IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110602

Docket: M082253

Registry:
Vancouver

Between:

Yeshvi Shailesh Mehta,
an infant, by her litigation guardian,

Rinku Shailesh
Mehta

Plaintiff

And

Kirk Adair Douglas
also known as Douglas Kirk Adair, GMAC Leaseco Corporation/La Compagnie GMAC
Location, Shailesh Revachand Mehta also known as Kehta Shailesh also known as
Shailesh Kehta

and Toyota Credit
Canada Inc.

Defendants

Before:
The Honourable Mr. Justice Harris

Reasons for Judgment re Costs

[1]            
At the conclusion of a summary trial I invited counsel to make
submissions in writing dealing with the issue of costs. The summary trial
involved the assessment of damages for the infant plaintiff who was injured in
a motor vehicle accident.

[2]            
I assessed damages of $15,000 in respect of non-pecuniary damages and $3,400
for future treatment costs. The damage award falls within the jurisdiction of
the Provincial Court under the Small Claims Act R.S.B.C., c. 430, Rule
14-1(10) of the Supreme Court Civil Rules provides that in these circumstances
a plaintiff is not entitled to costs, other than disbursements, unless the
court finds that there was sufficient reason for bringing the preceding in the
Supreme Court and so orders.

[3]            
The parties do not disagree about the governing legal principles that
apply in determining whether there was sufficient reason to bring the preceding
in this court. The governing authorities are Gehlen v. Rana, 2011
BCCA 219 and Gradek v. Daimler Chrysler Canada, Inc., 2011 BCCA
136.

[4]            
In Gehlen, the Court of Appeal said this about the meaning
of "sufficient reason":

[35]      In Gradek, the Court interpreted the meaning
of “sufficient reason” in Rule 57(10). The Court acknowledged that the
procedures available in the Small Claims Court will, in most cases, “enable the
parties to proceed in a cost-efficient manner to a just result” (para. 18).

[36]      The Court ultimately concluded that “sufficient reason”
was not intended by the Legislature to be limited to the quantum as assessed at
the outset of the claim. However, the Court stated, at paras. 16 and 20:

[16]      The words “sufficient reason” are not defined in
the Rules of Court. In their ordinary and grammatical sense, they do not
suggest a specific limitation in terms of application, although it is clear
that “any reason” will not do. The reason has to be “sufficient”, but there is
nothing in the Rule to suggest that it has to be connected solely to the
quantum of the claim. On the other hand, the words do not connote the exercise
of a discretion, with its attendant deferential standard of review. That point
was made by this Court in Reimann v. Aziz, 2007 BCCA 448, 72 B.C.L.R.
(4th) 1, at para. 13:

…

[20]      I accept that the narrow interpretation of the
words “sufficient reason” advocated by the appellant would provide greater
certainty to litigants in knowing the consequences of proceeding in Supreme
Court where the matter falls within the Small Claims monetary limit. But I
agree with the trial judge that if the Legislature had intended to limit the
scope of the words “sufficient reason” to the extent suggested by the
appellant, it could readily have done so. While I am satisfied that the words,
“sufficient reason” should not be interpreted in an expansive manner, but with
restraint, I am also satisfied that they must be read in such a way that a
trial judge is not forced to deny a party costs where he is satisfied, as here,
that justice can only be achieved as between the parties by an award of costs
to the successful party.

[37]      As I understand the
import of Gradek, it is that likely quantum, while perhaps the most
important factor for determination of sufficient reason, is not the only factor
that may be taken into account. The Court in Gradek also accepted that
there may be other circumstances that justify bringing an action in the Supreme
Court despite the fact that the likely quantum will not exceed the Small Claims
amount. Thus, in Gradek the Court accepted the trial judge’s finding
that Mr. Gradek, due to language difficulties, required the assistance of
counsel and it would be unjust to require him to bring his claim in the Small
Claims Court where he would be denied costs that would partially offset the
expense of retaining counsel (para. 18). However, it is clear from Gradek
that the burden is on the plaintiff to establish eligible circumstances that
are persuasive and compelling to justify “sufficient reason”.

[5]            
It is common ground that the assessment of whether that was sufficient
reason to bring the proceeding in this court should be determined at the
commencement of the action.

[6]            
The defendants argue that when the plaintiff’s claim was filed in May
2008, the allegations were limited to minor soft tissue injuries as well as
headaches, fatigue, dizziness, nausea and sleeplessness. They say that
there was no bleeding of anxiety, which was the principal subject matter of the
damage assessment at trial, and accordingly the potential that that injury
could exceed the jurisdiction of the Provincial Court should be ignored.

[7]            
In their submission, it was clear when the action was started that the
injuries that were pleaded were minor and well within the jurisdiction of the
Provincial Court. Moreover, no other reasons exist that would be sufficient to
start this action in this court.

[8]            
The plaintiff argues that at the time the action was started it was
unclear what the likely claim to damages would be. She says that it is
appropriate to be cautious, particularly where an infant is concerned, about
the extent of damages, but an injury may cause. Moreover, being an infant, the
retention of counsel is justified and indeed required. The plaintiff required
the assistance of counsel to present her case properly, just as was the case in
Gradek. Finally, the plaintiff contends that that was sufficient reason
to start this action in this court because certain of the procedures available
in this court are not available in Provincial Court. These procedures include
examinations for discovery and summary trial. The availability of summary trial
allowed this matter to be resolved without the need to subject a young
plaintiff to the stresses of testifying. The summary trial took approximately
90 minutes of court time, rather than between one and two days that would have
been needed for trial in the Provincial Court.

[9]            
I accept the submissions of the plaintiff. In my view, the plaintiff
required counsel to present her case. It would be unjust to deny her costs that
would permit her partially to defray the expense of retaining counsel. Although
it would have been difficult to predict at the outset whether this matter would
prove to be suitable for summary determination, the availability of
examinations for discovery and the possibility of summary trial are both
factors that in the circumstances of this case are sufficient to justify
starting the action in this court. The availability of these procedures and
their potential to promote a proportionate and efficient use of resources is
something that would be known at the outset. In my view, it would be unjust to
deprive the plaintiff of costs in circumstances where knowing of those
procedures she has subsequently used them efficiently.

[10]        
Although the plaintiff did not initially plead the injuries that
ultimately formed the primary basis of the summary trial, I accept that it is
appropriate to be cautious in assessing what could reasonably be predicted as
the quantum for a damages claim when the action is started, particularly in the
case of an infant. While on the facts that were known concerning the minor
nature of the plaintiff’s soft tissue injuries and the speed with which they had
resolved, it would have been unlikely that the award would exceed the small
claims jurisdiction, but the exact value of the claim nevertheless could not be
predicted accurately. Given the uncertainties facing the plaintiff at the time
she started the action, it was not unreasonable to start it in this court.

[11]        
Taking all of these factors into account, I am of the view that the
plaintiff had sufficient reason to start this action in this court and
accordingly she is entitled to her costs in accordance with Schedule B.

“Harris J.”