In which Court should you commence proceedings for a small personal injury case?
Part 1
If you are injured due to the fault of another in British Columbia, you have the choice of bringing an action for damages in either the Small Claims division of the Provincial Court or the Supreme Court. One distinction is that Small Claims Court has a limit for awarding damages of $25,000.00; whereas, the Supreme Court has no monetary limit.
In personal injury cases of lesser severity, there may be a temptation to bring the lawsuit in Small Claims Court and, at first blush, there appears to be advantages to doing so. The Small Claims Act states that the purpose of the Act and the [Small Claims] Rules [of Court] is to allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a just, speedy, inexpensive and simple manner. In an attempt to turn that purpose into reality, there are simple, easy to fill out court forms and, in comparison to the Supreme Court, fewer opportunities to bring applications or to discover the opposing side’s case. Moreover, there is a more relaxed trial procedure involving less rules. The stripped down application, discovery and trial process removes the risk that a litigant might abuse the rules to make the process time consuming and expensive, and thereby force a settlement. Insurance companies have been accused of doing just that by conducting overly long oral discoveries, by bringing numerous applications to ferret out evidence (no matter how remotely relevant to the case) and by setting jury trials.
The simplicity of the Small Claims Court encourages some individuals to forego a lawyer and bring their own personal injury claim. But remember: most injury claims are defended by insurance companies that do hire lawyers: professionals with both the training and experience to destroy the case of an injured, unrepresented plaintiff.
It is my opinion that the Small Claims Court is not the best to bring an injury action. In my experience, the lack of structure in Small Claims Court means more lawsuits proceed to trial rather than being settled and the process takes longer. Another downside I have found is that as Provincial Court judges are limited to a jurisdictional maximum of $25,000.00, they seem to treat that amount as reserved for the extraordinary cases. In my experience, Small Claims judgments are often lower than awards made in Supreme Court. Moreover, Provincial Court judges are often less experienced in dealing with injury matters than their Supreme Court counterparts, as most of the Provincial Court schedule is taken up with criminal and family matters. As such, I have found results to be less predictable than in Supreme Court cases.
The Supreme Court has recently put into place rules that provide a better balance of structure for smaller cases (defined as being less than $100,000 and that can be heard in 3 days or less). Stay tuned for more on that topic in a forthcoming blog.
