IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Pitcher v. Brown, |
| 2014 BCSC 2046 |
Date: 20141030
Docket: 70273
Registry:
Kelowna
Between:
Eija-Riitta
Pitcher
Plaintiff
And
Joseph Brown
Defendant
Before:
The Honourable Mr. Justice Betton
Reasons for Judgment
Counsel for the Plaintiff: | A.K. Ueland |
Counsel for the Defendant: | J.A. Hemmerling |
Place and Date of Hearing: | Kelowna, B.C. July 2, 2014 |
Place and Date of Judgment: | Kelowna, B.C. October 30, 2014 |
Introduction
[1]
This is the defendants application for dismissal of the plaintiffs
claim for want of prosecution, or, in the alternative, that previous costs
orders be satisfied forthwith and that the plaintiff pay $50,000 into court for
security for costs.
[2]
The plaintiffs claim is for damages arising out of a motor vehicle
collision that occurred on August 24, 2004 in Kelowna, British Columbia.
[3]
The action is presently set for trial on April 13, 2015, the fifth
scheduled trial date.
Background
[4]
The defendant characterizes the collision as minor but admits liability
for that collision.
[5]
A statement of claim was filed December 6, 2005 and a statement of
defence was filed January 31, 2006. Plaintiffs counsel during that period of
time was Mr. Paul Mitchell.
[6]
The injuries alleged in the statement of claim include:
a) Soft tissue injuries to her neck, upper back and
shoulder;
b) Disc herniation in her cervical spine;
c) Post-traumatic cervical dystonia;
d) Post-concussion syndrome;
e) Post-traumatic stress disorder with depression;
and
f) Such further and other injuries as the Plaintiff
may advise.
[7]
The first trial date was set for December 8, 2008. The defendant
conducted his first examination for discovery of the plaintiff on August 23,
2007.
[8]
The solicitor/client relationship between the plaintiff and Mr. Mitchell
broke down in the summer of 2008. Mr. Mitchell withdrew as counsel of
record for the plaintiff on September 18, 2008 following his successful
application to adjourn the December 8, 2008 scheduled trial. That application
was heard by Master Young and the terms of her order, dated November 17, 2008
are as follows:
1. The trial date of December 8, 2008, is hereby
adjourned;
2. The
trial be rescheduled within 30 days from the date of hereof, failing which the
Defendant has leave to reschedule a Pre-Trial conference to fix a new date for
trial;
3. The
Defendants application to dismiss the Plaintiffs claim, or alternatively to
strike portions of the Plaintiffs claim with respect to wage loss, is adjourned
generally;
4. The
Plaintiff is to provide an affidavit detailing all attempts to locate the
documents requested within three weeks from the granting of this application,
failing which the Defendant has leave to reschedule the application dated
November 3, 2008;
5. Costs
to the Defendant, in any event of the cause, including all costs thrown away in
preparation for the trial.
[9]
The next trial date scheduled was March 15, 2010. It was scheduled by
the plaintiff prior to her obtaining new counsel. Mr. LeBlanc became
plaintiffs counsel going on record as such on October 27, 2009. On March 11
and 12, 2009 Master Young heard the plaintiffs application to adjourn the
March 15, 2010 trial date. In her reasons for judgment, dated April 6, 2010,
granting that application, Master Young noted the following:
[3]
On
November 17, when the application for adjournment was heard, I granted an
adjournment and ordered that the trial be rescheduled within 30 days from the
date hereof failing which the defendant has leave to reschedule a pre‑trial
conference to fix a new date for trial. I awarded costs to the defendant in any
event of the cause including all costs thrown away in preparation for the
trial. The reason given for ordering that the trial be rescheduled within 30
days was to give Mrs. Pitcher 30 more days to obtain new counsel and
determine counsels availability prior to setting the matter down for
trial. I did not anticipate that Ms. Pitcher would agree to a trial date
and then look for counsel and ascertain after the fact that her new counsel was
not available for trial. That is exactly what happened. Mrs. Pitcher
consented to the date of March 15, 2010 within the 30‑day time limit but
she did not have counsel. She continued to search for counsel who would accept
her case, without success. Finally in October 2009 she retained Mr. Leblanc
as her counsel. Mr. Leblanc advised her that he was not available for that
trial date. Mr. Leblanc attaches a copy of a letter that Paul Mitchell
sent to John Hemmerling on December 16, 2008 confirming the trial date. The
letter says:
Mrs. Pitcher has asked us to
advise you that she would like to reset the Trial of this matter to March 15,
2010. This date would, of course, be subject to Mrs. Pitchers new
Counsel being available for a Trial on that date. This can be confirmed
when she has been successful in obtaining new Counsel.
(emphasis added).
The response Mr. Hemmerling sent back was January 19,
2009 and it said:
Further to your correspondence
dated December 16, 2008 we confirm your agreement to reschedule the trial of
this matter for March 15, 2010. We will be filing the required Requisition in
due course.
[5] I have
agreed to adjourn this trial one further time for one reason only. It is not in
the interests of justice to have an unrepresented person present her case
before a jury
Although Mrs. Pitchers actions did not comply with the
intention of my order, the end result is that justice would not be served by
forcing this unrepresented litigant to proceed on her own next week.
[6]
It
would prejudice the defendant if this matter adjourns again. As it is, the
adjournment date is quite far in the future because that is the only common
date counsel for the plaintiff and counsel for the defendant had. I have
adjourned the matter for a 15-day jury trial to commence on February 7, 2011.
The date is peremptory,
[10]
Master Young also ordered that the defendant would have its costs,
including all costs thrown away in preparation for the trial in any event of
the cause.
[11]
The next scheduled trial date was February 7, 2011. In November 2010 the
plaintiff served some seven expert reports on the plaintiff precisely 84 days
before the February 7, 2011 trial date. One of those reports was from an
audiologist who indicted the plaintiff suffered from an auditory processing
disorder. Another was of a clinical psycho-neurophysiologist who relied upon a quantitative
electroencephalograph or QEEG. This prompted the defence to apply to adjourn
the February 7, 2011 trial on January 10, 2011 out of concern that it may be
unable to serve responsive expert reports in a timely way. That application was
heard by Fenlon J. and was dismissed. She said the following at paras. 6
and 7 of her decision:
[6] If the
adjournment is not granted, the defendant may be unable to serve expert reports
in a timely way; indeed, the time for service has passed about a week ago under
the Rules, but I am not satisfied that the defendant cannot obtain experts and
reports and seek leave to reply on those reports at trial despite late
delivery. Indeed, many of the submissions made today in support of an
adjournment would support such an application to the trial judge. Nor am I
satisfied, as I noted earlier, that the defendants efforts to locate experts
and obtain reports have been sufficiently vigorous to justify a delay in the
jury trial.
[7] If the
adjournment is granted, the plaintiff will suffer certain prejudice. This trial
was set for trial and adjourned twice before: on November 17, 2008, because
plaintiffs counsel withdrew, and again on March 15, 2010, because current
counsel, newly retained, was not available on the March date. The February 7,
2011, date was set by order as a pre-emptory date because of the earlier delays
and the view of the court at that time when the pre-emptory order was made that
the case needed to be heard and dealt with.
[12]
The defence was able to obtain expert opinion based on an independent
medical examination conducted on January 24, 2011.
[13]
On February 2, 2011 the plaintiff then brought her own application to
adjourn the February 7, 2011 trial date. That trial by that time was apparently
set to proceed before a jury for five days. At that time it was anticipated a voir
dire would be required regarding the admissibility of the plaintiffs
expert report relying on the QEEG study.
[14]
Mr. Justice Barrow heard that application and observed that the
defence estimate that the trial would take 20 days was in his view optimistic
and that 25 to 30 days was a realistic estimate.
[15]
Plaintiffs counsel at the time, Mr. LeBlanc, faced the challenge
of having a separate trial scheduled to follow this matter so that going beyond
the time set would interfere with that other trial.
[16]
Mr. Justice Barrow granted the adjournment application and said as
follows at para. 9:
Returning to the broad question, it is my view that for all
of these reasons, including the fact that if this trial does carry on for the
length of time I suspect it will, it will work a substantial unfairness to Mr. LeBlanc,
that I regard it appropriate to grant the adjournment sought. The trial is to
be reset. The trial coordinators are to be advised to reserve 25 days for the
trial in March or April of 2012. I make that comment deliberately. I asked Mr. LeBlanc
what his calendar required or, more accurately, how limiting his calendar was
in terms of permitting this trial to be reset. I would not grant the
adjournment if it necessitated a delay longer than March or April of 2012. Mr. LeBlanc
advises that he has trials set during that period which he will have to apply
to adjourn and that it is as it should be. This case necessarily requires some
priority given the fact that this is now going to be a fourth trial date in
relation to an accident that is now in excess of seven years old. A delay any
longer than that would work an unacceptable unfairness to the defendant and, as
I say, I would not have granted the adjournment but for the fact that it can be
accommodated, realistically, albeit I recognize not without problems, in the
spring of 2012.
[17]
A new trial date was scheduled in accordance with that order, for March
5, 2012 for 25 days with a jury.
[18]
Mr. LeBlanc withdrew as counsel for the plaintiff on September 16,
2011. The reasons are not known to the Court.
[19]
I was appointed as the trial judge and conducted a case planning
conference on October 12, 2011. At that time the plaintiff indicated that she
was seeking to obtain new counsel.
[20]
Subsequent case planning conferences occurred on November 17, 2011,
December 16, 2011 and January 17, 2012. The plaintiff indicated she was
continuing her search for counsel but wished to adjourn the pending trial. I
stated that she should exhaust her effort to find counsel. If she succeeded in
obtaining counsel and they could not be available on the scheduled date I would
address the issue then. If she did not, I indicated I would conclude that there
was no reasonable prospect of her obtaining counsel and deny any further
adjournment applications.
[21]
On January 27, 2012 the plaintiffs pending application to adjourn the
trial was in fact dismissed by me. She had not obtained counsel despite her
efforts. In my comments I noted that the Court had done everything possible to
assist the plaintiff in her efforts including imposing some obligation on
counsel for the defendant to provide documents to prospective counsel.
[22]
Following this decision the plaintiff was required to confirm what
expert witnesses she would be calling at the trial and that arrangements had
been made for their attendance.
[23]
In early 2012 the plaintiff was diagnosed with cancer. On the basis of
her medical condition she applied to adjourn the March 5, 2012 trial date. That
application was granted on February 28, 2012 by me. The terms of my order
included that a further trial management conference be scheduled within
approximately six months to determine if a new trial date could be set based on
the plaintiffs health.
[24]
Thereafter at periodic conferences in September 2012, March 2013 and
November 2013, the plaintiff updated her medical condition, specifically her
ability to proceed with the action and the scheduling of a trial. On November
7, 2013 the plaintiff indicated she now wished to proceed with setting the
trial. Further she indicated that she expected that she had counsel although
none was on record.
[25]
The plaintiff retained new counsel in January 2014 and the present trial
of April 13, 2015 for 20 days was set.
[26]
In his affidavit filed in support of this application the defendant,
Joseph Brown summarizes the history of these proceedings as he understood them
and then says this at para. 10:
I really want this to be over. I am on anti-epileptic
medication and am not certain what the effect the stress of this litigation is
having on my condition. I get anxious each time that I have to get ready for
this trial. I have to make arrangements with my employer to arrange time off
and then have to cancel it with them. So far it hasnt appeared to affect my
employment. It also has had a negative impact on the rest of my family I want
to be able to move on with my life and not have to worry about this any longer.
Law
Dismissal for Want of Prosecution
[27]
The parties are not in disagreement regarding the applicable principles
to applications for dismissal for want of prosecution. In Aker Kvaerner
Canada Inc. v. Twardowski, 2010 BCSC 1153, Fitzpatrick J. summarized the
law as follows at para. 14:
The test to be applied on this application has been discussed
and developed in various decisions by our Court of Appeal: Irving v. Irving
(1982), 38 B.C.L.R. 318, 140 D.L.R. (3d) 157; Busse v. Robinson Morelli
Chertkow, 1999 BCCA 313; Tundra Helicopters Ltd. v. Allison Gas Turbine,
2002 BCCA 145; and finally, 0690860 Manitoba Ltd. v. Country West
Construction Ltd., 2009 BCCA 535 [PMC Builders]. In PMC
Builders, Justice Low summarized the factors to be considered:
[27] These
cases suggest to me that 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.
[28]
Various decisions have applied those principles to the peculiar circumstances
of individual cases.
[29]
In considering the question of whether there has been inordinate delay, Finch
C.J. for the British Columbia Court of Appeal in Azeri v. Esmati-Seifabad,
2009 BCCA 133, noted that an inordinate delay is one that is uncontrolled,
immoderate, or excessive. It is clear from his comments that the amount of
time that passes is important, but that consideration must be given to what
efforts the plaintiff or plaintiffs counsel have made to move the matter
forward. In that respect there is an obvious connection in the amount of delay
and the second consideration which is whether the delay is inexcusable.
[30]
In respect of the consideration of serious prejudice, Fitzpatrick J. in Aker
referenced Tundra Helicopters v. Allison Gas Turbine, 2002 BCCA 145
and said at paras. 33 and 34:
[33] The
exigencies of litigation inevitably dictate that prejudice is suffered simply
by the passage of time. Many cases raise this element of prejudice as a matter
of common sense; one might say that some prejudice inevitably comes with the
territory of litigation, given the normal time frames that seem unduly lengthy
to most lay people. The prejudice that is relevant in this case is prejudice
that goes beyond this normal type of prejudice and has been described as
serious prejudice: PMC Builders at para. 27.
[34] It must
also be borne in mind that only direct evidence of prejudice is admissible on
this type of application given that the relief sought is for a final order.
Evidence based on information and belief is not admissible: PMC Builders at para. 33.
[31]
In Irving v. Irving (1982), 38 B.C.L.R. 318, Seaton J. said this
of the fourth consideration of whether justice requires that the action be
dismissed at para. 22:
The demonstration of inordinate delay, inexcusable delay and
serious prejudice does not lead necessarily to dismissal. Those three factors
are only the primary considerations; all of the circumstances must be
considered. It is still for the courts to decide "whether or not on
balance justice demands that the action should be dismissed". Salmon L.J.
in Allen v. Sir Alfred McAlpine & Sons Ltd. (above). All of the
statements of law are subject to the overriding principle that essential
justice must be done. (See Freedman J.A., as he then was, in Ross and Ross
v. Crown Fuel Co. Ltd. et al (1962) 41 W.W.R. 65 at 88).
Security for Costs
[32]
In relation to security for costs, Burnyeat J. in I.J. v. J.A.M.,
2013 BCSC 270 summarized the law fairly as follows:
11. In the
case of a personal defendant, Ehrcke J. in Beasse v. Holness, [2006]
B.C.J. No. 1928 (S.C.), stated:
In the case of a personal
plaintiff, the basic rule is that a natural person should not be barred from
having his day in court because of poverty and therefore the power to require
the posting of security of costs should be exercised with restraint. An order
should not be made without good reason.
(at para. 14)
12. It is
clear that the power to make an order should be: "… exercised
cautiously, sparingly and indeed under very special circumstances": Tordoff
v. Canada Life Assurance Co. (1985), 64 B.C.L.R. 46 (S.C.), at para. 14;
Falso v. DeStefanis, [1992] B.C.J. No. 337; Fraser v. Houston
(1997), 36 B.C.L.R. (3d) 118 (S.C.), at paras. 5 and 10; Gray v.
Powerassist Technologies Inc. (2001), 10 C.P.C. (5th) 148 (B.C.S.C.), at para. 20;
Wong v. Huang, [2004] B.C.J. No. 1302 (S.C.), at para. 32. In Fraser,
supra, it was stated that orders should not be made except in egregious
circumstances amounting to an abuse of the court’s jurisdiction.
15. In all
but exceptional cases, the longstanding basic rule is that a natural person can
sue without giving security for costs. This rule flows from the principle that
poverty should not be a bar to access to the courts. In Pomerleau, supra,
Rogers J. made the following statement:
… I would distil those principles
down to this: an individual’s access to the court’s process should not be
fettered by requiring him to post security for costs, except in special or
egregious circumstances; and insolvency does not, without more, amount to a
special or egregious circumstance. There is no exhaustive list of what facts
amount to a special or egregious circumstance, but in Han the court
allowed as how they could include an impecunious plaintiff with a weak case, or
a plaintiff who has failed to pay costs before, or who has refused to follow a
court order to pay maintenance. Presumably, other circumstances would also fit
the criteria as well, but there can be no doubt that they would have to lie
well beyond the norm for civil litigation (a wide scope indeed). (at para. 7)
Analysis
Dismissal for Want of Prosecution
[33]
It has been 8 years and 11 months since this matter commenced and the
matter is now scheduled to proceed in April 2015, its fifth scheduled trial
date. The first trial date was some 76 months prior to this current trial date.
[34]
It must be recognized that the delay of trial from the scheduled March
2012 date to April 13, 2015, (approximately 36 months) has been principally as
a result of the plaintiffs confirmed serious illness. The delay from February
7, 2011 to March 5, 2012 (approximately 12 months) was a product changing time
estimates for the trial. It is not possible in the evidence before me to attach
fault to the plaintiff, or any party for that matter, for the time estimate had
been found to be inadequate.
[35]
The nature of the case is not unusually complex.
[36]
In terms of absolute time, it is my view that the delay is inordinate
given the nature of the case.
[37]
I turn then to the question of whether the delay is inexcusable. It is
obvious that the plaintiff has been pursuing the matter. The circumstances that
led to the plaintiffs application to adjourn the February 2011 trial and the
fact that she has now secured third counsel to represent her are all indicative
of a plaintiff endeavouring to move the matter forward.
[38]
It is important, in my view, to avoid drawing inferences about the
plaintiff or the merits of the plaintiffs case because she is now working with
her third counsel. The specific circumstances that led to that are not before
me. The merits of the plaintiffs claims have not been adjudicated and I should
not make any summary conclusions in this context and based only on the fact
counsel and the plaintiff have not been able to continue their solicitor/client
relationships.
[39]
In addition, a reasonably significant portion of the delay is a product
of the plaintiff encountering serious health challenges while she was
unrepresented making her ability to pursue prosecution of the claim or arrange
for new counsel more difficult.
[40]
Master Young was critical of the plaintiff for her agreeing to the 2010
trial date without first having arranged counsel which prompted her to order
that the February 2011 trial date be pre-emptory and that the plaintiff pay
costs.
[41]
Despite that I am unable to conclude on all of the evidence and in the
circumstances that the delay is inexcusable. There was ongoing activity on the
file throughout the time except when the plaintiffs health precluded it. It
may not have been to the defendants satisfaction but that is not the test.
[42]
That conclusion makes it unnecessary for me to address the issue of
prejudice. I will, nonetheless, make some observations on that subject. The
evidence of prejudice is limited to para. 10 of the defendants affidavit.
Both Master Young and Barrow J. made comment about prejudice to the defendant
with respect to the adjournment applications that they were dealing with.
Neither, it would appear, specifically referred to how that prejudice would
arise. I infer that prejudice to which they refer was based on an inference
from the passage of time rather than direct evidence.
[43]
Were it necessary to address the issue of prejudice I would not conclude
that that had been established so as to require a dismissal of the claim.
[44]
Similarly, in the fourth and broad general consideration in this
analysis I would not reach the conclusion that a dismissal of the claim is
necessary.
Security for Costs
[45]
It is to be noted that two prior orders for costs have been made but
neither made those costs payable forthwith. At the time of my order of February
28, 2012, an application for costs was adjourned generally.
[46]
The state of the law in this province is such that security for costs from
individuals is an unusual circumstance. I am not satisfied that such an order
is appropriate here. In many circumstances following personal injury litigation
it would be difficult for a plaintiff to be able to post security for costs.
[47]
Such an order in the facts of this case is not appropriate, nor will I
vary orders previously made in respect of costs to require that they be paid
forthwith.
The
Honourable Mr. Justice Betton