Kanani v. Misiurna,


2008 BCSC 1274

Date: 20080922
Docket: M070510
Registry: Vancouver


Nasim Kanani



Agnieszka Misiurna


Before: The Honourable Madam Justice Humphries

Reasons for Judgment Re: Costs

Counsel for the plaintiff

J.P. McStravick

Counsel for the defendant

C.L. Thiessen

Written submissions of the plaintiff

September 9, 2008

Written submissions of the defendant

July 25, 2008


Vancouver, B.C.

[1]                At the end of this two day trial, conducted under Rule 66, I said: “unless there is a reason to address costs, the plaintiff will have her costs pursuant to Rule 66.”

[2]                Counsel for the defendant submits that there is a reason to address costs:  the plaintiff only received $19,060.59, after deductions, and including interest, and so should not be entitled to recover her costs.  He relies on Rule 57(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.

[3]                The defendant submits that not only was the eventual award within Small Claims jurisdiction, but counsel for the plaintiff sought an amount in closing argument (the range suggested for non-pecuniary damages was between $18,000 and $20,000) that was within that jurisdiction.  The plaintiff cannot therefore establish that there was sufficient reason for bringing the action in this court.

[4]                The plaintiff says she was forced to commence an action because the defendant took the position that she was not injured at all in the accident.  This was indeed the first position advanced by counsel for the defendant at trial.  At the time the action commenced in February 2007, the plaintiff was still suffering symptoms and advanced a claim for future loss of earning capacity.  She did not pursue this claim at trial, and chose to retire in February 2007, thus ending any wage loss claim. 

[5]                As for the past wage loss claim to that date, the evidence at trial was that Ms. Kanani had been provided with gross wage loss figures from her two employers which totalled about $10,000 shortly after the action was commenced.  After receiving this information, Ms. Kanani went through the days missed and determined that the lost days were not all attributable to the accident.  It was agreed at trial that the wage loss in issue in this case, if the plaintiff had suffered any injury, was $4,790.50.  The amount of this loss was not known with precision when the action was commenced.

[6]                The defendant referred to Reimann v. Asiz 2007 BCCA 448, 246 B.C.A.C. 143, in which the court stated at para. 38 that “[u]nless a plaintiff can show that there was sufficient reason for bringing the action in the Supreme Court, the litigant will be penalized in the recovery of costs.”  More importantly, however, the court stated at para. 35 that while a series of cases in the Supreme Court had recognized a policy consideration evident in the legislation of encouraging parties to proceed in the provincial court, there was an “equally compelling policy consideration that parties are entitled to have respected their legitimate choice of forum.”  The court held at para. 44 that the time for consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action, and that the plaintiff does not have an ongoing obligation to assess the quantum of a claim.

[7]                The relevant time at which the value of Ms. Kanai’s claim should be assessed, then, is when the action was commenced.  At that time, Ms. Kanani still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  Ms. Kanani was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8]                In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that 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.

[9]                In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66. 

“M.A. Humphries J.”
The Honourable Madam Justice M.A. Humphries