IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20100309

Docket:
S075177

Registry: Vancouver

Between:

Paul
Singleton

Plaintiff

And

John
O’Neil, Don Mace, and
The Greater Vancouver Transportation Authority,
also known as Translink

Defendants

Before: The Honourable Madam Justice Gerow

Reasons for Judgment

[1]            
Paul Singleton is claiming damages for injuries
he alleges he suffered when he was assaulted by the defendants John O’Neil and
Don Mace on July 11, 2007. At the time of the alleged assault, Mr. O’Neil
and Mr. Mace were employed as Transit Police by the Greater Vancouver
Transportation Authority, operating as Translink. Mr. Singleton commenced
this action on July 31, 2007, and filed a notice requiring trial by jury. The
trial is set for five days commencing August 16, 2010. The defendants are
applying for an order that this matter be determined under Rule 68 of the Rules
of Court before a judge alone.

[2]            
Mr. Singleton opposes the application on
the basis that there is no authority to move an action into Rule 68, and
that he is claiming in excess of $100,000, including punitive damages. He
submits that it is the plaintiff who determines whether the matter should be under
Rule 68.

Background

[3]            
Mr. Singleton alleges that on July 11,
2007, the defendants, Mr. O’Neil and Mr. Mace, forcefully pulled him
from his bicycle, jumped on him, punched him, and forced his head into the
pavement. As a result, Mr. Singleton is claiming damages for the pain and
suffering, special damages, and damages for past and future loss of earning and
housekeeping capacity. As well, Mr. Singleton is claiming punitive damages.

[4]            
Document discovery and examinations for discovery
have been completed. There are few documents listed. The defendants’
examination for discovery of Mr. Singleton was under two hours. Mr. Singleton
conducted an examination for discovery of the defendants, John O’Neil and Don
Mace. As well, he conducted an examination for discovery of a Translink
representative which lasted for half an hour.

[5]            
At the examination for discovery of the
plaintiff conducted on June 9, 2009, Mr. Singleton provided details
about his injuries. He suffered cuts and abrasions on his head, arm, and some
soft tissue damage to his hip. He stated that he had anxiety and insomnia as a
result of the incident which lasted for about six months, and headaches which
lasted for a year. Apparently Mr. Singleton was handcuffed for a few
minutes during the incident. He advised that he did not miss any work as a
result of the accident; however, he says he was unable to attract new yard work
clients. He estimates he lost 3 to 4 potential clients.

[6]            
To date, no medical expert reports have been
delivered.

Position of the plaintiff

[7]            
Mr. Singleton takes the position that he is
advancing a claim for in excess of $100,000 taking into account his claim for non
pecuniary damages, loss of business opportunity, and punitive damages. He
submits that there is no authority for moving the matter into Rule 68, and
that it is the plaintiff who determines whether it is appropriate to proceed
under Rule 68. As well, Mr. Singleton takes the position it is
premature to decide whether the claim being advanced is under $100,000 because
he has not served any expert reports.

Position of the defendants

[8]            
The defendants take the position that although Mr. Singleton
is asserting a claim for in excess of $100,000, based on the evidence to date,
it is apparent the injuries to Mr. Singleton were minor, and the case law
for the types of injuries he suffered, including punitive damages, is well
below $100,000. They submit that Rule 68 is mandatory, and a plaintiff
should not be able to avoid the rule simply by stating his or her claim is in
excess of $100,000. They also point to the fact that there is no monetary cap
under the rule as Rule 68(4) provides: 

Nothing in this
rule prevents a court from awarding damages to a plaintiff in an expedited
action for an amount in excess of $100,000.

Analysis

[9]            
Rule 68(2) provides:

(2)        Subject
to subrule (5), this rule applies to an action commenced in the Vancouver,
Victoria, Prince George or Nelson registry after September 1, 2005, and to
every action commenced in any registry after January 1, 2008, if

(a) the only
claims in the action are for one or more of the following:

(i)  money;

(ii)  real
property;

(iii)  personal
property, and

(b) the total
of the following amounts is $100 000 or less, exclusive of interest and
costs:

(i)  the
amount of any money claimed in the action by the plaintiff for pecuniary loss;

(ii)  the
amount of any money to be claimed in the action by the plaintiff for
non-pecuniary loss;

(iii)  the fair market value, as
at the date the action is commenced, of all real property, all interests in
real property, all personal property and all interests in personal property
claimed in the action by the plaintiff.

[10]        
The issue of the mandatory nature of the rule
was addressed in Berenjian v. Primus, 2009 BCSC 1507. In Berenjian,
the defendants were seeking a jury trial, and the plaintiff was opposing one on
the basis the claim he was advancing was less than $100,000. The defendants
took the position that once pleadings had been closed, the decision as to the
application of Rule 68 had been made and was binding. Once the pleadings were
closed, the opportunity to have this action made subject to Rule 68 had expired.
After reviewing the jurisprudence and the rule, Punnett J. concluded that Rule 68
could be invoked after the pleadings were closed, stating at para. 35:

I do not agree
that Rule 68 cannot be invoked once the pleadings are closed. If the rule is
mandatory then the logic of Rule 68(7) is consistent. That is, the rule is a
mandatory rule and, as such, no provision is required for the court to order
that the rule does apply to a particular action. However, because it is
mandatory, a provision was needed to remove actions from the rule. The absence
of the endorsement is simply an irregularity in actions which meet the criteria
of Rule 68(2).

[11]        
From a review of the evidence in the portions of
the examination for discovery appended to the affidavits, it is apparent that Mr. Singleton’s
physical injuries were minor in nature. They resolved quickly, and he did not
seek any treatment for any psychological distress he alleges he suffered as a
result of the incident.

[12]        
The case law that has been provided indicates
that the range of general, aggravated, and punitive damages for the types of
injuries Mr. Singleton suffered, and the manner in which he alleges they were
inflicted on him, is likely between $20,000 and $40,000. Although Mr. Singleton
asserts that it is premature to make such a determination because no medical
expert reports have been delivered, his discovery evidence was that his
physical injuries were relatively minor, and that he was not impaired from
carrying out his ordinary activities for any length of time. Mr. Singleton
had a business performing yard work at the time of the incident. His evidence
is he was unable to attract new clients during the two or three weeks following
the accident. He was unable to estimate the total loss, but said that each new
client would pay approximately $120 to $140 a month. In my view, based on the
evidence it is unlikely his loss of opportunity claim will be significant, and
very unlikely it will exceed $60,000.

[13]        
Mr. Singleton did not provide any
authorities which support his position that an award for the types of injuries
he suffered and his treatment by the defendants will exceed $100,000. As well,
he has not presented any authority for his position that it is the plaintiff
who determines whether the claim should be brought under Rule 68. I note
that there appears to be no such limitation in the rules. Rule 68(7)
provides that on the application of any party, or as result of the court’s own application,
an order may be made that the rule does not apply to an action. In other words,
it is not up to only one of the parties to determine whether or not Rule 68
applies.

[14]        
The rule is mandatory in nature and applies to
all claims which fall into subrule (2). In my view, the evidence to date and
the case law to which I have been referred, supports the defendants’ position
that the claim being advanced by Mr. Singleton is one which falls within
Rule 68. Most of the pre-trial procedure has been completed, and the
examinations for discovery which have been conducted have fallen within the
time limits set out in Rule 68. Neither the plaintiff nor the defendants
are suggesting they will require experts in addition to those allowed under the
rule.

[15]        
As set out in subrule (13), the overarching consideration
in determining applications under Rule 68 is proportionality. The court
must consider what is reasonable in relation to the amount at issue in the
action.

[16]        
As in Berenjian and Uribe v. Magnus,
2009 BCSC 1230, a jury trial is being sought by the party opposing the
application for an order that the matter falls within Rule 68. Based on
the affidavit material, I have concluded that the claim being advanced by Mr. Singleton
is relatively simple and straightforward, and is not one that can justify the
expense of a five day jury trial.

[17]        
For the forgoing reasons, I have determined it
is appropriate to make the order sought by the defendants. Accordingly, I am
making an order that this matter proceed under Rule 68, and the trial be
before a judge alone.

[18]        
The defendants are entitled to their costs of
this application.

“Gerow
J.”