Carfra Lawton LLP | Victoria BC

Defence positions reasonably caused the plaintiff to commence action in Supreme Court

In Gonopolsky v. Hammerston 2015 BCSC 2006 the plaintiff was awarded the costs of her personal injury action although she settled her claim within small claims court jurisdiction, i.e. for less than $25,000.

The plaintiff claimed that she had suffered soft tissue injuries in a motor vehicle accident. She relied on two medical legal opinions that she was likely to continue suffering from chronic pain and that her injuries affected her ability to do housework and physical labour. The defendant argued the claim was barred from litigation by the Workers Compensation Act and that the low velocity of the collision could not have caused the alleged injury.

The court found it was reasonable for the plaintiff to commence her action in Supreme Court given the nature of the injuries and their effects on homemaking and employment as this led to a “substantial possibility that damages could exceed $25,000.” Further the defendant’s positions “effectively increased the complexity of the claim” particularly with respect to the Workers Compensation Act issue and the denial of causation on the basis of a low velocity collision, which warranted examinations for discovery and potentially an expert opinion from an engineer. The Court found the plaintiff’s burden on causation weighed in favor of a trial in Supreme Court. Lastly, the difference between the threshold for small claims actions and the plaintiff’s settlement was not wide, which suggested the initial decision to bring action in Supreme Court was reasonably defensible.

Case law summary by: Caroline Alexander