IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130809

Docket: M134294

Registry:
New Westminster

Between:

Kaela Rae Lessey

Plaintiff

And

Amy Canuel and
Elaine Canuel

Defendants

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff brings an application for costs.  The plaintiff was
successful at trial but was awarded damages within the monetary jurisdiction of
the Small Claims Court.  The defendant submits that only costs within the jurisdiction
of the Small Claims Court should be payable; not Supreme Court costs.

II.              
History of the Action

[2]            
The plaintiff was 13 years old when, on August 17, 2005, the vehicle in
which she was a passenger was struck from behind by the vehicle driven by the
defendant.  Despite some symptoms consistent with injury, ICBC immediately took
a strident position which was that because of the minimal nature of impact
forces involved in the collision, and the physical condition of the plaintiff
at the time of the accident, there was no compensable injury to the plaintiff.

[3]            
Shortly after her 19^th birthday, Ms. Lessey commenced an
action in the Supreme Court against the defendants.  The defendants, admitted
liability, but throughout maintained the position denying any injury to the
plaintiff or any basis for compensation.

[4]            
A trial was held which took place over three days, on December 18, 19
and 20, 2012. Following the trial in which five witnesses were called,
including Dr. Robert McKenzie, who was qualified as an expert medical
witness, and whose evidence supported a finding that the plaintiff suffered
soft tissue injuries in the accident which had painful symptoms continuing to
the trial date.  At the trial, the defendants maintained the position that the
plaintiff had no injury, but if there was an injury, the defendants say it was
a minor soft tissue injury, so minor the injury was not compensable.

[5]            
A written judgment was released on March 15, 2013.  The Court found that
Ms. Lessey was injured in the accident.  The Court further found the
injury had caused an amount of pain, discomfort and suffering which entitled the
plaintiff to damages.

[6]            
Defence counsel took the position that the appropriate range for
non-pecuniary loss, if there was any, would be between $3,500 and $7,000.  Plaintiff’s
counsel took the position that the loss should be between $15,000 and $25,000.  The
Court awarded non-pecuniary damages of $16,500, as well as special damages in
the amount of $575 for an active rehabilitation program.

[7]            
The judgment provided that costs will follow the event with liberty to
apply.

III.            
The Application

[8]            
The trial occurred pursuant to Rule 15-1(15) of the Rules of Court;
which limits the amount of costs in Fast Track litigation, which applied in the
case at bar, in this case to a maximum of $11,000, exclusive of disbursements.

[9]            
Under Rule 14-1(10), the Rules of Court provide that 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 there
is a sufficient reason for bringing the proceeding in the Supreme Court and so
orders.

IV.           
Submissions of the Defence

[10]        
Defence counsel took the position that there was no reason to commence
proceedings in the Supreme Court. The plaintiff argued she would have had
significant difficulty presenting the complex medical situation present in this
case where a soft tissue injury suffered at the time of the accident had to be
separated from a later diagnosed congenital spinal scoliosis.  The defendants
also launched a concerted attack on the credibility of the plaintiff at,
whatever level of court, she would have been outmatched by the resources of the
defendants.  I found her to be a credible witness, who was a model of
mitigation.  In these circumstances the assistance of legal counsel was
necessary for the purpose of presenting the complexities of the case of the
plaintiff.  It is doubtful that this young woman would have been able to
present her case on her own without the assistance of counsel.

[11]        
The injuries suffered by the plaintiff were not easily quantified,
particularly because of the extended duration of pain symptoms suffered by the
plaintiff over a number of years.  At the time the action was commenced, given
the duration of those pain symptoms and the uncertainty attached thereto, this
action may well have been worth more than $25,000 when commenced.

[12]        
The time to assess whether the action was appropriately brought in a
court is the time when the action was commenced:  see Reimann v. Aziz,
2007 BCCA 448, 286 D.L.R. (4th) 330.  No attempt was made by either party to
move the matter to Provincial Court.

[13]        
Counsel for the defendants relied upon two cases, Devji v. Nash,
August 21, 2009, Docket No. M072239, Vancouver Registry, unreported, where
the court found, as a distinguishing feature from the case at bar that it was
not a complex case, there was no document discovery and there was no
examination for discovery.  An examination for discovery did take place in the
case at bar and in this case there was extensive reference to medical treatment
documents.  Also, another distinguishing factor from the Devji case is
that the medical evidence in the case at bar was quite complicated, because of
features of unrelated medical conditions which made diagnosis of injury to the
plaintiff more difficult and contentious.

[14]        
Defence counsel also relied upon Brar v. Kaur, 2010 BCSC 1220.  The
Court there found that there was no reasonable expectation that the damage
award would exceed the small claims jurisdiction.  The Court concluded that
there was no basis for the claimant to bring the matter into the Supreme Court. 
In Faedo v. Dowell, [2007] B.C.J. No. 2985, the Court in that case
ordered $12,000 in compensation for pain and suffering.  Mr. Justice Curtis
made a finding that it was reasonable to bring the action in the Supreme Court
based, among other things, on a significant challenge to the plaintiff’s
credibility.  There was a significant, but unsuccessful, challenge to the
credibility of Ms. Lessey in the case at bar.  I find that the Faedo
case is more instructive and applicable on the facts of the case at bar than Brar.

[15]        
At the commencement of this action, it was appropriate for this action
to be commenced in the Supreme Court of B.C., particularly due to the complex
medical situation at that time.  Had the plaintiff not worked as hard as she
did at mitigation of her injury, the damages could well have been considerably
larger.

[16]        
I would have significant doubt that if the plaintiff proceeded without
counsel, she would have obtained a just result.

V.             
Conclusion

[17]        
I find, on the review of the reasons for judgment and the submissions of
counsel on this application, that this is an appropriate case where the
plaintiff is entitled to her costs in accordance with the Rules of the Supreme
Court pursuant to Rule 15-1(15).

“Ball J.”