Tag: sufficient reason to sue in supreme court

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. 

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).

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.

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.

More on ICBC Claims, Costs and Sufficient Reason to Sue in Supreme Court


Earlier this year the BC Court of Appeal released important reasons finding that more than value of a claim can be considered in deciding whether a Plaintiff has sufficient reason to sue in the Supreme Court when considering costs under Rule 14-1(10).   Useful reasons for judgement were released last month  by the BC Supreme Court, Vancouver Registry, further addressing this issue in the context of an ICBC Injury Claim.
In last month’s case (Taylor v. Kassa) the Plaintiff was injured in BC motor vehicle collision.  His injuries were modest and it was “readily apparent from the outset that the quantum of damages would fall within the jurisdiction of the Small Claims Court“.  Despite this he sued for damages in the Supreme Court under the fast track rule.
After examinations for discovery a damages settlement was reached for $15,000.  The parties agreed to ask the Court to address the issue of whether costs should be payable.  Mr. Justice Davies found that given ICBC’s boilerplate response to the lawsuit it was reasonable for the Plaintiff to pursue the claim in Supreme Court with the assistance of counsel therefore entitling the Plaintiff to costs.  In reaching this decision the Court provided the following reasons:
[7] ….I make that ruling because I find it to be significant that this matter did not settle until there had been examinations for discovery.
[8]  The defendants availed themselves of the discovery procedure and then revised their assessment of the case.  Prior to discoveries, there had been a complete denial of liability and causation including allegations of pre-existing injury and failure to mitigate, all of which matters had rendered the case somewhat complex.
[9]  As Justice Punnett said in Spencer at para. 23 and 24

[23] Arguably, at the time the action was started, the claim could have exceeded $25,000. The plaintiff knew her injuries, from which it took her 18 months to substantially recover, caused her pain at work, disturbed her sleep, made her unable to do housework, and decreased her leisure activities. She had missed seven days of work and required numerous visits to a chiropractor and massage therapist. There is no evidence that the plaintiff misled counsel or that her complaints lacked credibility.

[24] Further, even if it was clear that the claim would fall within the Small Claims Court’s jurisdiction, the issues raised by the defendant 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. Also, although unnecessary because the matter settled, discovery of the defendant, which had been arranged, could have been important to the plaintiff’s case.

[10]  I am satisfied that this case falls within that same exeption expressed in para. 24 and supports a finding of sufficient reason to commence the action in this case in this Court.
[11]  Discovery was not available in the Provincial Court and led to the settlement of this case.
[12]  There will be an order that the plaintiff recover his costs under the provisions of the fast-track litigation project.
The Taylor decision is unpublished but, as always, I’m happy to provide a copy to anyone who contacts me and requests a copy.

More on Costs and Sufficient Reason to Sue in the BC Supreme Court


Earlier this year the BC Court of Appeal provided much needed clarity to the factors Courts can consider when deciding whether a Plaintiff has sufficient reasons to sue in the Supreme Court when considering costs consequences following trial.   Reasons for judgement were released today by the BC Court of Appeal further addressing this topic finding that while the Court can consider other issues, the value of the claim will be one of the most important factors.
In today’s case (Gehlen v. Ranathe Plaintiff was injured when she was a passenger involved in a rear-end car crash.  The Defendant admitted fault for the crash but denied liability to the Plaintiff claiming that the Plaintiff “was not present in the vehicle at the time of the accident“.  The Defendant made a formal offer to settle the Plaintiff’s claim for $22,000 plus disbursements.  The Plaintiff rejected this offer and went to trial.  After trial the Jury awarded the Plaintiff total damages of just over $13,000.
Despite this result the trial judge awarded the Plaintiff costs and found the Plaintiff has sufficient reason to sue in the Supreme Court.  The BC Court of Appeal found this was in error and in doing so provided these reasons addressing the issue of “sufficient reason” to sue in the BC Supreme Court in a personal injury claim:

[35] In Gradek, the Court interpreted the meaning of “sufficient reason” in Rule 57(10).  The Court acknowledged that the procedures available in the Small Claims Court will, in most cases, “enable the parties to proceed in a cost-efficient manner to a just result” (para. 18).

[36] The Court ultimately concluded that “sufficient reason” was not intended by the Legislature to be limited to the quantum as assessed at the outset of the claim.  However, the Court stated, at paras. 16 and 20:

[16]      The words “sufficient reason” are not defined in the Rules of Court.  In their ordinary and grammatical sense, they do not suggest a specific limitation in terms of application, although it is clear that “any reason” will not do.  The reason has to be “sufficient”, but there is nothing in the Rule to suggest that it has to be connected solely to the quantum of the claim.  On the other hand, the words do not connote the exercise of a discretion, with its attendant deferential standard of review.  That point was made by this Court in Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1, at para. 13:  …

[20]      I accept that the narrow interpretation of the words “sufficient reason” advocated by the appellant would provide greater certainty to litigants in knowing the consequences of proceeding in Supreme Court where the matter falls within the Small Claims monetary limit.  But I agree with the trial judge that if the Legislature had intended to limit the scope of the words “sufficient reason” to the extent suggested by the appellant, it could readily have done so.  While I am satisfied that the words, “sufficient reason” should not be interpreted in an expansive manner, but with restraint, I am also satisfied that they must be read in such a way that a trial judge is not forced to deny a party costs where he is satisfied, as here, that justice can only be achieved as between the parties by an award of costs to the successful party.

[37] As I understand the import of Gradek, it is that likely quantum, while perhaps the most important factor for determination of sufficient reason, is not the only factor that may be taken into account.  The Court in Gradek also accepted that there may be other circumstances that justify bringing an action in the Supreme Court despite the fact that the likely quantum will not exceed the Small Claims amount.  Thus, in Gradek the Court accepted the trial judge’s finding that Mr. Gradek, due to language difficulties, required the assistance of counsel and it would be unjust to require him to bring his claim in the Small Claims Court where he would be denied costs that would partially offset the expense of retaining counsel (para. 18).  However, it is clear from Gradekthat the burden is on the plaintiff to establish eligible circumstances that are persuasive and compelling to justify “sufficient reason”.

[38] In the case at bar, the plaintiff reiterated before us the 12 reasons submitted to the trial judge to establish sufficient reason to commence the action in the Supreme Court.  However, eight of those reasons were circumstances that arose after the commencement of the action and were thus irrelevant to the analysis (the defendant’s offer to settle; the defendant’s failure to apply to move the action to the Small Claims Court; the defendant’s denial of liability for the plaintiff’s injury; the insurer’s characterization of the collision as low impact; the exchange of 60 documents; the defendant’s motion for a Rule 66 hearing and eventual removal; a Rule 28 examination of a witness; and the absence of expert evidence tendered by the defendant).

[39] The strongest reason for bringing the action in the Supreme Court related to the plaintiff’s alleged injuries, but that must be closely examined in light of her pre-existing condition.  While minor impacts do not necessarily preclude serious injuries, it must have been apparent to the plaintiff that after this minor collision her pre-existing condition was only modestly aggravated and would not attract a significant award of damages.

[40] In my opinion, the plaintiff has not identified a compelling circumstance that meets the sufficient reason test in Rule 57(10) as interpreted by Gradek.

[41] In my view, this was a case where it was plain and obvious at all material times that this was a proper action to be tried in the Small Claims Court.

Costs and Sufficient Reason to Sue in the Supreme Court: Clarity from the BCCA


Welcome reasons for judgement were released today by the BC Court of Appeal addressing when a Plaintiff has ‘sufficient reason‘ for suing in the BC Supreme Court.  In short the top BC Court ruled that trial judges can look beyond the value of a claim when addressing this topic.  This issue is important because generally a Plaintiff who succeeds in a Supreme Court lawsuit but is awarded below $25,000 (the current monetary jurisdiction of the BC Provincial Court) will be deprived of costs unless they have ‘sufficient reason‘ for suing in the Supreme Court.
In today’s case (Gradek v. DaimlerChryster Financial) the Plaintiff was injured in a 2006 collision.  His lawsuit was successful and he was awarded damages of just over $9,000.  The trial judge also awarded costs of $6,600.  In doing so the trial judge made the following useful findings when individuals sue an insured defendant:

[42]      The plaintiff is who he is.  As such, he would have had extraordinary difficulty presenting a case on his own.  While the defendant, represented by the insurer, suggested that in Provincial Court it might, at times, be represented by an adjuster, in my view, whether the defendant was represented by an adjuster or a lawyer the plaintiff would have been outmatched.

[43]      In my opinion the plaintiff required counsel to obtain a just result. Costs are not awarded in Provincial Court.  [Emphasis added.]

ICBC Appealed this order arguing that a court can only look at the likely value of a claim when deciding whether there is sufficient reason to sue in the BC Supreme Court.  The Court of Appeal disagreed and dismissed the appeal.  In doing so the Court provided the following useful reasons addressing the scope of ‘sufficient reasons‘ under Rule 14-1(10) of the Civil Rules:

[16]        The words “sufficient reason” are not defined in the Rules of Court.  In their ordinary and grammatical sense, they do not suggest a specific limitation in terms of application, although it is clear that “any reason” will not do.  The reason has to be “sufficient”, but there is nothing in the Rule to suggest that it has to be connected solely to the quantum of the claim.  On the other hand, the words do not connote the exercise of a discretion, with its attendant deferential standard of review.  That point was made by this Court in Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R. (4th) 1, at para. 13:

[13]      At the outset, I observe that the application of Rule 57(10) does not involve an exercise of discretion.  For a plaintiff who recovers a sum within the jurisdiction of the Small Claims Court to recover more than disbursements, the court must make a finding that there was sufficient reason for bringing the action in the Supreme Court.

[17]        In support of its position, the appellant relies on the nature and purpose of the legislative scheme which, he submits, reflect an intention on the part of the Legislature to confine the meaning of the words “sufficient reason” to reasons relating only to quantum as assessed at the outset of the claim.  In that respect, it is common ground that the primary purpose of denying costs in the Supreme Court to those with monetary claims of $25,000 or less is to encourage claimants to bring their claims in Small Claims Court, with its simplified procedures and greater accessibility to judicial dispute resolution.  Litigating in the Supreme Court when the amount of money involved is relatively small can be prohibitive for both the “winner” and the “loser”.

[18]        I am in general agreement with the appellant’s submission in its factum (at para. 33) that the object of the small claims procedures set out in the Small Claims Act, R.S.B.C. 1996, c. 430 and Rules, B.C. Reg. 261/93 is “to provide parties, and lay litigants, in particular with an easily understandable, flexible, and less costly alternative to the Supreme Court”.  I am also prepared to accept that, in most cases, the pre-trial procedures, including pre-trial disclosure of documents and expert reports, mediation services, settlement conferences and recovery of such reasonable expenses as interpreter fees, provided in the Provincial Court, will enable the parties to proceed in a cost-efficient manner to a just result.  But, that will not always be the case.  In this instance, for example, the trial judge was satisfied that Mr. Gradek’s circumstances required the assistance of counsel to obtain a just resolution of his claim.  It is implicit in his reasons that he considered that it would be unjust to find that Mr. Gradek require counsel to properly present his claim, on the one hand, and to deny him costs which would partially offset the expense of retaining counsel, on the other.  It was on this basis, in part, that he found there was “sufficient reason” within the meaning of Rule 57(10) to bring the action in the Supreme Court with its attendant relief for the successful party in costs.

[19]        Without endorsing all of the factors relied on by the trial judge as constituting “sufficient reason” in this case, I am satisfied that there may be circumstances which may constitute sufficient reason for bringing an action in the Supreme Court, thereby triggering its costs provisions, despite the fact that it is apparent from the outset that the award will fall within the monetary jurisdiction of the Provincial Court.  It is open to a defendant who believes that the claim should not have been brought in the Supreme Court to apply under s. 15 of the Supreme Court Act, R.S.B.C. 1996, c. 443, to have the matter transferred to the Provincial Court.  Alternatively, if the matter proceeds in the Supreme Court, it is open to the defendant to ask that a successful plaintiff be denied costs on the basis that there was not sufficient reason to bring the action in the Supreme Court in the first instance.

[20]        I accept that the narrow interpretation of the words “sufficient reason” advocated by the appellant would provide greater certainty to litigants in knowing the consequences of proceeding in Supreme Court where the matter falls within the Small Claims monetary limit.  But I agree with the trial judge that if the Legislature had intended to limit the scope of the words “sufficient reason” to the extent suggested by the appellant, it could readily have done so.  While I am satisfied that the words, “sufficient reason” should not be interpreted in an expansive manner, but with restraint, I am also satisfied that they must be read in such a way that a trial judge is not forced to deny a party costs where he is satisfied, as here, that justice can only be achieved as between the parties by an award of costs to the successful party.

Mild Soft Tissue Injury Valued at $4,000; BC Supreme Court Rule 14 Discussed

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.
In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision.  Prior to trial the responsible motorist admitted fault for the crash.  The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits.   The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash.  Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:
[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43]         However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44]         I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10).  This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court.  Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule.  I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

More on Costs and "Sufficient Reason" for Suing in Supreme Court

I’ve previously posted on the topic of costs consequences when a Plaintiff succeeds in a BC Supreme Court lawsuit but is awarded damages within the small claims court jurisdiction.
For the Plaintiff to be entitled to costs it must be found that the Plaintiff had “sufficient reason for bringing the proceeding in the Supreme Court”.  Reasons for judgement were released today dealing with this issue.
In today’s case (Johannson v. National Car Rental) the Plaintiff was injured in a 2005 BC Car Crash.  The Defendant admitted fault.  At trial Mr. Justice Barrow found that the Plaintiff suffered soft tissue injuries which he summarized as follows:
I am satisfied that the plaintiff suffered a mild to moderate soft tissue injury to her upper back and neck in the accident. She followed all of the medical advice she was given and was, I am satisfied, motivated to overcome her injuries. Between the date of the accident and the end of the year, she saw her chiropractor approximately 25 times. I am satisfied that the frequency of these visits was due to the pain and discomfort she was experiencing. The injuries caused her considerable discomfort, moreso than similar injuries might cause to other persons because of her pre-existing condition.
Mr. Justice Barrow awarded the Plaintiff just over $15,000 in total damages (well below the Small Claims Court’s current monetary jurisdiction of $25,000).  One of the central issues at trial was weather the Plaintiff suffered a frozen shoulder in the car accident on top of her soft tissue injuries.  Ultimately the Court found that the Plaintiff did suffer from a frozen shoulder but this was not caused by the accident.
The Plaintiff brought a motion to be awarded Supreme Court Costs arguing she had sufficient reason to bring her claim in the Supreme Court.  Specifically it was argued that if the Plaintiff’s expert evidence was accepted with respect to the cause of her frozen shoulder her claim was well within the Supreme Court’s jurisdiction.  The Defence lawyer argued otherwise stating that there was no sufficient reason to sue in the Supreme Court and that “the Plaintiff should have realized at the time she commenced her action that her frozen shoulder was not caused by the motor vehicle accident”.
The Court concluded that there was sufficient reason for this Plaintiff to sue in Supreme Court.  In reaching this conclusion Mr. Justice Barrow summarized and applied some of the principles in these types of cases as follows:
Rule 66(29) is, by its terms, subject to Rule 57(10). Rule 57(10) provides as follows:

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.

[4] The onus is on the plaintiff under Rule 57(10) to justify her choice of forum (Bhanji v. Quezada, 2003 BCCA 445). Until the Court of Appeal’s decision in Reimann v. Aziz, 2007 BCCA 448; 286 D.L.R. (4th) 330, there was some uncertainty as to whether the plaintiff’s obligation to justify its choice of forum was a continuing one or rather one to be assessed only at the time the action was commenced. Chaisson J.A. resolved that issue, concluding that a plaintiff must only demonstrate that it had sufficient reason to bring the proceeding in the Supreme Court at the time the action was commenced.

[5] The “sufficient reason” referred to in the rule is often, but not invariably, related to whether the anticipated judgment will exceed the monetary jurisdiction of the Provincial Court. If, at the time the action was commenced, there was sufficient reason to conclude that the judgment would likely exceed the Provincial Court’s monetary jurisdiction, then the decision to proceed in this court will usually be found to be justified. There may be other reasons for proceeding in the Supreme Court. Some of those other reasons were identified in Kuehne v. Probstl, 2004 BCSC 865. Where those other reasons are present then, even if the anticipated monetary award is likely to fall within the jurisdiction of the Provincial Court, there may still be “sufficient reason” to proceed in this court.

[6] In the case at bar, the only basis advanced for proceeding in the Supreme Court is that the reasonably expected award was likely to exceed the monetary jurisdiction of the Provincial Court…

[12] In effect the plaintiff took the position when she launched this action that her frozen shoulder was the consequence of the defendant’s negligence. I am satisfied that she has always honestly believed that. While that conclusion was not free from doubt when the action was launched, it was not an unreasonable position to take at the time. The fact that her own doctor came to share that view is some indication that the position was not unreasonable, even though there is no evidence that she had the benefit of that opinion at the time the action was started.

[13] In summary, I am satisfied that there was sufficient reason for the plaintiff to bring this proceeding in the Supreme Court. The plaintiff is, therefore, entitled to her costs which, given the length of trial and the provisions of Rule 66(29)(b), I set at $6,600 plus disbursements.

In my continued effort to cross reference the current Supreme Court rules with the new Rules of Court that come into force on July 1, 2010 I will note that the Current Rule 57(10) will become Rule 14-1(10) and it reads identical to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants under our new rules.

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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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