Mak v. Eichel,


2009 BCSC 47

Date: 20090122
Docket: M104465
Registry: New Westminster


Peter Mak
Phung Truong aka Holly Truong



Oliver Bernard Eichel
Travis Justin Eichel


Before: The Honourable Mr. Justice Truscott

Reasons for Judgment
on the issue of costs

Counsel for the plaintiffs:

R.J. Carter

Counsel for the defendants:

J.S. Arnold

Date and Place of Trial/Hearing:

January 15, 2009


New Westminster, B.C.

[1]                In my reasons for judgment filed August 14, 2008 I awarded the plaintiff Phung Truong aka Holly Truong (“Truong”) $20,000 for non-pecuniary damages, to include any compensable loss of housekeeping capacity, arising out of a motor vehicle accident of August 13, 2005 in which she was injured as a passenger in a vehicle driven by the co-plaintiff Mak that was rear ended by a vehicle owned by the defendant Oliver Eichel and driven by the defendant Travis Eichel.

[2]                In my reasons I denied the plaintiff’s claim for loss of income earning capacity.

[3]                On the issue of costs I said that unless there is a submission of sufficient reason for bringing the proceeding in Supreme Court the plaintiff is not entitled to recover any costs, other than disbursements, as the sum awarded is within the jurisdiction of the Provincial Court under the Small Claims Act and costs under Rule 66(29) are subject to that requirement.

[4]                The plaintiff Truong now submits that she did have sufficient reason for bringing her proceeding in Supreme Court.

[5]                She places reliance on the decision of the Court of Appeal in Reimann v. Aziz [2007] B.C.J. No. 2025 (BCCA) where Chiasson J.A., writing for the court, said that a proper interpretation of Rule 57(10) requires a finding of sufficient reason for bringing the action in Supreme Court at the institution of the action, and does not require a finding of a sufficient reason to maintain the action in Supreme Court thereafter.

[6]                Reference is also made to the decision of Dardi J. in this court in Ceraldi v. Dathie [2008] B.C.J. No. 2345 (BCSC) where she awarded the plaintiff costs even though the judgment was only for $24,263.47, where the plaintiff was working full time at the institution of the proceedings but was continuing to receive treatments for stiffness in her neck and shoulder muscles and had not yet received a medical report from her doctor.  In addition, although it was a rear end accident there was no admission of liability made by the defendant.

[7]                On the facts before me this claim of Truong was initiated March 8, 2007 and in the statement of defence filed by the defendants on May 30, 2007 liability was admitted and only injury and loss was denied.

[8]                At the time of initiation of the claim on March 8, 2007 the plaintiff Truong was working full time at her former employment, having taken off only two weeks following the accident, but was still complaining of left shoulder and neck stiffness.  However she was not attending on her doctor for any of these complaints at the time of initiation of the proceedings.  She had seen her doctor in February 2006 for her complaints but did not see him again until January 6, 2007, approximately 11 months later, and not again thereafter until January 26, 2008.

[9]                The plaintiff had taken 14 physiotherapy treatments from August 2005 to October 2005 but not thereafter.

[10]            It was my conclusion that the plaintiff did not see her doctor more often because she did not have a level of discomfort that required this and she was too busy with her other priorities in life.

[11]            The plaintiff’s doctor, Dr. Yong, issued his first report on March 14, 2006 after having seen the plaintiff on February 24, 2006 with complaints of stiffness, tenderness and pain in her left shoulder.

[12]            At that time, Dr. Yong expressed the view that the plaintiff would continue to improve and it was unlikely she would suffer any permanent disability.

[13]            I determined in my reasons that the plaintiff had substantially recovered by approximately five months after the accident, which was approximately January 2006, although she continued to suffer from some stiffness and pain thereafter.

[14]            Counsel responsible for the plaintiff’s claim from April 18, 2006 to December 19, 2007, and who filed the writ of summons and statement of claim, says in his affidavit that he considered it reasonable to commence action in Supreme Court as the action was for both plaintiffs and the combined damages would likely exceed $25,000.

[15]            He does not specifically say that he believed the claims for each of the two plaintiffs would exceed $25,000, but only that the combined damages would exceed that amount.

[16]            The co-plaintiff Mak settled his claim before trial on or about January 25, 2008 for $6,500 plus costs.

[17]            The plaintiff Truong relies upon a decision of this court in Caldwell v. Maga [1997] B.C.J. No. 2166 (BCSC) where there were two plaintiffs, one being awarded $5,500 for damages and the other $4,500 for damages, both involved in a rear end accident.  This was at a time when the limit in small claims actions was $10,000.

[18]            Mr. Justice Drost referred to a previous decision of Mr. Justice Drake where he also dealt with two plaintiffs, who were each awarded under $10,000, and said in awarding them costs that the totality of the two judgments amounted to more than the small claims limit and they were entitled to costs.

[19]            Mr. Justice Drost determined to follow the reasoning of Mr. Justice Drake in that decision (Phosy & White v. Island Pacific Transport Ltd. [1996] B.C.J. No. 1037, (2 May 1996), Victoria Registry No. 95/1123).

[20]            I question the correctness of these two decisions as I tend to agree with defence counsel that taken to its logical conclusion that reasoning would mean that 26 claimants each with $1,000 claims would be entitled to sue in Supreme Court in one writ because the total would exceed $25,000, the present limit of small claims jurisdiction.

[21]            I consider it far more likely that the $25,000 limit of small claims jurisdiction should apply to each claim of each plaintiff no matter how many plaintiffs there might be.

[22]            However, I am obliged to follow the previous decisions of this Court which would probably entitle the two plaintiffs to sue in Supreme Court.

[23]            Apart from this, at the best of times I consider it difficult for any plaintiff’s counsel to estimate the appropriate range involved for personal injury claims of his clients at the initiation of the action.  The medical conditions of many plaintiffs continue to change following the initiation of the action as they continue to recover from their injuries or continue to suffer.

[24]            Here, even after Dr. Yong’s optimistic report of March 14, 2006, by January 26, 2008 he was still saying that it was likely that the plaintiff Truong would continue to suffer some degree of left shoulder pain probably for another one or two years.

[25]            The award to the plaintiff Truong of $20,000 is by itself less than the limit of jurisdiction in small claims of $25,000, but is not less by any large amount, and with the difficulty facing counsel of accurately estimating the range for a personal injury for his client at the initiation of litigation, knowing that if action is commenced in small claims his client will be limited to $25,000 no matter that the assessment might be in excess of $25,000, I am satisfied this plaintiff did have sufficient reason for bringing her claim in Supreme Court.

[26]            The plaintiff Truong will therefore have her costs of her claim at Scale B, only attributable to her claim.

“Truscott J.”