IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110921

Docket: M102107

Registry:
Vancouver

Between:

Surinder Singh
Kooner

Plaintiff

And:

Gurmail Singh

Defendant

Before:
The Honourable Mr. Justice McEwan

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application brought on behalf of the
defendant to have this matter transferred to the Provincial Court of British
Columbia and, therefore, subject to the limit on damages of $25,000.

[2]            
The action involves a personal injury that occurred on June 5, 2009, at or near the intersection of 96th Avenue and 128th Street in Surrey, British Columbia.  The plaintiff claims that his head, neck, back, shoulder, and
left knee were injured and has also claimed, in addition to general damages,
loss of earning capacity, loss of opportunity, and special damages.  The
collision involved the plaintiff on a bicycle striking a motor vehicle that
was, according to the defendant, straddling the sidewalk.  Liability is in
issue.  The trial is set for June 25, 2012, for two days.  The case has proceeded past the point at which discoveries have been held and so what is left is for
the parties to attend the two-day trial and, apparently, in terms of the new
Rules, to attend a trial management conference between now and then.

[3]            
I have commented on other occasions about these applications.  They
amount to the Supreme Court being asked to summarily determine that damages
could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the
material before me, it is not possible to say that the case could not exceed
$25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and
it would only be on the clearest basis that the court would act to deprive a
person who wished to be heard in the Supreme Court of the right to do so.

[4]            
I am not prepared, on the basis of the material, to summarily find that
there is no possibility of the trial establishing damages in excess of $25,000,
nor am I in a position to assess whether or not the liability aspect of the
claim would foreclose the possibility of such damages.  It seems to me that the
defence must be seeking the limitation of $25,000 because there is very little
else that would suggest a motivation for such claims.  It is not, as it may
once have been, obvious that the Provincial Court is equipped to hear these
matters more expeditiously or more cheaply, particularly given the point at
which this application is brought, post-discoveries, after most of the expenses
that go into a Supreme Court trial have been incurred.  My understanding of the
current state of hearing day fees, as such, is that there are none for the
first three days of trial.  So that is not a factor.  There was a suggestion
before me that the informality of the Provincial Court is an advantage, but
unless that informality is tied to reduced time in court, which is not at all
clear, I fail to see how that, in itself, results in any particular economy.

[5]            
I think it should be clear that parties have a right to elect the court
in which they bring their actions and that, in doing so, if they persist, they
run certain risks.  Those risks, in the case of a plaintiff’s action brought in
Supreme Court that should have been brought in Small Claims Court, include the
penalty of not receiving costs in the case of success, and also include the
hazard, if an offer to settle is made, of double costs in accordance with the
Rules setting out those penalties.  It appears from the vantage of the bench
that it is much more in the defence interest that the matter remain in Supreme
Court than that this application succeed, unless, as I have said, what is
really sought is a summary assessment of the case on the basis of very limited
information, to bring the matter in under $25,000.  Given the hazards (which
the plaintiff is aware of), I am of the view that the plaintiff is entitled to
bring the matter in this Court if that is what the plaintiff wishes to do.

[6]            
I have said as much on the previous occasion of Chang v. Wren in
oral reasons given June 10, 2011.  I see no reason to stray from the outcome in
that case which was to the effect that unless the court were persuaded that
damages could not possibly exceed $25,000 the plaintiff should not be deprived
of the opportunity to convince a court that their damages exceed that amount. 
I considered it most unsafe to summarily decide a case on the basis of
descriptions that do not include the actual evidence of the parties.  Courts
certainly have the experience of being persuaded that cases that did not appear
to be worth a great deal turn out to be worth much more once they have been
heard.  I will also say, as I said in Chang v. Wren, that I am
absolutely not persuaded by any efficiency or cost-saving argument,
particularly where, as here, the application is brought at a point
post-discovery.  There is very little process to avoid at this point and, for
the reasons I have already indicated, it is not at all clear that there are
cost savings to be realized.

[7]            
Accordingly, I dismiss this application.

[8]            
The last thing I will say, much against the wishes of the plaintiff, I
may add, is that I think the disposition of costs that I provided in Chang
v. Wren remains appropriate and that is that costs will be in the cause and
may be assessed at the end of the trial in light of the ultimate outcome.  I am
advised by counsel for the plaintiff that he or his firm have personally had to
respond to four of these applications.  Perhaps there will be an occasion when
a court will be persuaded to do something different in costs if defendants
persist in bringing applications that are much against the case law.  I simply
say that the plaintiffs are entitled to come to the Supreme Court of British
Columbia, and that if they know the hazards and still wish to attempt to
persuade a judge as to the merits of their claim, this Court should be most
reluctant to summarily deprive them of that opportunity.

“McEwan J.”

________________________________

The Honourable Mr. Justice McEwan