IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130402

Docket: M092011

Registry:
Vancouver

Between:

Dragana
Breberin

Plaintiff

And

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

Defendants

Before:
The Honourable Mr. Justice Willcock

Reasons for Judgment

In
Chambers

Introduction

[1]            
The defendants apply for an order dismissing  the plaintiff’s claim pursuant
to Rules 22-7(5) and (6), as a result of the plaintiff’s failure to comply with
the Rules or to comply with a direction of the court and, in the alternative,
for an order finding the plaintiff in contempt of court and dismissing her
claim for that contempt.

History of Proceedings

[2]            
The plaintiff claims to have been injured as a result of a motor vehicle
accident when she was a passenger in a taxi rear-ended on Wolfe Avenue in
Vancouver on November 5, 2007, more than five years ago.  She commenced these
proceedings by a Writ of Summons and Statement of Claim filed on April 4, 2009,
four years ago.

[3]            
The injuries described in the pleadings include injury to the temporo-mandibular
joint, injury to the neck and back, a mild traumatic brain injury and
generalized pain.  A loss of past and future income and earning capacity is
alleged.

[4]            
Liability was initially denied by the defendants.

[5]            
In September 2009, the defendants received medical records, which
indicated the plaintiff had suffered a skull fracture at age 19 and undergone
surgery on her right knee at age 12 for osteosarcoma.  These records gave rise
to the defendants’ concern with respect to the plaintiff’s pre-accident health.
On November 6, 2009, the defendants brought on an application to compel
production of medical records. 

[6]            
On February 8, 2010, an order was made for the appointment of a case
management judge.  On May 18, 2010, I presided at the first case management
conference and made orders:

a)             
permitting the amendment of pleadings and, upon the admission of
liability by the defendants, Santos and Yap, for the discontinuance of the
action against the remaining defendants. (There has been no liability issue
since May 2010, almost three years ago);

b)             
setting an application for the production of documents for hearing; and

c)              
directing that discoveries of the plaintiff be completed by the end of
October 2010.

[7]            
On June 1, 2010, the defendants filed a motion seeking an order for the
production of certain of the plaintiff’s income, employment and medical
records.  Appended to the notice of motion were authorization forms for production
of some of the records sought, for execution by the plaintiff.

[8]            
A consent order was filed by counsel for the defendants and counsel then
acting for Dr. Breberin on June 3, 2010.  That order provided that Dr. Breberin
would sign and provide to her solicitor authorizations for certain records, and
the solicitor would obtain the records and provide them to defence counsel.  The
order provided for the production of, among other documents:

a)             
the Clinical Records of Drs. Bene and Toma from November 5, 2002 to the
date of the authorization;

b)             
the plaintiff’s complete educational records, including university
transcripts; and

c)              
tax returns and supporting documents from the plaintiff’s company, Pontech,
from its incorporation onward.

[9]            
On June 23, 2010, the case was set for trial on November 14, 2011.  A
jury notice was filed by the defendants.

[10]        
An appointment to examine the plaintiff for discovery on September 2,
2010 was taken out by the defendants.  On August 16, 2010, defence counsel was
advised the plaintiff would not attend at that examination because of medical
problems that were not documented or described. 

[11]        
In September and October, some income and employment records and some
university transcripts were produced by the plaintiff’s then counsel. 

[12]        
At a case planning conference on October 27, 2010, I extended the time within
which examinations for discovery were to be completed to February 1, 2011.  The
defendants then took out an appointment to examine the plaintiff on January 17,
2011. 

[13]        
On January 12, 2011, counsel for the plaintiff, advised the defendants Dr. Breberin
would not be attending the January 17, 2011 examination for discovery, again
for unspecified and undocumented medical reasons.

[14]        
On January 20, 2011, an order was granted permitting plaintiff’s counsel
to remove himself as solicitor of record.  The deadline for completion of
examinations for discovery was again extended.

[15]        
By motion filed January 20, 2011, the defendants sought an order
compelling Dr. Breberin to attend at an independent medical examination at
the office of Dr. Stephen Wiseman, a psychiatrist, at St. Paul’s Hospital
in Vancouver on July 8, 2011.

[16]        
On January 27, 2011, an appointment was taken out to examine the
plaintiff for discovery on June 7-8, 2011. 

[17]        
On February 4, 2011, new counsel was appointed to act for the plaintiff. 

[18]        
On February 23, 2011, case management orders were made and the case
management plan revised to address delay in the discovery of records and
documents.  The trial was adjourned from the November 2011 trial date and set
for trial over 20 days commencing February 13, 2012.  The time for completion
of discoveries was again extended to September 30, 2011.

[19]        
On April 1, 2011, counsel for the plaintiff filed a response to the application
to have the plaintiff examined by Dr. Wiseman.  The plaintiff opposed the
order sought on the grounds she was unable to travel.  In support of that
position counsel relied upon a letter from Dr. Toma attached to the affidavit
of a legal assistant.  The letter, dated March 10, 2011, simply stated that due
to “her condition”, not otherwise described, Dr. Breberin was unfit to
travel by airplane or otherwise.

[20]        
On April 28, 2011, for reasons indexed at 2011 BCSC 961, I ordered Dr. Breberin
to attend at the examination requested at Dr. Wiseman’s office in
Vancouver on July 8, 2011.  I found there was inadequate evidence to support
the claim the plaintiff was unable to travel or that she would not be able to
attend a medical examination in Vancouver in July.  There was sufficient time
before the examination to permit the plaintiff to make appropriate travel
arrangements.  I held there was good reason for the defendants to seek to have
the examination held in Vancouver, so their expert would be available to attend
at the Vancouver trial if required to do so for cross-examination.  I refused
to depart from the general rule that defendants should be entitled to appoint
an expert of their choosing so as to put themselves on an equal footing with
the plaintiff.

[21]        
At a further case planning conference on June 16, 2011, an order was
made permitting Dr. Breberin’s second counsel to withdraw from the record.

[22]        
The plaintiff did not attend at the court-ordered examination by Dr. Wiseman
on July 8, 2011.

[23]        
A further case planning conference was convened on September 27, 2011.
At that time orders were made:

a)             
requiring the plaintiff to provide executed authorizations to the
defendants’ counsel, in the form appended to the June 9, 2011 case plan
proposal, by September 28, 2011;

b)             
requiring the plaintiff to attend at examination for discovery in
Edmonton over two half days before November 10, 2011;

c)              
requiring the plaintiff to attend at an independent medical examination
in the office of Dr. Peter Wong on November 17, 2011 in Vancouver; and

d)             
permitting the plaintiff to apply to set aside or vary the order that
she attend at Dr. Wong’s office for examination by bringing on an
application to do so, supported by medical evidence, before October 29, 2011.

[24]        
The plaintiff did not attend at the court-ordered examination by Dr. Wong,
nor did she apply to vary the order requiring her attendance at that
examination.

[25]        
On November 18, 2011, I made an order, on the application of the
defendants, requiring Dr. Breberin to attend for two additional half days
of discovery in Edmonton no later than December 16, 2011, and to provide defence
counsel with the dates she would be available for such additional discovery on
or before November 24, 2011.

[26]        
At a further case planning conference, I was advised that Dr. Breberin
had not yet complied with orders for the production of records and
authorizations to produce records.  I refused to make a further order.  I held
it ought not to be necessary to re-state an order and the defendants’ remedy
for failure to comply with the order was to seek a finding holding the
plaintiff in contempt or to seek dismissal of the action pursuant to the
Rules.  Such an application would have to be brought by motion and could not be
brought at a case planning conference.  The defendants were ordered to bring on
that application, should they chose to do so, before March 30, 2012.

[27]        
The January 2012 trial was adjourned generally at the case planning
conference.

[28]        
On February 24, 2012, the case was again set for trial, over 19 days,
before a jury, commencing on October 7, 2013.

[29]        
 On March 19, 2012, I heard the defendant’s application to have the
plaintiff held in contempt.  Before me at that time was evidence the plaintiff,
in correspondence and at her examination for discovery, had questioned the
court’s jurisdiction to order her attendance at independent medical
examinations and to order her to execute and deliver authorizations to produce
medical records.  She acknowledged on her examination for discovery that she
had redacted portions of her medical records before their production and
altered the authorizations she had been ordered to deliver to defence counsel. Dr. Breberin
took the position she had to retain counsel before executing the authorizations
she had been ordered to provide, as if the issue was still open for argument.  She
took the position she was unable to attend at a medical examination in
Vancouver, as if that issue was still open for argument.

[30]        
On March 19, 2012, she took issue with the order requiring her to attend
at further examination for discovery on the ground she had not understood the order
of November 18, 2011 to that effect.

[31]        
I found the plaintiff to be 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.

[32]        
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.)

[33]        
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.

[34]        
On May 22, 2012, the contempt hearing continued before me. Dr. Breberin
had provided authorizations to defence counsel to obtain records, but had done
so conditionally, seeking to put defence counsel on undertakings that were not
contemplated in the outstanding orders.  She had proposed to make herself
available for examination for discovery on May 30 and 31 in Edmonton, but
defence counsel was not prepared to conduct that discovery without first
reviewing the medical records.  I was advised by defence counsel that the
plaintiff had been asked to attend at an independent medical examination by Dr. Arthur
on June 28, 2012, and Dr. Breberin had refused to attend at that
examination because she did not believe there was an order requiring her to
attend at an examination by an orthopaedic surgeon, rather than a psychiatrist.

[35]        
At the May 22, 2012 hearing, Dr. Breberin agreed with the
suggestion she had fundamentally misapprehended the extent of her obligation to
make discovery of her medical records.  She claimed to have no intention to
frustrate the defendants.  She acknowledged she had mistakenly believed she
could make discovery of her medical case as and when she was satisfied with her
diagnosis.  There was an extensive exchange in court with respect to her
obligation to observe court orders and make timely and appropriate discovery.
Judgment was reserved.

[36]        
On July 9, 2012, for reasons indexed at 2012 BCSC 999, I held:

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 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.

[37]        
Unfortunately, there has since been no better compliance with court
orders. There has been continued disrespect for the court process and inadequate
attempts on the plaintiff’s part to remedy the contempt that resulted in that order.

[38]        
Pursuant to the order of July 9, 2012, the defendants notified Dr. Breberin
on September 5, 2012 of an appointment for an independent medical examination
by an orthopaedic surgeon, Dr. Domisse, in Vancouver on October 31, 2012.  On
September 13, 2012, Dr. Breberin advised defence counsel of her intention
to set aside or cancel the order requiring her to attend at a medical
examination in Vancouver.

[39]        
On November 14, 2012, the defendants filed a Notice of Application for
an order dismissing the claim.

[40]        
In support of that application the defendants produced evidence that
subsequent to the July 9, 2012 judgment, the plaintiff had refused to consent
to the release of Dr. Toma’s records to the defendants.  On August 21,
2012, counsel for Dr. Toma advised the defendants Dr. Toma had not
yet been authorized to release her records to the defendants.  The plaintiff
had also not fully completed authorizations for the release of her academic
records.  The plaintiff, when advised of the problems getting records, failed
to adequately respond so as to permit the effective discovery sought by the
defendants.

[41]        
Medical and academic records have not been produced as ordered,
discoveries have not been completed, and no independent medical examination has
been conducted.

[42]        
The application came on for hearing before me on November 28, 2012.  I
heard submissions of counsel for the defendants and then advised Dr. Breberin
that in light of the motion to have her case dismissed for contempt and failure
to comply with the rules she should seek counsel to act on her behalf.  When
advised she would seek to retain counsel, the hearing of the application was
adjourned to December 12, 2012.

[43]        
Dr. Breberin appeared on December 12, 2013 by telephone.  She spoke
to an affidavit she had sworn on November 23, 2012 in which she deposed that she
had been diagnosed with an “Atlas Subluxation Complex Syndrome” by a
chiropractor, Dr. Ben Kuhn.  She appended two letters from Dr. Kuhn
to her affidavit. Those letters, dated May 17, 2012 and September 12, 2012, set
out Dr. Kuhn’s May 17, 2012 opinion that Dr. Breberin had experienced
a specific injury of the upper cervical spine and the September 12, 2012
opinion that she is in “a very unstable state as a result of going for years
with an undiagnosed very serious misalignment of the upper cervical spine”.

[44]        
In September 2012, Dr. Kuhn expressed the view Dr. Breberin should
refrain from air travel or “provocative testing” for at least three months.

[45]        
On December 12, 2013, she claimed to have diligently tried to deal with
“insurmountable” difficulties.  Yet she had taken no steps since November 2012 to
produce medical or academic records, and no appeal had been brought from the order
to attend at an independent medical examination or to extend the time within
which such an appeal could be brought.  She claimed to have begun the process
of making discovery but expressed the view that the legal process was
interfering with her medical care and her recovery.  She claimed to be engaged
in time consuming active treatment that reduced her stamina and strength but
purported to have no objection to meeting the court’s “demands”.  She continued
to take the position she had advanced previously in response to discovery
demands: that she had provided the material being sought by the defendants to
her first counsel, Mr. Mah, pursuant to the June 2010 consent order.

[46]        
Dr. Breberin had been advised by letter from defence counsel dated
September 5, 2012 of the appointment to be examined by Dr. Domisse on
October 31, 2012.  On September 10, 2012, she was reminded, in writing, of the
scheduled examination and of her ability to apply before September 12 to
adjourn the examination to another date available to her (not to set aside the order
for her attendance).  On September 13, 2012, she advised defence counsel she
would not be attending the examination by Dr. Domisse and would make an application
to that effect.  She filed an application on that date seeking to have the order
for her attendance at the appointment to be examined by Dr. Domisse “changed
or cancelled”.  Her application was not founded upon objection to the date
chosen for the examination but, rather, upon her longstanding argument,
previously rejected, that attendance in Vancouver was precluded by her medical
condition.

[47]        
She argues: “An extended travel to a far-off destination” could easily
throw her C1” off the razor’s edge on which it sits and lead to irreparable
harm of quadriplegia, respiratory distress and/or death”.

[48]        
The application to “change or cancel” the medical examination was not
supported by affidavit evidence and did not proceed.  When this application to
strike the claim came on for hearing on December 12, 2012, Dr. Breberin argued
she had not failed to comply with the court’s order that she attend to be
examined by Dr. Domisse because she had applied within seven days of
service of the appointment to vary its date, as she was given leave to do.  In
her reply to the application she “takes exception to any Officers of the Court
demanding that she travel for any reason disconnected from her beneficial
treatments”.

[49]        
Dr. Breberin further expressed the view that officers of the court
had been “unreasonable, dishonest and uncivilized” in their dealings with her.

Applicable Law

Rules

[50]        
The object of the Rules is described in Rule 1-3:

(1)  The object of these
Supreme Court Civil Rules is to secure the just, speedy and inexpensive
determination of every proceeding on its merits.

[51]        
The effect of non-compliance is addressed in Rule  22-7:

(2)  Subject to subrules (3) and (4), if there has been
a failure to comply with these Supreme Court Civil Rules, the court may

(a) set aside a proceeding,
either wholly or in part,

(b) set aside any step taken
in the proceeding, or a document or order made in the proceeding,

(c) allow an amendment to be
made under Rule 6-1,

(d) dismiss the proceeding or
strike out the response to civil claim and pronounce judgment, or

(e) make any other order it
considers will further the object of these Supreme Court Civil Rules.

…

(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,

…

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

(d) refuses or neglects … 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 … the court may dismiss the proceeding, and

(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).

Jurisprudence

[52]        
Several principles identified in the jurisprudence describe and limit the
appropriate application of Rule 22-7.

[53]        
The order sought by the defendants is not readily granted.  Dismissal is
a “blunt tool, to be used sparingly” in response to procedural delay: House
of Sga’nisim v. Canada (Attorney General), 2007 BCCA 483 at para. 28 [House
of Sga’nisim].  The remedy is a “draconian” one, “only to be invoked in the
most egregious of cases”: Homer Estate v. Eurocopter S.A., 2003 BCCA 229
at para. 4.  It is to be avoided where it is reasonable to do so: House
of Sga’nisim at para. 30.

[54]        
Where failure to comply with the Rules or failure to comply with the
terms of a court order is established, the party at fault bears the onus of
proving a lawful excuse for the non-compliance or non-observance: Balaj v.
Xiaogang, 2012 BCSC 231 at para. 36 [Balaj]; Eisele v. B.A. Blacktop
Ltd. et al, 2004 BCSC 521 at para. 15.

[55]        
In this context, a “lawful excuse” is “one which, in the discretion of
the judge acting judicially, is worthy of acceptance”: United Furniture
Warehouse LP v. 551148 B.C. Ltd., 2007 BCSC 1252 at para. 24.

[56]        
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.

[57]        
Fundamental failures, such as failure to make appropriate disclosure of
documents or records, must be treated as a serious default.

[58]        
A dismissal order will not usually be granted on a first application for
relief arising from procedural delay, even intentional delay. Injustice might
result from such a course of action.

[59]        
A dismissal order will not usually be granted until the plaintiff has
been warned that result will follow upon further delay or obstruction.

[60]        
Lesser sanctions ought to be considered where any are available and
appropriate.

[61]        
A self-represented litigant cannot be held to the same standards as a
professional lawyer in terms of compliance with court procedures and rules.  That
said, a litigant who chooses to represent him- or herself cannot ignore his or
her responsibilities with impunity.

[62]        
A persistent pattern of delay on the part of the plaintiff, as well as a
persistent failure to comply with the Rules of Court and court orders, may
result in a dismissal order.  Defaults must be seen in context.  The
plaintiff’s conduct of the claim from its inception does have a bearing on the
seriousness of the default before the court.

[63]        
When persistent conduct prevents the litigation from progressing at all,
and when trial dates are lost through deliberate defaults, the failures may
have an irreparable negative effect on the just determination of a case.  Failing
to comply with an order in a manner that causes an adjournment of trial is
seriously prejudicial to the defendants.

[64]        
Refusal to comply with an order for reasons raised before the court and
rejected amounts to an overt and deliberate flouting of the court order: Balaj;
House of Sga’nisim; Dhillon v. Pannu, 2008 BCCA 514; Kemp v. Dickson,
2006 BCSC 288.

Analysis

[65]        
The desire to address claims on their merits is the preeminent objective
of the courts.  The Rules are written with a view toward achieving that
objective in a just and efficient manner.  At some point non-compliance with
the Rules frustrates the pursuit of a just outcome.  Even in cases where a
defendant has admitted liability to a plaintiff, it is just to dismiss the
plaintiff’s claim if it is not being diligently and fairly pursued.  The civil
justice system is founded upon the assumption that parties will respect court orders,
will comply with the Rules and will work together to resolve the claim or bring
it to trial for resolution.  A just and efficient outcome will not be obtained
if one party frustrates its operation.

[66]        
The defaults giving rise to the application before me must be looked at
in context of the history of proceedings in this action.  Since June 2010, the
defendants have been unable to properly assess the plaintiff’s claim due to her
failure to cooperate in making reasonable discovery.  The defendants are unable,
without medical records, to respond to the plaintiff’s dramatic description of
her injuries and their effect.  One would expect that a person who is at risk
of death resulting from air travel would be anxious to produce medical records
to document that condition and diagnosis.

[67]        
Dr. Breberin is a self represented litigant, but she is a well
educated person who has been informed repeatedly of her obligations to make
disclosure.  She cannot ignore her responsibility with impunity.

[68]        
The Court has made it clear to her that discovery cannot and should not
be avoided.  She has been told the defendants have the right to challenge her
diagnosis and to be put in a position to do so by having access to relevant
records.  She has failed to make discovery of basic documents.  She has
continued to do so even after being found in contempt and after representing to
the court that she would withdraw all objections to the use of authorizations
to obtain her medical records. This fundamental failure must be treated as a
serious default.

[69]        
She has repeatedly taken issue with what she regards as the Court’s
second-guessing of her diagnosis but she has been advised of the necessity of
putting appropriate evidence before the Court to substantiate her position and
of the need to produce that evidence for examination by defence counsel.

[70]        
Trial dates have been lost as a direct result of her failure to make
timely discovery.  The loss of trial dates through deliberate defaults may have
an irreparable negative effect on the just determination of a case.

[71]        
Dr. Breberin continues to refuse to attend at an independent
medical examination in Vancouver on the ground she is medically unfit to
travel.  That argument has been rejected as unsubstantiated, but rather than
appealing the order, Dr. Breberin has ignored it.  She now seeks to
establish that travel would put her in great peril, yet continues to rely upon
vague and incomplete evidence while avoiding full disclosure of records of her
treatment.  Her conduct amounts to overt and deliberate flouting of this Court’s
orders.

[72]        
The plaintiff’s conduct has been seriously prejudicial to the defendants
in repeatedly delaying the assessment of her claim and the trial of this action.

[73]        
It is not appropriate to dismiss a claim without prior express warning
to the plaintiff.  Dr. Breberin has received such warning.

[74]        
It is not appropriate to dismiss a claim on the first application.  This
is not the first application.  It follows a finding that the plaintiff is in
contempt.

[75]        
It is appropriate to give a plaintiff in default an opportunity to
remedy that default.  In the seven months since the May 2012 contempt
application, the plaintiff has made remarkably little effort to make disclosure
of her records and none to attend for a medical examination in Vancouver.

[76]        
Before dismissing a claim for failure to comply with the Rules or for
contempt, the Court should consider whether there are any other appropriate
means of ensuring compliance.  Having previously made a significant costs order
against the plaintiff and inviting her to avoid dismissal of her action by cooperating
in the process of the assessment of her claim, I can see no other appropriate
remedy for her continuing significant default than an order dismissing her
claim.

[77]        
The plaintiff has failed to make production of documents.  She has
failed to attend at the independent medical examination by Dr. Domisse.  She
has apparently instructed Dr. Toma to disregard the authorizations for
release of medical records in breach of this court’s order of July 9, 2012.

[78]        
The Plaintiff’s claim is dismissed.  The defendants will have their
costs if an order for costs is sought.

“P. Willcock J.”

The
Honourable Mr. Justice P. Willcock