IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 2011-11-01

Docket:  M111219

Registry: Vancouver

Between:

Taran Parmar

Plaintiff

And:

Shari Lahay

Defendant

Before: The Honourable Mr. Justice Burnyeat

Oral Reasons for Judgment
In Chambers

[1]
THE COURT:  This
is an application pursuant to Rule 9‑7 of the Supreme Court Civil
Rules.  This Action involves a motor vehicle accident on October 6,
2010.  I find that the special damages are $120.  There is no claim for loss of
wages or any future loss of capacity.  The sole question is the quantum of the
non-pecuniary damages which should be awarded.

[2]
The materials
indicate that Mr. Parmar was a BCIT student approximately 24 years
old at the time of the accident.  In his September 26, 2011 Affidavit,
Mr. Parmar states:

On
impact my body was thrown forward and my head whipped back and then forth.  My
vehicle itself was pushed approximately one foot forward.  Within minutes, and
while I was speaking with the defendant at the scene of the collision, my neck
became stiff and sore.  I also started to suffer from a strong headache.
Within two days of the collision I began to suffer tightness in both shoulders
and a pain in my neck and occasional strong headaches continued.

[3]
There was a walk-in
clinic attendance within two days of the accident.  In evidence are two
opinions from the family doctor of the Plaintiff.  What was recommended was
physiotherapy treatment.  Six of those sessions were undertaken.  The current
status of the Plaintiff is described by him in his Affidavit:

My
injuries have not improved much.  Currently I still suffer bothersome neck and
shoulder pain when I do repetitive and/or heavy lifting.  I am very aware of my
injuries and avoid many activities and tasks.

[4]
In submitting that the appropriate range for non-pecuniary
damages is $10,000 to $15,000, the Plaintiff relies on a number of authorities
which I will describe this way:  (a) Ceraldi v. Duthie, [2008]
B.C.J. No. 2624, where injuries were resolved within six months and $13,000
was awarded; (b) Dadson
v. Gallo, 2007 BCSC
1504, where the duration of the injuries and the suffering was four to six
months and $15,000 was awarded; (c) De Leon v. Harold, 2010 BCSC
1802, where the duration of the suffering was six months and $12,000 was
awarded; (d) Dolha v. Heft, 2011 BCSC 738, where the duration of
the suffering was six to nine months and $10,000 was awarded; (e) Faedo
v. Dowell, 2007 BCSC 1985, where the duration of the suffering was six to
seven months and $12,000 was awarded; and (f) Murray v. Byrd, 2008
BCSC 895, where the duration of the suffering was three months and $12,000 was
awarded.

[5]
If any non-pecuniary
damages are to be awarded, the Defendant submits that non-pecuniary damages should
be in the range of $3,000 to $5,000.  The Defendant relies on three decisions in
support of that submission:  (a) Al-Mandlawi v. Gara, 2005 BCSC
740, where the duration was in the neighbourhood of eight months and $7,500 was
awarded; (b) King v. Buccini, 2006 BCSC 1587, where there was a
mild residual effect for two years and six months of some pain and suffering
and $5,000 was awarded; and (c) Laboucane v. Piane, 2009 BCPC 86, where
the duration of the suffering was three months and $3,000 was awarded (in the
action there had been 11 visits for physiotherapy).

[6]
I am satisfied
that the earlier cases as cited by the Defendant are not particularly
applicable.  I adopt the more recent decisions put forward by the Plaintiff in setting
the award for non-pecuniary damages at $12,500.  Taking into account that the
Plaintiff continues to suffer neck and shoulder pain 13 months after the
accident and taking into account the opinions from the family doctor of the
Plaintiff, I am satisfied that $12,500 is more appropriate.

[7]
I now deal with
the question of whether it was appropriate to have commenced this action in the
Supreme Court of British Columbia instead of in Provincial Court.

[8]
In Spencer v. Popham, 2010 BCSC
683, at para. 12, Punnett J. makes reference to the factors that give
rise to a sufficient reason why a matter should be brought in Supreme Court as
opposed to Provincial Court (Small Claims Division) and outlines those reasons while
adopting the decision in Icecorp International Cargo Express Corp. v.
Nicolaus, 2007 BCCA 97:

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.

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

[9]
I cannot reach the
conclusion that the legal or factual complexity of the case, the need for
discovery of documents and examination for discovery, and the need for a
judgment enforceable outside of British Columbia are applicable reasons why
this action was commenced in the Supreme Court of British Columbia rather than
in Provincial Court.  However, I am satisfied that the summary trial procedure
available in the Supreme Court and the availability of costs makes the Supreme
Court a preferable and justified forum for this Action.

[10]
I take judicial
notice that this case reached the Court for decision much more quickly than if
the Action had been commenced in the Provincial Court.  In this regard, I take
judicial notice of the absence of a considerable number of judges at the
Provincial Court level and the backlog in hearing matters that the failure to
appoint more judges has produced.

[11]
I also take into
account the ability of the Plaintiff to have costs awarded in this Court but
not in Small Claims Court.  In that that regard, I adopt the reasoning of
Harvey J. in Zale v. Colwell, 2010 BCSC 1040, where he states:

In each of the above three
decisions [Spencer v. Popham, supra; Faedo v. Dowell,
2007 BCSC 1985; and Kanani v. Misiurna, 2008 BCSC 1274] the
primary reason for awarding the plaintiff costs, in circumstances not unlike
these facing the plaintiff here, was the consideration that given the need to
retain counsel to battle an institutional defendant, a reasonable consideration
in determining the forum is the matter of indemnity for the costs of counsel.
(at para. 14)

[12]
I also adopt the
statement of Humphries J. in Kanani, supra:

… in a situation where the
defendant put the plaintiff to the proof of having suffered any injury at all,
thus making her credibility a crucial issue at trial, it was reasonable for the
plaintiff to require the assistance of counsel.  She was therefore justified in
commencing the action in Supreme Court where she could hope to recover some of
the costs it was necessary for her to expend in retaining counsel to recover
the compensation to which she was found to be entitled. This reasoning has
application here as well. (at para. 8).

[13]
I take into
account that it may well be economically unrealistic for counsel to be retained
for up to three appearances in Small Claims Court where the damages sought are
nominal.  This must be contrasted with the institutional defendant and its
unlimited resources.  In an action in Supreme Court, counsel for a plaintiff is
only required to appear once in Court if an application pursuant to Rule 9‑7
of the Supreme Court Civil Rules is appropriate.  In the case at bar,
the application has taken approximately one hour.

[14]
In the
circumstances, I am satisfied that the Plaintiff should be entitled to his
costs throughout on a Party and Party (Scale B) basis.

____________ “Burnyeat J.”____________
Burnyeat J.