Going To Court
If you cannot reach a settlement with ICBC, you can take your claim to court provided that you have not waited beyond any prescribed limitation periods.
The first decision you should make when deciding to go to court is whether you wish to hire a lawyer or prefer to represent yourself.
If you decide to represent yourself you need to consider the various options in bringing your claim to court.
The small claims court was designed as the people’s court. It is a forum in which people are able to advance their legal claims in a relatively informal way. Strict rules of evidence do not apply and many people attend small claims court without legal representation.
However, small claims court does have some formal rules and requirements and litigants need to be familiar with these. Also, even though you may be unrepresented, ICBC will hire a lawyer to defend your claim.
Currently small claims court has a monetary jurisdiction of $25,000. That means that a court can award an injured person up to $25,000 for their injuries and losses. If you can safely value your claim under $25,000, small claims court will likely be the right forum for you.
If a claim is commenced in small claims court and it becomes apparent that the claim may be worth more than $25,000, it is possible to transfer the claim into Supreme Court.
Most people who file a claim in Supreme Court do so with the help of a lawyer. The reason for this is that the Supreme Court has complex rules of procedure and discovery with many important time limits that can have a detrimental effect on a case if they are not complied with.
Supreme Court has an “inherent jurisdiction” and unlike small claims court, the Supreme Court is not limited by a financial ceiling with respect to how much money can be awarded.
Trials in Supreme Court tend to take longer and be much more expensive than in small claims court. Additionally, a losing party in Supreme Court may have to pay a portion of the legal fees of a winning party. These are called “costs” and are often in the tens of thousands of dollars.
Unlike small claims court, litigants in the Supreme Court can choose between trial by judge alone or trial with judge and jury. In many cases, ICBC will elect to have a jury preside over a personal injury lawsuit. This typically adds time and expense to the trial. This can also significantly increase the costs consequences for an unsuccessful litigant.
Time and expense have been described as the “twin evils’ that prevent people from seeking access to justice. The Small Claims Court jurisdiction was recently increased from $10,000 to $25,000 to give people greater access to the simplified procedures and lesser costs that this court offers. Also recent changes in the Supreme Court have come into effect that should be canvassed prior to deciding how to proceed.
Rule 66 of the British Columbia Supreme Court Rules is known as the “fast track rule.” A person claiming compensation for injury in the Supreme Court who requires less than 2 days for trial can take advantage of this rule.
Some of the benefits are that trial dates are required to be set within 8 months of the close of pleadings, and the rule offers reduced discovery procedures. Jury trials are not allowed under this rule and this cuts down on the time and expense required to bring a claim to trial.
One of the difficulties with this rule expressed by many British Columbia personal injury lawyers is that it is often difficult to present a contested persona injury claim in less than two days. However, Rule 66 should be canvassed at length prior to commencing an injury claim in Supreme Court to see if its advantages can benefit your claim.
Rule 68 of the British Columbia Supreme Court Rules started out as a pilot project. It was basically an experiment to see if there is a more cost effective and efficient way to bring claims of a lesser monetary value to trial.
Rule 68 now appears to have been adopted permanently and is intended to be mandatory for all claims worth less than $100,000.
Rule 68 was designed to cut down on the length and cost of certain trials. It encourages early disclosure of evidence and requires pre trial hearings in which all the parties must be present.
Like Rule 66, Rule 68 does not permit jury trials. Rule 68 has some limitations on how evidence can be presented. For example, Rule 68 generally limits each litigant to using only 1 expert witness. Many BC personal injury lawyers feel it is difficult to properly present a claim under Rule 68 due to this requirement.
Rule 68 should be canvassed prior to commencing an injury claim in Supreme Court to see if it is suitable for your ICBC claim.