Access to justice is an ongoing topic in British Columbia for persons injured in car accidents with ICBC claims. Access to justice includes the cost and how long it takes to solve disputes. The cheaper and speedier, the better.
A few steps the BC government has taken is to offer a variety of litigation options.
If you get hurt or have a non-family matter lawsuit (family matters have their own rules and court options), you have 3 procedural options in the Supreme Court of BC and a 4th option by going to Small Claims Court.
I’ll describe the 3 Supreme Court options first.
1. You can opt for the regular procedure – which is the default process. This process generally takes the longest and is the most costly. Typically, cases that are potentially greater than $100,000 proceed in this manner.
2. You can opt for a Rule 66 expedited litigation. When a Supreme Court action is filed under Rule 66, the action will typically get a quicker trial date (usually within 8 months of filing). However, the maximum number of trial days under this rule is 2 days. Other ways Rule 66 actions contain costs is:
- Limiting examinations for discovery (a pre-trial event where the lawyers ask questions to all parties to the action) to 2 hours for each party.
- Maximizing the costs payable by the unsuccessful party to $6,600 (this amount could be more in the event special or double costs are ordered – a topic beyond the scope of this article). Cost limitations can be good and bad – essentially it limits the risk for paying costs for all parties.
- Not permitting by right interrogatories. Interrogatories are written questions put to a party who then answers them in writing.
- Jury is not an option.
3. The third option in the Supreme Court is opting for Rule 68 expedited litigation. Rule 68 characteristics are as follows:
- A jury is not an option (reducing the cost).*
- Examinations for discovery are not a right. This means you don’t have to answer questions from the other side’s lawyer before the trial.
- There is no maximum number of trial days (an flexibility advantage to Rule 66 actions.
One limitation of Rule 68 is that the action must be under $100,000. Now the amount of an action isn’t always readily apparent – especially ICBC claims and personal injury actions. Therefore, there’s no absolute restriction to $100,000. However, $100,000 is a guideline when deciding to file under Rule 68..
An obligation that is unique to Rule 68 is that summaries of what witnesses will testify about must be prepared and provided to the other party.
4. The fourth litigation option is Small Claims Court in the Provincial Court of BC. Small Claims’ primary limitation is the maximum amount that it can award is $25,000. Therefore, if there’s a possibility a case is worth more than $25,000, Small Claims isn’t the best option.
However, if a case is certain to be less than $25,000, Small Claims is a viable option for the following reasons:
- There are no examinations for discovery (usually beneficial for an injured person) because it keeps the costs lower.
- Trial dates are granted fairly quickly.
- Very little risk of costs. There is a minimal costs provision in the Small Claims Rules – but the amount and occasion to award them are minimal. Again costs is a comprehensive subject beyond the scope here. No costs can be good or bad – depending on the outcome. However, with no costs available, the risk to all parties is minimized.
- If you don’t have a lawyer, the Small Claims process is easier to navigate than the Supreme Court of BC process.
- A jury is not an option (again, this contains the cost).*
However, the Small Claims process requires that all parties attend a Settlement Conference presided over by a Provincial Court Judge. These sessions are mini mediations – what is said is off the record except any further orders made by the presiding Judge. Many cases settle at these conferences – likely because an actual judge who is proactive states what is a possible outcome. Note that the judge who is at the Settlement Conferences don’t preside over the trial (if the matter doesn’t resolve).
I’ll conclude by making a comment about juries. Juries add cost to a trial. However, juries can be a very good way to decide a case and do justice for an injured person. In fact, because juries decide a trial right away after the trial, they can speed up the process.
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