More on ICBC Claims, Costs and Sufficient Reason to Sue in Supreme Court

Earlier this year the BC Court of Appeal released important reasons finding that more than value of a claim can be considered in deciding whether a Plaintiff has sufficient reason to sue in the Supreme Court when considering costs under Rule 14-1(10).   Useful reasons for judgement were released last month  by the BC Supreme Court, Vancouver Registry, further addressing this issue in the context of an ICBC Injury Claim.
In last month’s case (Taylor v. Kassa) the Plaintiff was injured in BC motor vehicle collision.  His injuries were modest and it was “readily apparent from the outset that the quantum of damages would fall within the jurisdiction of the Small Claims Court“.  Despite this he sued for damages in the Supreme Court under the fast track rule.
After examinations for discovery a damages settlement was reached for $15,000.  The parties agreed to ask the Court to address the issue of whether costs should be payable.  Mr. Justice Davies found that given ICBC’s boilerplate response to the lawsuit it was reasonable for the Plaintiff to pursue the claim in Supreme Court with the assistance of counsel therefore entitling the Plaintiff to costs.  In reaching this decision the Court provided the following reasons:
[7] ….I make that ruling because I find it to be significant that this matter did not settle until there had been examinations for discovery.
[8]  The defendants availed themselves of the discovery procedure and then revised their assessment of the case.  Prior to discoveries, there had been a complete denial of liability and causation including allegations of pre-existing injury and failure to mitigate, all of which matters had rendered the case somewhat complex.
[9]  As Justice Punnett said in Spencer at para. 23 and 24

[23] Arguably, at the time the action was started, the claim could have exceeded $25,000. The plaintiff knew her injuries, from which it took her 18 months to substantially recover, caused her pain at work, disturbed her sleep, made her unable to do housework, and decreased her leisure activities. She had missed seven days of work and required numerous visits to a chiropractor and massage therapist. There is no evidence that the plaintiff misled counsel or that her complaints lacked credibility.

[24] Further, even if it was clear that the claim would fall within the Small Claims Court’s jurisdiction, the issues raised by the defendant increased the complexity of the claim and the plaintiff’s need for counsel. By denying liability, causation and that the plaintiff suffered any loss, the plaintiff would have been required to prove these elements at trial. Also, although unnecessary because the matter settled, discovery of the defendant, which had been arranged, could have been important to the plaintiff’s case.

[10]  I am satisfied that this case falls within that same exeption expressed in para. 24 and supports a finding of sufficient reason to commence the action in this case in this Court.
[11]  Discovery was not available in the Provincial Court and led to the settlement of this case.
[12]  There will be an order that the plaintiff recover his costs under the provisions of the fast-track litigation project.
The Taylor decision is unpublished but, as always, I’m happy to provide a copy to anyone who contacts me and requests a copy.