ICBC Law

As previously discussed, if a Plaintiff successfully sues in the BC Supreme Court and is awarded damages under $25,000 (the current monetary limit of the BC Small Claims Court) the Plaintiff will not be entitled to costs unless they had ‘sufficient reason‘ for suing in Supreme Court.  Useful reasons for judgement were released today by the BCSC, New Westminster Registry, addressing this issue after a Part 7 Benefits trial.

In today’s case (Derbyshire v. ICBC) the Plaintiff was injured in a motor vehicle collision.   She was employed as a commercial painter and as a result of the crash became disabled from her own occupation.  She was insured with ICBC who provided one week of disability benefits and then refused to reinstate these.

The Plaintiff’s treating GP and a rheumatologist supported the fact that the Plaintiff was disabled.  ICBC obtained an ‘independent medical examination report‘ from an orthopaedic surgeon who concluded that the Plaintiff “should have been able to have resumed her previous level of activity” within 8 weeks of the crash.

The Plaintiff sued in the Supreme Court and ultimately was successful with Mr. Justice Saunders finding that ICBC was wrong in cutting off the Plaintiff’s rehabiliaiton and disability benefits.  The total value of the Plaintiff’s claim by the time of trial was well below $25,000 however the Court went on to award costs finding that Plaintiffs suing for on-going benefits under Part 7 have sufficient reason to sue in the Suprene Court.   Mr. Justice Saunders provided the following reasons:

I accept what Mr. Cabanos says regarding the apparent, at this point, potentially limited monetary value of the claim being within the jurisdiction of the Provincial Court, but Mr. Milne is quite correct that the test for costs is whether it was appropriate to bring this action and this application in Supreme Court.  In my view, it was appropriate given the indeterminate size of the total benefits that could be granted to the claimant over the entire course of her disability and it was further appropriate with respect to the summary disposition mechanisms that are available in this court, the alternative in Provincial Court only being a full trial.

The New BC Supreme Court Rule 14-1(9) states that a successful party in a proceeding “must be awarded” costs unless the court otherwise orders.  The former Rule 57(9) dealt with this issue although it had slightly different wording.

Today reasons for judgement were released, for what I believe is the first time, dealing with and interpreting the new rule.

In today’s case (Aschenbrenner v. Yahemich) the Plaintiffs sued the Defendants for trespass, nuisance, defamation and other matters.  Ultimately they succeeded in some of their claims and were awarded just over $5,500 in total damages.  The Plaintiffs applied for an order of costs.  The Defendant opposed arguing that the costs award would be worth more than the awarded damages.

Ultimately Mr. Justice Metzger sided with the Plaintiffs and awarded them most of their costs.  In doing so the Court adopted authorities developed under the former rules.  Mr. Justice Metzger provided the following reasons discussing when a party is entitled to costs under Rule 14-1(9):

[12] Rule 14-1(9) of the Supreme Court Civil Rules states that:

(9)        Subject to subrule (12), costs of a proceeding must be awarded to the successful party unless the court otherwise orders.

[13] While the Rule itself does not include the term “substantial success” under the former Rule 57(9), it was held to be a necessary and sufficient condition for an award of costs under Rule 57(9) that success in the outcome of the trial be “substantial”: see Gold v. Gold, 82 B.C.L.R. (2d) 180, 32 B.C.A.C. 287.

[14] In Fotheringham v. Fotheringham, 2001 BCSC 1321 at para. 18, 108 A.C.W.S. (3d) 786, appeal to C.A. refused, 2002 BCCA 454, 172 B.C.A.C. 179, Bouck J. stated that a trial judge has absolute and unfettered discretion with respect to costs, but it ought not to be exercised against a successful party except for some good reason in connection with the case.

[15] Mr. Justice Bouck canvassed the factors to be considered with respect to Rule 57(9), and at para. 45 stated:

[45] Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute and weighing their relative importance. The words “substantial success” are not defined. For want of a better measure, since success, a passing grade, is around 50% or better, substantial success is about 75% or better. That does not mean a court must descend into a meticulous mathematical examination of the matters in dispute and assign a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when looked at all the disputed matters globally.

[16] Mr. Justice Bouck then sets out a four step inquiry to determine whether or not to award costs after a trial at para. 46:

1.         First, by focusing on the “matters in dispute” at the trial. These may or may not include “issues” explicitly mentioned in the pleadings.

2.         Second, by assessing the weight or importance of those “matters” to the parties.

3.         Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event.

4.         Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs.

(See also: Citta Construction v. Elizabeth Lane Holdings Ltd., 2004 BCSC 280, 129 A.C.W.S. (3d) 46 at para. 7.)

[17] Substantial success is not determined by counting up the number of issues and allocating success on each, or by comparing the dollar amounts, but by assessing success in the major issues of substance (Cohen v. Cohen, 1995 Carswell 608, 15 R.F.L. (4th) 84 (B.C.C.A.) at para. 4; Reilly v. Reilly, [1996] B.C.J. No. 1244 (S.C.); Rattenbury v. Rattenbury, 2001 BCSC 593, [2001] B.C.J. No. 889 at paras. 22-24, 33). Substantial success means success on 75% of the matters globally taking into account the weight of the issues and their importance to the parties. A court should compare the pleadings and the submissions with the actual results obtained by the parties (Rattenbury at para. 24.).

[18] In cases where one party achieves substantial success, the courts may award a portion of the substantially successful party’s costs. For example, in Newstone v. Newstone, [1994] B.C.J. No. 139, 2 R.F.L. (4th) 129 (C.A.), an award of one-half costs to a party was upheld where “[s]uccess, if it could be called that, lay more with the wife than with the husband …” One-half costs were also upheld in Rolls v. Rolls, [1996] B.C.J. No. 292, 20 R.F.L. (4th) 232 (C.A.), on the ground that such an award would not create an imbalanced judgment as much as would a full award. InCohen v. Cohen, a spouse was awarded 75% of her costs after success on her reapportionment claim, which was the largest and most time-consuming issue.

[19] The four step test identified by Bouck J. applies not only to matrimonial cases, but also to all types of cases where Rule 14-1(10) has application (Chaster (Guardian ad litem of) v. LeBlanc, 2008 BCSC 47, 164 A.C.W.S. (3d) 43 at para. 34).

[20] Where success is divided such that there is no substantially successful party, the parties may have to bear their own costs (Mari v. Mari, 2001 BCSC 1848, [2001] B.C.J. No. 2979).

[21] On a global view of the outcome of this litigation I find that the plaintiffs were substantially successful.

Reasons for judgement were released today addressing whether a Defendant who beat a formal settlement offer should be awarded costs.

In today’s case (Cue v. Breitkruez) the Plaintiff was involved in a rear-end collision.  He sued the rear motorist for damages.  Prior to trial the Defendant made a formal settlement offer for $1.  With liability being hotly contested the Plaintiff proposed that the case be transferred to Small Claims Court.  The Defendant refused to consent stating that “such a transfer would result in greater delay“.

At trial the Plaintiff’s case was dismissed with a finding that the Plaintiff was responsible for the collision.  (You can click here to read my summary of the trial judgement).  The Defendant then applied to be awarded double costs pursuant to Rule 9-1(5) because they beat their formal offer at trial.

Mr. Justice Smith dismissed the application noting that since Rule 14-1(10) generally restricts Plaintiff’s awarded an amount within the small claims court jurisdiction from being awarded trial costs that the Defendant should be refused costs for not agreeing to have the case heard in Provincial Court.  Specifically Mr. Justice Smith noted as follows:

7]             The matter remained in this court subject to an agreement to still limit the claim to what could be awarded in Provincial Court. Had my liability decision been different and the matter proceeded to an assessment of damages, Rule 14-1(10) would have been a bar to an award of any costs, other than disbursements, in favour of the plaintiff.  In my view, fairness requires that the same limitation apply to the successful defendant, particularly as the defendant did not agree to the proposed transfer to Provincial Court.

[8]             I therefore decline to award any costs to the defendant, other than disbursements.  There is therefore no need to consider the offer to settle because there are no costs to double.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.

In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision.  Prior to trial the responsible motorist admitted fault for the crash.  The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits.   The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash.  Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:

[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43]         However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44]         I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10).  This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court.  Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule.  I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

If a Plaintiff sues in Supreme Court but is awarded damages of $25,000 or less (the current financial limit of the BC Small Claims Court) the Plaintiff is not entitled to Costs unless they had “sufficient reason” for suing in the BC Supreme Court.

It is becoming reasonably well established that a Plaintiff has sufficient reason to sue in Supreme Court when the Defendant is insured with ICBC.  The reason being that the Defendant will likely be represented by a lawyer paid for by ICBC whether the claim is filed in Small Claims Court or the Supreme Court.  In these circumstances it is reasonable for a plaintiff to hire a lawyer to balance the playing field.  Since the Supreme Court allows costs orders to offset some of the legal fees our Courts have held on a few recent occasions that this creates a ’suffient reason’ for Plaintiff’s to bring modest claims to trial in the Supreme Court.  Reasons for judgement were released today demonstrating this.

In today’s case (Zale v. Colwell) the Plaintiff was injured in a BC motor vehicle collision.  She sued in the Supreme Court.  At trial she was awarded just over $10,000 for injuries and losses.  Mr. Justice Harvey went on to award the Plaintiff costs despite the fact that the Small Claims Court could have heard the case.  The Court provided the following reasons:

[7]             None of the factors identified in Spencer have application here. The matter was not factually complex; it proceeded by judge alone; liability was admitted, obviating the need for examination for discovery by the plaintiff; the defendant resided within the jurisdiction; and, the matter did not proceed by way of summary trial.

[8]             As was noted in Spencer, the desire of the plaintiff to have counsel, alone, is not a sufficient reason, of itself, to depart from the underlying proposition stated in R. 57(10). In any event, the plaintiff was represented when the action was originally commenced in Provincial Court in 2006.

[9]             Lastly, the plaintiff says costs should be awarded owing to the fact the defendant, in effect ICBC, is an institutional litigant with rigid policies in low velocity collision claims such as this.

[10]         The defendant, while admitting liability, put the plaintiff to the strict proof of any damages whatsoever arising from the accident. That position did not change throughout the trial process. As in Spencer, I am left with the conclusion that but for the trial process, the plaintiff would be left without a remedy…

[13]         In each of the above three decisions, the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant,  a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.

[14]         Recognizing that the onus rests on the plaintiff to demonstrate sufficient reason to have raised the matter from Provincial Court to Supreme Court, I am not persuaded that the distinguishing factor noted by the defendant, that counsel was retained (albeit not the same counsel) for the Provincial Court proceeding, is sufficient to deprive the plaintiff of the costs of the proceeding under R. 66.

[15]         I conclude that in the circumstances, it was ultimately reasonable for the plaintiff to make the decision to have the matter heard in Supreme Court.

[16]         Accordingly, the plaintiff will have her costs pursuant to R. 66(29)(b).

I should point out that today’s case relied on BC Supreme Court Rule 57(10).  This rule has now been repealed and replaced with Rule 14-1(10) which reads identically to Rule 57(10) so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.  I should also point out that the BC Court of Appeal is expected to address the issue of sufficient reason for suing in the BC Supreme Court and provide further clarity and certainty to this area of the law.

(Note: The below case was upheld by the BC Court of Appeal.  You can find the BCCA decision here.)

As recently discussed, when advancing an ICBC Claim in Court one of the first choices to make is whether to sue in BC Supreme Court or Small Claims Court.   When a Plaintiff successfully sues in the BC Supreme Court they are usually entitled to “costs” from the Defendant.  Costs are intended to offset some of the expenses of requiring a formal lawsuit to reach a resolution to a claim. The Small Claims Court does not have the ability to award Costs.

One of the exceptions to this general principle of giving successful Supreme Court plaintiffs “Costs” is set out in Rule 57(10) which holds that “A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in Supreme Court and so orders.“

So if a Plaintiff is awarded under $25,000 (the current limit of the Small Claims Court) in an ICBC or other BC Injury Claim does this mean they will be deprived of Court Costs?  The answer is not necessarily.  Our Supreme Court has held time and time again that a Plaintiff may have sufficient reasons for suing in Supreme Court despite the fact the final outcome may be an award below $25,000 and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this.

In today’s case (Gradek v. DaimlerChrysler Financial) the Plaintiff was injured in a BC car crash.  He sued in the BC Supreme Court and was awarded just below $10,000 in total damages (you can click here to read my article summarizing the trial judgement).  The Plaintiff asked for Costs.  The Defendants opposed this arguing that since the value of the case within the Small Claims Courts Monetary Jurisdiction the Plaintiff did not have “sufficient reason” to sue in the Supreme Court.

Mr. Justice Savage rejected this argument and summarized the law relating to “sufficient reason” to sue in the BC Supreme Court as follows:

[18] In my opinion the approach taken by the defendants is too narrow and not supported by an interpretation of the Rule or by the authorities.

[19] The proviso in Rule 57(10) is “unless the court finds that there was sufficient reason for bringing the proceeding in Supreme Court and so orders”.  The Rule does not define “sufficient reason”.  There is nothing in the Rule that limits the extension of the term “sufficient reason” to matters relating to the quantum of the claim.  ..

[27] There are relevant authorities in this court.  In Faedo v. Dowell, 2007 BCSC 1985, a case predating Reimann, Curtis J. held that a variety of factors gave rise to “sufficient reason” within the meaning of Rule 57(10).  The Court referred to the plaintiff’s beliefs about her claim, the defendant’s denial of liability, challenge to the plaintiff’s credibility, the plaintiff’s inexperience and demeanor, the reasonable requirement to have counsel, and the fact that costs of counsel were only recoverable in Supreme Court.

[28] Master Patterson in Garcia v. Bernath, 2003 BCSC 1163, 18 B.C.L.R. (4th) 389 (S.C.), held that a number of factors including whether there were injuries at all, can give rise to sufficient reason.

[29] In Johannson v. National Car Rental (Canada) Inc., 2009 BCSC 1284, Barrow J., referred to Reimann, and noted in obiter dicta that other reasons for proceeding in Supreme Court include those identified in Kuehne.

[30] In Tucker v. Brown, 2008 BCSC 734, Cole J. applied Reimann noting the importance of discovery procedures in determining liability in a “no crash no cash” case.

[31] In Kanani v. Misiurna, 2008 BCSC 1274, Humphries J. considered factors such as a denial of liability in finding “sufficient reason” under the Rule.  To like effect is the decision in Ostovic v. Foggin, 2009 BCSC 58.

[32] In the result, in my view, the term “sufficient reason” within the meaning of the rule encompasses a number of considerations including considerations which do not inform the quantum of the claim.

Mr. Justice Savage went on to award the Plaintiff his trial costs finding that despite the fact that the case could have been tried in Provincial Court given its monetary value the Plaintiff had sufficient reason to sue in the Supreme Court for a variety of reasons including the fact that the examination for discovery evidence was useful at trial and that the Plaintiff would have been “out-matched” if he sued the insured defendant without the assistance of a lawyer in small claims court.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.

Further to my previous posts on this topic, reasons for judgement were released today considering whether to award a Plaintiff Supreme Court Costs in an ICBC Claim where the judgement amount was within the Small Claims Court’s jurisdiction.

In today’s case (Mohamadi v. Tremblay) the Plaintiff was awarded $10,490 in his ICBC Claim after trial (click here to read my summary of the trial judgment).

The Plaintiff brought an application to be awarded ‘costs’ under Rule 57(10) which reads as follows:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

ICBC opposed this application.  Mr. Justice Truscott set out the leading test in applying Rule 57(10) from the BC Court of Appeal (Reimann v. Aziz) where the BC high court held that “Considering Rule 57(10) in its legislative context and applying its words in their grammatical and ordinary sense harmoniously with the scheme of the legislation and its objects, I conclude that a plaintiff does not have an ongoing obligation to assess the quantum of a claim and that the point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”

Mr. Justice Truscott held that this Plaintiff did not have “sufficient reason for bringing” his lawsuit in the Supreme Court.  He summarized the key reasons behind his conclusion as follows:

[58] I recognize that most plaintiffs with personal injury claims probably feel more comfortable with counsel representing them and more confident that they will obtain a greater amount of damages for their claim with the assistance of counsel than by acting on their own in Small Claims Court.

[59] However, the onus to prove that at the beginning of the claim there is sufficient reason for bringing the proceeding in Supreme Court, as Rule 57(10) states, lies in practice to some great extent on plaintiff’s counsel who is advising the plaintiff on the value of his claim and commencing the action.

[60] Here, I am satisfied that if Dr. Fox’s medical records pre-accident had been obtained and if his opinions and the opinions of Dr. Cameron had been obtained before the writ of summons was issued, with the plaintiff’s credibility at issue with respect to the injuries he was alleging that were not supported by his doctors, with his false statement to ICBC, and with the contrary evidence of his employer, it could and should easily have been determined that the action should be commenced in Small Claims Court and not this Court.

In my continued exercise to get used to the New BC Supreme Court Civil Rules, I am cross referencing all civil procedure cases I write about with the new rules.   The Current Rule 57(10) will become Rule 14-1(10) and it reads identically to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants after July 1, 2010.

I’ve previously posted on the topic of costs consequences when a Plaintiff succeeds in a BC Supreme Court lawsuit but is awarded damages within the small claims court jurisdiction.

For the Plaintiff to be entitled to costs it must be found that the Plaintiff had “sufficient reason for bringing the proceeding in the Supreme Court”.  Reasons for judgement were released today dealing with this issue.

In today’s case (Johannson v. National Car Rental) the Plaintiff was injured in a 2005 BC Car Crash.  The Defendant admitted fault.  At trial Mr. Justice Barrow found that the Plaintiff suffered soft tissue injuries which he summarized as follows:

I am satisfied that the plaintiff suffered a mild to moderate soft tissue injury to her upper back and neck in the accident. She followed all of the medical advice she was given and was, I am satisfied, motivated to overcome her injuries. Between the date of the accident and the end of the year, she saw her chiropractor approximately 25 times. I am satisfied that the frequency of these visits was due to the pain and discomfort she was experiencing. The injuries caused her considerable discomfort, moreso than similar injuries might cause to other persons because of her pre-existing condition.

Mr. Justice Barrow awarded the Plaintiff just over $15,000 in total damages (well below the Small Claims Court’s current monetary jurisdiction of $25,000).  One of the central issues at trial was weather the Plaintiff suffered a frozen shoulder in the car accident on top of her soft tissue injuries.  Ultimately the Court found that the Plaintiff did suffer from a frozen shoulder but this was not caused by the accident.

The Plaintiff brought a motion to be awarded Supreme Court Costs arguing she had sufficient reason to bring her claim in the Supreme Court.  Specifically it was argued that if the Plaintiff’s expert evidence was accepted with respect to the cause of her frozen shoulder her claim was well within the Supreme Court’s jurisdiction.  The Defence lawyer argued otherwise stating that there was no sufficient reason to sue in the Supreme Court and that “the Plaintiff should have realized at the time she commenced her action that her frozen shoulder was not caused by the motor vehicle accident”.

The Court concluded that there was sufficient reason for this Plaintiff to sue in Supreme Court.  In reaching this conclusion Mr. Justice Barrow summarized and applied some of the principles in these types of cases as follows:

Rule 66(29) is, by its terms, subject to Rule 57(10). Rule 57(10) provides as follows:

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

[4] The onus is on the plaintiff under Rule 57(10) to justify her choice of forum (Bhanji v. Quezada, 2003 BCCA 445). Until the Court of Appeal’s decision in Reimann v. Aziz, 2007 BCCA 448; 286 D.L.R. (4th) 330, there was some uncertainty as to whether the plaintiff’s obligation to justify its choice of forum was a continuing one or rather one to be assessed only at the time the action was commenced. Chaisson J.A. resolved that issue, concluding that a plaintiff must only demonstrate that it had sufficient reason to bring the proceeding in the Supreme Court at the time the action was commenced.

[5] The “sufficient reason” referred to in the rule is often, but not invariably, related to whether the anticipated judgment will exceed the monetary jurisdiction of the Provincial Court. If, at the time the action was commenced, there was sufficient reason to conclude that the judgment would likely exceed the Provincial Court’s monetary jurisdiction, then the decision to proceed in this court will usually be found to be justified. There may be other reasons for proceeding in the Supreme Court. Some of those other reasons were identified in Kuehne v. Probstl, 2004 BCSC 865. Where those other reasons are present then, even if the anticipated monetary award is likely to fall within the jurisdiction of the Provincial Court, there may still be “sufficient reason” to proceed in this court.

[6] In the case at bar, the only basis advanced for proceeding in the Supreme Court is that the reasonably expected award was likely to exceed the monetary jurisdiction of the Provincial Court…

[12] In effect the plaintiff took the position when she launched this action that her frozen shoulder was the consequence of the defendant’s negligence. I am satisfied that she has always honestly believed that. While that conclusion was not free from doubt when the action was launched, it was not an unreasonable position to take at the time. The fact that her own doctor came to share that view is some indication that the position was not unreasonable, even though there is no evidence that she had the benefit of that opinion at the time the action was started.

[13] In summary, I am satisfied that there was sufficient reason for the plaintiff to bring this proceeding in the Supreme Court. The plaintiff is, therefore, entitled to her costs which, given the length of trial and the provisions of Rule 66(29)(b), I set at $6,600 plus disbursements.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.