ICBC Applications to Transfer Lawsuits to Provincial Court Discouraged

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to transfer a Plaintiff’s lawsuit to Small Claims Court.
In this recent case (Kooner v. Singh) the Plaintiff was injured in a 2009 collision.  He sued for damages in the BC Supreme Court.  Following examinations for discovery the Defendant applied to transfer the claim to Small Claims Court.  Mr. Justice McEwan dismissed the application.  He reiterated some concerns he voiced earlier this year and provided the following reasons generally discouraging these types of applications:

[3] I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[4] I am not prepared, on the basis of the material, to summarily find that there is no possibility of the trial establishing damages in excess of $25,000, nor am I in a position to assess whether or not the liability aspect of the claim would foreclose the possibility of such damages.  It seems to me that the defence must be seeking the limitation of $25,000 because there is very little else that would suggest a motivation for such claims.  It is not, as it may once have been, obvious that the Provincial Court is equipped to hear these matters more expeditiously or more cheaply, particularly given the point at which this application is brought, post-discoveries, after most of the expenses that go into a Supreme Court trial have been incurred.  My understanding of the current state of hearing day fees, as such, is that there are none for the first three days of trial.  So that is not a factor.  There was a suggestion before me that the informality of the Provincial Court is an advantage, but unless that informality is tied to reduced time in court, which is not at all clear, I fail to see how that, in itself, results in any particular economy.

[5] I think it should be clear that parties have a right to elect the court in which they bring their actions and that, in doing so, if they persist, they run certain risks.  Those risks, in the case of a plaintiff’s action brought in Supreme Court that should have been brought in Small Claims Court, include the penalty of not receiving costs in the case of success, and also include the hazard, if an offer to settle is made, of double costs in accordance with the Rules setting out those penalties.  It appears from the vantage of the bench that it is much more in the defence interest that the matter remain in Supreme Court than that this application succeed, unless, as I have said, what is really sought is a summary assessment of the case on the basis of very limited information, to bring the matter in under $25,000.  Given the hazards (which the plaintiff is aware of), I am of the view that the plaintiff is entitled to bring the matter in this Court if that is what the plaintiff wishes to do.

[6] I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[7] Accordingly, I dismiss this application.