Tag: Rule 14-1(10)

Claim That Settled Day Before Trial for Under $25,000 Reasonably Brought in Supreme Court

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Gonopolsky v. Hammerson) deciding if a case which settled the day before trail for an amount in the Small Claims Court jurisdiction was reasonably brought in Supreme Court.  The decision was relevant as the Plaintiff’s entitled to Supreme Court Costs rested on the outcome.
In finding there was “sufficient reason” to commence the proceedings in Supreme Court Mr. Justice Brown provided the following reasons:

[36]         Considering the nature of the injuries, and the effects on homemaking and employment, I find there was a substantial possibility the damages could exceed $25,000.

[37]         Further, the plaintiff submits other sufficient reasons to commence action in Supreme Court were the insurer’s denial of coverage because the forces were insufficient to cause injury; and because the plaintiff was allegedly a worker, which if proven and given the defendant was, would see the action statute barred pursuant to s. 10(1) of the WCA.

[38]         Addressing reasons for commencing action in Supreme Court, plaintiff’s counsel states in her affidavit, sworn September 10, 2015, at paras. 8 and 9 as follows:

8.         On November 5, 2012, I received a phone call from [the ICBC adjuster who] confirmed to me at that time that ICBC’s position was that [the plaintiff] was working at the time of the Collision, and that they would require a WCAT determination on that issue.

9.         On December 14, 2012, our office filled the Notice of Civil Claim commencing this action. At the time of filing, I was of the view that examinations for discovery would be necessary because of ICBC’s position regarding worker-worker issue. Based on the medical-legal reports of Dr. Sawhney, I was also of the view that there was a real and substantial chance that [the plaintiff’s] claim was worth in excess of $25,000.

[39]         As for the WCAT issue, the defendant argued it was not complicated and could have been determined in Provincial Court. As for the basics on that matter, I understand the plaintiff was working as a cleaner at the time. The driver was on her way to work. The plaintiff’s position was that she was going to be dropped off downtown and that she was not on the way to work that day. The defendant pointed out the plaintiff was not yet legally eligible to work in Canada and, accordingly, argued the plaintiff could not recover a wage loss in the first place, making WCAT issues moot. That could be argued at trial, had it got there. As it was, the defendant never withdrew the defence before trial and when the action was commenced, the plaintiff could not reasonably be expected to know how that defence would play out.

[40]         The defendant’s position that the impact’s velocity was too low to cause an injury somewhat further complicated the case, would likely call for examinations for discovery, and at some juncture might entail an engineer’s opinion. It is unlikely the defendant would invest capital in that line of defence for this case, but it is reasonable to say the plaintiff’s burden on causation would be somewhat heavier than in a case where the force of the accident is not really in issue, which weigh in favour of a trial in this court.

[41]         Ultimately, the $22,500 settled figure compensated only non-pecuniary damages.

[42]         As similarly noted in Spencer at para. 24, the defendant’s positions effectively 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.” Further, at para. 25, “In taking the position that this was a low velocity impact claim the defendants created the situation giving rise to this motion. Their pleadings raised a multitude of issues in their defence. Those issues raised complex questions of fact and law. It is unlikely that a layperson could address them competently.” WCAT issues are sometimes simple. But for the plaintiff, it raised questions of mixed fact and law that raised another redoubt the plaintiff had to overcome.

[43]         The gap between the $25,000 threshold for small claims actions and the $22,500 settled on for non-pecuniary damages is not very wide, unlike the large gaps seen in some cases. A host of factors influence a settlement, but the amount settled here is at least within shouting distance of $25,000. Although that somewhat suggests the initial decision to bring action in the Supreme Court was reasonably defensible, standing alone, that is not sufficient reason.

[44]         In summary, the plaintiff has met the burden of proof required, albeit not by a large margin, but I am satisfied on balance that considering the potential damages that could be awarded for the plaintiff’s claim and the complications raised by the minimal damage and worker-worker defence, the plaintiff had sufficient reason to bring the action in the Supreme Court of British Columbia.

[45]         The plaintiff is entitled to costs of the action and of the application at Scale B.

Plaintiff Denied Costs for Having No Sufficient Reason to Sue in the Supreme Court

One of the more difficult fact patterns to predict the outcome of is when will a Plaintiff be granted costs when they sue in the BC Supreme Court but are awarded damages below $25,000 (the monetary jurisdiction of the Provincial Court in BC).  You can click here to read archived decisions addressing this.  Adding to these, reasons for judgement were released this week considering such a scenario.
In this week’s case (Akbari v. ICBC) the Plaintiff was injured in a collision caused by an unidentified motorist.  He successfully sued ICBC and was awarded damages of just over $13,000.  Following this the Plaintiff sought costs of $17,000.  Madam Justice Baker denied this finding the Plaintiff had no sufficient reason to sue in Supreme Court. In reaching this conclusion the Court provided the following reasons:
[16]         I am not persuaded that there was sufficient reason to bring this action in Supreme Court.  As the plaintiff submits, the issue of liability was the primary issue at trial.  The Provincial Court is an entirely appropriate forum for determining that issue, the outcome of which largely depended on an assessment of the credibility of the witnesses.
[17]         Ms. Berry of ICBC had no personal knowledge of the circumstances of the accident.  I can surmise that questions put to her on discovery may have related to contact by ICBC representatives with one of the plaintiff’s witnesses, Mr. Nahun Chinchilla, whose testimony I rejected at trial as incredible and unreliable.  Mr. Chinchilla voluntarily contacted both the plaintiff and plaintiff’s counsel and so far as I am aware, volunteered to be interviewed by plaintiff’s counsel prior to trial, so it was not necessary to utilize the Supreme Court Rules to compel his cooperation.
[18]         I am not persuaded that any documents and witness statements provided by the defendant to the plaintiff during the course of pre-trial preparation would not have been supplied by the defendant whether the action had been brought in Supreme Court or in Provincial Court.
[19]         I am not persuaded that there was any reasonable prospect that the plaintiff’s total damages would exceed $25,000.  The special damages and past loss of income were known.  The only head of damages involving uncertainty was non-pecuniary damages. The only medical evidence presented at trial was a report from Mr. Akbari’s family doctor, dated June 2, 2011.  In my view, it should have been obvious to the plaintiff and his counsel, after considering that report, that an award in the range of $25,000 was highly unlikely.
[20]         The report and the opinions expressed in it were sufficiently non-controversial that Dr. Rai was not required to attend for cross-examination.  In Dr. Rai’s opinion, Mr. Akbari suffered soft tissue injuries – described by Dr. Rai as “tendonious strain” affecting Mr. Akbari’s left calf, knee and thigh – from which he had recovered in 8 to 10 weeks.  Mr. Akbari was off work for two weeks, but it was during the Christmas holidays and he had planned to take some vacation during that period in any event.  The injuries caused little disruption to Mr. Akbari, only temporarily interfering with his participation in pick-up soccer games, and his weight-lifting routine at the gym.
[21]         In the plaintiff’s written submissions regarding costs, it was suggested that the concluding paragraph of my trial Reasons, in which I stated that I was not aware of any reason why the plaintiff should not have his costs on Scale B, was a determination of the issue.  That is not correct.  Unless a defendant invokes Rule 14-1, a plaintiff is normally entitled to costs.  Once the Rule is invoked, then the court must consider whether there was sufficient reason to bring the proceeding in the Supreme Court.
The plaintiff shall have disbursements only. 

When Does An Award of $20,000 = A Significant Debt

No, this is not a trick question.  When can a judge awarding you $20,000 leave you in ‘significant’ debt?  The answer is when you fail to beat a formal offer at trial and have ‘loser pays’ costs assessed you.  I’ve discussed this reality previously and it was demonstrated yet again in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Gonzales v. Voskakis) the Plaintiff was injured in a 2008 collison.  Prior to trial ICBC provided a formal settlement offer of $69,000.  The Plaintiff rejected this and proceeded to have a 12 day trial where she sought in excess of $385,000.  The claim was largely unsuccessful with the trial judge awarding just over $20,000 in damages.  ICBC asked that the Plaintiff be stripped of post offer costs and that the Defendant be awarded post offer costs and disbrsements.  The Plaintiff argued that such a result would “negate her entire judgement and leave her significantly in debt“.   Madam Justice Fitzpatrick noted that the underlying “behaviour modification objective” of the Rules of Court override any sympathy to the Plaintiff and levied substantial costs consequences.
The decision is also worth reviewing for the discussion of whether a post offer costs award to a Defendant can include disbursements.  The Plaintiff argued the Rules don’t contemplate this but the Court disagreed. In finding disbursements were also encompassed in the Rule Madam Justice Fitzpatrick provided the following reasons:
[65]         Rule 9-1(5) is headed “Cost options”. It is clearly intended to guide the court in deciding what costs award is just. Nevertheless, I do not see that subcategory (d) was intended to limit the discretion of the court to award a defendant’s disbursements in all cases when rewarding a defendant for making a reasonable offer. In many cases, disbursements are significant. In fact, the driving force behind an offer to settle may be the desire to avoid having to pay those disbursements. To limit the discretion of the court in awarding disbursements would defeat the clear intention of the Rule.
[66]         Although Brown J. came to another conclusion in Moore relating to double disbursements under Rule 9-1(5)(b), it appears that Kendall and Skidmore were not in front of her at that time. Therefore, in applying the principles set out in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I do not consider that I am bound by her reasoning.
[67]         I acknowledge that the wording of Rule 9-1(5), in its reference to “disbursements” in subcategory (a) without an accompanying reference to “disbursements” in subcategory (d), is awkward and confounding. In my view, however, the fundamental purpose of the Rule — which, as stated by the Court of Appeal in Kendall and Skidmore, is to compensate for all “costs”, including disbursements — has not changed. One can only hope for some clarity on this issue by possible amendments to Rule 9-1(5).
[68]         In the meantime, I conclude that I have the discretion under Rule 9-1(5)(d) to award the defendant his costs, including disbursements.
[69]         I award such costs, which will include disbursements, in favour of Mr. Voskakis for the period from January 25, 2012 until February 29, 2012.

LVI Defence, Liability Denial and Language Barriers Create Sufficient Reason to Sue in Supreme Court

While the BC Supreme Court Rules generally deprive a Plaintiff of costs who bring an action to trial that could have been brought in small claims court the BC Court of Appeal clarified that having ‘sufficient reason’ to sue in the BC Supreme Court is not limited to quantum of damages alone.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering some such other factors.
In this week’s case (Bae v. Vasquez) the Plaintiff was injured in a 2010 rear-end collision.  The Plaintiff suffered relatively minor soft tissue injuries.  She sued in the BC Supreme Court and was awarded damages of just over $12,000.  ICBC argued she should not be awarded costs as the action could have been brought in small claims court.  Madam Justice Baker disagreed finding that ICBC’s initial denial of liability, LVI Defence and the Plaintiff’s language barriers were all reasons justifying bringing the action in the Supreme Court.  In awarding costs the Court provided the following reasons:
[69]         I am satisfied that this case had neither legal nor factual complexities that made the Supreme Court a necessary venue.  I have already referred to the fact that a jury trial was not an option in any case; and there will be no need to enforce the judgment outside of the province.
[70]         In some cases, the fact that the plaintiff had difficulty with the English language; and therefore would have difficulty pursuing the claim without the assistance of counsel, has been held to be sufficient reason to proceed in Supreme Court, where the possibility of recovering costs makes it easier for a plaintiff to find counsel willing to act.
[71]         Plaintiff’s counsel submits also that in this case, the defendant denied liability for the accident in the Response to Civil Claim.  Plaintiff’s counsel has advised the Court that prior to the action being commenced, the defendant’s insurer had indicated:
…that due to the “minimal nature of the impact forces involved in the collision”…the Plaintiff had not sustained any “compensable injury”.
[72]         The defendant did not admit liability until January 30, 2012 and even at that date, continued to maintain that the plaintiff had suffered no injury, loss, damage or expense as a result of the accident.
[73]         Plaintiff’s counsel submits that because the defendant was maintaining that the plaintiff’s negligence was the sole cause of the accident, an examination for discovery of the defendant was necessary and that procedure would not have been available to the plaintiff in Provincial Court.  Counsel pointed out that at the plaintiff’s examination for discovery in July 2011, she was asked questions pertaining to liability, including whether she had consumed alcohol or drugs prior to the accident; whether she was familiar with the location where the accident happened; whether her vehicle had been properly maintained and was in proper working order and whether she had a valid driver’s licence at the time.
[74]         It was not until August 18, 2011 – after both the plaintiff and defendant had been examined for discovery – that defendant’s counsel wrote to plaintiff’s counsel suggesting that the action should be heard in Provincial Court and seeking the plaintiff’s consent to transfer the action to that court.  Plaintiff’s counsel replied on September 21, 2011 indicating that if the trial could be heard in Provincial Court in the same time frame as the trial date set in Supreme Court – March 2012 – then the plaintiff would consider the request for a transfer.  Defendant’s counsel was asked to make inquiries to determine when the trial could be heard if transferred to Provincial Court.  No reply was received.
[75]         Ms. Bae testified at trial with the assistance of an interpreter.  She had been examined for discovery without an interpreter and at trial indicated she had misunderstood some of the questions asked of her.  Ms. Bae is not an assertive individual and I am satisfied she would have had considerable difficulty pursuing this action without the assistance of counsel.  Of course, parties may be and often are represented by counsel in Provincial Court, but the unavailability of costs makes it more difficult to find representation.  There was a denial of liability in circumstances where normally liability would be admitted and it was reasonable for the plaintiff to wish to examine the defendant for discovery on the issue of liability – a procedure unavailable in Provincial Court.
[76]         Taking all of these factors into account, I am of the view that there was sufficient reason for the plaintiff to bring her action in Supreme Court.  I award the plaintiff costs, the costs to be governed by Rule 15-1(15).

LVI Defence Rejected Again; Damages Awarded for Modest Injuries


In an all too familiar development reasons for judgement were released last week by the BC Surpeme Corut, New Westminster Registry, considering and rejecting ICBC’s “Low Velocity Impact” defence.
In last week’s case (Hoy v. Harvey) the Plaintiff was involved in a 2010 rear-end collision.  The impact resulted very minor vehicle damage.  The defendant argued that the Plaintiff “could not have sustained his claimed injuries from such a minor impact“.  Madam Justice Fitzpatrick rejected this logic and provided the following reasons:

[46] As in most motor vehicle injury cases involving soft tissue injuries, the defence cites the oft quoted decision in Price v. Kostryba (1982), 70 B.C.L.R. 397, where Chief Justice McEachern, as he then was, stated that the Court must exercise caution in respect of subjective complaints of pain in respect of those soft tissue injuries (at 399).

[47] I agree that the extent of this collision is relatively minor and that this is a factor to be considered when assessing Mr. Hoy’s claims of injury. However, it is equally clear that even low impact collisions may cause injuries. In Lubick v. Mei and another, 2008 BCSC 555, Mr. Justice Macaulay stated:

[5]        The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]        I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

[48] Generally speaking, I found Mr. Hoy to have given his evidence in a straightforward and direct manner. His subjective complaints of pain were confirmed by objective testing by both his family physician, Dr. Yong, and his physiotherapist, Ms. Mattiello. It is accepted that prior to the accident, Mr. Hoy was in good health and was suffering none of the complaints that arose just after the accident.

[49] In these circumstances, I am satisfied that the injuries suffered by Mr. Hoy in the accident were caused by the accident and that accordingly, causation has been proven.

The Court went on to note that the Plaintiff suffered minor soft tissue injuries which went on to make full recovery.  In awarding $7,000 for non-pecuniary damages the Court provided the following reasons:
[71] In this case, Mr. Hoy’s most significant injuries can be said to have been resolved fairly quickly. His neck injury was only significant for a period of approximately two months which coincided with his last treatment by his physiotherapist, Ms. Mattiello. Thereafter, he would have pain only once per month for four further episodes. His back pain persisted to the point of affecting his lifestyle only for a period of approximately three months, when he returned to work full-time and began to resume his sporting activities. All symptoms were completely resolved by May 2011, or within 11 months…
[77] I award the sum of $7,000 for non-pecuniary damages.
Lastly, paragraphs 93-104 of the reasons for judgement are worth reviewing for the Court’s analysis in declining to award the Plaintiff costs finding there was no sufficient reason to bring this modest claim in Supreme Court.  You can click here to read other decisions addressing this discretionary issue.

LVI Defence Rejected; Costs Awarded Despite Small Claims Quantum Judgement

In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.
In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC.  The collision resulted in little vehicle damage.  The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.
At trial the Defendant argued that the injuries were not connected to this low velocity collision.  Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages.  In dismissing the LVI Defence the Court provided the following reasons:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The global damages awarded were below $25,000.  Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court.  In doing so the Court provided the following reasons:

…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.

[50] I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.

$10,000 Non-Pecuniary Assessment for 4 Month Soft Tissue Injury; Costs Denied Under Rule 14-1(10)


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries sustained in consecutive motor vehicle collisions.
In last week’s case (Liu v. Thaker) the Plaintiff was involved in two collisions, the first in October of 2007 and the second a month later.  Both collisions caused relatively minor soft tissue injuries which largely recovered in 4 months.  In assessing Non-Pecuniary Damages at $10,000 Mr. Justice Schultes made the following findings:

[58] On the whole I would say that the plaintiff’s case offered persuasive evidence of relatively minor soft-tissue injuries, rather than the unpersuasive evidence of more serious injuries that is sometimes seen in motor vehicle injury cases.

[59] I find that Mr. Liu did suffer the injuries that he described and that they were caused by the two accidents for which the defendants have admitted responsibility. These were soft-tissue injuries to the neck and shoulder which had largely resolved by the end of February 2009, about four months after the first accident…

[65] In all the circumstances, balancing the various factors, and having due regard to the range, but not being straight jacketed by it, I consider an award of $10,000 for non-pecuniary damages to be appropriate in this case.

Paragraphs 75-82 of the reasons for judgment are also worth reviewing for the Court’s reasoning in denying the Plaintiff costs findng there was no ‘sufficient reason’ to sue in Supreme Court pursuant to Rule 14-1(10).
Lastly, paragraph 56 is worth reviewing for the Court’s comments addressing the Defendant’s ‘low velocity impact’ testimony.  Mr. Justice Schultes provided the following criticism:
[56] Except as to the bare contours of his involvement in the first accident, I did not find Mr. Thaker’s evidence credible. He sought to portray the impact as so slight as to be virtually negligible — a mere touching of the vehicles, in his view. But he also sought to absolve himself of the responsibility of having caused the accident, even though liability has been admitted on his behalf. This suggested somewhat of a self-serving perspective on his part, which is at odds with the reality of the situation. It also made no sense to me, if the impact had been as trivial as Mr. Thaker claimed, that he would have asked Mr. Liu if he was okay afterwards, as he described. On his version of a mere touching between the vehicles, such an inquiry would have been completely unnecessary.

Plaintiff Stripped of Costs for Failing to "Justify His Choice of Forum"

As previously discussed, the default position when a Plaintiff is awarded less than $25,000 following a Supreme Court trial is that they are not entitled to costs unless they show “sufficient reason” for suing in that forum.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this and stripping a Plaintiff of costs who failed to justify his choice of forum.
In this week’s case (Quartey-Harrison v. Klusiewich) the Plaintiff was injured in a motor vehicle collision and following trial was awarded just over $18,000 in damages plus costs “if no submissions (respecting costs) have been received“.
Following this the Defendant provided written submissions arguing the Plaintiff should be deprived of costs because the claim could have been advanced in Provincial Court.  The Plaintiff did not respond to this submission.  Madam Justice Baker stripped the Plaintiff of his costs finding the onus was on him to justify his choice of forum.  The Court provided the following reasons:

[6] The burden is on the plaintiff to justify his choice of forum.  The court is to consider the circumstances at the time the action was commenced.

[7] In this case, Mr. Quartey-Harrison has made no submissions on costs and has offered no evidence on the issue of “sufficient reason” for bringing the proceeding in the Supreme Court.  In the circumstances, I do not think that I should speculate.

[8] In my view, the evidence at trial made it plain and obvious that no award for past or future loss of income or the capacity to earn income, was warranted, and that the mild whiplash type injury suffered by Mr. Quartey-Harrison was unlikely to result in an award in excess of the $25,000 monetary limit in Small Claims Court.

[9] I have carefully considered the submissions made by the defendants in respect of the defendants’ settlement offer but have concluded that Mr. Quartey-Harrison’s right to recover disbursements should not be nullified by the offer.

[10] In summary, each party shall bear its own costs, but the plaintiff is entitled to recover his disbursements from the defendants.

Provincial Court BackLog Justifies Modest Injury Trials in BC Supreme Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages and costs for modest injuries following a motor vehicle collision.  Although the claim was straight-forward and damages were within the jurisdiction of the Small Claims Court, the Plaintiff was awarded costs with Mr. Justice Burnyeat finding that the Supreme Court’s summary trial process is a reasonable alternative to the backlog litigants face in Small Claims Court.
In today’s case (Parmar v. Lahay) the Plaintiff sustained a modest whiplash injury as a result of motor vehicle collision.  ICBC ran the “Low Velocity Impact” defence arguing no compensation should be awarded.  The trial proceeded summarily and took less than one day.  The Plaintiff’s evidence was accepted and non-pecuniary damages of $12,000 were awarded.
The Court went on to award costs despite the modest quantum.  In doing so Mr. Justice Burnyeat provided the following reasons:

[9] I cannot reach the conclusion that the legal or factual complexity of the case, the need for discovery of documents and examination for discovery, and the need for a judgment enforceable outside of British Columbia are applicable reasons why this action was commenced in the Supreme Court of British Columbia rather than in Provincial Court.  However, I am satisfied that the summary trial procedure available in the Supreme Court and the availability of costs makes the Supreme Court a preferable and justified forum for this Action.

[10] I take judicial notice that this case reached the Court for decision much more quickly than if the Action had been commenced in the Provincial Court.  In this regard, I take judicial notice of the absence of a considerable number of judges at the Provincial Court level and the backlog in hearing matters that the failure to appoint more judges has produced.

[11] I also take into account the ability of the Plaintiff to have costs awarded in this Court but not in Small Claims Court.  In that that regard, I adopt the reasoning of Harvey J. in Zale v. Colwell, 2010 BCSC 1040, where he states:

In each of the above three decisions [Spencer v. Popham, supra; Faedo v. Dowell, 2007 BCSC 1985; and Kanani v. Misiurna, 2008 BCSC 1274] the primary reason for awarding the plaintiff costs, in circumstances not unlike these facing the plaintiff here, was the consideration that given the need to retain counsel to battle an institutional defendant, a reasonable consideration in determining the forum is the matter of indemnity for the costs of counsel.  (at para. 14)

[12] I also adopt the statement of Humphries J. in Kananisupra:

… in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled. This reasoning has application here as well. (at para. 8).

[13] I take into account that it may well be economically unrealistic for counsel to be retained for up to three appearances in Small Claims Court where the damages sought are nominal.  This must be contrasted with the institutional defendant and its unlimited resources.  In an action in Supreme Court, counsel for a plaintiff is only required to appear once in Court if an application pursuant to Rule 9?7 of the Supreme Court Civil Rules is appropriate.  In the case at bar, the application has taken approximately one hour.

[14] In the circumstances, I am satisfied that the Plaintiff should be entitled to his costs throughout on a Party and Party (Scale B) basis.

Plaintiff Awarded $9,500 Costs Despite $4,000 Damage Assessement


Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, with the “curious result” of costs recovery at over double the amount of assessed damages.
In last week’s case (Kargbo v. Chand) the Plaintiff was involved in a motor vehicle collision.  ICBC disputed both fault and injury.  At trial the Plaintiff’s claim was accepted and modest damages of $4,000 were awarded.  The Plaintiff sought her costs.  ICBC opposed arguing the Plaintiff did not have sufficient reason to sue in Supreme Court.
Earlier this year the BC Court of Appeal made it clear that more than the value of an ICBC Claim can be considered in deciding whether there is sufficient reason to sue in the Supreme Court.  Mr. Justice Williams went on to canvass factors other than value and concluded that the Plaintiff was entitled to $9,500 in costs under Rule 15-1(15).  The Court provided the following reasons:

[9] The problem ultimately reduces to this: If the Court determines that the plaintiff had sufficient reason for commencing or proceeding in the Supreme Court, she should be entitled to recover costs in accordance with Rule 15-1(15). If the Court finds that there was not sufficient reason for bringing the proceeding in this Court, then she is not entitled to recover her costs.

[10] In Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal clarified that the issue has to be analyzed as at the point in time that the plaintiff initiated the action; there is no ongoing obligation to assess the quantum of claim.

[11] I have been provided with a number of decisions where judges of this Court have assessed the circumstances of cases to decide whether or not an order for costs is warranted. Obviously, the plaintiff bears the onus of establishing that there was sufficient reason for filing in the Supreme Court. It is not simply a matter of assessing the anticipated value of the claim. A number of factors have been identified in the cases as being relevant to the issue. These include the following (the list is not intended to be exhaustive):

1.         the legal or factual complexity of the case;

2.         the need for discovery of documents and examinations for discovery;

3.         the need for a judgment enforceable outside of British Columbia;

4.         a bona fide preference for a jury trial;

5.         access to the summary trial procedure available in Supreme Court; and

6.         the need for the plaintiff to have legal counsel, in light of the defendant’s denial of liability, dispute as to causation, injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate.

[12] In the present case, liability was denied and in the circumstances could reasonably have been expected to represent a challenge to prove. As well, the issue of damages had the real potential of being a problem. The plaintiff had a history of prior accidents and had been hospitalized shortly after the accident in question for matters not related to the accident. She was also injured in another more serious accident some several months after the accident at bar. It was the sort of case that a self-represented plaintiff would find daunting no doubt.

[13] Taking those considerations into account, it is my view that this plaintiff had sufficient reason for bringing her proceeding in the Supreme Court.

[14] As a parenthetical observation, it is true that a party such as this plaintiff could elect to pursue the claim in the Provincial Court with legal counsel, although the prospect of incurring the expense to do so without any right to recover court costs is a legitimate factor to consider. As well, where the plaintiff elects to bring suit in the Supreme Court, she runs the real risk of an adverse costs outcome if the action is unsuccessful.

[15] In the circumstances, it is my view that the plaintiff should be entitled to costs in accordance with the Rules of Court. I recognize that might appear to produce a curious result in that the award of costs is substantially greater than the damages that she recovered. However, if the matter is considered fairly and objectively and the relevant rule applied, that result follows.

[16] There is no question that the policy which underpins Rule 14-1(1) is to encourage parties with claims of modest value to bring their action in the Provincial Court, and to provide for a penalty against one who does not. That is consistent with the concept of proportionality which is a foundational consideration of the Court’s Rules.

[17] The clear default position will be that, with respect to claims where the award is less than $25,000, the plaintiff will not be entitled to an award of costs. Nevertheless, there will be situations where there is sufficient reason to bring the action in the Supreme Court. It will be for the Court to examine the circumstances of each particular case to determine whether or not there is sufficient reason.

For more cases addressing sufficient reasons to sue in Supreme Court you can click here to access my archived posts on this topic.

Contact

If you would like further information or require assistance, please get in touch.

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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