IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130809

Docket: M110131

Registry:
Vancouver

Between:

Sardar Akbari

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

[1]            
Reasons for Judgment in relation to the trial of this action were issued
on November 23, 2012.  In the concluding paragraph of those Reasons I stated
that I was not aware of any reason why the plaintiff should not have his costs
on Scale B, but I invited the parties to make written or oral submissions about
costs, if they wished to do so.  The parties subsequently filed written submissions.

[2]            
The plaintiff is seeking costs pursuant to Rule 15-1 to the date of
delivery by the plaintiff of a formal offer to settle, and double costs after
that date, also pursuant to Rule 15-1.  The costs sought would amount to
$17,000 plus disbursements and taxes.

[3]            
The defendant submits that as the amount recovered by the plaintiff is
within the jurisdiction of the Provincial Court under the Small Claims Act,
R.S.B.C. 1996, c. 430, the plaintiff should not be entitled to costs,
other than disbursements, in accordance with Rule 14-1(10).

[4]            
The plaintiff was the driver of a vehicle that collided with a light
standard on December 8, 2010.  The plaintiff and his passenger testified that
Mr. Akbari had to take sudden evasive action to avoid a collision with a
vehicle that ran a red light, and that Mr. Akbari lost control of his
vehicle, resulting in the collision with the pole.  The vehicle that ran the
red light did not stop at the scene of the accident; Mr. Akbari and his
passenger were unable to provide anything other than a vague description of the
vehicle; and the driver of that vehicle was never identified.

[5]            
The defendant disputed the claim of the plaintiff that a second vehicle
was involved and took the position that Mr. Akbari’s own negligence was
the cause of the accident; that he was a new and inexperienced driver; and that
he was probably speeding, resulting in loss of control of his vehicle.

[6]            
I accepted the testimony of Mr. Akbari and his passenger and
concluded that a second vehicle had entered the intersection against a red
traffic light, and that the negligence of the driver of that vehicle was the
sole cause of the accident.

[7]            
I awarded Mr. Akbari $12,000 non-pecuniary damages, $1,237 for past
loss of income; and $385 for special damages, for a total award of $13,622.

[8]            
This action was brought under the provisions of Rule 15-1 "Fast
Track Litigation".  Rule 15-1(15) provides:

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:

…

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

[9]            
Rule 14-1(10) provides:

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.

[10]        
The sum awarded to the plaintiff falls well below the maximum monetary
jurisdiction of the Provincial Court and so the first issue is whether there
was sufficient reason for Mr. Akbari to bring his action in the Supreme
Court.

[11]        
In submissions at the conclusion of trial, Mr. Akbari’s counsel
suggested that an award of $25,000 was warranted for non-pecuniary damages.  As
the claims for past loss of income and special damages were nominal, the
plaintiff would have had to recover $25,000 or an amount very close to that, to
result in a total damages award in excess of the jurisdiction of the Provincial
Court.

[12]        
The defendant’s counsel submitted that the appropriate award for
non-pecuniary damages was $2,500 to $3,000.

[13]        
On June 22, 2011, the defendant delivered an offer to settle to
plaintiff’s counsel, offering to settle the action by a payment to the
plaintiff of $1.00 plus disbursements.  The offer specifically made reference
to Rule 14-1.  The offer was left open for acceptance until the last business
day before the first day of trial.

[14]        
On July 20, plaintiff’s counsel delivered an offer to settle to the
defendant, offering to accept $10,000, plus costs on Scale B.  This offer was
also left open for acceptance until the last business day before the first day
of trial.

[15]        
The plaintiff submits that there was sufficient reason to bring this
action in Supreme Court because:

1.       the plaintiff
wished to conduct an examination for discovery of a representative of the
defendant Corporation;

2.       the exchange of
lists of documents and witness statements;

3.       "…up to the
trial it was not at all clear the plaintiff’s case would be worth less than
$25,000."

[16]        
I am not persuaded that there was sufficient reason to bring this action
in Supreme Court.  As the plaintiff submits, the issue of liability was the
primary issue at trial.  The Provincial Court is an entirely appropriate forum
for determining that issue, the outcome of which largely depended on an
assessment of the credibility of the witnesses.

[17]        
Ms. Berry of ICBC had no personal knowledge of the circumstances of
the accident.  I can surmise that questions put to her on discovery may have
related to contact by ICBC representatives with one of the plaintiff’s
witnesses, Mr. Nahun Chinchilla, whose testimony I rejected at trial as
incredible and unreliable.  Mr. Chinchilla voluntarily contacted both the
plaintiff and plaintiff’s counsel and so far as I am aware, volunteered to be
interviewed by plaintiff’s counsel prior to trial, so it was not necessary to
utilize the Supreme Court Rules to compel his cooperation.

[18]        
I am not persuaded that any documents and witness statements provided by
the defendant to the plaintiff during the course of pre-trial preparation would
not have been supplied by the defendant whether the action had been brought in
Supreme Court or in Provincial Court.

[19]        
I am not persuaded that there was any reasonable prospect that the
plaintiff’s total damages would exceed $25,000.  The special damages and past
loss of income were known.  The only head of damages involving uncertainty was
non-pecuniary damages. The only medical evidence presented at trial was a
report from Mr. Akbari’s family doctor, dated June 2, 2011.  In my
view, it should have been obvious to the plaintiff and his counsel, after
considering that report, that an award in the range of $25,000 was highly
unlikely.

[20]        
The report and the opinions expressed in it were sufficiently
non-controversial that Dr. Rai was not required to attend for
cross-examination.  In Dr. Rai’s opinion, Mr. Akbari suffered soft
tissue injuries – described by Dr. Rai as "tendonious strain"
affecting Mr. Akbari’s left calf, knee and thigh – from which he had
recovered in 8 to 10 weeks.  Mr. Akbari was off work for two weeks, but it
was during the Christmas holidays and he had planned to take some vacation
during that period in any event.  The injuries caused little disruption to Mr. Akbari,
only temporarily interfering with his participation in pick-up soccer games,
and his weight-lifting routine at the gym.

[21]        
In the plaintiff’s written submissions regarding costs, it was suggested
that the concluding paragraph of my trial Reasons, in which I stated that I was
not aware of any reason why the plaintiff should not have his costs on Scale B,
was a determination of the issue.  That is not correct.  Unless a defendant
invokes Rule 14-1, a plaintiff is normally entitled to costs.  Once the
Rule is invoked, then the court must consider whether there was sufficient
reason to bring the proceeding in the Supreme Court.

The plaintiff shall have disbursements only.  In light of
this conclusion, it is not necessary for me to consider whether the plaintiff
would have been entitled to an award of double costs in view of the offer to
settle made on July 20, 2011.

The disbursements shall include any disbursements incurred
by the plaintiff in relation to the written submissions regarding costs.

"BAKER J."