Tag: Transfer Applications

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.

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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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