IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120216

Docket: M90439

Registry: New Westminster

Between:

Rodica Balaj

Plaintiff

And:

Yin Xiaogang

and Insurance Corporation of British Columbia

Defendants

Before: The Honourable Mr. Justice Brown

Supplementary Reasons
for Judgment

[1]            
Because of the very limited time available in chambers on the day I
heard the application, November 15, 2011, I advised the parties I would reserve
for supplementary reasons and editing. These are my supplementary reasons.

[2]            
The defendants apply for dismissal of the plaintiff’s action for damages
arising from a motor vehicle accident for:

a)   
want of
prosecution;

b)   
in the
alternative, the plaintiff’s failure to comply with the Supreme Court Civil
Rules, B.C. Reg. 168/2009 [Civil Rules]; and

c)    
in the further
alternative, the plaintiff’s failure to comply with my Order dated August 11,
2011.

[3]            
In the further alternative,
the defendants seek an order that the plaintiff pay the outstanding costs from
my Order dated August 11, 2011 by November 18, 2011, failing which the
plaintiff’s action would be dismissed.

[4]            
The defendants
also seek to recover their costs of this application in any event of the cause.

[5]            
In support of the
defendants’ application is the affidavit of Sandra de Winter, sworn November 4,
2011, and the exhibits attached thereto.

I.                
Facts

[6]            
The plaintiff was involved in a motor vehicle accident on January 31,
2003. She commenced these proceedings by writ of summons filed January 31,
2005. Her statement of claim, filed January 31, 2006, alleges the accident
caused injuries to her neck, shoulder and back, in addition to headaches and
anxiety.

[7]            
The defendants filed their statement of defence on December 12, 2006,
admitting liability. They sought a discontinuance of the claim against the
Insurance Corporation of British Columbia (“ICBC”), which was wrongly named as
a defendant. Although the plaintiff agreed ICBC was mistakenly named as a
defendant, she has never filed a notice of discontinuance.

[8]            
In 2007, the plaintiff was involved in another motor vehicle accident. ICBC
found her at fault. Although the plaintiff filed a writ of summons afterwards,
she never served it on the named defendants or ever filed a statement of claim.

[9]            
Currently, there are eight court orders for document production and
other discovery matters issued against the plaintiff, which have accumulated over
the course of the litigation in the case at bar. Six of these orders include
terms requiring the plaintiff to pay costs to the defendants in any event of
the cause.

[10]        
After the plaintiff failed to attend her examination for discovery in
March 2008, a court order compelled her attendance in July 2008. She attended
the rescheduled examination for discovery in July 2008, but the plaintiff, to
borrow the words of the defendants, “was so obstreperous that it was adjourned
to be continued at a later date with counsel.” A notice of motion was served on
the plaintiff’s counsel at that time to compel the plaintiff to attend a
further examination for discovery. That application was adjourned by consent.

[11]        
The trial in the case at bar was originally scheduled for five days in
January 2009, but because the plaintiff had retained new counsel, who was
unavailable for those trial dates, the trial was adjourned at the plaintiff’s
request. At a subsequent examination for discovery in January 2009, the
plaintiff, accompanied by her new and recently retained counsel, “was again
disruptive and non-responsive,” necessitating a further adjournment. The
defendants made numerous document production requests of the plaintiff at this
examination for discovery.

[12]        
 Further examination for discovery of the plaintiff in May 2009 likewise
featured additional requests by the defendants for document production.
Following this examination, three court applications in 2009 and 2010 were
brought by the defendants following the plaintiff‘s failure to comply with
these requests.

[13]        
After the filing of a notice to mediate, dated August 6, 2009, mediation
was scheduled for October 2009. The mediation had to be cancelled due to late
notice that the plaintiff was once again self-represented.

[14]        
The defendants note in their materials on this application that the plaintiff
signed her notice of intention to act in person in May 2009. She did not file
it, however, until August 2009; and the plaintiff’s then-counsel was unaware of
this until October 2009. ICBC incurred the cancellation fee for the late
cancellation of the mediation.

[15]        
The defendants state that despite their numerous requests in 2009 and
2010, the plaintiff failed to provide new trial dates. The defendants,
therefore, set the December 2011 trial date unilaterally. By letter dated June
22, 2010, the defendants provided the plaintiff with the notice of trial that
had been filed on June 9, 2010. As the plaintiff denied having received the
notice of trial, the defendants sent it to her a second time, by email dated
September 7, 2010.

[16]        
Despite repeated requests by the defendants, the plaintiff failed to confirm
her availability for a trial management conference. The defendants eventually scheduled
a trial management conference unilaterally; it was only after doing so that the
plaintiff disclosed her alleged reasons for being unavailable. The trial
management conference was nonetheless scheduled to proceed on the unilaterally
set date due to the plaintiff’s failure to provide an adequate explanation for
her unavailability or to provide alternative dates.

[17]        
Despite repeated requests by the defendants, the plaintiff failed to
prepare and file her trial brief as required by the Civil Rules.

[18]        
The plaintiff also failed to attend the trial management conference on
August 11, 2011. At the trial management conference, I ordered:

a)    timelines for
the plaintiff’s production of witness lists and expert reports for the trial
(the plaintiff subsequently failed to comply with these directions);

b)    that the
plaintiff bring any application to adjourn the December 2011 trial no later
than September 30, 2011 (the plaintiff failed to do so, and now appears poised
to seek another adjournment of the trial); and

c)     costs to
the defendants in any event of the cause payable forthwith in light of the
plaintiff’s history of non-compliance with past court orders in these proceedings
(as of the date of the hearing for this application, the plaintiff has failed
to pay these costs to the defendants).

[19]        
The trial is scheduled for ten days starting on December 5, 2011. The
defendants have filed a jury notice, but given the plaintiff is currently
self-represented, the defendants submit that, due to the potential for a
mistrial, the trial is unlikely to proceed by jury.

[20]        
The defendants state in their notice of application that the plaintiff
has alleged serious injuries without any expert medical opinion on the matter.
The defendants also note that, in light of the plaintiff’s “clinical, social,
and personal history”, causation is a “significant issue”.

[21]        
The defendants say that if the plaintiff applies for an adjournment on the
first day of the trial and succeeds, they will have “expended substantial
resources in preparing for a lengthy trial.” Furthermore, the defendants note
that if they are required to prepare for a trial without any notice of the
plaintiff’s expert or lay witnesses, they will be “significantly prejudiced in
being properly and adequately prepared for a fair trial in the action.”

[22]        
The defendants submit the plaintiff has had repeated opportunities to
retain counsel in the case at bar. In fact, the plaintiff has retained and
fired counsel, which has caused significant delays in the litigation proceeding
to trial. As of the date of the hearing for this application, the plaintiff is
self-represented.

II.              
Law

A.           
Object of the Civil Rules

[23]        
The object of the Civil Rules “is to secure the just, speedy and
inexpensive determination of every proceeding on its merits”: Rule 1-3(1).

[24]        
Rule 1-3(2) of the Civil Rules expands on Rule 1-3(1) by
incorporating the notion of proportionality:

(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.

B.           
Want of prosecution

[25]        
Rule 22-7(7) of the Civil Rules provides the following:

(7) If, on application by a
party, it appears to the court that there is want of prosecution in a
proceeding, the court may order that the proceeding be dismissed.

[26]        
In 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009
BCCA 535, the Court, after reviewing the case law addressing the test for
dismissing an action for want of prosecution, held the following at paras.
27-29:

[27]      … a chambers judge charged with the hearing of an
application for dismissal of an action for want of prosecution is bound to
consider the following:

(1)        the length of the delay
and whether it was inordinate;

(2)        any
reasons for the delay either offered in evidence or inferred from the evidence,
including whether the delay was intentional and tactical or whether it was the
product of dilatoriness, negligence, impecuniosity, illness or some other
relevant cause, the ultimate consideration being whether the delay is excusable
in the circumstances;

(3)        whether
the delay has caused serious prejudice to the defendant in presenting a defence
and, if there is such prejudice, whether it creates a substantial risk that a
fair trial is not possible at the earliest date by which the action could be
readied for trial after its reactivation by the plaintiff; and

 (4)        whether, on balance, justice requires
dismissal of the action.

[28]      I consider the fourth question to encompass the
other three and to be the most important and decisive question.

[29]      I would not attempt to
state what reasons for the delay might serve as an excuse for the plaintiff. In
some cases, for example, negligence of the plaintiff’s lawyer might amount to
an excuse, in others it might not. Whether the reason for the delay amounts to
an excuse will depend on the circumstances of the particular case.

C.           
Failure to comply with the Civil Rules

[27]        
Rule 22-7(5) of the Civil Rules provides the following:

(5) Without limiting any other power of the court under these
Supreme Court Civil Rules, if a person, contrary to these Supreme Court Civil
Rules and without lawful excuse,

(a)        refuses or neglects to
obey a subpoena or to attend at the time and place appointed for his or her
examination for discovery,

(b)        refuses to be sworn or
to answer any question put to him or her,

(c)        refuses or neglects to
produce or permit to be inspected any document or other property,

(d)        refuses or neglects to
answer interrogatories or to make discovery of documents, or

(e)        refuses or neglects to
attend for or submit to a medical examination,

then

(f)         if the person is the plaintiff or petitioner …
the court may dismiss the proceeding …

[28]        
The onus is on the party who has allegedly failed to comply with the
Civil Rules to present a lawful excuse and an adequate explanation for the
non-compliance: Eisele v. B.A. Blacktop Ltd. et al, 2004 BCSC 521, at para.
15.

[29]        
In United Furniture Warehouse LP v. 551148 B.C. Ltd., 2007 BCSC
1252, Pitfield J. explained the meaning of “lawful excuse”:

[24]      In my opinion, a
lawful excuse for purposes of Rule 2(5)(c) [now Rule 22-7(5)(c)] is one which,
in the discretion of the judge acting judicially, is worthy of acceptance. The
rule stipulates that it will apply in the case of refusal or neglect to produce.
Refusal connotes a deliberate failure to produce a document of which a party
has knowledge. Neglect connotes carelessness in the search for, and location
of, documentation relating to a matter in issue that should be produced in
accordance with Rule 26 [now Rule 7-1]. Because an action may be struck when
the lack of production has been occasioned by negligence, the degree of
negligence required should be more than moderate on a scale ranging from mere
negligence to gross negligence.

D.           
Failure to comply with the direction of the Court

[30]        
Rule 22-7(6) of the Civil Rules provides the following:

(6) If a person, without lawful excuse, refuses or neglects
to comply with a direction of the court, the court may make an order under
subrule (5) (f) or (g).

[31]        
Rule 22-7(5)(f) permits the court to make an order dismissing an action
where the person in non-compliance with the court’s direction is the plaintiff.

[32]        
In House of Sga’nisim v. Canada (Attorney General), 2007 BCCA
483, the Court held at para. 28 that “[s]triking a claim (or defence) is a
blunt tool, to be used sparingly.”

[33]        
In Dhillon v. Pannu, 2008 BCCA 514, the Court commented on the
purpose of Rule 22-7(6) and applied the Rule to the circumstances of that case:

[34]      Rule 2(6) of the Rules of Court [now Rule
22-7(6) of the Civil Rules] authorizes the court to dismiss an
action if a person, without lawful excuse, refuses or neglects to comply with a
direction of the court. The plaintiff failed to comply with the directions
given by Mr. Justice Groves on June 11, 2007. A dismissal application was
brought on before the chambers judge on November 6, 2007. The chambers
judge did not dismiss the action at that point and gave the plaintiff another
chance. He ordered the plaintiff to do several things. All the plaintiff did
was deliver photocopies of the documents on his initial, but incomplete, list
of documents that were in his possession and a signed version of the initial
list of documents. He did not deliver a supplemental list of documents (or a
full and complete list of documents) or an affidavit verifying his list of
documents. He did not take any further steps in an attempt to produce documents
within his control to produce. He hired a lawyer on the morning of the
application and requested an adjournment.

[35]      There is nothing in
the reasons of the chambers judge to indicate that he misdirected himself. It
is not manifest from his reasons that the judge gave no weight, or insufficient
weight, to relevant considerations. He was aware of the availability of lesser
sanctions because he had imposed a lesser sanction when the dismissal
application first came before him on November 6, 2007. It may have amounted to
an injustice had the chambers judge dismissed the action on November 6,
but I am not persuaded that it was an injustice to dismiss the action of a
plaintiff who failed to comply with two successive orders, especially when the
chambers judge clearly warned the plaintiff on November 6 of the prospect of
the dismissal of his action if he failed to comply with the order made on that
day.

III.            
Application

[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.”

[39]        
If anything, the Court
has been overly indulgent with the plaintiff. I think it is almost shocking how
long this matter has continued, with successions of orders ignored by the
plaintiff, and, nearly nine years after the motor vehicle accident, the
plaintiff has yet to produce a medical report attesting to the injuries allegedly
sustained in the accident.

[40]        
A plaintiff in a
motor vehicle accident sustaining any kind of injury has the duty to prove the
defendant is liable not only for the accident but also for their injuries. Liability
was admitted by the defendants in the case at bar. As I think I explained to
the plaintiff earlier at this hearing, she has to prove the defendants are responsible
for her disability, as she has characterized it.

[41]        
It has been a long
time since the accident. There has been ample time to see this matter proceed
to trial and be resolved judicially. The plaintiff has had two different counsel
during that time. I do not doubt the defendants have been put to substantial
cost. Although the defendant Yin Xiaogang is insured, the Court should consider
the history of these proceedings not from the perspective that there may be an
insurer in the background, but from the perspective that any defendant in a
case such as this would be put to great cost defending a case against a
plaintiff who does not carry their case forward; especially with the abundant
history here of the plaintiff failing to obey court orders; and, as well, as I
see from what occurred on examination for discovery, failing even to cooperate by
way of answering simple examination questions.

[42]        
For the foregoing
reasons, the plaintiff’s action is dismissed. The defendants shall recover
their costs of this application in the amount of $750.40 according to Schedule
3 of Appendix B in any event of the cause, payable forthwith by the plaintiff.

[43]        
I am sorry, Ms. Balaj. I sympathize with what you say your circumstances
are, but this is a court of law. You have to prove your case; and in my
estimation, you have taken advantage of the indulgences allowed you by the Court
to do so.

“N. Brown J.”