IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130715

Docket: M143175

Registry:
New Westminster

Between:

Arielle Sanderson

Plaintiff

And

Phillip Van
Humbeck

Defendant

Before:
The Honourable Mr. Justice Voith

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff/applicant, Ms. Sanderson, seeks an
order pursuant to Rule 9-1(7) confirming that there was sufficient reason to
bring this matter in Supreme Court to entitle the plaintiff to party and party
costs.

[2]            
The general background which underlies the application is
straightforward and is found in the notice of application that was filed.

[3]            
Ms. Sanderson claimed damages for injury arising from a motor
vehicle accident that occurred on September 8th, 2011 (the “Accident”).

[4]            
She retained Cowley & Company on October 28th, 2011 to act on her
behalf. A notice of civil claim, initiating the action, was filed on her behalf
on June 20th, 2012. A response to civil claim was filed on August 30th, 2012. The
defendant denied liability for the Accident.

[5]            
Examinations for discovery of both Ms. Sanderson and the defendant
occurred on April 26th, 2013. At that time, the defendant continued to deny
liability.

[6]            
After some negotiation, the parties agreed to a settlement of $22,000 in
non-pecuniary damages on May 24th, 2013. The trial of the matter had been
scheduled for three days commencing on October 1st, 2013.

[7]            
The following additional facts are relevant:

(a)      The Accident occurred when
the plaintiff struck the defendant as he was attempting to make a left hand
turn. At the time of the accident, Ms. Sanderson was travelling
approximately 60 kilometres per hour. Upon impact, the airbags in her car
deployed.

(b)      She was subsequently taken
to hospital by ambulance and both vehicles were written off as total losses. In
addition, both parties had to pay their respective deductibles.

(c)      Counsel for Ms. Sanderson,
Mr. Cheung, has deposed "At the time of filing, I also believed that
the [d]efendant to this action would deny liability for the [c]ollision. I
reached this conclusion based on my experience, on how the accident occurred,
and the fact that Ms. Sanderson was required to pay her deductible. Due to
this conclusion, I anticipated that there would likely be a need to examine the
[d]efendant for discovery".

(d)      At the time of the Accident,
Ms. Sanderson was unemployed. In response to a demand for particulars,
counsel for Ms. Sanderson confirmed that the plaintiff was not claiming
for loss of past or future income, loss of earning capacity, loss of domestic
capacity, nor was she advancing an in-trust claim for relatives and others who
provided care and assistance.

(e)      Subsequent to the Accident,
Ms. Sanderson went for massage therapy treatment on four occasions, the
last such occasion being on October 17th, 2011. She saw her family doctor five
times in a seven month span. She last saw her family doctor on March 23rd, 2012.

(f)       There is no suggestion in
the record before me that plaintiff’s counsel obtained an expert report in
relation to the plaintiff’s injuries before he filed his notice of civil claim.
Mr. Cheung has deposed he understood the plaintiff’s injuries to include
the injuries that are referenced in the notice of civil claim and he has
further deposed he believed that the appropriate quantum of Ms. Sanderson’s
injuries might exceed $25,000.

Analysis

[8]            
Rule 14-1(10) of the Supreme Court Rules provides:

(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.

[9]            
In Gradek v. DaimlerChrysler Financial Services Canada Inc., 2011
BCCA 136, Justice Prowse for the Court said:

[19]      Without endorsing all
of the factors relied on by the trial judge as constituting "sufficient
reason" in this case, I am satisfied that there may be circumstances which
may constitute sufficient reason for bringing an action in the Supreme Court,
thereby triggering its costs provisions, despite the fact that it is apparent
from the outset that the award will fall within the monetary jurisdiction of
the Provincial Court. It is open to a defendant who believes that the claim should
not have been brought in the Supreme Court to apply under s. 15 of the Supreme
Court Act, R.S.B.C. 1996, c. 443, to have the matter transferred to
the Provincial Court. Alternatively, if the matter proceeds in the Supreme
Court, it is open to the defendant to ask that a successful plaintiff be denied
costs on the basis that there was not sufficient reason to bring the action in
the Supreme Court in the first instance.

[10]        
I am mindful that in Gradek, the Court confirmed that the words
"sufficient reason" should not be interpreted expansively but rather
with restraint (para. 20). I am also mindful that I am required to apply
Rule 14-1(10) unless I conclude that the plaintiff had sufficient reason, when
the action was commenced, to bring the action in Supreme Court and that the
test for whether "sufficient reason" exists is objective; Gehlen
v. Rana, 2011 BCCA 219 at paras. 20, 24, 32, 36, and 40.

[11]        
The plaintiff bears the burden of proving that she had sufficient reason
for bringing this action in Supreme Court; Bhanji v. Quezada, 2003 BCCA
445 at para. 10; Gehlen at para. 37.

[12]        
This case has certain parallels to Spencer v. Popham, 2010 BCSC
683. In that case, the plaintiff suffered soft tissue injuries. Liability was
denied by the defendant. Counsel did not obtain medical reports before
commencing an action in the Supreme Court. The matter was settled for $13,500. Justice
Punnett made the following comments:

[12]      Factors that can give rise to "sufficient
reason" were set out in Kuehne v. Probstl, 2004 BCSC 865 at para. 22,
and accepted in Icecorp International Cargo Express Corp. v. Nicolaus,
2007 BCCA 97, 38 C.P.C. (6th) 26 at para. 27. They include:

i.          the legal or factual complexity of the case;

ii.         the need for discovery of documents and
examinations for discovery;

iii.         the need for a judgment enforceable outside of
British Columbia;

iv.        a bona fide preference for a jury trial;
and

v.         access to the summary trial procedure available in
Supreme Court.

Other factors can be the need for the plaintiff to have legal
counsel (Faedo v. Dowell, 2007 BCSC 1985 at para. 36; Ostovic v.
Foggin, 2009 BCSC 58 at para. 42; Gradek at para. 43), and
the defendant’s denial of liability, causation, and injury or loss and
allegations of contributory negligence, pre-existing conditions, previous
causes and a failure to mitigate (Ostovic at paras. 39-40; Gradek
at para. 35).

[13]      Therefore, a plaintiff’s evaluation of his or her
claim, can also involve an assessment of these factors. Even if the plaintiff
assesses the claim to be within the jurisdiction of the Small Claims Court, the
plaintiff can rely on these other reasons to commence the action in Supreme
Court: Johannson v. National Car Rental (Canada) Inc., 2009 BCSC 1284 at
para. 5.

[16]      In Ostovic, another case arising out of a
low impact accident, Justice Savage noted that because the defendant denied
liability, causation and special damages, the plaintiff had to prove these
issues in court. Because of this, the plaintiff needed to avail himself of
pre-trial discovery, which provided important evidence of the speed of impact,
the consequences of impact and concern over the plaintiff’s condition. In
addition, Justice Savage found at para. 42:

[42] There is the additional factor
that, as in Faedo and Kanani [v. Misiurna, 2008 BCSC 1274], the
Plaintiff faced an institutional defendant which, in the ordinary course, has
counsel. To obtain any recovery the Plaintiff is forced to go to court, where
he is facing counsel and counsel is reasonably required, but in Provincial
Court there is no way of recovering the costs of counsel.

[24]      Further, even if it was clear that the claim would
fall within the Small Claims Court’s jurisdiction, the issues raised by the
defendant increased the complexity of the claim and the plaintiff’s need for
counsel. By denying liability, causation and that the plaintiff suffered any
loss, the plaintiff would have been required to prove these elements at trial.
Also, although unnecessary because the matter settled, discovery of the
defendant, which had been arranged, could have been important to the
plaintiff’s case.

[25]      In taking the position
that this was a low velocity impact claim the defendants created the situation
giving rise to this motion. Their pleadings raised a multitude of issues in
their defence. Those issues raised complex questions of fact and law. It is
unlikely that a lay person could address them competently. Therefore, I find
that there was sufficient reason for the plaintiff to bring the action in
Supreme Court regardless of the quantum at the time of commencement.

[13]        
A number of these comments are directly apposite. Mr. Cheung has
deposed that he anticipated the defendant would deny liability before he filed
the plaintiff’s claim. The defendant, in his response to civil claim, denied both
liability and causation and raised issues of mitigation. The defendant did not
abandon these issues prior to discoveries. It was reasonable for the plaintiff
to avail herself of pre-trial discovery and to test the "complexities of
fact and law" that the defendant chose to raise.

[14]        
Although I am aware that I am not to use hindsight in deciding what was
reasonable, I do observe that this does not appear to be a case where it was
apparent from the outset that the plaintiff would fall below the $25,000 threshold.
Simply put, factors such as those that were emphasized in the following passage
from Gehlen at para. 32, including the amount of damage to the
plaintiff’s vehicle, were absent when the plaintiff commenced this action in
Supreme Court:

[32]      The foregoing synopsis
demonstrates that, at the time the plaintiff commenced her action in the
Supreme Court, she was aware that the accident involved very minor impact and
minimal damage to the vehicle. She complained of soft tissue injuries, most of
which had been symptomatic before the accident. An objective assessment at the
inception of the action would indicate that the probable non-pecuniary damages
for this plaintiff would necessarily be modest. It would be clear to an
objective observer that the plaintiff’s alleged injuries were only a modest
aggravation of the medical issues for which she had sought treatment over the
15 years prior to the accident.

[15]        
I find that there was sufficient reason for the plaintiff to bring this
action in Supreme Court. She is to recover her costs as well as the costs of
this application.

“Voith
J.”