IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111103

Docket: M120744

Registry:
New Westminster

Between:

Valda H. Kargbo

Plaintiff

And

Samlesh Chand

Defendant

Before:
The Honourable Mr. Justice Williams

Ruling re Costs

[1]          
This is the Court’s decision with respect to costs in this matter.

[2]          
The trial took place over two days in February 2011. The plaintiff sued
to recover damages incurred in a motor vehicle accident; liability was denied.

[3]          
In reasons delivered orally following trial, I found the defendant
liable for the collision. The plaintiff’s damages were assessed at $4,000.

[4]          
The issue of costs was not addressed. The parties were invited to
provide submissions if they were not able to agree upon a resolution. Submissions
have been provided and considered and this is the decision which results.

[5]          
The plaintiff seeks an order awarding costs in the sum of $9,500,
pursuant to Rule 15-1(15)(b).

[6]          
The defendant takes the position that the plaintiff is entitled to
disbursements only, and not to costs. In the defendant’s submission, this is an
action which ought to have been commenced in the Provincial Court of British
Columbia, as there is no sufficient reason to have initiated the action in the
Supreme Court, in light of the nominal award which the Court made, an award
which is within the jurisdiction of the Provincial Court.

Analysis

[7]          
There are two Supreme Court Civil Rules which are particularly relevant
to the matter:

Rule 14-1(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.

Rule 15-1(15):

Unless the court otherwise
orders or the parties consent, and subject to Rule 14-1(10), the amount of
costs, exclusive of disbursements, to which a party to a fast track action is
entitled is as follows:

(a)        if the
time spent on the hearing of the trial is one day or less, $8,000;

(b)        if the
time spent on the hearing of the trial is 2 days or less but more than one day,
$9,500;

(c)        if the time spent on the
hearing of the trial is more than 2 days, $11,000.

[8]          
Of general relevance as well is Rule 1-3, sub-rules (1) and (2):

(1)        The object of these Supreme Court Civil Rules
is to secure the just, speedy and inexpensive determination of every proceeding
on its merits.

(2)        Securing the just, speedy and inexpensive
determination of a proceeding on its merits includes, so far as is practicable,
conducting the proceeding in ways that are proportionate to

(a)        the
amount involved in the proceeding,

(b)        the
importance of the issues in dispute, and

(c)        the complexity of the
proceeding.

[9]          
The problem ultimately reduces to this: If the Court determines that the
plaintiff had sufficient reason for commencing or proceeding in the Supreme
Court, she should be entitled to recover costs in accordance with Rule 15-1(15).
If the Court finds that there was not sufficient reason for bringing the
proceeding in this Court, then she is not entitled to recover her costs.

[10]       
In Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal clarified
that the issue has to be analyzed as at the point in time that the plaintiff
initiated the action; there is no ongoing obligation to assess the quantum of
claim.

[11]       
I have been provided with a number of decisions where judges of this
Court have assessed the circumstances of cases to decide whether or not an
order for costs is warranted. Obviously, the plaintiff bears the onus of
establishing that there was sufficient reason for filing in the Supreme Court.
It is not simply a matter of assessing the anticipated value of the claim. A
number of factors have been identified in the cases as being relevant to the
issue. These include the following (the list is not intended to be exhaustive):

1.         the
legal or factual complexity of the case;

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

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

4.         a bona
fide preference for a jury trial;

5.         access
to the summary trial procedure available in Supreme Court; and

6.         the
need for the plaintiff to have legal counsel, in light of the defendant’s
denial of liability, dispute as to causation, injury or loss and allegations of
contributory negligence, pre-existing conditions, previous causes and a failure
to mitigate.

[12]       
In the present case, liability was denied and in the circumstances could
reasonably have been expected to represent a challenge to prove. As well, the
issue of damages had the real potential of being a problem. The plaintiff had a
history of prior accidents and had been hospitalized shortly after the accident
in question for matters not related to the accident. She was also injured in another
more serious accident some several months after the accident at bar. It was the
sort of case that a self-represented plaintiff would find daunting no doubt.

[13]       
Taking those considerations into account, it is my view that this
plaintiff had sufficient reason for bringing her proceeding in the Supreme
Court.

[14]       
As a parenthetical observation, it is true that a party such as this
plaintiff could elect to pursue the claim in the Provincial Court with legal
counsel, although the prospect of incurring the expense to do so without any
right to recover court costs is a legitimate factor to consider. As well, where
the plaintiff elects to bring suit in the Supreme Court, she runs the real risk
of an adverse costs outcome if the action is unsuccessful.

[15]       
In the circumstances, it is my view that the plaintiff should be
entitled to costs in accordance with the Rules of Court. I recognize
that might appear to produce a curious result in that the award of costs is
substantially greater than the damages that she recovered. However, if the
matter is considered fairly and objectively and the relevant rule applied, that
result follows.

[16]       
There is no question that the policy which underpins Rule 14-1(1) is to
encourage parties with claims of modest value to bring their action in the
Provincial Court, and to provide for a penalty against one who does not. That
is consistent with the concept of proportionality which is a foundational
consideration of the Court’s Rules.

[17]       
The clear default position will be that, with respect to claims where
the award is less than $25,000, the plaintiff will not be entitled to an award
of costs. Nevertheless, there will be situations where there is sufficient
reason to bring the action in the Supreme Court. It will be for the Court to
examine the circumstances of each particular case to determine whether or not
there is sufficient reason.

Disposition

[18]       
I find the plaintiff did have sufficient reason for bringing this
proceeding in the Supreme Court. She is entitled to recover her costs from the defendant
in the amount of $9,500.

“The Honourable Mr. Justice
Williams”