Tag: Rule 15-1(1)(a)

Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

In 2011 the BC Supreme Court confirmed that the factors listed in the overhauled fast track rule (case value and trial length) were exclusive of each other and if either was satisfied that was sufficient for a fast track proceeding.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, confirming this interpretation of the Rule.
In last week’s case (Foster v. Chandel) the Defendant brought an application to remove a case from Rule 15 arguing the claim was not suitable for fast track prosecution.  The Plaintiff conceded that the case “might exceed $100,000” but the Court noted that this in and of itself was insufficient to take a case out of Rule 15.  In dismissing the defense application Master Bouck provided the following reasons:
[25]         It appears on the evidence before me that the trial can be completed in three days. The plaintiff says that she can complete her case in just over one day. The defendants’ need to cross-examine the plaintiff’s two experts has not been firmly determined, but the time required for this purpose should not be more than one day. That leaves sufficient time to hear the defendants’ witnesses as well as closing submissions. In any event, the defendants are not even certain of the witnesses to be called or the medical evidence that will be led at trial. To a large extent, the defendants’ evidence concerning the length of trial is based on a yet to be determined witness list and trial plan.
[26]         The fact that the plaintiff’s claim for damages might exceed $100,000 is not in and of itself justification for removal of the action from Fast Track: Hemani v. Hillard, [2011] B.C.J. No. 1924 (S.C.).
[27]         Finally, the plaintiff is prepared to continue her examination for discovery for up to three hours beyond the time allowed under Fast Track. That concession removes any potential prejudice to the defendants who say that certain subject matters have yet to be explored. No order is made with respect to the examination time as the relief was not specifically sought. The defendants always have the opportunity to apply for an order extending the time if this remains an area of contention.
[28]         The defendants’ application for removal of this action from Fast Track is at best premature. As the evidence develops, it may become obvious to the parties that the action ought to be removed if only because the trial will certainly consume more than three days. In those circumstances, it might be in the plaintiff’s best interests to consent to the removal to ensure that a trial date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy, 2011 BCSC 1653.

$50,000 Non-Pecuniary Assessment for "Myofascial Pain Syndrome"; Rule 15 Soft Cap Exceeded

Adding to this site’s expanding database for BC soft-tissue injury assessments, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries with a poor prognosis.
In last week’s case (Bissonnette v. Horn) the Plaintiff was involved in a 2007 collision.  Fault was admitted focusing the trial on damages.  The Court found that the Plaintiff suffered various soft tissue injuries involving her beck, back hip and leg.  The injuries continued to cause difficulties to the time of trial and were expected to linger into the future.  In assessing non-pecuniary damages at $50,000 Madam Justice Gray provided the following reasons:

[74] I accept the evidence of Dr. Frankel that Ms. Horn continues to suffer with left hip, neck, left leg, and lower back pain, disturbed sleep patterns, headaches, anxiety, and weight gain as a result of her motor vehicle related injuries. I also accept his opinion that, as these symptoms have continued for over four years since the accident, her prognosis for full recovery is guarded. Dr. Chu testified that the prognosis was fairly good for Ms. Horn’s widespread myofascial pain syndrome and that it usually responds to active exercise and treating sleep or mood disturbances. I accept this evidence as well….

[76] Ms. Horn’s continuing pain has diminished since the accident, but remains significant enough to affect her work, recreation, and sleep. She suffered other symptoms closer to the accident, including severe headaches, a broken tooth, and a finger injury.

Global damages of just over $100,000 were awarded demonstrating the soft cap in action set out for fast track trials in Rule 15.  This is not the first time this has happened since the new rules came into force and also confirms the disjunctive nature of Rule 15 allowing for the prosecution of claims over the $100,000 damage cap.

Disjunctive Nature of Rule 15 Confirmed by BC Supreme Court


Earlier this year Master Bouck found that Rule 15 applies to cases worth below $100,000 regardless of length of trial and conversely to cases worth more than $100,000 where the length of trial is three days or less.  This reasoning was confirmed in reasons for judgement released this week by Mr. Justice Grist.
In this week’s case (Sandhu v. Roy) the Plaintiff was injured in two separate motor vehicle collisions.  He sued for damages and both actions were set for hearing, by consent, at the same time.  ICBC unilaterally put the cases into Rule 15 and set a trial for three days.  The Plaintiff applied to remove the case from Rule 15 arguing the case did not meet with its requirements given the value of the claims and the length of trial necessary.
ICBC argued that liability was “not seriously in dispute” and the trial can be completed in three days.  Mr. Justice Grist found with liability denied in the pleadings the case was not suitable for fast track litigation and ordered the matter removed from Rule 15 (unless ICBC formally admitted liability within 14 days).  In doing so the Court provided the following reasons confirming the Disjunctive nature of the fast track Rule:

[12] The defendants’ point that the prerequisites for a Fast Track Notice are listed disjunctively is sound. In Hemani, Master Bouck recognized the disjunctive list of criteria in Rule 15-1(1), as allowing for a case requiring more than three days to be set on Fast Track, and held that an action will not be removed from Fast Track on an application under 15-1(6) for that reason alone. Rule 15-1, however, presents something of a conundrum on the question of removal of an action from Fast Track as a result of an estimated trial length beyond three days. If the action proceeds to a Trial Management Conference, Rule 15-1(14) applies:

If trial will require more than 3 days

(14)      If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge

(a)        may adjourn the trial to a date to be fixed as if the action were not subject to this rule.

[13] In a case like this one, where only three days are set aside for trial and the circumstances indicate that significantly more days are required, should the matter proceed to a Trial Management Conference, the court would in most cases be forced to require a second trial date be set, and may often be called on to remove the action from the strictures of the Rule…

[16] I find merit in plaintiff’s application and would accede to the adjournment of the trial and removal of the action from the Fast Track Program. I consider, however, that the orders may not ultimately be necessary if liability for the two collisions were to be admitted. Defence counsel should be given the opportunity to re-assess his position once the effect of this decision is known. Accordingly, I will stipulate that the two orders will become effective should the liability issues not be settled within 14 days of these Reasons.

$40,000 Non-Pecuniary Assessment for Aggravation of Fibromyalgia; Rule 15 Soft Cap Exceeded

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing fibromyalgia.
In this week’s case (Paradis v. Gill) the Plaintiff was injured in a 2007 collision.  Fault was admitted.  Despite expressing some “reservations in accepting the entirety of the evidence put forth in the plaintiff’s case” Mr. Justice Masuhara accepted that the collision caused an aggravation of pre-existing fibromyalgia which was on-going by the time of trial.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:
[73] Applying the principles of causation as set out in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458; and most recently in Farrant v. Laktin, 2011 BCCA 336, as well as recognizing the comment that courts should exercise caution when there is little objective evidence of continuing complaints of pain persisting beyond what the defence asserts is the normal recovery period, I find that the Accident aggravated Ms. Paradis’ condition of fibromyalgia.  My view is that Ms. Paradis’ pain is predominantly in the mild to moderate range (though it can increase) and relates to her lower back; that she suffered from back and neck pain as well as headaches prior to the Accident but not as great; that she is able to stand far longer than she says; that she has the capacity to lift more than she asserts; and can engage in more activities than the physical capacity concludes.  The plaintiff also has full range of motion at her neck, shoulders, elbows, forearms, wrists, lower back, hips, knees, ankles and feet.  A significant part of her physical restrictions are not substantially related to aggravation from the Accident but rather to the unrepaired injury to her left knee, the osteoarthritis found in her knees, as well as her weight.  However, I find that she has suffered some loss of capacity…

[83] Ms. Paradis had a history of back, neck and knee pain, and headaches prior to the Accident.  Also, the medical evidence indicates that Ms. Paradis has full range of motion in all areas of her body, from her neck to her feet.

[84] The authorities referred to by the plaintiff in support of its position on quantum largely do not deal with persons with a pre-existing condition of pain comparable to the plaintiff.  The cases also deal with persons who enjoyed activities that were more significantly impacted by their injuries than in the instant case.  In my view, the injuries in the cases submitted by the defendant are somewhat more comparable to the plaintiff.  Also, I accept that Ms. Paradis’ level of pain and disability can be significantly controlled with proper management.  The defence’s position that some recognition for the plaintiff not taking reasonable steps to reduce her weight is addressed later under mitigation.

[85] In all of the circumstances, I assess general damages as $40,000.

This case also appears to be one of the first cases to be prosecuted under the Fast Track with damages exceeding the soft cap.  Despite the cap set out in Rule 15-1(1)(a), Rule 15-1(3) states that “nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of  $100,000“.  This week’s case was apparently prosecuted under the fast track (as is evidenced by the Court’s costs award set out in paragraph 119) and had global damages of $116,238 assessed.

Fast Track Proceedings Mandatory Either by Length of Trial "OR" Quantum

For the past year there has been some debate amongst BC lawyers about the circumstances triggering Rule 15.  Useful reasons for judgement were released today by the BC Supreme Court, Victoria Registry, clarifying this debate.  In short the Court confirmed that where otherwise applicable, the fast track rule applies to cases worth below $100,000 regardless of length of trial and conversely to cases worth more than $100,000 where the length of trial is three days or less.
In today’s case (Hemani v. Hillard) the Plaintiff claimed damages for personal injury.  She sued pursuant to Rule 15.   She was seeking damages below $100,000 but the trial was expected to take 5 days.  The Defendant argued that in these circumstances fast track rule does not apply.  Master Bouck disagreed and provided the following helpful reasons:

[6] The plaintiff acknowledges that her claim is valued at $100,000 or less exclusive of interest and costs.

[7] The defendant submits that where the plaintiff estimates the trial will take more than three days, an action can no longer be continued in fast track….

[10] In contrast, the plaintiff points to the use of the word “or” (as opposed to “and”) under Rule 15-1(1) (a) through (d). The use of this disjunctive suggests that fast track can apply to a variety of scenarios. A party is not restricted to completing the action within three days; that is merely one criteria for conducting an action in fast track.

[11] The plaintiff further observes that under Rule 15-1(3), the court may award damages to a plaintiff for an amount in excess of $100,000 even though the action was commenced in fast track under the monetary criteria.

[12] The plaintiff accepts the risk that she may not recover costs for the additional two days of trial.

[13] While there may be no judicial consideration of this issue, there is a helpful analysis of Rule 15-1 in McLachlin & Taylor, British Columbia Practice (Third Edition), at pp. 15-1 to 15-3.

[14] The learned author states:

One could say that the 3-day trial limit is a condition subsequent to the continuing application of Rule 15-1, but the rules cited do not go that far. Put in other terms, it cannot be said that condition (c) is a true condition subsequent to the operation of Rule 15-1. Rather, if in the event it is not satisfied, that can result (depending on the stage of the proceeding when this is found to be the case) in the loss of a trial date or a denial of costs for the fourth and subsequent days of trial, but the action continues to be a fast track action until and unless the court, on its own motion or on the application of a party, so orders under Rule 15-1 (6).

[15] I agree with this analysis.

[16] There is no application before me to remove the action from fast track on any other grounds.

[17] Accordingly, as a matter of statutory interpretation, the plaintiff’s position on the issue is correct.

Court Holds Rule 15 Costs Cap Can Apply to Trials Prosecuted Outside of the Fast Track


Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, addressing whether the Rule 15 Costs ‘cap‘ can apply to non-Rule 15 lawsuits that proceed to trial but result in judgement below $100,000.  In short the Court ruled that the cap should apply in these circumstances.
In last week’s case (Affleck v. Palmer) the Plaintiff sued the Defendants for damages.  The claim was not filed under the fast track provisions of Rule 15.  The case proceeded by way of summary trial under Rule 9-7 and was successful.  The judgement is unclear of the damages awarded but they were apparently over $25,000 under $100,000.  The summary trial lasted one day.
The Plaintiff brought an application for lump sum costs of $8,000 under Rule 15-1(15).  Mr. Justice Brown agreed that this was appropriate even though the lawsuit was not filed under the provisions of Rule 15.  In reaching this conclusion the Court provided the following reasons:

[4] Rule 14-1(1)(f) states that costs payable under the Civil Rules or by court order must be assessed as party and party costs under Appendix B, unless:

(f)         subject to subrule (10) of this rule,

(i)         the only relief granted in the action is one or more of money, real property, a builder’s lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs, or

(ii)        the trial of the action was completed within 3 days or less,

in which event, Rule 15-1(15) to (17) applies to the action unless the court orders otherwise.

[5] There are other exceptions under Rule 14-1(1), but subsection (f) is the significant one in this case. Rule 14-1(10), which pertains to plaintiffs who recover in this Court a sum within the jurisdiction of the Provincial Court, does not apply in this case.

[6] Rule 15-1(15)(a) states a party in a fast track action is entitled to costs of $8,000, exclusive of disbursements, if the time spent on the hearing is one day or less, unless the court orders otherwise or the parties consent.

[7] I agree with the plaintiffs that although they had proceeded by way of summary trial and did not file a notice of fast track action, the wording of Rule15-1(1) governs and the action qualifies as a fast track action under Rule 15-1(1)(a) or 15-1(1)(b).

[8] As the plaintiffs point out, because they claimed various forms of relief under the Business Corporations Act, S.B.C. 2002, c. 57 [Business Corporations Act], it is arguable they were claiming more than monetary relief. Even so, the action still completed under Rule 9-7 in less than one day.

[9] The plaintiffs submit it would be appropriate for me to order $8,000 in costs. This represents the amount payable in a fast track action; and, despite the fact that the plaintiffs proceeded by way of summary trial under Rule 9-7, the plaintiffs submit an order for $8,000 in costs is appropriate in this case. I find the $8,000 set out in Rule 15-1(15)(a) is appropriate in this case.

This case is also a useful precedent because as set out in paragraph 8 the Court suggests that Rule 15 applies regardless of quantum provided the trial takes three days or less.

This case is worth reading in conjunction with the recent case of Johnson v. Axten which held that the Rule 15 costs cap can apply to pre-trial settlements of under $100,000 even if the case was not prosecuted under the fast track rule.

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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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