ICBC Law

Further to my previous posts on this topic, reasons for judgement were released today considering whether to award a Plaintiff Supreme Court Costs in an ICBC Claim where the judgement amount was within the Small Claims Court’s jurisdiction.

In today’s case (Mohamadi v. Tremblay) the Plaintiff was awarded $10,490 in his ICBC Claim after trial (click here to read my summary of the trial judgment).

The Plaintiff brought an application to be awarded ‘costs’ under Rule 57(10) which reads 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.

ICBC opposed this application.  Mr. Justice Truscott set out the leading test in applying Rule 57(10) from the BC Court of Appeal (Reimann v. Aziz) where the BC high court held that “Considering Rule 57(10) in its legislative context and applying its words in their grammatical and ordinary sense harmoniously with the scheme of the legislation and its objects, I conclude that a plaintiff does not have an ongoing obligation to assess the quantum of a claim and that the point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”

Mr. Justice Truscott held that this Plaintiff did not have “sufficient reason for bringing” his lawsuit in the Supreme Court.  He summarized the key reasons behind his conclusion as follows:

[58] I recognize that most plaintiffs with personal injury claims probably feel more comfortable with counsel representing them and more confident that they will obtain a greater amount of damages for their claim with the assistance of counsel than by acting on their own in Small Claims Court.

[59] However, the onus to prove that at the beginning of the claim there is sufficient reason for bringing the proceeding in Supreme Court, as Rule 57(10) states, lies in practice to some great extent on plaintiff’s counsel who is advising the plaintiff on the value of his claim and commencing the action.

[60] Here, I am satisfied that if Dr. Fox’s medical records pre-accident had been obtained and if his opinions and the opinions of Dr. Cameron had been obtained before the writ of summons was issued, with the plaintiff’s credibility at issue with respect to the injuries he was alleging that were not supported by his doctors, with his false statement to ICBC, and with the contrary evidence of his employer, it could and should easily have been determined that the action should be commenced in Small Claims Court and not this Court.

In my continued exercise to get used to the New BC Supreme Court Civil Rules, I am cross referencing all civil procedure cases I write about with the new rules.   The Current Rule 57(10) will become Rule 14-1(10) and it reads identically to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants after July 1, 2010.

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.

I’ve previously posted that when a Plaintiff in a BC Supreme Court Lawsuit is awarded damages in the Small Claims Court Jurisdiction ($25,000 or less) the Plaintiff is usually not permitted to court ‘costs’.

This is so because Rule 57(10) of the Supreme Court Rules holds 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 is sufficient reason for bringing the proceeding in the Supreme Court and so orders.

Today, reasons for judgement were released by the BC Supreme Court dealing with this section and the issue of when there is ‘sufficient reason for bringing a proceeding in the Supreme Court.’

In today’s case (Munro v. Thompson) the Plaintiff was awarded just over $12,000 for injuries sustained in a 2006 BC Car Crash.  The Defendant was apparently insured by ICBC and subject to ICBC’s Low Velocity Impact Defence.

The Plaintiff brought application seeking court ‘costs’.  He argued as follows:

[7]             The plaintiff says that “sufficient reason” is to be considered as at the time of commencement of proceedings: Riemann v. Aziz [2009] BCCA 448.

[8]             He says that at the date of commencement of the action, he had in hand the reports of two medical experts.  The conclusion arising from those is that it was a moderate/severe whiplash injury impacting on his future vocational capabilities, indicating a loss of capacity claim.

[9]             In these circumstances, counsel for the plaintiff contends there was good reason to bring his action in this court as opposed to the Small Claims division of the Provincial Court.

The defence lawyer argued that the Plaintiff should be deprived of ‘costs’ because the Plaintiff only recovered half of what could have been awarded in Small Claims Court therefore the Plaintiff should have started the lawsuit there.

In accepting the Plaintiff’s position Mr. Justice Williams applied the law as follows:

[22]         In order to determine the merit of the plaintiff’s claim for costs, it is necessary to examine whether he has shown that there was sufficient reason to have justified the decision to commence the proceeding in the Supreme Court.

[23]         Both parties accept that to be the correct analysis.  As well, both agree that the point in time at which the assessment is to be made is when the action in initiated.

[24]         In this case, plaintiff’s counsel had in hand the reports of two medical practitioners when he commenced the proceeding.  The report of Dr. Paterson, a treating chiropractor, concluded that the plaintiff’s symptoms of neck pain and stiffness, headaches, left shoulder pain and weakness are the result of a Grade III whiplash (moderate/severe) that he sustained in his July 6, 2006 motor vehicle accident. …

[25] There was also a medical-legal opinion from Dr. Condon….

26] Based on those opinions, it was not unreasonable for the plaintiff’s counsel to conclude that the action should be commenced in the Supreme Court.  The evidence indicated the likelihood of a viable claim for loss of future earning capacity as well as a not-insignificant claim for general damages.  Taking that into account, I am not prepared to find that his decision to bring the claim as he did was improper:  he had sufficient reason to proceed as he did when the writ was filed….

32] In the result, there is no basis to find that he deliberately misrepresented his situation to the doctors.  I stand by my conclusion that there was sufficient reason for bringing this proceeding in the Supreme Court, and reject the argument that he should be disentitled to the benefit of that finding because of his own conduct.

On another note, I posted yesterday about the new BC Supreme Court Civil Rules which come into force next year.   I have referenced these and it appears that the law as set out in Rule 57(10) of the current rules remains in place in the New Rules.  The relevant provision is set out in Rule 14-1(10) of the new Civil Rules.  The language there is identical to the current Rule 57(10) so precedents such as this case should remain good law after the new rules take effect.