Which Court Should You Bring a Personal Injury Lawsuit?




Courthouse in Fernie Britisih Columbia

British Columbia has 2 courts for personal injury lawsuits:

  1. Provincial Court (Small Claims)
  2. Supreme Court

BC has a third court called the Court of Appeal, which is reserved for appeals from the BC Supreme Court.

Where should I bring my action?

If you have been injured in an accident and want to bring a claim for compensation, you may either seek damages in either small claims court or the British Columbia Supreme Court.  There are advantages and disadvantages to both and it is important to know these in order to determine where to bring your claim.  A key consideration will obviously be the value of the claim you are seeking to bring.  For example, the maximum recovery in small claims court is $25,000, whereas an action in the BC Supreme Court would not be limited.[1]

What are the advantages of small claims court?

There are many advantages to proceeding in Small Claims Court.  First, it is quicker and cheaper and does not have to involve lawyers (and thus legal fees).   The rules of evidence are relaxed, there are no jury trials, and there is little risk to being “stuck” with the other side’s costs if you lose.  If you proceed with a small claims action there are extensive judicial intervention and mediation services available to assist with making the process faster and easier. Before a trial, most cases have a “settlement conferencein attempt to resolve the matter without having a trial.[2]

What is a “settlement conference” and how does it work?

For a settlement conference, both parties will receive a notice from the Small Claims Court notifying them that they must attend a meeting on a particular date. A judge will also attend (though it will not be the same judge who presides over the trial if the conference is unsuccessful). The purpose of the meeting is to attempt to resolve the issues between you without going to trial.[3] The judge will discuss the claim with the two of you and see if the claim can be worked out. If it cannot, the judge usually schedules a date for the trial.  Or, if the claim is without merit, it may be dismissed. After the settlement conference but before the trial, you may want to prepare a written offer of settlement and  for the other side. The other side will have 28 days to accept it. If they do not, and if the outcome at trial is much the same as your offer, the judge may order them to pay an additional penalty of up to 20% for not accepting a reasonable offer.[4]

What are the benefits to proceeding in a BC Supreme Court?

The Supreme Court of British Columbia is the province’s superior trial court. It is a court of general and inherent jurisdiction.  This means that it can hear any type of case, civil or criminal.[5]  The major advantage to proceeding in this court is that there is no cap on the amount of damages you can claim.  Therefore if you have been seriously injured you may want to consider bring your claim here.  In addition, you may also seek to have the costs of litigating your case paid by the defendant. The BC Supreme Court has the jurisdiction to order this.  Jury trials are available as are settlement and mandatory mediation procedures.

Who may be a defendant in an action?

In general, everyone who may have an action for damages arising from the accident should be made a plaintiff in an action.  In addition, anyone whose negligence may have caused or contributed to the accident should be named as a defendant.  For example, the “plaintiff” (or injured party bringing and action) could include:

  • The injured party
  • A relative who either relies on the wages of the injured party or is cared for by injured party
  • A family member who may have witnessed a tragic accident may seek damages for nervous shock[6]
  • The registered owner of a damaged vehicle
  • The estate of an individual killed in an accident
  • Infants or mentally incompetent parties

Typical defendants are anyone who can be considered liable for the accident and can include more than just ICBC and the driver who was at fault (or their estate), including:

The registered owner of a vehicle

If the driver operating the vehicle is not the owner of the vehicle, but had permission to drive, it the Motor Vehicle Act allows the plaintiff to commence a claim against the owner.[7]  If the vehicle is leased, the company may also be added.  Lessors of vehicles have been held to be vicariously liability.[8]

Passengers

If an accident occurred because of something a passenger did, they may be found liable for any damages resulting.  For example, if they grabbed the steering wheel or encouraged an impaired person to drive.[9]

BC Ministry of Transport, Road Maintenance Contractors, and Municipalities

The Province of BC Ministry of Transportation and Infrastructure been found negligent in the past, however there is now legislation that insulates them from many actions.  In many instances private companies provide road maintenance.  Depending on the circumstances it may be possible to add one of these companies as a defendant, but this is an issue that is best discussed with your lawyer.[10]

Manufacturers/Repairers of Vehicles

There are many potential claims against manufacturers.  This is generally called “product liability.”  Typical examples of product liability pleadings include failing to design a vehicle that can withstand an impact or rollover, a defective seatbelt, door latch, a gas tank prone to puncture or explosion or an unnecessary protrusion inside the vehicle which increased the severity of the injury.[11]  Likewise, if the negligence of a repairer of a vehicle contributes to the accident, the repairer may be named as a defendant.[12]

Hosts

A commercial host (restaurant or bar for example) has a duty to ensure that patrons are not exposed to injury as a consequence of their obvious intoxication.  The SCC has maintained that the duty of care is not only to patrons, but also to individuals who may be injured by patrons.[13]  Social hosts may also be found liable for, however liability will not found if a host has not permitted, encouraged, or enabled a driver to become intoxicated.[14]

What are third parties?

Defendants in an action may be entitled to compensation (“indemnity”) for another person, or company who also had a hand in causing the damage.  If you have been named as a defendant in an action, you may want to consider that one of the above examples may apply in your situation.   However, these are complex matters and the best advice is to contact a lawyer.

 


[1] Small Claims Act, R.S.B.C. 1996, c. 430, s. 3.

[2] Michael W. Biggs (et al.) British Columbia Motor Vehicle Accident Claims Practice Manual  (
Vancouver: Continuing Legal Education Society of British Columbia, 2011) Looseleaf.

[3] The Canadian Bar Association, “Going to Trial in Small Claims Court”. Available at: http://www.cba.org/bc/public_media/small/168.aspx

[4] Ibid.

[5] http://www.courts.gov.bc.ca/site_search.aspx

[6] Cameron v Maracaccini (1978), 87 D.L.R. (3d) 442 (B.C.S.C.); Page v. Smith (1996) 1 A.C. 155 (UKHL).

[7] Motor Vehicle Act, RSBC 1996, c 318, s. 86.

[8] Yeung (Guardian ad litem of) v. Au, (2006) B.C.C.A. 217.

[9] Hall v. Hebert, [1993] 2 S.C.R. 159; Fredrikson v. Insurance Corp. of British Columbia (1990), 44 B.C.L.R. (2d) 303 (S.C.); Axa Pacific Insurance Co. v. Elwood, [2000]I.L.R. I-3869 (B.C.S.C.).

[10]Biggs, supra.

[11] Ibid.

[12] Ibid.

[13] Stewart v. Pettie [1995] 1 SCR 131.

[14] Biggs, supra.

 




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