Tag: Rule 22-7(6)

Plaintiff Fined $25,000 For Not Complying With Document Production Orders

Update April 1, 2015I am advised that the below decision is presently under appeal
Update July 3, 2015– the below decision was overturned on appeal with the Court noting a Master has no jurisdiction to make such an order.
______________________________________
Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, leveling sanctions against a Plaintiff in a personal injury lawsuit for not complying with Court document production orders.
In the recent case (Badreldin v. Swatridge) the Plaintiff was injured in a 2010 collision.  The Plaintiff was a physiotherapist and claimed diminished earning capacity.  The Defendant obtained Court orders for production of records relating to the Plaintiff’s business losses and these were not wholly complied with.  The Defendant asked that the Plaintiff’s action be dismissed but the Court noted this was too harsh of a remedy.  In ordering a $25,000 fine to be paid Master Harper provided the following reasons:

[46]         The defendant has been put through too much extra time, trouble, and expense in its efforts to limit the order just to compel the plaintiff to produce the documents and information. There has been a persistent pattern of non-compliance. The plaintiff has downplayed his responsibility for the non-compliance with the two court orders. As he has had legal counsel throughout, there is no excuse for his not understanding his responsibilities.

[47]         The production of the documents and information that did occur at the last minute and over a short period of time shows that it was possible to produce the documents and information in a timely fashion.

[48]         I find, therefore, that there has been no lawful excuse for the plaintiff’s non-compliance with the two court orders. I must now consider the sanction…

[53]         In my view, the sanction has to be sufficient to bring home to the plaintiff the point that court orders must be obeyed. In addition, the defendant is entitled to be compensated for the time, trouble, and expense of dealing with this issue, as well as the prejudice caused by the late production of documents and information, and the uncertainty with respect to how the work calendars are going to be used. There is a looming trial date of March 16, 2015. It is uncertain at this point as to whether the trial will go ahead. The loss of a trial date because of this late production is an additional prejudice to the defendant.

[54]         So balancing all of those factors, in my view, a sanction of $25,000 would be appropriate. I therefore order that the plaintiff pay to the defendant the sum of $25,000. The $25,000 will be used to offset against any settlement or judgment the plaintiff receives in this action.

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.”

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer