Court Refuses to Summarily Assess Evidence in Personal Injury Proceedings

In light of multiple decisions granting party and party costs to litigants awarded less than the $25,000, it appears that ICBC has hit on a different tactic to deny injured litigants seeking justice the opportunity to partially recoup the legal costs of their action: apply to transfer their Supreme Court actions to Small Claims Court.

A litigant is not allowed to recoup any legal costs in a Small Claims proceeding. They are also not allowed to recover damages exceeding $25,000, exclusive of interest. Hence, to order a proceeding from Supreme Court to Small Claims Court means potentially depriving the Plaintiff of some of her entitlement to damages – as well as to an award of legal costs.

In the recently published case of Chang v. Wren, 2011 BCSC 912 the Court refused to grant such an application. The case involved what the defendant characterized as a minor motor vehicle accident with limited injuries. The plaintiff maintained that the case belonged in Supreme Court and could not be shown to be worth less than the Small Claims limit.

In his decision Mr. Justice McEwan found that the defendant’s application called for nothing less than a summary assessment of the evidence in the case. The Court found that this was not a sound approach to take in the context of a personal injury action:

[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. [Emphasis added]

While one might reasonably expect that this would put this issue to rest in the context of personal injury proceedings, look for more applications of this sort from ICBC in the future.
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