IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110610

Docket: M093243

Registry:
Vancouver

Between:

Ok-Nyun Chang

Plaintiff

And:

Matthew Jeffrey
Wren

Defendant

Before:
The Honourable Mr. Justice McEwan

Oral Reasons for Judgment

In
Chambers

[1]          
This is an application brought by the defendant that the proceedings in
this matter be transferred to the Provincial Court of British Columbia.

[2]          
The case involves what the defendant would characterize as a minor motor
vehicle accident with limited injuries, while the plaintiff maintains that on a
proper hearing of the evidence in this matter the case belongs in Supreme Court
and cannot be shown to be worth less than $25,000, which is the Small Claims
limit.

[3]          
I must say I find it unusual that a defendant brings such an application
and had some difficulty appreciating the motivation for the application, given
that the sanction in costs and in depriving the plaintiff of costs following a
Supreme Court hearing would appear, in my view, to be more advantageous than
the inevitable result of putting the matter down to Provincial Court, which
would be a trial some eight months from when the trial is presently set in
August of 2011 in Provincial Court, and a further proceeding by way of
mandatory mediation in the Provincial Court.

[4]          
Whatever the merits of the respective parties’ positions as to the
ultimate quantum of damages in this matter, it seems to me that the appropriate
disposition is to see that it gets to trial before a competent tribunal as
quickly as possible, and with as little procedural clutter as possible.  That
militates strongly in favour of the Supreme Court retaining this matter within
its precincts, where there is a far greater likelihood, in the present
circumstances, of a trial being held when it is scheduled, than there is in the
Provincial Court.

[5]          
Circumstances might be different if it could be reliably assumed that
Provincial Court would get the matter on quickly and be done with it faster
than a Supreme Court, but while I am not prepared to go so far as to say I take
judicial notice of anything in particular, I certainly will observe that I do
not think I can behave on the basis of that particular fiction.

[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.

[10]       
I dismiss the application.

[11]       
With respect to costs, because there is certainly a live issue that will
be clear at the end of trial as to whether this matter should have been brought
in the Provincial Court or not, I will simply say that costs will be in the
cause and will be assessed at the end of the trial.

“McEwan J.”

_______________________________

The Honourable Mr. Justice McEwan