Tag: Rule 22-7(5)

Claim Dismissal For Failure To Comply With Rules A "Particularly Draconian" Remedy

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, demonstrating that having a Plaintiff’s claim dismissed for failing to discharge obligations under the BC Supreme Court Rules is a ‘draconian remedy‘ which will not lightly be granted in a personal injury action where liability is admitted.
In the recent case (Breberin v. Santos) the Plaintiff was injured in a 2007 collision.  Fault was admitted by the offending motorist.  In the course of the lawsuit the Plaintiff failed to provide “very basic information” to the Defendants, “refused to obey court rules” and had “been found in contempt of court“.
The Defendants applied to strike the Plaintiff’s claim.  Mr. Justice Willcock noted that, although this was a borderline case and a remedial costs order was appropriate to emphasise “the Court’s concern with respect to the conduct of the Plaintiff” outright dismissal of the claim was too harsh a result in the circumstances.  In dismissing the Defendant’s application the Court provided the following reasons:

[36] The Rules of Court are designed to permit parties to obtain full disclosure of relevant materials far in advance of trial so as to avoid unnecessary litigation, to make or seek admissions, and to settle claims that ought to be settled.  Despite numerous case planning conferences and previous orders in this case, the plaintiff at the most recent case planning conference appeared to appreciate for the first time that she is not entitled to hold medical information in her hands and to refuse to disclose it until she is satisfied with her diagnosis.  She appeared to understand for the first time that it is not open to her to produce only that portion of her medical file that corresponds with her own diagnosis or that which she prefers.

[37] It is difficult to determine whether the plaintiff’s suggestion at the most recent case planning conference that she only now appreciates the nature of her obligations is genuine.  On previous occasions when this Court directed Dr. Breberin to attend in Vancouver for an independent medical examination, gave explicit reasons for doing so, and noted that there was insufficient medical evidence to permit the Court to accede to her argument that she was unable to travel, Dr. Breberin later continued to question the Court’s jurisdiction to make such an order.  She continues to resist attempts to have her attend here for a medical examination. That resistance speaks of an unwillingness to accept the Court’s jurisdiction and authority.

[38] Having said that, I am of the view that dismissal of the claim would not be proportional to the nature of the ongoing default.  Dr. Breberin has now, finally, produced the authorizations for production of medical records and provided them to defence counsel.  She advised me during the course of submissions on May 22, 2012 that she was prepared to permit defence counsel to use the authorizations without attaching any conditions to their use.  She should be satisfied with the implied undertakings as to the confidentiality of evidence obtained on discovery. Defence counsel may now use those authorizations unimpeded by any undertaking or condition other than that implied by law.

[39] The Plaintiff is prepared to attend at a continuation of her examinations for discovery.  She should promptly make arrangements to attend at such an examination once the defendants have obtained the medical records they seek.

[40] She is right to say that there has been no previous order that she attend at an independent medical examination by an orthopedic surgeon.  Given the evidence she herself has filed with respect to the nature of her ongoing complaints, it is my view that it is appropriate for the defendants to seek that she be examined by an orthopedic surgeon, and there will be an order that she attend at an examination by an orthopedic surgeon in Vancouver, at a date to be selected by defence counsel.  If Dr. Breberin is unable to attend on the date selected by defence counsel, she should promptly notify defence counsel, and may apply, within seven days of receipt of the appointment, for an order adjourning the date of her examination to another date available to her.

[41] Once these measures are taken, the defendants will be in a position to more adequately assess the plaintiff’s claim.  The dismissal of an action where there has been an admission of liability, as in in this case, would be a particularly draconian remedy for the contempt that has delayed the defendants acquisition of evidence to which they are entitled. In my view, although this is a borderline case, such a measure would, now be disproportionate to the plaintiff’s conduct.

The Perils of Ignoring the Rules of Court


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.”

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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