IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120709

Docket: M092011

Registry: Vancouver

Between:

Dragana Breberin

Plaintiff

And:

Jose Santos, Christine Yap, Harish
Bhardwaj,
Jarnail Khabra, and MacClure’s Cabs (1984) Ltd.

Defendants

Before: The Honourable Mr. Justice
Willcock

Reasons for Judgment

In Chambers

Introduction

[1]            
This is an
application to strike the plaintiff’s claim as a consequence of her contempt of
court and her failure to comply with the Supreme Court Civil Rules. 

[2]            
On March 19, 2012,
I found the plaintiff, Dragana Breberin, in contempt for failing to comply with
orders made June 3, 2010, September 27, 2011, and November 18, 2011 by:

(a)           
failing to provide authorizations for the release of medical
records to the defendants as ordered on June
3, 2010;

(b)           
failing to provide
authorizations for the release of records on terms set out in the defendants’
case plan proposal dated June 9, 2011 as ordered on September 27, 2011;

(c)           
failing to attend
an independent medical examination set by the defendants to have been conducted
by Dr. Peter Wong on November 17, 2011 as ordered by the Court on
September 27, 2011; and

(d)           
failing to provide
to counsel for the defendants dates when she might attend on additional days of
examination for discovery before November 24, 2011, as ordered by the Court on
November 18, 2011.

[3]            
The plaintiff was
given an opportunity to purge her contempt by April 2, 2012, by producing
authorizations to defense counsel in a form described by the Court and by advising
defense counsel of dates when she could attend at two additional days of
examination for discovery before May 31, 2012.  The defendants were invited to
give the plaintiff an opportunity to further purge her contempt by attending at
an independent medical examination at a date and time to be set by defence
counsel.  (No further appointment for such an examination had been reserved
when the parties attended before me on March 19, 2012.)

[4]            
The hearing was
adjourned from March 19 to May 22, 2012 to permit me to consider the
plaintiff’s efforts to purge her contempt before imposing a penalty or
considering the defendants’ application to strike her claim.

Background

[5]            
This matter has a
long history.  The writ of summons and statement of claim were filed by counsel
for the plaintiff on April 24, 2009.  The pleadings describe the plaintiff as a
clinical neurophysiologist. On November 5, 2007 she was a passenger in a taxi which
was rear-ended in the city of Vancouver. As a result of the accident she claims
to have suffered serious personal injuries, including an injury to the temporomandibular
joint, an injury to the neck and back, and a mild traumatic brain injury
causing impaired memory, concentration, and focus.  She seeks damages for a
loss of income and income earning capacity, and past and future care costs.

[6]            
Liability was
initially denied by all defendants.  There were preliminary efforts to obtain
relevant medical and clinical records.  In September 2009 the defendants
received some of the plaintiff’s dental records, which indicated the plaintiff
had suffered a head injury, including a skull fracture, at age 19, and that she
had undergone surgery on her right knee at age 12 for osteosarcoma.  This early
disclosure gave rise to some concern on the part of the defendants with respect
to the extent of the plaintiff’s pre-existing medical conditions.  There was
only limited voluntary disclosure of medical records by the plaintiff in 2009. 
On November 6, 2009, the defendants brought on an application to compel
production of medical records. 

[7]            
In April 2010, I
was appointed as the case management and trial judge.  On May 18, 2010, at the
first case planning conference, counsel for the defendants Santos and Yap
indicated they intended to admit liability and an amended statement of defence
would be filed, upon the plaintiff discontinuing the action against the
remaining defendants.  The case was set for trial over 20 days before a jury to
commence on November 14, 2011.  There was an order to conduct discoveries by
late October, 2010.  Soon thereafter the parties agreed the plaintiff would
attend at an examination for discovery on September 2, 2010.

[8]            
The application
for production of medical records was contested, and therefore not heard at the
case management conference but came on for hearing on June 3, 2010.  At that
time, I made an order directing the plaintiff to provide her counsel with
authorizations permitting him to obtain employment and income records and
medical and clinical records, including the records of two physicians made
between 2002 and the date of the order.  It was a term of the order that upon receipt
of the documents referred to in the authorizations, plaintiff’s counsel would
forward copies to defence counsel. 

[9]            
Despite the
passage of time and many applications, all of the records referred to in that
order have not yet been produced.  Despite the direction that discoveries be
completed by the end of October 2010, the defendants were not able to conduct
an examination for discovery of the plaintiff until November 8-9, 2011. 

[10]        
On August 16,
2010, plaintiff’s counsel advised defence counsel that the plaintiff would not
attend at the examination for discovery scheduled for September 2 because of
medical problems.  Those problems were not documented or described.  In
September and October, some limited income and employment records and one set
of university transcripts were produced. 

[11]        
At a case planning
conference on October 27, 2010, the time within which examinations for
discovery were to be completed was extended to February 1, 2011, and shortly
thereafter an appointment was taken out to examine the plaintiff on January 17,
2011. 

[12]        
On January 12,
2011, Mr. Mah, then counsel for the plaintiff, advised the defendants the
plaintiff would not be attending the January 17, 2011 examination for discovery,
again, for unspecified and undocumented medical reasons.

[13]        
On January 20, Mr. Mah
applied for and obtained an order removing himself as solicitor of record for
the plaintiff.  When granting that order, the Master ordered a further case
planning conference and extended the February 1, 2011 deadline for completion
of examinations for discovery.

[14]        
On January 27,
arrangements were made to examine the plaintiff for discovery on June 7-8,
2011.  On February 4, Ms. Sadler appeared on the record as plaintiff’s
counsel. 

[15]        
On April 28, 2011,
an order was granted compelling the plaintiff to attend at an independent
medical examination to be conducted by Dr. Wiseman, a psychiatrist, on
July 8, 2011 in Vancouver.  The plaintiff opposed the granting of that order on
the grounds that she was unable to travel.  The order was granted despite that
opposition because there was inadequate evidence of the plaintiff’s medical
condition.  She had failed to produce medical or clinical records and did not
produce medical evidence in support of her claim to be unable to travel. 

[16]        
On May 31,2011, Ms.
Sadler advised defence counsel that the plaintiff was too ill to attend at the
examinations for discovery scheduled for June 7-8.  Again, there was no
documentation of the nature or extent of the illness or disability preventing
the plaintiff from attending at examinations for discovery.

[17]        
On June 16, 2011, Ms. Sadler obtained an order removing herself as
solicitor of record for the plaintiff.

[18]        
On July 28, 2011,
now representing herself, the plaintiff wrote to defense counsel suggesting the
university records produced to that point had been improperly obtained and
ought to be destroyed or returned to her.  On August 12, 2011, she wrote to
defendants’ counsel questioning the Court’s jurisdiction to compel her to
attend at an independent medical examination.  She indicated an unwillingness
to produce any further medical test results to defence counsel, although few
had been produced at that point. 

[19]        
Further
applications came on for hearing before me on September 27, 2011.  The June
2010 order requiring records to be produced to defence counsel had not resulted
in production of relevant medical information.  The Plaintiff had not attended
at the independent medical examination set for July 8, 2011.  She had not
attended at scheduled examinations for discovery.  I then ordered the plaintiff
to execute authorizations in a form that would permit defence counsel to obtain
the records directly, and to deliver those authorizations to defence counsel by
October 7, 2011.  I ordered the plaintiff to attend at examinations for discovery
over two adjacent half days prior to November 10, 2011.  I further ordered the
plaintiff to attend at an independent medical examination in the offices of Dr. Peter
Wong in Vancouver on November 17, 2011.  The plaintiff was given leave to apply
to set aside the order compelling her to attend at the examination in Dr. Wong’s
office by providing the Court with medical evidence in support of the claim
that she was unable to travel to Vancouver.

[20]        
The plaintiff was
examined for discovery on November 8-9, 2011.  She acknowledged she was aware
of the order requiring her to attend for the examination in Dr. Wong’s
office, but indicated that she did not intend to do so.

[21]        
A further case
planning conference was held on November 18, 2011.  At that conference I
ordered the plaintiff to attend two additional half-days of examination for
discovery in Edmonton before December 16, 2011.  I refused to grant another
order compelling the plaintiff to produce her medical records, given that the
September 24, 2011 order compelling the Plaintiff to produce authorizations for
medical records was still in effect.  The Plaintiff was advised that willful failure
to comply with the terms of that order would amount to contempt of court.

[22]        
On December 15,
2011, an order was pronounced adjourning the January 2012 trial.  The
defendants were directed to set their application for an order dismissing the
plaintiff’s claim for hearing before March 30, 2012.  Further trial management was
adjourned pending the hearing of a contempt application.

[23]        
On February 22,
2011, the defendants filed an application for an order finding the plaintiff in
contempt of court.  The application was heard on March 19, 2012.  The
plaintiff, as noted above, was found in contempt and given an opportunity to
purge her contempt before the matter again came on for hearing on May 22, 2012.

[24]        
By May 22, 2012,
the defendants had not yet obtained authorizations to obtain the medical
records on the terms ordered by the Court. Examinations for discovery had not
yet been recommenced.  Arrangements had not yet been made for the plaintiff to
attend at an independent medical examination.  The plaintiff’s attempts to
purge her contempt were incomplete and undertaken at the last minute.  They
were little and late.

[25]        
Whereas the
plaintiff had been directed to return original, unaltered authorizations for
the release of medical records to defence counsel by April 2, she returned
authorizations to defense counsel on April 4 on terms that were confusing and
ominous.  They required defence counsel to agree that the authorization
received would only be used on terms described by Dr. Breberin in
confusing language, including the following:

All information acquired is of a private nature therefore any
actions that are not concurrent with the public’s views of privacy matters or
actions contrary to what is upheld legally via the following:

a) Privacy Act

b) Personal Information Protection
Act

c) Caladhian v. Jose, 2012 BCSC
357 (CA) [sic]

will be in breach of those
conditions.

[26]        
Dr. Breberin
also noted when providing the authorizations: “you are hereby put on notice
that any damages resulting from this violation of full confidentiality will
result in the firm of Steven’s [sic] Virgin being held to account for
full restitution of said damages”.

[27]        
Defence counsel
were understandably wary of using authorizations provided on such terms.  No
use has been made of the authorizations pending further order of the Court.

[28]        
Dr. Breberin advised
counsel for the defendants she would be prepared to attend on examinations for
discovery on May 30-31, 2012 in Edmonton.  Counsel was not prepared to continue
examinations for discovery before full production of the medical records.  In
my view, this is a reasonable approach to take given the evident need in this
case to obtain further and better particulars of the plaintiff’s medical
condition before examination for discovery is completed.

[29]        
The defendants, further,
had tried to make arrangements to have the plaintiff examined by an independent
physician, an orthopedic surgeon, Dr. Arthur, on June 28, 2012.  On May 14
Dr. Breberin advised defence counsel she would not attend at such an examination
because there was no authority for the defendants to require her to be examined
by an orthopedic surgeon; the previous Court-ordered examinations were to have
been conducted by a neurologist and psychiatrist.  Dr. Breberin indicated she
would be prepared to consider attending at an independent medical examination
in Edmonton.  Dr. Breberin is right to say there had been no previous
order for her examination by an orthopedic surgeon, but she is wrong to insist
that she be examined in Edmonton.

[30]        
Immediately prior to the May 22, 2012 hearing, Dr. Breberin filed a
notice of application seeking an order which would (1) set aside the previous
order requiring her to travel to Vancouver to attend an independent medical
examination, (2) require the defendants to pay for certain out-of-pocket
expenses she claims to have incurred since her accident, and (3) adjourn the
trial for twelve months, or, in the alternative, for nine months, to permit her
to obtain medical testing and treatment, and to retain counsel.

[31]        
In support of that
application, the plaintiff said she has been advised by Dr. Benjamin Kuhn
that she is suffering from Atlas Subluxation Complex Syndrome.  Dr. Kuhn
is a chiropractor. Dr. Breberin filed a letter dated May 17, 2012 from Dr. Kuhn.
In that letter Dr. Kuhn says he commenced treating Dr. Breberin on
May 17, 2012 and he expects her to make significant recovery over the coming
months.  I advised counsel at the May 22, 2012 hearing I would not consider any
applications brought by Dr. Breberin before addressing her contempt of
court.  Dr. Breberin had previously been advised that no applications
could be brought in her action pending consideration of the contempt and her
attempts to purge that contempt.

[32]        
The trial of this action has now been set down for hearing over twenty
days commencing October 7, 2013.  A notice requiring a trial by jury has been
filed by the defendants.

Issues

[33]        
The issue before me is whether Dr. Breberin’s contempt calls for
dismissal of her action.

Applicable Law

[34]        
The claim or defence of a party may be struck for failure to comply with
the Supreme Court Civil Rules, BC Reg 168/2009 or as a consequence of
contempt in the face of an order compelling compliance with the rules.  The
circumstances in which such orders may be made are carefully and helpfully summarized
by Fitzpatrick J, in Schwarzinger v. Bramwell, 2011 BCSC 304.  That lengthy
and careful analysis in that case was applied and summarized in Anderson v.
Anderson, 2011 BCSC 1465 (at paras. 62-63):

62        Madam Justice Fitzpatrick carefully analyzed the
jurisprudence and summarized the principles that apply when one party seeks an
order to strike out a pleading or to dismiss a claim for failure to comply with
an order of the Court.  She noted that such an order is discretionary, but the
discretion should be exercised in accordance with a number of factors.

63        First, to strike out a
pleading or dismiss a claim for failure to comply with an order is a draconian
measure, and such relief will only be granted in extreme cases.  Second, courts
have generally recognized that a party is entitled to a "second
chance" before such relief is granted.  Third, the relief granted should
be proportional to the nature of the default.  Fourth, the court should
consider whether there is a suitable alternate remedy.  Fifth, the court should
take into account any explanation for the default.

Analysis

[35]        
Despite the fact this action has been ongoing since April 2009, and has
been case managed for two years, the defendants still do not have very basic
information with respect to the plaintiff’s medical care that is vital to the
assessment of the claim.  The defendants have long sought to have the plaintiff
examined.  They have established a right to have an independent medical
examination conducted in Vancouver.  The plaintiff has plainly refused to obey court
orders that she attend at such an examination, without providing sufficient
evidence of her inability to attend.  She has been found in contempt of court,
and despite that finding has not adequately purged her contempt.  She has put
the defendants to extraordinary expense to obtain that which should be provided
as a matter of course in civil claims arising out of personal injuries.  She
has clearly had more than a second chance to comply with court orders and to
deliver the materials sought by the defendants, to which they are entitled. 
The only explanation for the plaintiff’s default is inadequate: that she is self-represented. 
She has had counsel in the past, and there is evidence that she has received
advice from some of her counsel concerning the need to be compliant with
respect to the disclosure requirements of the Rules.  She is an educated woman
who should be able to appreciate the advice given to her on more than one
occasion by the Court.

[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.

[42]        
The evident contempt in this case, however, does call out for some
remedial order as a means of emphasising the Court’s concern with respect to
the conduct of the plaintiff.  There will accordingly be an order that Dr. Breberin
will indemnify the defendants for costs and disbursements reasonably incurred
in relation to all attendances at case planning conferences and on all
applications in this case from February 23, 2011 to May 22, 2012 inclusive. Those
Special Costs will be payable forthwith.

[43]        
I should also note that as efforts by the defendants to obtain that
which they sought by previous orders are continuing, failure on the part of the
Plaintiff to cooperate with those efforts to complete discovery and to arrange
a medical examination by a suitably qualified orthopaedic surgeon will be regarded
as continuing contempt, and that contempt will be considered in the light of
the Plaintiff’s conduct to date.

“P. Willcock J.”

The
Honourable Mr. Justice P. Willcock