ICBC Application to Move Lawsuit to Small Claims Denied, Court Finds it "Most Unsafe" to do so


As previously discussed, Section 15 of the Supreme Court Act allows the Court to transfer a lawsuit to the Provincial Court (Small Claims) in certain circumstances.  Reasons for judgement were released today making it clear that such applications will rarely succeed in personal injury lawsuits.
In today’s case (Chang v. Wren) the Plaintiff was involved in a collision and sued for damages in Supreme Court.  ICBC brought an application to move the case to Small Claims Court.  Mr. Justice McEwan expressed “difficulty appreciating the motivation for the application” and dismissed it.  In doing so the Court noted the well-known delay in getting trial dates for personal injury lawsuits in Provincial Court and further the difficulty in predicting that any given case would be worth less than $25,000 in a summary hearing.  The following useful reasons were provided:


[3] I must say I find it unusual that a defendant brings such an application and had some difficulty appreciating the motivation for the application, given that the sanction in costs and in depriving the plaintiff of costs following a Supreme Court hearing would appear, in my view, to be more advantageous than the inevitable result of putting the matter down to Provincial Court, which would be a trial some eight months from when the trial is presently set in August of 2011 in Provincial Court, and a further proceeding by way of mandatory mediation in the Provincial Court.

[4] Whatever the merits of the respective parties’ positions as to the ultimate quantum of damages in this matter, it seems to me that the appropriate disposition is to see that it gets to trial before a competent tribunal as quickly as possible, and with as little procedural clutter as possible.  That militates strongly in favour of the Supreme Court retaining this matter within its precincts, where there is a far greater likelihood, in the present circumstances, of a trial being held when it is scheduled, than there is in the Provincial Court.

[5] Circumstances might be different if it could be reliably assumed that Provincial Court would get the matter on quickly and be done with it faster than a Supreme Court, but while I am not prepared to go so far as to say I take judicial notice of anything in particular, I certainly will observe that I do not think I can behave on the basis of that particular fiction.

[6] What this application amounts to is a request to the court to summarily assess the evidence without hearing from any witnesses or without hearing from the plaintiff herself and determine that the matter would come in under $25,000.  That would depend on the court reading the medical reports, essentially as the defence suggests I should, and I do not think it is something that a responsible court could really do.

[7] The plaintiff has chosen the Supreme Court of British Columbia.  She will have been advised of the hazards of bringing a Small Claim jurisdiction matter in this court, but if she is determined to proceed and to have a determination in Supreme Court, I think it would have to be established very, very firmly that the damages she claims could not exceed $25,000, before the court would entertain such an application.

[8] Counsel have provided some case law reflecting what the test is for bringing the matter down to Provincial Court.  My own view is that in a case where the liquidated damages could not possibly exceed $25,000, it might be clear, but in a case of this kind where the nuances of personal experience may have a significant bearing on the court’s assessment, perhaps even notwithstanding the medical evidence, it would be most unsafe to summarily decide that the case could not exceed the limits of the Small Claims jurisdiction.

[9] So on the basis that, first of all, it appears to be more efficient to continue in Supreme Court, and secondly, on the basis that it is, in any event, the plaintiff’s right to choose the forum, where there is any doubt about the appropriate jurisdiction, I think it better at this stage of this proceeding, post-discovery and a few months to trial, for the matter to remain in Supreme Court.

[10] I dismiss the application.


bc injury law, Chang v. Wren, Mr. Justice McEwan, section 15 Supreme Court Act, Transfer to Provincial Court, Transfer to Small Claims Court

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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