ICBC Application to Transfer Action to Small Claims Criticized

In a previous blog I stated that ICBC would continue to attempt to force motor vehicle actions from the Supreme Court into the Provincial Court system (Small Claims Court) despite a clear ruling in Chang v. Wren that the choice of which court to bring an action is a decision of the injured party, not of the party defending the action (the tortfeasor). Predictably, ICBC has proven me right. In the recently published case of Kooner v. Singh, 2011 BCSC 1384, ICBC once again took it upon itself to dictate the choice of jurisdiction for an injured party seeking justice in the Supreme Court. The application was denied. In his written reasons Mr. Justice McEwan (the same judge in the Chang v. Wren case) said the following:

 

[5] I think it should be clear that parties have a right to elect the court in which they bring their actions and that, in doing so, if they persist, they run certain risks. Those risks, in the case of a plaintiff’s action brought in Supreme Court that should have been brought in Small Claims Court, include the penalty of not receiving costs in the case of success, and also include the hazard, if an offer to settle is made, of double costs in accordance with the Rules setting out those penalties. It appears from the vantage of the bench that it is much more in the defence interest that the matter remain in Supreme Court than that this application succeed, unless, as I have said, what is really sought is a summary assessment of the case on the basis of very limited information, to bring the matter in under $25,000. Given the hazards (which the plaintiff is aware of), I am of the view that the plaintiff is entitled to bring the matter in this Court if that is what the plaintiff wishes to do.

 

[6] I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011. I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount. I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties. Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard. I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery. There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

 

The Court awarded costs in the cause, but suggested that further applications by ICBC of this nature could possibly attract a more punitive cost order in the future “if defendants persist in bringing applications that are much against the case law”. How far ICBC can go before the court puts its foot down is to be determined.

The position of the plaintiff was

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