Court Criticizes ICBC “Failure” To Pay For Necessary Treatments

ICBC and the Provincial government have been working overtime trying to persuade British Columbians that stripping collision victims of the right to go to court to be fairly paid for their injuries is a good idea.  They claim that by taking away these rights ICBC will treat victims fairly under a so-called ‘care based’ model.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, demonstrating that ICBC can be anything but fair when it comes to meeting their obligations to pay for long term injury treatments.

In today’s case (Del Bianco v. Yang) the Plaintiff sustained life long injuries in a collision.  At trial he was awarded damages which included payment for future care for massage therapy and kinesiology.  Despite being ordered to pay this money ICBC refused saying they will pay that portion of the judgement from the Plaintiff’s ‘no fault’ insurance with them over the years as the treatments are incurred.  An ICBC adjuster swore an affidavit declaring payments would be made.

The Court did not accept that ICBC would make payments, however, noting that they refused to pay the mandated no-fault benefits in the years prior to trial leaving little confidence that they would fairly meet their future obligations.  In refusing to deduct the vast majority of the awarded future care costs Mr. Justice Groves provided the following criticism of ICBC’s handling of the claim and their unexplained “failure” to pay past benefits they were obliged to:

[13]         It is concerning to the court that the representative of ICBC, Andrew Rudkowski, has not, in his affidavit, explained the failure of ICBC prior to trial to pay the massage therapy costs of the plaintiff. Liability for these motor vehicle accidents was never seriously in dispute. The injuries that required massage therapy, therapy that was necessary for Mr. Del Bianco to work, and effectively minimalize the extent of his tort claim, were lower back, shoulder and soft tissue injuries.

[14]         Equally concerning is the apparent exaggeration, even today, less than one year into a potentially 40-year commitment, as to the extent of ICBC’s commitment to pay what was ordered after trial. In paragraph 6, Andrew Rudkowski deposes that “ICBC will reimburse Mr. Del Bianco for the necessary health care services he has incurred since March 22, 2019 and he incurs in the future”. That is, as noted by defence counsel, not true. They will only reimburse under their payment schedule of $80, when the court determined on the evidence the cost of such treatment at $85.

[15]         Counsel for the plaintiff ably argued about the difficult financial circumstances that his injury and the actions of ICBC placed on the plaintiff from the time of the accident until, essentially, the time of this application. For whatever reason, unexplained, ICBC refused to pay for his massage therapy treatments. The suggestion from counsel for the plaintiff was that ICBC took the position that because he had a hernia operation after the accident, not related to the injuries suffered in the accident, that the hernia problem was the source of his discomfort. That, to a great degree, defies logic, as the hernia was, for lack of a better term, in the plaintiff’s groin or abdomen, whereas the soft tissue injuries requiring massage were in his back.

[16]         The court is faced with the representations of a claims specialist from ICBC that they will, in the future, pay these costs. The evidence about the lack of financial viability of ICBC, as attested to by the Cabinet Minister responsible for ICBC, the Attorney General, is not significantly disputed. Nor is it disputed that ICBC is not prepared to pay for massage therapy at a rate that the court has ordered.

[17]         Additionally, and though this was not raised by counsel, but is a concern to the court, it is hard to know and predict, dare I say impossible to know and predict, at what rate ICBC will, in the future, be paying for massage therapy costs. This is not just a short-term future. This is 40 years. If, as now, this would require the plaintiff to pay the difference himself, to pay over and above what ICBC is prepared to pay, when the tort award was intended to fully compensate him. He may perhaps then seek reimbursement from ICBC. This creates a 40-year responsibility on this plaintiff to keep track of receipts, to make requests and deal with adjusters at ICBC. That is completely inconsistent with the general purpose of litigation and tort awards, to create some finality between the parties.

[18]         In light of the history of non-payment by ICBC for no apparent reason, as experienced by the plaintiff, it is unrealistic, in my view, to require him for a period of 40 years, to have to continue to deal with an adjuster at ICBC in order to obtain what the court has already ordered he is entitled to.

[19]         Additionally, as noted by the plaintiff, there is just too much uncertainty as to the ability of ICBC to make the payments at a rate ordered by the court. They are, today, not prepared to pay at the rate the court ordered. There is too much uncertainty related to their past history of being disinterested or disrespectful of the plaintiff’s claims. There is too much uncertainty as to what the future holds for ICBC, as evidenced by the affidavit of the plaintiff, for the court to have absolute confidence that if money is deducted from the tort award for Part 7 scheduled benefits, that they will actually be paid.

[20]         I note the case of Li v. Newson, 2012 BCSC 675, a decision of Mr. Justice Abrioux, as he then was. He notes in para. 14, inter alia, that “uncertainty as to whether a Part 7 benefit will be paid must be resolved in favour of the plaintiff”. I find on the facts before me considerable uncertainty that payments consistent with the tort award would be paid to Mr. Del Bianco for massage therapy for the 40 years as awarded.

[21]         As such, I am not prepared to deduct amounts for massage therapy under s. 83 from the plaintiff’s tort award. These comments relate to the massage therapy treatments to age 65 and the massage therapy treatments from age 65 to age 75. There is, as noted above, in the circumstances of a 40-year payment period, too much uncertainty and, frankly, too much of a requirement placed on this plaintiff to potentially request reimbursement weekly for funds not paid directly by ICBC, but payable out of his pocket. That is simply too much to expect.

Slip and Fall Lawsuit Against City Dismissed Based on Policy Defence

The guest post is written by ERIK MAGRAKEN

When sued for negligence and Occupier’s Liability Act claims public bodies enjoy a defense that private citizens and businesses do not, namely the policy defense.   Actions taken pursuant to a good faith policy decision can shield a public body from liability in circumstances where a private defendant would be held liable.  Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, discussing and applying this principle.

In today’s case (Lowe v. Sidney (Town of)) the Plaintiff slipped and fell on black ice on a parking lot owned by the Defendant.  The Plaintiff argued the Defendant was negligent in failing to inspect and address this ice before the incident.  The Court disagreed and dismissed the claim.  In doing so Mr. Justice G.C. Weatherill made the following comments in applying the policy defence:

[23]         Public authorities do not owe a duty of care in tort if it is established that their actions were based upon a policy decision, unless the decision was made in bad faith or was so irrational as not to be a proper exercise of discretion.  However, public authorities can be liable for operational decisions provided the plaintiff proves the required elements of liability: Just v. British Columbia, [1989] 2 S.C.R. 1228 at 1245; Binette v. Salmon Arm (City), 2017 BCSC 302, aff’d 2018 BCCA 150, at paras. 10–14; Marchi v. Nelson (City of), 2020 BCCA 1 at paras. 14–16.

[24]         As a general rule, decisions concerning budgetary allotments for departments are classified as policy decisions, because they are an attempt by the public authority to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertaking and of their actual performance.  True policy decisions will usually be dictated by financial, economic, social, and political factors or constraints: Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420 at 441; Binette at para. 12.

[25]         Operational decisions are those concerning the implementation and performance of the formulated policies and are usually made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness: Brown, at p. 441; Binette at para. 12.

[29]         The defendant submits that it is exempt from owing a duty of care to the plaintiff because its actions were in keeping with the Policy, which was put in place bona fide and in good faith based on, among other things, the availability of manpower, equipment, and budgetary constraints. 

[30]         The plaintiff submits that the classification of the Lot as a low priority area was not a bona fide policy because the Lot was along the defendant’s priority routes and could easily have been inspected with little to no extra effort.

[31]         I am satisfied on the evidence presented by the defendant that the Policy was dictated by financial, economic, and budgetary constraints.  It was a proper exercise of discretion.  Included in the Policy was the determination that the defendant’s six public parking lots were areas of low priority for snow and ice inspection and control, in the absence of a particular complaint or extreme weather event.  This was a resource allocation decision and, thus, an unassailable policy decision.

[32]         I also find the policy decision to be reasonable.  It is one thing for priority areas to be inspected and sanded.  To require as a matter of policy that those involved in the inspection of priority areas, at the same time, divert their attention to and engage in an inspection of areas considered low priority is illogical and inconsistent with reasonable resource allocation and prudent policy-making.  In my view, the Policy was bona fide.

bc injury law, Lowe v. Sidney, Mr. Justice G.C. Weatherill, Occupier’s Liability, Policy defence

Grouse Mountain Waiver Fails To Protect After Snowboarder Paralyzed

Today’s post is from BC injury claims lawyer Erik Magraken.

Reasons for judgement were published this week by the BC Court of Appeal finding purported waivers of liability to be of no force and effect.

In this week’s case (Apps v. Grouse Mountain Resorts Ltd) the Plaintiff suffered a significant spinal injury at the C4/5 level, and  was rendered quadriplegic while snowboarding the Defendant’s resort.  He sued for damages but at trial the claim was dismissed with the Court finding posted waivers of liability prevented the claim.

The BC Court of Appeal overturned the result finding the posted waiver signs were not adequate.  In reaching this conclusion BC’s highest court provided the following reasons:

[3]             Mr. Apps’ appeal raises an issue that has troubled the courts ever since the Industrial Revolution: under what circumstances is such a waiver in a contract of adhesion (where the consumer must take it or leave it) binding on the consumer?  This has been of particular concern where the waiver includes words excluding liability for the service provider’s own negligence and failures (an “own negligence” clause).

[4]             I note parenthetically that in the Internet age, contracts of adhesion have become the electronic norm, and consumers routinely click on digital buttons confirming their acceptance of terms and conditions they have neither read nor understood.  Here, however, Mr. Apps did not click on any buttons or sign any forms.  What, then, was done to bring the relevant terms of the waiver to his attention is key…

[57]         In the absence of a ski hill exception, it follows that only the steps Grouse Mountain took before and at the time of the issuance of the ticket can be taken into account in assessing whether Grouse Mountain took sufficient steps to give reasonable notice to Mr. Apps of the terms of its waiver, and in particular of the inclusion of the own negligence clause.

[58]         What was said on the signs at the entrance to the Terrain Park is relevant only to the question of whether it gave reasonable notice of the risks of using that park, a question that is not before us.  By the time Mr. Apps arrived at the Terrain Park, he had paid for his non-refundable ticket, taken the lift up the mountain, and had begun snowboarding.  It was far too late to give notice of what was in the waiver.  That had to be done at or before the ticket booth.

[59]         Once we take the “clear and easy to read” signs at the Terrain Park out of the equation, as we must, we are left with the trial judge’s unequivocal findings at paras 36–38 and 47:

·       The sign at the ticket booth was “difficult to read”;

·       The own negligence exclusion was “not highlighted or emphasized in any way”, but was buried in small print among many commas and semi-colons;

·       “It is unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read the sign.”

[60]         These findings of fact distinguish this case from cases such as McQuary, and Fillingham v Big White Ski Resort Limited, 2017 BCSC 1702, where Madam Justice Adair found the sign in question to be large, highly visible, and posted at all ticket locations.

[61]         Grouse Mountain argues that, notwithstanding these findings, the judge nevertheless observed that the heading at the top of the notice was easy to read.  Grouse Mountain asserts that this was all that was required to put Mr. Apps on notice that his ticket included an exclusion of liability that he should read.  As Blair J. said of the plaintiff in McQuary at para 21, “The defendant succeeded in bringing the exclusion of liability conditions to the plaintiff’s attention. It could not force him to read them.”

[62]         But in the circumstances of this case, this submission begs the question of what it was that had to be brought to Mr. Apps’ attention.  At para 31 of her reasons, the judge rightly recognized a waiver of an occupier’s own negligence as “among the most onerous of clauses”, and that “The more onerous the exclusion clause the more explicit the notice must be”.  It does not follow that because there may have been adequate notice that something in the contract limited one’s rights, enough had been done to bring to the consumer’s attention the fact that the contract included a clause so onerous as to exclude liability for the service provider’s own negligence.

[63]         It is in this context that we must assess the reasonableness of Grouse Mountain’s actions.

[64]         In the Mile case, the plaintiff who attended a Club Med resort was aware that the brochure he reviewed contained an exclusionary clause, but had not read it.  The court noted that in words that were not in small print or hidden in any way from even the casual reader, the resort provided that it “shall not be liable, for any injury, illness, damage, loss, accident, expense, delay or other irregularity resulting from a member’s participation in any activity …”.  This is similar to the language towards the top of the notice that Grouse Mountain posted.  But in the court’s view, that wording was not sufficient to do more than exclude liability with respect to the normal risks involved in sports.  Knowledge, in short, of the existence of exclusionary language does not of itself indicate awareness of the fact that the extent of the exclusion goes beyond what would normally be expected.

[65]         In our case, the waiver made specific reference to Grouse Mountain’s own negligence.  But, as the trial judge found, that reference was buried in a difficult-to-read section, among colons and semicolons, with no attempt to highlight it or emphasize it in any way, in a notice posted where it would be unreasonable to expect anyone to stop and read it.  It follows from this that the judge’s observation that the first lines of the notice were emphasized and in large print cannot be taken as indicating that Grouse Mountain had done what was necessary to bring the onerous own negligence clause to Mr. Apps’ attention.

[66]         In this regard, it is enlightening to consider the terms of Grouse Mountain’s season’s pass contract form, which must be signed by all persons who purchase season’s passes.

[67]         That document begins with a yellow box outlined in red indicating that it is a release of liability, waiver of claims, assumption of risk and indemnity agreement, and it admonishes the consumer to read it carefully.  Below that box, it sets out terms concerning the assumption of risks, and others relevant to the release of liability and waiver of claims.  The specific waiver clause is then again placed in a yellow box outlined in red, and the own negligence clause is in capital letters.  It makes specific reference to the OLA, and includes a definition of negligence: “I UNDERSTAND THAT NEGLIGENCE INCLUDES FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS REFERRED TO ABOVE.”

[68]         The document, in short, highlights and explains the own negligence clause in conformity with Lord Denning’s “red hand” comment (see para 30 above). To the extent one’s attention is directed to this document (as it would be by requiring a signature), the court can have confidence that anyone who read it would be well aware of the extent of the waiver.  On the judge’s findings here, that cannot be said of the notice posted by Grouse Mountain at the ticket booth and printed on the ticket.

$80,000 Non-Pecuniary Assessment for 80% Recovered but Lingering Myofascial Pain Syndrome

The guest post is written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for myofascial pain developed secondary to a vehicle collision.

In today’s case (Tang v. Duong) the Plaintiff was injured in a 2105 collision where the Defendant turned into the plaintiff’s lane of travel at an intersection.   The Plaintiff developed various soft tissue injuries which resulted in regional myofascial pain syndrome.  By the time of trial the injuries were about 80% improved but the lingering symptoms were expected to persist.  In assessing non-pecuniary damages at $80,000 Mr. Justice Thompson provided the following reasons:

[11]         It is convenient to begin with Dr. Letcher’s evidence, which I accept in its entirety. On physical examination in September 2019, over four years after the MVA, Dr. Letcher identified tenderness and palpable trigger points on the right side of Mr. Tang’s neck, and the right side of his low back. Dr. Letcher reviewed the medical documentation made available to him, and noted the documentation of significant and prolonged low mood, anxiety disorder, sleep disturbance, as well as decreased exercise/activity tolerance. This was consistent with the history provided to him by Mr. Tang, and consistent with Mr. Tang’s evidence at trial, which I accept.

[12]         Dr. Letcher’s opinion is that the MVA probably caused acute muscle and ligamentous strains to Mr. Tang’s neck and back, which would have healed within about eight weeks, but he has subsequently developed regional myofascial pain syndrome affecting his neck and low back. At the time that Dr. Letcher examined Mr. Tang, there was no clear evidence of a more diffuse chronic pain syndrome such as fibromyalgia. I accept this evidence, and despite Dr. Lee’s diagnosis of fibromyalgia, I am not satisfied on the balance of probabilities that Mr. Tang ever met the diagnostic criteria for that condition.

[13]         Dr. Letcher’s opinion is that Mr. Tang’s depressed mood, anxiety, and sleep disturbance complicate his prognosis, which Dr. Letcher describes as “guarded given the chronicity of his symptoms.” His neck and back pain will most likely persist into the foreseeable future, with some improvement with treatment strategies. Although Mr. Tang is not disabled from work, Dr. Letcher emphasized that he would need to “work around his symptoms as best as possible….

[17]         Mr. Tang has endured a significant amount of pain, and although I find he has achieved a recovery on the order of 80 percent, the likelihood is that he will always have some pain and stiffness in his neck and low back. Work is important to Mr. Tang, and the effects of his injuries causes him to have to work around his symptoms. He has been able to keep up with domestic chores since the summer of 2015. His injuries have affected his recreational pursuits, but in a modest way.  ..

[20]         Each of these cases has been of some help in making the assessment, but, naturally, each has important distinguishing features. Making an individualized assessment, I consider that $80,000 is a fit award for non-pecuniary damages.

bc injury law, chronic myofascial pain syndrome, chronic regional myofascial pain syndrome, Mr. Justice Thompson, Tang v. Duong

Motorist Found Fully Liable For Striking Cyclist in Dedicated Bike Lane

The guest post was written by ERIK MAGRAKEN

Reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, discussing the duties of cyclists riding in dedicated bike lanes.

In today’s case (Charlton-Miner v. Hedgecock) the Plaintiff was travelling on a bicycle in a dedicated bike lane.  As she approached an intersection that she was driving straight through the Defendant motorist approached from her rear and “turned across the plaintiff’s path, causing the right side of his vehicle to collide with the plaintiff’s left shoulder area and causing her to fall.”  The Plaintiff’s bike lane was to the right of a designated right hand turn lane.

ICBC argued that the Defendant should not be at fault for striking the cyclist for a variety of reasons including that the cyclist should have had a rear view mirror and somehow reacted differently and further arguing that the cyclist should have left the dedicated bike lane and entered the lanes intended for vehicles to go through the intersection because the bike lane was to the right of a dedicated right hand turn lane.  In rejecting these arguments and finding the motorist 100% at fault Mr. Justice Wilson provided the following reasons:

[33]         Neither party was aware of any cases that address the issue of whether a cyclist who intends to cross an intersection is obligated to leave a dedicated bicycle lane and cross a right turn lane in order to move into the through lane for traffic. If the plaintiff was so obligated, she would have been subject to a heightened duty of care that may be significant in determining whether she was at fault, in whole or in part, for the accident….

[40]         If I were to accept the defendant’s argument, the dedicated bicycle lane should not be used by cyclists who intend to cross the intersection and would instead be used solely by cyclists intending to turn right. However, there are neither signs nor markings in the bicycle lane that would indicate that the bicycle lane has ended for through cyclists. There are no signs or markings that require users of the bicycle lane to turn right. The bicycle lane is separated from the single lane and what subsequently becomes the right turn lane by a solid white line. The bicycle lane contains only one painted sign, which is a picture of a bicycle. The painted bicycle sign is positioned shortly after northbound lane divides into two lanes divided by a broken line. In the absence of any signage indicating that through cyclists should do otherwise, it is reasonable to assume that cyclists are intended to remain within the bicycle lane, regardless of whether they intend to turn right or to continue through.

[41]         Dedicated bicycle lanes provide cyclists with a small portion of the roadway in which to travel to the exclusion of motor vehicles, recognizing that motor vehicles may need to traverse a bicycle lane, whether to enter or exit the roadway, to park adjacent to the curb, or for other reasons. Cyclists can expect that vehicles will not be driving in the dedicated bicycle lanes and will yield to cyclists using those lanes, just as drivers of motor vehicles can expect that cyclists will confine themselves to dedicated bicycle lanes where available.

[42]         At this intersection, a cyclist would have to leave the dedicated bicycle lane, traverse the right turn lane, and then merge into and ‘take’ the through lane, a potentially hazardous manoeuver when the latter two lanes can be expected to contain vehicular traffic travelling much faster than the cyclist.

[43]         I find that the plaintiff was not in breach of any traffic rules or the rules of the road when she stayed in the dedicated bicycle lane and proceeded to cross over the intersection in the direction of the dedicated bicycle lane on Hollywood Road north of Highway 33 because cyclists in the dedicated bicycle lane are not obligated to turn right. The dedicated bicycle lane is both for cyclists who are turning right and those who are continuing through the intersection. The plaintiff was not subject to a heightened duty of care.

[44]         The facts here are similar to those in Levers v. Blace, [1993] B.C.W.L.D. 1666, 1993 CarswellBC 2355. In that case, a cyclist was riding alongside a motorist in the same lane of traffic when the motorist made a sudden right turn into a parking lot, resulting in the cyclist colliding with the passenger side of the motorist’s vehicle. Justice Lowry held the motorist to be solely responsible for the collision:

[5]        Mr. Blace says that he was stopped beside Mr. Levers at the light. But he says Mr. Levers was in the right turning lane. He says that when the light changed, he accelerated and did not see the bicycle again until the impact. He assumed Mr. Levers had turned right on Trunk Road. Mr. Blace has no recollection of looking to his right or behind before he made his turn into the Dairy Queen lot. If he had, he would have seen the cyclist. He activated his turn signal just as he cleared the intersection. He assumed there was no reason he could not turn safely. His assumption was wrong.

[45]         The circumstances in this case are similar to those here because the defendant had previously seen the plaintiff before he got to the intersection, but had lost track of her and failed to ensure that it was safe to commence his right turn.

[46]         I do not accept that the plaintiff should share any responsibility for the accident. The plaintiff had been travelling in the dedicated bicycle lane for several blocks. It was a bright and sunny day and she was clearly visible. Motorists such as the defendant who were travelling in the same direction as the plaintiff had a prolonged opportunity to observe her in the bicycle lane and the defendant ought to have anticipated that she may continue through the intersection in line with the dedicated bicycle lane.

[47]         Because I have concluded that the plaintiff was ahead of the defendant as they approached the intersection and that they arrived at the intersection at approximately the same time, the defendant was obligated to yield to the plaintiff, no different than if she had been a pedestrian using the adjacent crosswalk. The defendant’s evidence was that he did not see her, even though he had seen her previously. However, it does not matter whether he actually saw her at the time he was commencing his turn. Rather, she was riding her bicycle in the dedicated bicycle lane in accordance with the bylaw and she was there to be seen.

[48]         I do not accept the defendant’s submission that the plaintiff failed to take sufficient precautions for her own safety by not having a rear-view mirror attached to either her bicycle or helmet. Even if she had been aware that the defendant was approaching her from behind in the right turn lane, it was reasonable for her to expect that the defendant would have allowed her to pass before commencing his turn, and it is not apparent on the face of the evidence as to what kind of evasive action the plaintiff could have taken upon the sudden realization that the defendant was not going to allow her to do so.

[49]         I find the defendant 100% at fault for the accident. Subject to something of which I am unaware, the plaintiff is entitled to her costs.

bc injury law, Bike Lanes, Chartlon-Miner v. Hedgecock, cyclist collisions, Mr. Justice Wilson

ICBC Effort To Remove Case From Supreme Court Fails

While the BC Supreme Court Act allows parties to apply to transfer claims to small claims court such applications are rarely brought in personal injury claims where the quantum of claims can vary widely based on how evidence unfolds.

Today reasons for judgment were published by the BC Supreme Court, Vancouver Registry, hearing and rejecting such an application brought by ICBC.

In today’s case (Herrera v. Miller) the Plaintiff was injured in a collision and sued for damages.  After examinations for discovery the Defendant brought an application to move the case to small claims court arguing the damages could not exceed the limit of that court because the collision was “relatively minor, that the plaintiff suffered insignificant injuries for which he received very little treatment, and that the injuries did not seriously affect the plaintiff’s enjoyment of recreational and sporting activities, or his employment“.

The Plaintiff opposed pointing to recent case law for injuries similar to his with quantum assessments in excess of the small claims court jurisdiction.  In dismissing the application, ordering costs payable to the plaintiff and finding the claim could stay in Supreme Court Mr. Justice Giaschi provided the following reasons:

[12]         The plaintiff filed an affidavit sworn December 13, 2019. In that affidavit, he deposes that, as a result of the accident, he continues to experience symptoms in his back, shoulders and right hip, and has difficulty sleeping. He complains of pain in his lower back and shoulders when not active, and of pain lasting two to three days if he engages in activities. He further deposed to having difficulty falling asleep and of waking in the night because of lower back pain. He further deposed to attending massage therapy on a more or less weekly basis and that he intends to seek chiropractic treatments.

[13]         In approaching this mater, I am particularly mindful of the caution expressed by Justice McEwan in Kooner v. Singh, 2011 BCSC 1384, at paras. 3 and 6. There, he stated it is only in the clearest of cases that a matter should be transferred to the Provincial Court. It is only where there is no possibility of a damage award exceeding the Small Claims’ limit that a matter should be transferred to the Provincial Court:

[3]        I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[6]        I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[14]         The plaintiff is relatively young. He apparently had no medical issues prior to the accident. He apparently suffered soft tissue injuries in the accident to the neck, back and shoulders, and continues to suffer from what may be chronic pain which may encumber him for the rest of his life. He also has ongoing sleep difficulties and his injuries have affected his enjoyment of recreational activities. The injuries suffered by the plaintiff and the effects of those injuries are somewhat similar to what is described in Poulin and Carson, where the plaintiffs were awarded general damages of considerably in excess of $35,000.

[15]         In my view, on the basis of the evidence before me and the authorities, there is a possibility that the plaintiff may recover damages at trial in excess of $35,000. Accordingly, this matter should not be transferred to the Provincial Court, and the application is dismissed.

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