When deciding how to advance an ICBC injury claim one of the important decisions that needs to be made is which court to sue in. Should the claim be made in Small Claims Court (The Provincial Court of BC) or in the Supreme Court?
Both courts have notable differences. Perhaps the greatest distinguishing feature (from an injury claims perspective) is their monetary jurisdiction. The maximum award for damages that can currently be made in the Provincial Court is $25,000. The Supreme Court has an unlimited monetary jurisdiction.
For serious injury claims there is not much of a choice to make, these are almost always filed in the Supreme Court. But what about more modest claims, claims that may fall in the $20,000 – $30,000 range? Where should these be filed?
While the various courts have many different advantages and disadvantages (such as discovery rights, rules addressing expert evidence, pre-trial procedure and costs consequences) there is one reality that is well recognized by many personal injury lawyers. Typically a similar claim in the Supreme Court can result in a higher assessment of non-pecuniary damages than one assessed in the Provincial Court. There is nothing wrong with this variance in law as the range of acceptable non-pecuniary damages for any given injury can be quite broad.
While this discrepancy is well known to many practicing lawyers, I have never seen it addressed in a judgement until now. Reasons for judgement have come to my attention discussing the sometimes differing views of Supreme Court vs. Provincial Court judges in the assessing non-pecuniary damages for soft tissue injuries.
In today’s case (Gatari v. Wheeler, BCPC Victoria Registry File No. 080409) the Plaintiff was involved in a 2007 rear end collision near Duncan, BC. This was a Low Velocity Impact. ICBC defended the case in accordance with their LVI policies and the Defence Lawyer argued at trial that the Court should dismiss the case on the basis that any injuries suffered were so minor that they did not warrant compensation or in the alternative damages between $1,000 – $2,000 should be awarded.
The Plaintiff’s lawyer sought a significantly higher award. Judge Kay found that the Plaintiff suffered a mild soft tissue injury of 7 months duration and awarded non-pecuniary damages of of $7,500. In doing so Judge Kay addressed the discrepancy in non-pecuniary damage awards between the Provincial and Supreme Court. Specifically Judge Kay stated as follows:
This court is aware that quantum of damage awards in cases similar to the one at bar vary dramatically. This court is also aware that the major variation is attributable to difference between cases that are heard in Supreme Court as opposed to those that are heard in Provincial Court. In general, awards in Supreme Court are much higher than those that are made in Provincial Court but this court notes that the cases that come before the Supreme Court, while they may be similar in circumstances, they are distinguishable by the severity of the injuries and interference with enjoyment of life. While recovery periods may be similar, claimants in Supreme Court tend to testify to a greater overall impact on life in terms of, inter alia, more severe pain and suffering and more time lost from work.