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Section 10 WCB Bar Fails to Protect Ministry of Solicitor General

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 51 Comments on Section 10 WCB Bar Fails to Protect Ministry of Solicitor General


(Update June 19, 2013 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)
As previously discussed, Section 10 of the BC Workers Compensation Act can strip people of their right to sue if they are injured in the course of their employment by someone else in the course of their employment.
When a police officer in the course of their duties injuries someone through negligence they may be subject to this bar.  However, when an RCMP officer is negligent they usually enjoy personal immunity from lawsuits and instead the injured party needs to look to the Minister of Public Safety and Solicitor General for compensation who are exposed by statute for liability when RCMP members are negligent in the course of their duties.  (Note: this Ministry has recently been overhauled and renamed the Ministry of Justice)
Interesting reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, discussing the interplay of the WCB Bar to lawsuits and actions against the Minister of Solicitor General for negligence of RCMP officers.
In last week’s case (Aitken v. Bethell) the Plaintiff was seriously injured while sitting in a parked vehicle.  The RCMP were in pursuit of the Defendant Bethell who lost control of his vehicle, colliding with another, and eventually causing a collision with the Plaintiff’s vehicle.  The Plaintiff sued various parties including the police officer.
Both the Plaintiff and the Police officer were found to be in the course of their employment at the time of the crash.   The Minister of Public Safety and Solicitor General brought an application to have the lawsuit against them dismissed relying on the WCB section 10 bar.  Mr. Justice Halfyard refused to do so finding that while the bar could prevent the lawsuit against the individual officer, the Minister did not enjoy the same immunity as they were not an ‘employer‘ and their liability was created by virtue of statue.  In permitting the claim to proceed Mr. Justice Halfyard provided the following reasons:

[66]I have attached s. 10(1) of the Act as an appendix to these reasons. It seems to me that, in a negligence action for damages for personal injury, in order for a defendant to succeed in this defence, it must be established:

a)that the plaintiff, at the time of the alleged injury, was a “worker;”

b)that the alleged injury “[arose] out of and in the course of [the plaintiff’s] employment;”

c)that the defendant was the plaintiff’s employer, or the plaintiff’s co-worker, or “any employer within the scope of this Part” (i.e., Part 1 of the Act), or “any worker;” and

d)that the conduct of the defendant which is alleged to have caused the injury “arose out of and in the course of employment within the scope of this Part” (i.e. Part 1 of the Act).

[67]Where the statutory bar applies in favour of a defendant, the plaintiff cannot maintain his or her action as against that defendant. The plaintiff is restricted to making a claim for workers compensation in respect of the injury caused by that defendant.

[68]It appeared to be common ground that, if the Minister was an employer within the meaning of the Workers Compensation Act, then s. 10(1) would be an absolute bar to any action being brought against him by the plaintiff, i.e., a “worker,” (for any tort allegedly committed by him or by a police officer), even though neither the government nor the Minister was the employer of the police officers involved. The potential scope of the statutory bar appears to be broad…

[80]It seems to me that the Court of Appeal is saying, by necessary implication, that the province cannot be vicariously liable under s. 11 of the Police Act, and that only the Minister can be. If that is so, then on hindsight, it would appear that Mr. Justice Macaulay should not have granted judgment against both the government and the Minister, but should only have found the Minister to be vicariously liable. To my mind, that result cancels out the argument of the applicants based on Hill v. Hurst.

[81]If the plaintiff had sued the Government of British Columbia (which would have to be named as “Her Majesty the Queen in Right of the Province of British Columbia”: s. 7 of the Crown Proceedings Act), the finding of WCAT that the government was an employer within the meaning of the Workers Compensation Act could have the legal effect of entitling the government to the statutory bar in s. 10 of the Act (but only if the conduct of the government, or its servant or agent, was a cause of the injury, and that conduct “arose out of and in the course of employment”). But the plaintiff has not sued the government, nor could he have sued the government, in my opinion. I am not persuaded that the Minister should be accorded the status of an employer for the purpose of s. 10(1) of the Act, simply because the government is an employer and because the Minister is the designate, or is the agent of, the government for the purposes of the Police Act.

Why Can The Government Scoop ICBC Profits?

Written by admin on . Posted in Tort Reform, Uncategorized. 69 Comments on Why Can The Government Scoop ICBC Profits?


I recently reviewed ICBC’s 2012-2014 Service Plan which reported that “Pursuant to legislative change effective April 2010, ICBC now transfers its excess Optional capital to the Government of British Columbia on an annual basis“.
This had me wonder how the Government scoops and plans to continue to scoop ICBC’s profits while ICBC simultaneously applies for a rate hike.  I’m not talking about why this is politically acceptable, but rather the much more basic question of how legally they can do this.  What “legislative change” was made in April 2010?
After a bit of digging around I came across the BC Budget Measures Implementation Act which amended section 26 of the Insurance Corporation Act to read as follows to give the Government power over ICBC’s profits:

(2) Subject to subsection (3) and despite any other enactment, the Lieutenant Governor in Council may, by order, direct the corporation to make payments to the government at such times, in such amounts or circumstances, on such bases and in such manners as the Lieutenant Governor in Council may order and to record the required payments as liabilities in the corporation’s financial statements.

From ICBC’s recently released Service Plan it appears that the Government is choosing to exercise this right on an annual basis.
So why does this matter?    ICBC, like any other viable company, needs to maintain financial stability.  As ICBC reports, the Minimum Capital Test (MCT) “is used to determine whether a company has suf?cient capital levels to protect policyholders from ?nancial risk and provide long-term ?nancial stability.”  Scooping profit on an annual basis weakens ICBC’s financial position as they themselves report on page 21 of their Service Plan stating that ICBC’s MCT is lower due to “the transfer of excess Optional capital to the government“.
Actions have consequences.  In this case the action of taking profit from an insurer year over year weakens their financial position.  This reality is worth keeping in mind if ever faced with the rhetoric that individuals should compromise their civil access to justice rights to have a working auto insurance system.

Adverse Inferences When Parties in an Injury Claim Fail to Testify

Written by admin on . Posted in Civil Procedure, Uncategorized. 48 Comments on Adverse Inferences When Parties in an Injury Claim Fail to Testify

Further to my previous posts addressing this topic, two sets of reasons for judgment were released recently by BC Courts addressing the law of adverse inference in the failure of parties testifying in their own injury claim.
In a recent Court of Appeal decison (O’Connell v. Yung) the Plaintiff suffered a serious brain injury as a result of a 2007 tractor-trailer collision.  The consequences of her injury caused her to “lack insight into her difficulties”.  At trial the Plaintiff did not take the stand with counsel explaining that this choice was made because “she was an unreliable historian and could not add anything to the truth of the evidence she would be giving”.  The Plaintiff’s case instead consisted of medical evidence and that of collateral witnesses.
The Plaintiff was awarded significant damages at trial.  The Defendants appealed arguing the damage awards were too high and further that the trial judge erred in not drawing an adverse inference from the Plaintiff’s failure to testify.
The Court of Appeal, while somewhat reducing the damages awarded for cost of future care, found that no error was made in not drawing an adverse inference.  Madam Justice Kirkpatrick provided the following reasons:

[16] I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:

In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.

[17] The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal…

[31] In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge’s conclusion that Ms. O’Connell had limited ability to testify. Further, the evidence suggests that had Ms. O’Connell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p. 573] “On the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.” Similarly, Dr. Anderson testified that Ms. O’Connell is “easily influenced by others” and tends to say whatever they want to hear. In my view, Ms. O’Connell’s limited ability to testify would have complicated rather than aided in the assessment of her claims.

[32] The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.

[33] In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.

Also of note is a recent BC Supreme Court decision (McIlvenna v. Viebig) wherein the Plaintiff was seriously injured in a collision with a vehicle.  At trial neither the Plaintiff nor the Defendant testified.  Both parties asked the Court to draw an adverse inference from the opposing side’s failure to testify.  Mr. Justice Sigurdson refused to draw such an inference and in doing so set out comprehensive reasons addressing this area of the law at paragraphs 68-74 of the reasons for judgement which are worth reviewing in full.

$55,000 Non-Pecuniary Damages for Rotator Cuff Impingement Syndrome

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized.


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a rotator cuff injury caused by a motor vehicle collision.
In yesterday’s case (Lim v. Anderson) the Plaintiff was injured in a 2008 collision when the Defendant ran a red light.  Fault was admitted by the Defendant.  The Plaintiff suffered an impingement syndrome in her shoulder due to a rotator cuff injury caused by the crash.  She had some ongoing symptoms of pain and limitation at the time of trial.  In assessing non-pecuniary damages at $55,000 Madam Justice Fenlon provided the following reasons:
[7] There was a difference of opinion between Dr. Christian and the plaintiff’s treating orthopaedic surgeon, Dr. Yu, as to the cause of the plaintiff’s ongoing shoulder pain. Dr. Yu attributes it to calcific tendonitis caused by the soft tissue injuries. In his view, with the injury there was bruising and swelling or hemorrhage into the rotator cuff giving rise to pain or an abduction and impingement syndrome. In this condition the tendon is pinched between the under surface of the acromion and the humeral head, resulting in pain on movement…
[9] While it is not really necessary to choose between the opinions on causation, given the agreement on ongoing residual pain in the shoulder, I prefer Dr. Yu’s diagnosis…
[10] I accept his finding that the plaintiff’s response to an injection into the subacromial space of her right shoulder, (temporary relief from pain), confirmed his diagnosis…

[38] The biggest impact on Ms. Lim in terms of loss of enjoyment of life is her inability to cook using a wok, to do the vacuuming and heavy housework she used to do to keep her home in the meticulous order she enjoyed and to do her own gardening and yard work. Her co-workers describe a woman who is less cheerful than she used to be and is often sore and uncomfortable at work. She can no longer pour tea when they go for dim sum together, something she always did before the accident.

[39] There is medical evidence that suggests that the plaintiff’s soft tissue injuries may further improve with exercise over time, although the evidence supports a finding that her shoulders will not likely improve in future.

[40] Taking into account all of the Stapley factors, I find that an award of $55,000 for pain, suffering and loss of enjoyment of life is appropriate.

MSP and Pharmanet Printouts Disclosable on a Case by Case Basis

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.


Two documents that ICBC routinely asks Plaintiff’s to produce in the course of personal injury lawsuits are MSP and Pharmanet Printouts.  These are documents which essentially keep track of all of a Plaintiff’s medical visits and prescription medication fillings.  Does a Plaintiff need to comply with a request to produce these documents?  Reasons for judgement were released last month by the BC Supreme Court, Victoria Registry, addressing this issue finding that these documents are not automatically producible but very well may be depending on the facts of the case.
In last month’s case (Edwards v. Ganzer) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit ICBC requested that the Plaintiff produce her MSP and Pharmanet Printouts for various periods of time.  Ultimately the Plaintiff was required to produce some of these records.  Prior to making the production order Master Bouck provided the following reasons addressing production requests for these records:

[51] Thus, in a personal injury action, a plaintiff’s MSP and Med Profile will not be ordered produced to the defence regardless of the facts of the case. At the very least, there must be some “air of reality” between the documents and the issues in the action: Moukhine v. Collins at para. 22.

[52] Correspondingly, decisions where the production of these kinds of records have been denied will likely have little or no precedential value to the plaintiff here as the facts are bound to differ from those in the case at bar.

[53] Neither of these propositions represents a change in the law since the introduction of the SCCR.

[54] What is new to this discussion is the role that proportionality plays in making an order under Rule 7-1(14). Although not specifically provided for in Rule 7-1, it is only logical that the court should take into account the objects stated in Rule 1?3 (2) when exercising its discretion with respect to compliance with the broader disclosure demand: see Kim v. Lin, 2010 BCSC 1386 at para. 29. Indeed, those objectives have been considered by the court in the decisions already cited.

[55] In terms of relevancy, the plaintiff has already acknowledged the relevancy of the MSP and Med Profile records by disclosing these records on her initial list of documents. It would seem apparent that the plaintiff concedes that this document ought to be produced under the Guano test.

[56] While the plaintiff’s submissions suggest that privacy concerns come into play, there is no evidence from the plaintiff herself (either directly or on information and belief) which might justify aHalliday form of order: Gorse v. Straker, 2010 BCSC 119 at paras. 12, 13 and 36.

[57] Paraphrasing the test set out in Global Pacific, the issue to be determined is whether the MSP and/or Med Profile records sought can properly be said to contain information which mayenable the defendant to advance his case or damage the case of the plaintiff, if it is a document which may fairly lead to a train of inquiry, or if it may have either of these consequences.

[58] Both the evidence and pleadings raised issues of mitigation (i.e. rehabilitation efforts; following professional advice on medication). In that respect, both the MSP and Med Profile record may enable the defence to prove that the plaintiff has failed to mitigate her damages. In addition, these records may serve the purpose described in Creed v. Dorio; that is, to test the credibility and reliability of the evidence presented by the plaintiff to date on her post-accident health.

[59] I have concluded that on the facts of this case, the plaintiff’s MSP record and the post-accident Med Profile ought to be listed and produced pursuant to the demand made under Rule 7-1(11).

Private MRI Cost Recovered as Special Damages in Injury Claim

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Psychological Injury Cases, Uncategorized.

Further to my recent post on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the recovery of private MRI costs in a personal injury lawsuit.
In last week’s case (Piper v. Hassan) the Plaintiff was injured in a 2006 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff suffered soft tissue injuries and an aggravation of pre-existing back pain and depression.  The Plaintiff sought substantial damages at trial although much of the claim was not accepted with the Court finding that much of the Plaintiff’s symptoms would have occurred absent the collision due to pre-existing degenerative changes in the plaintiff’s back.
In the course of the lawsuit the Plaintiff obtained a private MRI.  At trial the Plaintiff sought to recover the cost associated with this.  The Defendant opposed this arguing it was not a reasonable expense.  Mr. Justice Pearlman disagreed and allowed recovery of this item.  In doing so the Court provided the following reasons:
[172] Mr. Piper also paid $1,975 for the full spine MRI performed May 18, 2007. The defendant submits this was an unnecessary expense. I disagree.  Dr. McGrath had recommended an MRI study. At a time when the plaintiff was experiencing increased back pain and sought medical advice to determine its cause and possible treatment, it was not unreasonable for him to pay for a private MRI, rather than wait in line for publicly funded radiology. The full spine MRI assisted both Dr. Yu and Dr. McGraw in their diagnoses of the extent of the plaintiff’s injuries attributable to the motor vehicle accident, showed the progression of degenerative changes to the plaintiff’s spine, and aided Dr. McGraw in forming his opinion that the plaintiff had not suffered a disc herniation. I find that the plaintiff is entitled to recover $1,975 for the MRI study.

ICBC Projects $605 Million in Net Income For Upcoming Years

Written by admin on . Posted in Tort Reform, Uncategorized. 48 Comments on ICBC Projects $605 Million in Net Income For Upcoming Years

Included in the BC Government’s Budget released today was ICBC’s Service Plan for 2012-2014.  At the conclusion of this document ICBC released their income forecast for 2012-2014.  ICBC projects a total of $605 Million Net Income over the next three years:

This is so despite ICBC’s “transfer of excess Optional capital to the government” and the fact that “investment income is forecast to be lower than historical results“.
Projections like this are a good reminder for the rest of Canada that a full tort system can operate, profitably at that, and consumers should not be scared into being stripped of their right to sue when harmed through the carelessness of others due to a perceived “insurance crisis” or other tort reform rhetoric.
In fact, the BC system is so profitable for ICBC that not only has the Government raided ICBC’s coffers for hundreds of millions of dollars in recent years, the Governments current budget specifically looks to the Insurer for contribution to general revenue with plans on taking $146 Million from ICBC in 2012.

Criminal Guilty Plea Strips Defendant of Civil Liability Denial

Written by admin on . Posted in BCSC Civil Rule 9, Uncategorized. 47 Comments on Criminal Guilty Plea Strips Defendant of Civil Liability Denial


Typically it is an abuse of process for an individual to plead guilty to criminal charges and to then deny liability in a subsequent civil lawsuit arising from the same incident.  The BC Supreme Court Rules allow judges to strike pleadings denying previous admissions as an ‘abuse of process‘.  Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, demonstrating such a result.
In this week’s case (Plishka-Humphries (Guardian ad litem of) v. Bolen) the Plaintiff was assaulted and battered by the Defendant Bolen.  The Defendant plead guilty to aggravated assault as a result of the incident.  In a subsequent civil lawsuit the Defendant denied liability.  The Plaintiff brought an application for summary judgement which was granted.  In finding the Defendant civilly liable for the incident Mr. Justice McEwan provided the following reasons:
[11] The present case differs from Franco in that the defendant is not asserting a defence that parallels the position he took before the criminal court. In such circumstances a defendant’s position at least has the virtue of consistency. Here, the defendant seeks to give an exculpatory version of facts he has previously admitted…

[13] Here, however, at the sentencing proceeding, the defendant admitted the facts that the plaintiff alleges in the civil case. He now wishes to contradict those admissions. This is not a case of a careless plea, or a plea to a vague and uncertain set of facts.  Nor is it a case where there was a lack of incentive to dispute a minor charge. It is also not a case of new evidence. There was no hint or suggestion of a threat from the plaintiff, at the sentencing proceeding, let alone facts that could be characterized as a form of self-defence. There was, rather, a submission that he was taking responsibility and acknowledging the harm he had done. In the context of that hearing it appears that this was offered as a kind of mitigation.

[14] The transcript also contradicts the defendant’s suggestion that he pled guilty on his lawyer’s advice and not because he considered himself guilty. He stood in court while his lawyer represented variously that he was “deeply remorseful”, “wants to plead guilty”, “wants to announce his guilt” … “recognizes this,” that “[h]is reaction was wrong” or that he wanted to save the young man from going to trial, and “have some lawyer probing on–about ball bearings.”

[15] The material the defendant has presented does not raise a genuine issue to be tried. The Certificate of Conviction tendered in this case is roughly equivalent to proof of a formal admission. There is nothing arising from the circumstances in which the guilty plea was entered that casts doubt upon the defendant’s intention at the time, or his appreciation of what he was doing. There is no ambiguity in the facts that he admitted. The explanation he offers for sitting through the hearing on September 21st, 2005 while the case was, from his present perspective, grossly mischaracterized, is thoroughly unconvincing…

[17] There will therefore be judgment for the plaintiff on the issue of liability and a referral to the trial list on the issue of quantum.

For more on this topic you can click here to review a recent case where a careless driving guilty plea was a barrier to a civil denial of liability following a motor vehicle collision.

$50,000 Non-Pecuniary Damages for Left Sided SI Joint Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for Judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury following a motor vehicle collision.
In last week’s case (Connolly v. Cowie) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The 35 year old plaintiff suffered from chronic low back pain following the collision.  Ultimately the injury was diagnosed as an “indiscreet pain syndrome” affecting the plaintiff’s left sacroiliac region.  In assessing non-pecuniary damages at $50,000 Mr. Justice Butler provided the following reasons:
[41] In summary, I conclude that Ms. Connolly suffered a significant low back strain as a result of the accident.  The accident has caused injury to the myofascial tissues in her left sacroiliac region.  The injury has not resolved in spite of her aggressive attempts to continue with exercise and chiropractic treatment and some physiotherapy.  She now has chronic pain which is not disabling, but does restrict the type and extent of activities and exercises she can perform.  She is still able to do most household tasks, but it is likely she will continue to experience pain with activities.  It is unlikely that the pain symptoms will resolve…

[45] Here, Ms. Connolly is unable to continue with long distance running.  She does not take medications like Ms. Dutchak, but has persisted with more restricted activities.  In the past, she thrived on the combination of exercise and camaraderie with a group of fellow competitors.  Her inability to continue with that is a significant loss to her.  She has continued to exercise and is now focusing on cycling as a replacement for her previous passion, but has had to give up her dream of working as a fitness instructor.  She put much thought and several years of work into attempting to develop a skill that would provide her with income and help fulfil her desire to do strenuous exercise with like-minded people.  She is no longer able to do that and this is a significant loss.

[46] In addition to these significant losses, she has to put up with continuing pain and it is likely this will not abate in the future.  Considering all of the circumstances, I find that $50,000 is an appropriate award for non-pecuniary loss.

To access my archived posts of other recent BC Supreme Court decisions assessing damages for SI Joint Injuries in ICBC Claims you can click here.

The Perils of Ignoring the Rules of Court

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized.


Failing to follow the obligations set out in the BC Supreme Court Rules can not only result in financial penalties, it can result in having your lawsuit outright dismissed before trial.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this.
In last week’s case (Balaj v. Xiaogang) the Plaintiff was involved in a 2003 collision.  She sued for damages.  The Defendant admitted being at fault for the crash.  At times the Plaintiff had a lawyer, at others she was self represented.  In the course of the lawsuit plaintiff failed to discharge her disclosure obligations under the Rules of Court and further failed to obey court orders.
ICBC ultimately applied to have the claim dismissed before trial.  In granting the order and in further ordering that the Plaintiff pay costs Mr. Justice Brown provided the following reasons:

[34] Given the factual background in the case at bar, it is abundantly clear, beyond any doubt, that the defendants are entitled to an order dismissing the plaintiff’s action. The plaintiff has failed to comply with court orders on several occasions, has failed to produce relevant documentation upon numerous and repeated requests by the defendants, has failed to participate in examinations for discovery in good faith, and has failed to attend court appearances, such as the recent trial management conference. Moreover, it now appears the plaintiff will seek another adjournment in these proceedings after the date of September 30, 2011, in direct contravention of my Order dated August 11, 2011.

[35] With respect to want of prosecution, I find the length of the delay in these proceedings is inordinate. Nearly nine years have passed since the accident. I also find the delay, virtually all of which has been caused by the plaintiff, is inexcusable. I find the defendants have suffered serious prejudice due to the delay in these proceedings and, on balance, justice requires dismissal of the action.

[36] With respect to the plaintiff’s failure to comply with the Civil Rules, the onus is on the plaintiff to present a lawful excuse for her non-compliance. I find she has failed to present a lawful excuse that is worthy of acceptance.

[37] Finally, with respect to the plaintiff’s failure to comply with the direction of this Court, I also find the plaintiff has failed to present a lawful excuse for her repeated failure, either by refusal or through neglect, to comply with court orders, the most recent being my Order after the trial management conference on August 11, 2011.

[38] For these reasons, the plaintiff’s action will be dismissed under Rule 22-7 for want of prosecution, failure to comply with the Civil Rules, and failure to comply with the Order of this Court dated August 11, 2011. Although the dismissal of an action is a blunt tool that is to be used sparingly, I find the circumstances of the case at bar are such that this tool should be used. In my view, the application of Rule 22-7 in the circumstances furthers the object of the Civil Rules to “secure the just, speedy and inexpensive determination of every proceeding on its merits.”