Barry v. Yen,


2008 BCSC 1079

Date: 20080807
Docket: M074926
Registry: Vancouver


Lisa Barry



Tina Kuo Yen,
Yao Chiung Chen, Jesse Joslin, WS Leasing Ltd.
Dreamer Productions Inc.


Before: Master Baker

Reasons for Judgment

Counsel for plaintiff

S. Morishita

Counsel for defendants Yen and Yao

J.P.C. Miller

Date and Place of Hearing:

July 24th 2008


Vancouver, B.C.


[1]                If a proceeding is transferred from this Court to the Provincial Court (Small Claims) what, if any, authority remains with this court to order further or other steps?


[2]                Ms. Barry, the plaintiff, claims damages arising from a motor vehicle accident that happened November 17th, 2005.  The proceedings were brought under Rule 66, and a two day trial is set for January 27th, 2009.  Liability is denied, and the defence has conducted an examination for discovery of Ms. Barry.

[3]                Ms. Barry now wants to transfer the matter to Provincial Court, and the defendants agree with that.  What, then, is the problem?  It seems that in August of 2003 Ms. Barry suffered injuries as a result of an elevator mishap.  Her claim was settled and now, by cross-application, the defendants seek orders for an independent medical examination of Ms. Barry and non-party documents.  These documents are of the classes typically requested; employment records, medical or clinical records, but the demand also includes Ms. Barry’s counsel’s entire file respecting her elevator injuries and their settlement.  Mr. Morishita, for Ms. Barry, is opposed to those requests.


[4]                The authority for transfer of proceedings to the Provincial Court lies in s. 15 of the Supreme Court Act[1] (the “Act”):

A judge or master may transfer proceedings to the Provincial Court of British Columbia if

(b)    a party to the proceedings applies to the judge or master, or all parties to the proceedings agree to the transfer, and …

There are few decisions, it seems on the application of this section and the ones that are reported seem to focus on costs.  It is clear, for example, that in proceedings transferred to Provincial Court costs should not be ordered, as to do otherwise is to frustrate the intent of Rule 57(10)[2].  It seems to me that, by analogy, to order both a transfer to the Provincial Court and other processes permitted or directed by the Supreme Court Rules is to similarly frustrate the intent behind s. 15 of the act.  I am not, therefore, prepared to make the orders sought by the defence.

[5]                Mr. Morishita points out that the Small Claim Rules provide for equivalent relief to what the defence seeks today.  Rule 7(12), for example, provides for an independent medical examination, and Rule 7(5) allows, generally, for document production/discovery at the mandatory settlement conference:

(5)            Each party to a claim must bring to the settlement conference all relevant documents and reports.

That may be, but my reason for not granting the defendants’ applications is not because there is equivalent relief in the court below.  It is because I regard the parties’ applications and consequent orders as mutually exclusive, and that the first of the applications to be considered is whether or not the matter should be transferred to the Provincial Court.  If the answer to that question is in the negative, then this court is free to consider the other party’s application.  If, on the other hand, the answer is in the affirmative, that ends this court’s involvement. 

[6]                There are at least two good reasons why that is so.  First, Mr. Morishita posits the problem that would arise: if this court makes orders both for the transfer and for the production of records (or any other orders), and if the latter is breached or not followed, how would a party enforce?  Could he or she apply, for example, in the Provincial Court, which would by then have carriage of the proceedings?  I think not.  Could he or she apply in this court?  Again, I think not, as the matter would have moved on to the Provincial Court.  Secondly, to both transfer to the Provincial Court and at the same time continue to direct the proceedings would seem to me to contradict the deference obviously due the Provincial Court when proceedings have been transferred there.

[7]                The defendants’ applications are therefore dismissed.

[8]                Bearing in mind this court’s previous comments and rulings on costs in matters transferred to the Provincial Court[3] there will be no order for costs.

“Master Baker”

[1] R.S.B.C. 1996 ch. 443

[2] viz, for example, Martin v. Tom (1996) 27 B.C.L.R. (3d) 268

[3] Par. 4, above