel prior to trial, so it was not necessary to utilize the Supreme Court Rules to compel his cooperation.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am not persuaded that any documents and witness statements provided by the defendant to the plaintiff during the course of pre-trial preparation would not have been supplied by the defendant whether the action had been brought in Supreme Court or in Provincial Court.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I am not persuaded that there was any reasonable prospect that the plaintiff’s total damages would exceed $25,000.¬† The special damages and past loss of income were known.¬† The only head of damages involving uncertainty was non-pecuniary damages. The only medical evidence presented at trial was a report from Mr.¬†Akbari’s family doctor, dated June¬†2, 2011.¬† In my view, it should have been obvious to the plaintiff and his counsel, after considering that report, that an award in the range of $25,000 was highly unlikely.
¬†¬†¬†¬†¬†¬†¬†¬†¬†The report and the opinions expressed in it were sufficiently non-controversial that Dr.¬†Rai was not required to attend for cross-examination.¬† In Dr.¬†Rai’s opinion, Mr.¬†Akbari suffered soft tissue injuries – described by Dr.¬†Rai as “tendonious strain” affecting Mr.¬†Akbari’s left calf, knee and thigh – from which he had recovered in 8 to 10 weeks.¬† Mr.¬†Akbari was off work for two weeks, but it was during the Christmas holidays and he had planned to take some vacation during that period in any event.¬† The injuries caused little disruption to Mr.¬†Akbari, only temporarily interfering with his participation in pick-up soccer games, and his weight-lifting routine at the gym.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In the plaintiff’s written submissions regarding costs, it was suggested that the concluding paragraph of my trial Reasons, in which I stated that I was not aware of any reason why the plaintiff should not have his costs on Scale B, was a determination of the issue.¬† That is not correct.¬† Unless a defendant invokes Rule¬†14-1, a plaintiff is normally entitled to costs.¬† Once the Rule is invoked, then the court must consider whether there was sufficient reason to bring the proceeding in the Supreme Court.
The plaintiff shall have disbursements only.¬†