Reasons for judgement were released today by the BC Court of Appeal confirming the limited appeal rights from small claims lawsuits.
In the recent case (Jacques v. Muir) the Plaintiff brought a medical negligence claim in small claims court that was dismissed based on a previous release that was signed. The Plaintiff appealed to the BC Supreme Court where the claim dismissal was upheld.
The Plaintiff then further appealed to the BC Court of Appeal who confirmed that the Supreme Court order was final and no further right of appeal exists in the circumstances. In upholding the claim dismissal the Court provided the following reasons:
 Section 13 of the Small Claims Act sets out the powers of the Supreme Court on an appeal in a small claims action. Section 13(2) states “there is no appeal from an order made by the Supreme Court under this section.”
 The chambers judge properly held that s. 13(2) precludes an appeal to this Court of the order dismissing Ms. Jacques’s application. As this Court said in Pour, “no order of the Supreme Court made in appeal proceedings in a small claims action can be appealed to this Court” (at para. 7).
 Moreover, s. 5 of the Small Claims Act sets out the avenues for appeal from an order made by a Provincial Court judge:
Right of appeal
5 (1) Any party to a proceeding under this Act may appeal to the Supreme Court an order to allow or dismiss a claim if that order was made by a Provincial Court judge after a trial.
(2) No appeal lies from any order of the Provincial Court made in a proceeding under this Act other than an order referred to in subsection (1).
 As the order of Judge Low was not made “after a trial”, arguably pursuant to s. 5(2) of the Small Claims Act the order was not appealable at all, but I need not decide this issue in the circumstances.
 For these reasons I would dismiss the application to vary.
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.
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 by the BC Supreme Court addressing exactly this question.
In today’s case the Plaintiff was awarded $20,000 in damages as a result of a 2005 BC motor vehicle collision. In deciding that the Plaintiff is entitled to costs Mr. Justice Truscott summarized and applied the law with the following reasons for judgment:
The plaintiff Truong relies upon a decision of this court in Caldwell v. Maga  B.C.J. No. 2166 (BCSC) where there were two plaintiffs, one being awarded $5,500 for damages and the other $4,500 for damages, both involved in a rear end accident. This was at a time when the limit in small claims actions was $10,000.
Mr. Justice Drost referred to a previous decision of Mr. Justice Drake where he also dealt with two plaintiffs, who were each awarded under $10,000, and said in awarding them costs that the totality of the two judgments amounted to more than the small claims limit and they were entitled to costs.
Mr. Justice Drost determined to follow the reasoning of Mr. Justice Drake in that decision (Phosy & White v. Island Pacific Transport Ltd.  B.C.J. No. 1037, (2 May 1996), Victoria Registry No. 95/1123).
I question the correctness of these two decisions as I tend to agree with defence counsel that taken to its logical conclusion that reasoning would mean that 26 claimants each with $1,000 claims would be entitled to sue in Supreme Court in one writ because the total would exceed $25,000, the present limit of small claims jurisdiction.
I consider it far more likely that the $25,000 limit of small claims jurisdiction should apply to each claim of each plaintiff no matter how many plaintiffs there might be.
However, I am obliged to follow the previous decisions of this Court which would probably entitle the two plaintiffs to sue in Supreme Court.
Apart from this, at the best of times I consider it difficult for any plaintiff’s counsel to estimate the appropriate range involved for personal injury claims of his clients at the initiation of the action. The medical conditions of many plaintiffs continue to change following the initiation of the action as they continue to recover from their injuries or continue to suffer.
Here, even after Dr. Yong’s optimistic report of March 14, 2006, by January 26, 2008 he was still saying that it was likely that the plaintiff Truong would continue to suffer some degree of left shoulder pain probably for another one or two years.
The award to the plaintiff Truong of $20,000 is by itself less than the limit of jurisdiction in small claims of $25,000, but is not less by any large amount, and with the difficulty facing counsel of accurately estimating the range for a personal injury for his client at the initiation of litigation, knowing that if action is commenced in small claims his client will be limited to $25,000 no matter that the assessment might be in excess of $25,000, I am satisfied this plaintiff did have sufficient reason for bringing her claim in Supreme Court.
The plaintiff Truong will therefore have her costs of her claim at Scale B, only attributable to her claim.
(Image created by and used with permission of High Impact)
I usually focus my ICBC case law reports on cases from the BC Supreme Court and BC Court of Appeal but reasons for judgement were recently released from the Provincial Court of BC (commonly referred to as Small Claims Court) which caught my eye.
The Plaintiff was involved in a rear-end crash in May 2005. From the judgement it appears to me to be a claim that fit ICBC’s Low Velocity Impact criteria (LVI) where ICBC takes the position that no compensable tort claim exists.
The Plaintiff’s vehicle sustained little damage. The evidence presented by the Plaintiff, her husband and her doctor was ‘fairly consistent’ and the court accepted that the Plaintiff suffered a ‘whiplash injury’ to her neck and back.
The court made the following findings “I accept that there is a four month injury from start to finish with approximately two months off work. On those facts, it is my standard view and backed up by a number of cases, which oddly enough comes in directly between what the claimant puts forward way up at the upper end and what the defendant puts forward way down at the lower end, my view of this has been throughout coming towards the figure of $10,000 and that is the figure that I do award“.
The Plaintiff was also awarded her lost wages and special damages (out of pocket accident related expenses).
This judgement was only 3 pages long which is unusual for an ICBC personal injury case and makes for very easy reading. I can’t find this judgment on the BC Provincial Court website but will post a link to the judgement if it becomes published. This case shows how well suited the Provincial Court can be in some circumstances in dealing with ICBC injury claims involving minimal injuries which resolve quickly.
Reasons for judgment were released by the BC Supreme Court yesterday awarding a Plaintiff in a BC personal injury claim “costs” despite the fact that the Plaintiff’s award was within the small claims court jurisdiction.
This case gave me a good opportunity to write a little bit about the “costs’ consequences of bringing ICBC claims to trial and I intend to make this the first of several blog entries on this topic.
If you make an ICBC claim in BC Supreme Court and win (winning meaning you obtain a judgment in your favour greater than an ICBC formal settlement offer) you are generally entitled to ‘costs’ in addition to your award of damages.
For example, if a plaintiff with soft tissue injuries brings an ICBC claim to trial and is awarded $30,000 and ICBC’s formal settlement offer was $10,000, the Plaintiff would be entitled to “Costs” in addition to the $30,000 (barring any unusual developments at trial).
The purpose of awarding the winner Costs is to compensate them for having to go through the formal court process to get what is fair. This recognzes the fact that there are legal fees involved in bringing most ICBC claims to trial and one of the purposes of Costs is to off-set these to an extent.
Costs cover 2 different items, the first being disbursements (meaning the actual out of pocket costs of preparing a lawsuit for trial such as court filing fees and doctor’s fees in preparing medical reports) and the second being Tarriff costs – meaning compensation for many of the acutal steps in bringing a lawsuit in BC Supreme Court.
The Costs consequences after a BC Supreme Court Trial could easily be in the tens of thousands of dollars and this is often the case in many ICBC claims.
Costs are discussed in Rule 57 of the BC Supreme Court Rules and this rule is worth reviewing for anyone bringing an ICBC claim to trial in the BC Supreme Court. The winner does not always get their costs, however. One of the situations when a winner may not get their costs is when they are awarded an amount of money that was in the small claims court jurisdiction ($25,000 or less).
Rule 57(10) states that “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.”
As a result of this sub-rule, people who bring an ICBC claim to trial in BC Supreme Court and are awarded less than $25,000, may be disentitled to their Tariff Costs unless they can show ‘sufficient reason for bringing the proceeding in the Supreme Court.”
In this weeks judgement the court agreed that despite the fact that the Plaintiff was awarded $12,290 in damages (an award well within the small claims court jurisdiction), the Plaintiff did have sufficient reason to bring the proceedings in Supreme Court.
In reaching this decision the court referred to a leading BC Court of Appeal Case where it was held that “a Plaintiff does not have an on-going obligation to assess the quantum (value) of a claim and that the point in time for a consideration of whether a plaintiff had a sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”
The lawyer for the Plaintiff argued that when the lawsuit was started they were not in a position to finalize their valuation of this claim becase they did nothave a final medical report commenting on the plaintiff’s injuries. Also that since the Defendant took an LVI (low velocity impact) position it was important to sue in Supreme Court to have an examination for discovery of the Defendant (a procedure not available in small claims court).
For those and other reasons the court agreed and awarded the Plaintiff her Tariff Costs.
Do you have questions about an ICBC Claim, or BC Court Costs that you wish to discuss with an ICBC claims lawyer? If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken.
If you would like further information or require assistance, please get in touch.
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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