Can a Defendant Force a Case Into Rule 68?
Interesting reasons were released yesterday by the BC Supreme Court, Vancouver Registry, dealing with a unique issue; can a Defendant force a case into Rule 68 against the Plaintiff’s wishes?
By way of brief background Rule 68 is the ‘proportionality‘ rule and is mandatory for all injury cases under $100,000.
In British Columbia Plaintiff’s don’t need to plead the value of their claim. Ultimately only the Plaintiff knows what final number they will be seeking at trial and this information does not have to be shared with the Defendant ahead of time. Appreciating this, can a Plaintiff simply defeat a Defence application to put a case into Rule 68 by claiming he will seek more than $100,000 in total damages at trial?
In today’s case (Singleton v. O’Neil) this issue was dealt with. The Plaintiff sued for damages as a result of an alleged assault which occurred on July 11, 2009. He prosecuted his claim in the usual course (outside of Rule 68) and set the matter for a 5 day Jury Trial. The Defendant’s opposed this and brought a motion to force the case into Rule 68 saying it was clearly worth less than $100,000 and that the rule was mandatory in these circumstances. The Plaintiff opposed arguing that he is claiming in excess of $100,000.
Madam Justice Gerow granted the motion finding that the case was likely worth less than $100,000 and cannot “justify the expense of a five day jury trial“. The Court provided the following reasons:
 Mr. Singleton did not provide any authorities which support his position that an award for the types of injuries he suffered and his treatment by the defendants will exceed $100,000. As well, he has not presented any authority for his position that it is the plaintiff who determines whether the claim should be brought under Rule 68. I note that there appears to be no such limitation in the rules. Rule 68(7) provides that on the application of any party, or as result of the court’s own application, an order may be made that the rule does not apply to an action. In other words, it is not up to only one of the parties to determine whether or not Rule 68 applies.
 The rule is mandatory in nature and applies to all claims which fall into subrule (2). In my view, the evidence to date and the case law to which I have been referred, supports the defendants’ position that the claim being advanced by Mr. Singleton is one which falls within Rule 68. Most of the pre-trial procedure has been completed, and the examinations for discovery which have been conducted have fallen within the time limits set out in Rule 68. Neither the plaintiff nor the defendants are suggesting they will require experts in addition to those allowed under the rule.
 As set out in subrule (13), the overarching consideration in determining applications under Rule 68 is proportionality. The court must consider what is reasonable in relation to the amount at issue in the action.
 As in Berenjian and Uribe v. Magnus, 2009 BCSC 1230, a jury trial is being sought by the party opposing the application for an order that the matter falls within Rule 68. Based on the affidavit material, I have concluded that the claim being advanced by Mr. Singleton is relatively simple and straightforward, and is not one that can justify the expense of a five day jury trial.
 For the forgoing reasons, I have determined it is appropriate to make the order sought by the defendants. Accordingly, I am making an order that this matter proceed under Rule 68, and the trial be before a judge alone.
This is an interesting judgement because it seems to require that a Plaintiff adduce evidence of the likely value of their claim to defeat such a motion.
As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010. Rule 68 is repealed under the new rules but parts of it survive in Rule 15. I’ve previously written about this and you can find my analysis here. In short, Rule 15 incorporates the mandatory language of Rule 68 for personal injury claims under $100,000 so this case will likely retain its value as a precedent after the new rules take effect.