Reimann v. Aziz

2006 BCCA 422 Reimann v. Aziz

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Reimann v. Aziz, 2006 BCCA 422 Date: 20060927 Docket: CA033867 Between: Drew Alexander Scott Reimann Respondent (Plaintiff) And Mohamed Ali Aziz, Gerald Vinet and Josefa Toala Fuailefau Appellants (Defendants) Before: The Honourable Madam Justice Kirkpatrick (In Chambers) J.D. Waddell, Q.C. Counsel for the Appellants A.D.G. MacIsaac Counsel for the Respondent Place and Date of Hearing: Victoria, British Columbia 18 September 2006 Place and Date of Judgment: Vancouver, British Columbia 27 September 2006 Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] The appellants (defendants at trial) in a motor vehicle action seek leave to appeal the order of costs made by the trial judge in a Rule 66 trial in circumstances in which the claim allowed in the Supreme Court of British Columbia was within the monetary jurisdiction of the Provincial Court. [2] The plaintiff commenced his action in the Supreme Court on 11 August 2005, pursuant to Rule 66 of the British Columbia Supreme Court Rules. The appellants filed a statement of defence on 9 November 2005, denying both liability and damages claimed by the respondent. On 1 September 2005, the monetary jurisdiction of the Provincial Court (Small Claims Division) was increased from $10,000 to $25,000 pursuant to B.C. Reg. 179/2005, s. 1. [3] On 31 January 2006, the defendants

applied to transfer the action from the Supreme Court to the Provincial Court. The plaintiff opposed the application. The application was refused, primarily because transfer to the Provincial Court would have resulted in delay in hearing the trial. [4] The trial proceeded in the Supreme Court on 20 February 2006. On 23 February 2006, the trial judge ordered that the plaintiff recover $4,000 for non‑pecuniary damages; $700 for wage loss; and $720 for special damages. The total award amounted to $5,420. [5] At trial, the defendants submitted that the plaintiff should be denied his costs of the action by reason of Rule 57(10), which 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. [6] Rule 66(29) provides: (29) Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows [7] The trial judge ruled as follows (Drew Alexander Scott Reimann v. Mohamed Ali Aziz, Gerald Vinet and Joseph Toala Fuaileau (23 February 2006), Victoria 05/3918 (B.C.S.C.)) at para. 15: [15] Mr. Mark, I certainly would have acceded to your submissions, had

the new limit been in place. But it would not have been prudent in this case for a lawyer to advise his client to proceed under small claims rules because the damages may have been proven to an amount that exceeded the small claim jurisdiction. So the order for costs will stand. [8] The essential issue raised on this proposed appeal is whether the trial judge erred in awarding costs to the plaintiff without considering the plaintiff's ongoing obligation to assess the appropriateness of continuing the action in the Supreme Court. [9] The plaintiff submits that the trial judge gave adequate consideration to the principle enunciated in Bhanji v. Quezada (2003), 185 B.C.A.C. 301, 2003 BCCA 445 at para. 9, which is that "[t]he purpose of R. 57(10) is to encourage actions to be brought and continued in Provincial Court when there is no sufficient reason to expect that the claim might give rise to damages in excess of $10,000". The plaintiff thus contends that leave should not be granted in circumstances where the trial judge properly exercised his discretion. [10] The costs claimed by the plaintiff pursuant to the award made by the trial judge is $4,104, an amount in excess of 75% of the damages awarded to the plaintiff. The appellants submit that it is a matter of considerable importance to all litigants to have this Court's opinion as to the operation of the costs rule in

circumstances where, as here, the costs awarded are grossly disproportionate to the amount of damages awarded. [11] On reflection, it seems to me that the issue raised on this proposed appeal -namely, a plaintiff's continuing obligation to assess his or her claim as to whether it is appropriate to continue the action in Supreme Court when the possible damages will not exceed the Provincial Court's jurisdiction - is a matter of importance, not just to the appellants, but to litigants in general. [12] Accordingly, I would grant leave to appeal the order of costs made in the Supreme Court. "The Honourable Madam Justice Kirkpatrick"