2008 BCSC 1654 Ceraldi v. Duthie

Before: The Honourable Madam Justice Dardi

Reasons for Judgment Re Costs

Counsel for Plaintiff	R. E. McIntyre
Counsel for Defendant	S. J. Morris
Date and Place of Trial:	Plaintiff’s written submission received September 3, 2008; Defendant’s written submissions on September 10, 2008; and Plaintiff’s reply submissions on September 30, 2008
	Vancouver, B.C.

BACKGROUND

[1] This matter concerns the costs to be awarded to the plaintiff in circumstances where the plaintiff’s judgment is within the monetary limits of the Provincial Small Claims Court jurisdiction.

[2] On August 15, 2008, pursuant to Rule 18A, the plaintiff was awarded damages for injuries suffered in a motor vehicle accident on January 4, 2007. The plaintiff was awarded $13,000 for non-pecuniary damages, $10,198.47 for past wage loss, and $1,065 for special damages (inclusive of reimbursement to Pacific Blue Cross of $807.85). The total amount of the judgment was $24,263.47 plus pre-judgment interest. Subsequent to that decision, counsel for the plaintiff and defendant have each provided submissions in writing regarding costs. The calculation regarding the applicable amount of pre-judgment interest has not been provided.

[3] The defendant asserts that the plaintiff should recover only disbursements, pursuant to R. 57(10), because the amount of the judgment is within the Provincial Small Claims Court jurisdiction. The plaintiff seeks costs pursuant to Appendix B of the Supreme Court Rules. She submits that, at the time of the commencement of the action, it was reasonably determined that the plaintiff’s claim would exceed the monetary limits of the Provincial Court set at $25,000.

ISSUE

[4] The issue is whether the plaintiff had sufficient reason to commence this proceeding in the Supreme Court and, accordingly, whether she should be awarded costs pursuant to Appendix B of the Supreme Court Rules.

FACTS

[5] The plaintiff relies on the following facts:

(a) The plaintiff was off work from January 5, 2007 to March 26, 2007 and continued to require days off work for appointments;

(b) The plaintiff had increasing stiffness and tightness to her neck and shoulder when she returned to work on March 26, 2007;

(c) On May 7, 2007, her doctor continued to note a decrease in the range of motion of neck flexion and tenderness to palpitation of the left shoulder muscles;

(d) At the time the action was commenced on May 31, 2007, the plaintiff was actively being treated for the increased stiffness to her neck and shoulder she experienced after she returned to work;

(e) Following her doctor’s recommendation, the plaintiff attended at 13 physiotherapy treatments from May 4, 2007 to September 5, 2007; and

(f) The plaintiff’s medical-legal report is dated September 15, 2007; no medical report was completed prior to the commencement of the action.

The defendant relies on the following facts:

(a) The accident was a rear-end collision and it was unlikely that liability would be an issue;

(b) The plaintiff’s list of documents was comprised of only nine items;

(c) The plaintiff had gone on a cruise and resumed her full-time employment two months prior to commencing the action; and

(d) The medical evidence did not reasonably suggest that the plaintiff had sustained more than a modest soft-tissue injury.

DISCUSSION

[6] Rule 57(10) provides as follows:

(10) 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.

[7] The plaintiff bears the onus of establishing “sufficient reason for bringing the proceeding in the Supreme Court.” In addressing the temporal aspect of this assessment, the Court of Appeal in Reimann v. Aziz, 2007 BCCA 448, 286 D.L.R. (4th) 330 at para. 44 [Reimann], clearly enunciated the principle 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.

[8] I also note that the decisions of Walia v. Ulmer, 2005 BCSC 601, 12 C.P.C. (6th) 313 [Walia]; Campbell v. Tsui (1994), 35 C.P.C. (3d) 48 (B.C.S.C.); and Campbell v. Tsui (1996), 21 B.C.L.R. (3d) 84 (C.A.), upon which the defendants rely, were decided prior to Reimann.

[9] In Walia, Mr. Justice Sigurdson awarded disbursements only to the plaintiff because he determined at para. 19 that “by the time of trial, it should have been clear to the plaintiff that the quantum of damages would not reasonably be above the $10,000 limit.” This analysis is no longer applicable given the principle enunciated by the Court of Appeal in Reimann set out above.

[10] Accordingly, the plaintiff must establish that as at May 31, 2007 when she commenced her action, she had sufficient reason for bringing the claim in the Supreme Court. When these proceedings were issued, the plaintiff was working full-time but continued to attend at physiotherapy treatments prescribed by her doctor. She attended 13 treatments from May 4, 2007 to September 5, 2007. On May 7, 2007, Dr. McGregor continued to note a decrease in neck flexion and tenderness to palpitation of the left shoulder muscles. The medical-legal report tendered by plaintiff’s counsel is dated September 15, 2007. In that report, the prognosis was that the plaintiff’s condition would gradually settle over the next 12 to 24 months and her injury was not likely to cause any permanent disability.

[11] Given that the plaintiff did not have a medical-legal report at the time of the initiation of the action, nor had the defendant tendered any expert medical opinion, her counsel was not in a position to assess the quantum of general damages that may be awarded: Tucker v. Brown, 2008 BCSC 734. As at May 31, 2007, in all the circumstances, there was a real and reasonable prospect that the plaintiff’s recoverable damages would exceed the Provincial Court jurisdiction. Furthermore, unlike Walia, at the time of filing the proceedings, liability was not admitted; rather, the plaintiff had been informed that her claim was denied pursuant to the Insurance Corporation of British Columbia Low Velocity Impact Guidelines.

[12] I have also considered the following comments of Mr. Justice Chiasson in Reimann at para. 35:

In my view, the approach generally taken by the Supreme Court is too limited. It overemphasizes the policy of encouraging parties to proceed in the Provincial Court, but fails to consider the equally compelling policy consideration that parties are entitled to have respected their legitimate choice of forum.

[13] In Bhanji v. Quezada, 2003 BCCA 445, 185 B.C.A.C. 301 at para. 9, the Court provided some guidance as to what would justify a plaintiff’s decision to proceed in the Supreme Court:

The purpose of R. 57(10) is to encourage actions to be brought and continued in Provincial Court when there is no sufficient reason to expect that the claim might give rise to damages in excess of $10,000. That is sometimes a difficult decision for a plaintiff or his solicitor to make. If the plaintiff decides to proceed in Supreme Court he must be prepared to justify that decision in the event he recovers less than $10,000. In many cases, where there is sufficient medical or other evidence capable of supporting the larger claim, it will not be too difficult to justify the decision, especially if the damage award approaches the Provincial Court limit. [emphasis added]

[14] The award in this case is $24,263.47 prior to pre-judgment interest.

[15] In summary, I have concluded that at the time the proceedings were commenced, there was a real and reasonable prospect that the plaintiff’s recoverable damages would exceed the Provincial Court jurisdiction. The fact that the actual amount of the damages awarded to the plaintiff is very close to the Provincial Court limit supports this conclusion. I am satisfied that the plaintiff has demonstrated sufficient reason for bringing her action in the Supreme Court. I order that the plaintiff is entitled to costs under Appendix B at Scale B.

“Dardi J.”

Citation:	*Ceraldi v. Duthie,*
	2008 BCSC 1654