When filing a lawsuit against ICBC for a motor vehicle accident injury claim, an injured claimant can choose to pursue it in an ordinary action or in a Fast Track Action (Rule 15) which shortens the entire litigation process making it more cost effective. There must be a formal election to pursue the action in Fast Track and it must meet criteria as set out in Rule 15-1(1) including:
- If the amount in issue is $100,000.00 or less; or
- If the trial can be completed in 3 days or less.
Placing an action on the fast track has procedural consequences, including the following:
- Most interlocutory applications cannot be brought unless a case planning conference or trial management conference has been held, subrules (7), (8) and (9);
- The trial must be held without a jury, subrule (10);
- Examinations for discovery are limited in duration and must be completed at least 14 days before the scheduled trial date, subrules (11) and (12);
- Early trial dates are available, subrule (13); and
- Costs are presumptively awarded on a fixed scale, which is limited by comparison to the usual tariff, subrule (15).
There is furthermore a limit on the number of expert reports that may be relied on in an ICBC action at trial. In an ordinary action, there is a limit of 3 expert reports. In a Fast Track action, there is a limit of 1 expert report.
Some cases change over time such as where injuries worsen resulting in an increase in value of the claim. If this occurs, then pursuing the matter in Fast Track may no longer be suitable.
Parties may remove a matter from Fast Track in 2 ways. First, both parties may consent to it. Second, if one party does not consent, then an application can be made requesting an order. In this type of application, it must be proven that the Fast Track criteria no longer applies. Furthermore, the application should be brought in a timely manner or there is risk that the order may not be granted if there is prejudice to the opposing party by removing the matter from Fast Track.
In Burt v. Tamesis 2021 BCSC 2522, the injured claimant commenced an action for damages suffered in a motor vehicle accident in December 2018 placing the matter into Fast Track litigation. In November 2020, he requested ICBC’s consent to remove the matter from Fast Track which ICBC refused. In September 2021, the injured claimant served 4 expert reports on ICBC for the trial set for December 13, 2021 for 5 days. Following service of the expert reports, the injured claimant applied for an order removing the matter from Fast Track which was denied by the presiding Master. The injured claimant appealed arguing that the Master erred in refusing the order.
In the appeal to remove the matter from Fast Track, the injured claimant argued that the circumstances changed and that the law required that it be removed from Fast Track for 2 reasons. First, the value of the claim exceeded $100,000.00. Second, the trial exceeded 3 days in length (it was set for 5 days). In response, ICBC argued that it would be prejudiced if the matter was removed from Fast Track because they chose not to serve any expert evidence and, if the order was granted, it would not have an opportunity to obtain more expert evidence. The injured claimant argued that the Master erred in dismissing the application by accepting ICBC’s argument of prejudice. It was also argued that the Master erred when noting the delay between the request to remove the action from the fast track in November 2020 and the application brought 10 months later in September of 2021 stating:
The plaintiff has provided no reasonable excuse for his delay in bringing the application. Furthermore, in the circumstances of this case, there is a concern that strategy may have been a factor in the plaintiff’s decision to delay bringing this application, to try to gain an advantage in the litigation. By delaying the application, the plaintiff could prevent the defendant from conducting a more extensive examination for discovery of the plaintiff and, importantly, lull the defendant into believing that the plaintiff would rely on limited expert evidence, likely one report, at trial. The defendant would also have conducted the action on the belief that he faced limited exposure to costs.
The presiding judge dismissed the injured claimant’s appeal finding that it was open to the Master to make these findings and to draw an inference of possible prejudice to ICBC when he originally dismissed the application.