Tag: Rule 22-7(7)

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.”

Want of Prosecution, Proportionality and the New Rules of Court

One of the overarching changes in the current Suprene Court Rules is the introduction of the principle of ‘proportionality’.  When any applicaiton is brought before the Court the presiding Judge or Master must consider this concept in applying the Supreme Court Rules.  Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, discussing this in the context of a dismissal application.
In last week’s case (Ellis v. Wiebe) the Plaintiff sued various Defendants for alleged misrepresentation in the course of a purchase and sale agreement relating to property.   The lawsuit started in 2004 and by 2011 still had not been resolved.
The Defendant Wiebe brought an application to dismiss the lawsuit for want of prosecution (failure to prosecute in a timely fashion).  Madam Justice Bruce held that while the delay in the prosecution was inordenate and inexcusable there was no prejudice and did not dismiss the claim for this reason.  The Court did, however, go on to dismiss the claim on it’s merits.  Prior to doing so the Court made the following findings with respect to the application of the proporitonality principle in want of prosecution applications:
[8] The parties do not dispute the test to be applied by the court in determining whether an action should be dismissed for want of prosecution. The test is concisely summarized in Shields v. Nishin Kanko Investments Ltd., 2008 BCSC 36 at para. 25, wherein Mr. Justice Parrett cites the comments of Scarth J. at para. 3 of March v. Tam, 2002 BCSC 1125:

… I conclude that the principles of law which govern the exercise of the Court’s discretion in the circumstances of this case may in summary form be stated as follows: The defendants must establish that there has been inordinate delay and that this delay is inexcusable. If those two factors are established a rebuttable presumption of prejudice arises and the onus shifts to the plaintiff to prove on a balance of probabilities that the defendants have not suffered prejudice or that on balance justice demands that the action not be dismissed.

[9] The authorities also consistently hold that the court must look to the objects of the Supreme Court Rules as these relate to the particular circumstances of the case to determine whether an action should be dismissed for want of prosecution….

[10] When the Supreme Court Rules were amended in July 2010, a new subsection was added to Rule 1-3 to further refine the meaning of “just, speedy and inexpensive determination”. Rule 1-3 (2) provides as follows:

(2)   Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)      the amount involved in the proceeding,

(b)      the importance of the issues in dispute, and

(c)      the complexity of the proceeding.

[11] In my view, Rule 1-3 (2), in part, reflects the approach adopted by our Court of Appeal to the issue of dismissal for inordinate delay; that is, the facts of each case have a significant impact on the outcome of any particular application for dismissal based on want of prosecution. While the principles of law are relatively straightforward, it is the application of these principles to widely varied fact situations that is critical. As noted in Rhyolite Resources Inc. v. CanQuest Resource Corp., 1999 BCCA 36, at para. 16:

Cases vary so infinitely that it is not always easy to apply to one factual situation the decision in another very different factual situation. However, it is the task of the court to seek to apply in a rational fashion the principles that have been laid down in the decided cases, always bearing in mind that the facts in each case are going to have a significant influence on the actual outcome of the individual application. I believe, with respect, that this approach or principle can be found well expressed in a case that was cited to us, Lebon Construction Ltd. v. Wiebe (1995), 10 B.C.L.R. (3d) 102 (C.A.), a recent decision of this court. That was a builder’s lien case and in that class of case, one would expect a swifter pace to the action than might be the case of say a personal injury case where a very serious injury and the course of recovery of a plaintiff must be assessed over time. Although it is always desirable to move on promptly with litigation, the simple fact is that in certain cases the interests of justice demand a rather more stately and measured pace than would be proper with regard to another class of action. Although it is desirable that all cases proceed with reasonable promptitude, the key word is reasonable and the ultimate consideration must always be: what are the interests of justice?

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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.

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