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Tag: section 15 Supreme Court Act

ICBC Applications to Transfer Lawsuits to Provincial Court Discouraged

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to transfer a Plaintiff’s lawsuit to Small Claims Court.
In this recent case (Kooner v. Singh) the Plaintiff was injured in a 2009 collision.  He sued for damages in the BC Supreme Court.  Following examinations for discovery the Defendant applied to transfer the claim to Small Claims Court.  Mr. Justice McEwan dismissed the application.  He reiterated some concerns he voiced earlier this year and provided the following reasons generally discouraging these types of applications:

[3] I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[4] I am not prepared, on the basis of the material, to summarily find that there is no possibility of the trial establishing damages in excess of $25,000, nor am I in a position to assess whether or not the liability aspect of the claim would foreclose the possibility of such damages.  It seems to me that the defence must be seeking the limitation of $25,000 because there is very little else that would suggest a motivation for such claims.  It is not, as it may once have been, obvious that the Provincial Court is equipped to hear these matters more expeditiously or more cheaply, particularly given the point at which this application is brought, post-discoveries, after most of the expenses that go into a Supreme Court trial have been incurred.  My understanding of the current state of hearing day fees, as such, is that there are none for the first three days of trial.  So that is not a factor.  There was a suggestion before me that the informality of the Provincial Court is an advantage, but unless that informality is tied to reduced time in court, which is not at all clear, I fail to see how that, in itself, results in any particular economy.

[5] I think it should be clear that parties have a right to elect the court in which they bring their actions and that, in doing so, if they persist, they run certain risks.  Those risks, in the case of a plaintiff’s action brought in Supreme Court that should have been brought in Small Claims Court, include the penalty of not receiving costs in the case of success, and also include the hazard, if an offer to settle is made, of double costs in accordance with the Rules setting out those penalties.  It appears from the vantage of the bench that it is much more in the defence interest that the matter remain in Supreme Court than that this application succeed, unless, as I have said, what is really sought is a summary assessment of the case on the basis of very limited information, to bring the matter in under $25,000.  Given the hazards (which the plaintiff is aware of), I am of the view that the plaintiff is entitled to bring the matter in this Court if that is what the plaintiff wishes to do.

[6] I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[7] Accordingly, I dismiss this application.

ICBC Application to Move Lawsuit to Small Claims Denied, Court Finds it "Most Unsafe" to do so

As previously discussed, Section 15 of the Supreme Court Act allows the Court to transfer a lawsuit to the Provincial Court (Small Claims) in certain circumstances.  Reasons for judgement were released today making it clear that such applications will rarely succeed in personal injury lawsuits.
In today’s case (Chang v. Wren) the Plaintiff was involved in a collision and sued for damages in Supreme Court.  ICBC brought an application to move the case to Small Claims Court.  Mr. Justice McEwan expressed “difficulty appreciating the motivation for the application” and dismissed it.  In doing so the Court noted the well-known delay in getting trial dates for personal injury lawsuits in Provincial Court and further the difficulty in predicting that any given case would be worth less than $25,000 in a summary hearing.  The following useful reasons were provided:

[3] I must say I find it unusual that a defendant brings such an application and had some difficulty appreciating the motivation for the application, given that the sanction in costs and in depriving the plaintiff of costs following a Supreme Court hearing would appear, in my view, to be more advantageous than the inevitable result of putting the matter down to Provincial Court, which would be a trial some eight months from when the trial is presently set in August of 2011 in Provincial Court, and a further proceeding by way of mandatory mediation in the Provincial Court.

[4] Whatever the merits of the respective parties’ positions as to the ultimate quantum of damages in this matter, it seems to me that the appropriate disposition is to see that it gets to trial before a competent tribunal as quickly as possible, and with as little procedural clutter as possible.  That militates strongly in favour of the Supreme Court retaining this matter within its precincts, where there is a far greater likelihood, in the present circumstances, of a trial being held when it is scheduled, than there is in the Provincial Court.

[5] Circumstances might be different if it could be reliably assumed that Provincial Court would get the matter on quickly and be done with it faster than a Supreme Court, but while I am not prepared to go so far as to say I take judicial notice of anything in particular, I certainly will observe that I do not think I can behave on the basis of that particular fiction.

[6] What this application amounts to is a request to the court to summarily assess the evidence without hearing from any witnesses or without hearing from the plaintiff herself and determine that the matter would come in under $25,000.  That would depend on the court reading the medical reports, essentially as the defence suggests I should, and I do not think it is something that a responsible court could really do.

[7] The plaintiff has chosen the Supreme Court of British Columbia.  She will have been advised of the hazards of bringing a Small Claim jurisdiction matter in this court, but if she is determined to proceed and to have a determination in Supreme Court, I think it would have to be established very, very firmly that the damages she claims could not exceed $25,000, before the court would entertain such an application.

[8] Counsel have provided some case law reflecting what the test is for bringing the matter down to Provincial Court.  My own view is that in a case where the liquidated damages could not possibly exceed $25,000, it might be clear, but in a case of this kind where the nuances of personal experience may have a significant bearing on the court’s assessment, perhaps even notwithstanding the medical evidence, it would be most unsafe to summarily decide that the case could not exceed the limits of the Small Claims jurisdiction.

[9] So on the basis that, first of all, it appears to be more efficient to continue in Supreme Court, and secondly, on the basis that it is, in any event, the plaintiff’s right to choose the forum, where there is any doubt about the appropriate jurisdiction, I think it better at this stage of this proceeding, post-discovery and a few months to trial, for the matter to remain in Supreme Court.

[10] I dismiss the application.

Theft/Fire Loss Claims and ICBC "Examinations Under Oath"

If you purchase Theft of Fire Damage coverage from ICBC and need to take advantage of this insurance can ICBC force you to provide a statement under oath before processing your claim?  The answer is yes and reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, dealing with this area of the law.
In this week’s case (Cort v. ICBC) the Plaintiff had fire insurance coverage with ICBC.  On September 18, 2010 his vehicle was destroyed by fire.  He asked ICBC to pay his loss but ICBC refused to respond until he provided them with an “Examination Under Oath“.  He refused to do so and sued ICBC.  ICBC brought an application for various pre-trial relief including an order to ‘stay‘ the lawsuit until the Examination Under Oath was provided.  Master Keighley granted this order finding that the lawsuit could not move ahead until this ‘investigative’ step took place.  In doing so the Court provided the following reasons:

[28] Sections 6 and 8 of the Prescribed Conditions to the Insurance (Vehicle) Regulation B.C. Reg. 156/2010 read as follows:

6(1)      If required by the insurer, the insured must, on the occurrence of loss or damage for which coverage is provided by this contract, deliver to the insurer within 90 days after the occurrence of the loss or damage a statutory declaration stating, to the best of the insured’s knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others in the vehicle, the encumbrances on the vehicle, all other insurance, whether valid or not, covering the vehicle and that the loss or damage did not occur through any wilful act or neglect, procurement, means or connivance of the insured.

(2)        An insured who has filed a statutory declaration must

(a)        on request of the insurer, submit to examination under oath,

(b)        produce for examination, at a reasonable time and place designated by the insurer, all documents in the insured’s possession or control relating to the loss or damage, and

(c)        permit copies of the documents to be made by the insurer.

8(1)      The insurer must pay the insurance money for which it is liable under this contract within 60 days after the proof of loss or statutory declaration has been received by it or, if an arbitration is conducted under section 177 of the Insurance (Vehicle) Regulation, within 15 days after the award is rendered.

(2)        The insured must not bring an action to recover the amount of a claim under this contract unless the requirements of conditions 4, 5 and 6 are complied with and until the amount of the loss has been ascertained by an arbitrator under section 177, by a judgment after trial of the issue or by written agreement between the insurer and the insured.

(3)        Every action or proceeding against the insurer in respect of loss or damage for which coverage is provided under this contract must be commenced within 2 years from the occurrence of the loss or damage.

[29] Accordingly, says ICBC, since the insured may not commence an action to recover the amount of his claim until he has, inter alia, submitted to an examination under oath, at the very least he should be enjoined from proceeding with the claim…

[32] ….The purpose of an EUO, on the other hand is investigative. The insured is contractually bound to co-operate with his insurer by submitting to an examination which may assist the insurer in determining its response to the claim. The insured may not, as a matter of contract, seek to attach conditions to his attendance.

[33] In the circumstances the contract claim will be stayed until the plaintiff has complied with the requirements of the Prescribed Conditions. In the event that the parties cannot resolve the issue of compliance by agreement, they will have liberty to apply.

This case is also worth reviewing for the Court’s discussion of transfer of claims to Small Claims Court under section 15 of the Supreme Court Act and further the severance of bad faith claims from breach of contract claims pursuant to Rule 22-5(6) and 12-5(67) of the Supreme Court Rules.

Transferring To Small Claims Court and the New Supreme Court Rules

Despite the many changes in the New BC Supreme Court Civil Rules, one area that has not appeared to change relates to transferring a lawsuit from the BC Supreme Court to the BC Provincial Court (Small Claims Court).  The reason for this is that the authority to make such a transfer is not in the Supreme Court Rules, but rather in Supreme Court Act which was not overhauled in the recent transition.
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, demonstrating that authorities developed prior to the Rules overhaul remain good law.
In today’s case (Madill) the Plaintiff sued the Defendant following a commercial transaction.  The lawsuit, if successful, would have resulted in damages below $25,000 and could have been brought in Small Claims Court.
The Defendant set down a motion to dismiss the Plaintiff’s claim and seeking costs.  Prior to this motion proceeding the Plaintiff brought her own motion to move the claim to Provincial Court.  Master Bouck granted the Plaintiff’s motion and awarded each party tariff costs for various steps taken while the claim was in the Supreme Court.  Prior to arriving at her decision Master Bouck set out the following test for transfer applications under section 15 of the Supreme Court Act.

[10]        Applications to transfer proceedings from the Supreme Court to the Provincial Court are somewhat commonplace. The test to be met is set out in Squamish Ford Sales Ltd. v. Doll, [1997] B.C.J. No. 1562 at paras. 16 and 17:

16 Reference has been made to the decision of Master Chamberlist in Manley v. Burns Lake Community Development Assn. [1996] B.C.J. No. 2236. Smithers Registry No. 8953, where the learned master considers some factors which may be applicable on such applications:

[10]      In Hiebert v. Brown, [1995] B.C.J. No. 2015, in dealing with a similar application, I stated that the court in exercising its powers under s. 13.1, must determine whether in all the circumstances it would be just and convenient to order a transfer to Provincial Court after balancing the prejudices to the respective parties.

[11]      Examples of considerations the court has taken into account in balancing these prejudices include, but are not limited to, the following considerations:

(a)        lateness in making the application for transfer;

(b)        availability of Supreme Court pre-trial procedures;

(c)        number of witnesses and the complexity of the case; and

(d)        potential quantum of damages.

17 The plaintiff refers to the decision of Master Horn in Martin v. Tom [1995] B.C.J. No 2342, I turn for assistance to the decision of Master Powers in Long v. Jackson (1994) 88 B.C.L.R. (2d) 46. In that judgment he set forth a number of matters which required consideration in relation to an application to transfer to the Provincial Court. I will not repeat all those considerations. The considerations which most affect me are these:

1)         There will likely be no delay in this matter coming for trial if the action is transferred to the Provincial Court.

2)         While this is a proper case for the consideration of a jury, being an issue of quantum of damages only, a jury trial would be far more expensive and lengthy.

3)         Discoveries have been completed and so neither party will be prejudiced by the paucity of discovery procedures in the Provincial Court.

4)         The application is brought well before the trial date.

[11]        In this case, the application is brought early in the proceeding; neither party wishes to utilize the Supreme Court pre-trial processes; and there is no evidence of any delay in having the matter adjudicated in Provincial Court.