More on ICBC Claims, Trials and Costs

One important difference between the BC Supreme Court and BC Small Claims Court is the availability of court ‘costs’ to the winning litigant.
A winning party in the Provincial Court is usually awarded their disbursements, that is, the money it cost to bring the legal proceedings such as court filing fees, the cost of producing medical evidence etc.  The winner cannot, however, be awarded Tariff Costs (money to compensate the party for the various steps they took in the lawsuit).  This can be contrasted with the Supreme Court where a winning party can be awarded Costs and Disbursements.   This can make a big difference as a ‘costs’ award after a Supreme Court trial could easily exceed $10,000.
What if you bring your ICBC injury claim in Supreme Court but are awarded an amount of money in the Small Claims Court’s jurisdiction (currently up to $25,000).  Could you still get awarded Tariff Costs?  The answer is sometimes and the starting point is to look at Rule 57(10) which states:
(10) A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
So, the question is when is there sufficient reason for bringing an ICBC injury claim in Supreme Court when the claim ends up being worth less than $25,000?
Reasons for judgement were released today further dealing with this issue.  In today’s case (Bagasbas v. Atwal) the Plaintiff brought an injury claim in the BC Supreme Court.  At trial the Plaintiff’s evidence was contradicted by photos that she had posted on her Facebook account.   The result was a finding that the Plaintiff suffered rather minimal injuries that were valued at $3,500 by the trial judge.
The trial judge was then asked to determine whether the Plaintiff should be awarded ‘costs’ which would depend on whether she had ‘sufficient reason for bringing the proceeding in the Supreme Court.’  Madam Justice Satanove held that the plaintiff did not have sufficient reason and in coming to this decision said the following about a litigants obligation to fully inform treating physicians and lawyers of pertinent facts:

[5] Plaintiff’s counsel in the case at bar has filed an affidavit from the plaintiff’s solicitor of record setting out the state of affairs that existed at the time the plaintiff asked him to initiate the action.  This solicitor relied primarily on a medical?legal report requisitioned by him from the plaintiff’s general practitioner, Dr. Ladhani.  Dr. Ladhani’s report dated February 8, 2008, concluded that subsequent to the accident, the plaintiff developed pain in her neck, upper and lower back areas, as well as her right hip area.  He found she had made slow but steady progress over the last 20 months but that she continued to have some pain in the upper and lower back areas, as well as her right hip.  He anticipated that the plaintiff would continue to improve over the next few months but if her condition did not improve, he may have to order a CAT scan of her lower back.

[6] Let me pause at this juncture and say that I find it eminently reasonable for counsel faced with a medical-legal report of this nature to commence an action in Supreme Court as opposed to Provincial Court.  The prognosis was unclear and further radiography was required.  Later, a CAT scan showed the plaintiff to have a herniated disk but as I have said, the plaintiff did not claim that this was due to the accident.

[7] The difficulty that arises which has caused the parties to appear before me is that on cross-examination of Dr. Ladhani at trial, it became apparent that the plaintiff had not been fully forthright with her doctor.  From the date of the accident to September 2, 2006, she advised Dr. Ladhani that she continued to get pain in the right side of her neck and upper back and lateral movements of these areas produced discomfort.  Later, in subsequent visits, she complained of pain in her lower back, tenderness in her spine, difficulty wearing high heels, inability to run or kayak or jog and the other matters which are itemized in Dr. Ladhani’s report.  She did not tell him that between June and September 2006, she had taken a camping trip to the United States, had attended her Filipino dance rehearsals regularly, had flown to Antwerp, Belgium for two weeks where she participated in dance performances and after-hours celebrations.  Dr. Ladhani seemed surprised to see the many photographs shown him by defence counsel which photographs depicted the plaintiff in quite intricate dance manoeuvres, sometimes in high heels looking comfortable and smiling.  The plaintiff also did not tell Dr. Ladhani of her ongoing activities after September 2006, including such things as a trip to Cancun, to Hawaii and further dance appearances in Kamloops, Victoria and other places.

[8] Dr. Ladhani was not asked if knowing of these facts in February 8, 2008, would have changed his opinion at that date but it certainly reduced the weight I gave to his opinion.

[9] In my view, a plaintiff who does not fully inform his or her treating physician and legal counsel of the pertinent facts at the time medical or legal advice is sought runs the risk of receiving inaccurate or erroneous advice through no fault of the professional advisors.  If all the evidence I heard at trial about the plaintiff’s condition before February 8, 2008, had been in the possession of counsel at the time he commenced the action, I expect he would have advised the plaintiff to start an action in Small Claims Court where this case belongs.

[10] The onus is on the plaintiff under Rule 57(10) to establish sufficient reason for bringing the proceeding in Supreme Court and I find that she has not done so.  In no way is her counsel to blame.  This regrettable outcome for the plaintiff lies at her feet alone.  Therefore, the plaintiff is not entitled to costs other than her disbursements.

57(10), Bagasbas v. Atwal, costs, suffient reason to bring proceedings in supreme court, supreme court costs

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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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