IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Badreldin v. Swatridge, |
| 2015 BCSC 450 |
Date: 20150206
Docket: M126504
Registry:
Vancouver
Between:
Alaa Badreldin
Plaintiff
And
David Swatridge
Defendant
Before:
Master Harper
Oral Reasons for Judgment
In
Chambers
Counsel for the Plaintiff: | F. Jiwa |
Counsel for the Defendant: | A.H. Kim |
Place and Date of Hearing: | Vancouver, B.C. February 5, 2015 |
Place and Date of Judgment: | Vancouver, B.C. February 6, 2015 |
[1]
THE COURT: The plaintiffs action arises out of a motor vehicle
accident which occurred on November 4, 2010.
[2]
The plaintiff is a physiotherapist. He claims damages arising out of his
injuries, including a loss of past and future earnings and a loss of earning
capacity. The trial is scheduled to commence March 16, 2015 for five days.
[3]
The defendant, through his counsel, required production of documents and
information, and after a significant amount of time had passed in which the
documents and information were not produced to the defendants satisfaction,
the parties, through their counsel, entered into a consent order as of September 23,
2014. The consent order provided for the production of certain documents and
information pertain to a variety of issues, including economic loss documents,
special damages, and so on.
[4]
One of the documents that was agreed to being provided is described as work
calendars of the plaintiff for each of his two clinics from November 4,
2009 to the present. Another document is described as personal loan documents
against the plaintiffs house from inception. Another document is full income
tax returns, including statements of business activities from 2007 to the
present, and particulars of the plaintiffs economic loss. There were other
documents sought as well.
[5]
The deadline in the consent order for the production of the documents
and information was three weeks from the date of the order; in other words, by October 14,
2014.
[6]
In this application, the defendant applies for an order dismissing the plaintiffs
action for failure to comply with the order of the court of September 23,
2014; alternatively, that the plaintiffs past and future economic loss claims
be dismissed; and in the further alternative, that the plaintiff comply with
the consent order of September 23, 2014.
[7]
A further order which is relevant to consider in this application is the
order of Master Muir made December 19, 2014. The December 19, 2014 order
was made after the application was brought on to strike the plaintiffs action.
Master Muir ordered that the plaintiff fully comply with the consent order of September 23,
2014 by January 16, 2015, failing which the defendant may bring his
application dated December 5, 2014 again on two-days notice to the
plaintiff with costs payable to the defendant of the hearing before Master Muir
in any event of the cause.
[8]
The matter was then set down again, this time before Master Caldwell on January 30,
2015. Because the plaintiff had not filed a response nor any affidavit
materials, the application before Master Caldwell was adjourned to February 3,
2015 and Master Caldwell made an order for costs in any event of the cause of
$1,000.
[9]
The application ultimately came on before me on February 3, 2015.
However, because I could not make the determination as to whether responsibility
for failing to comply with the September 23, 2014 consent order and the December 19,
2014 order should be attributed to the plaintiff himself and not his legal
counsel, I ordered the February 3, 2015 application be adjourned to February 5,
2015.
[10]
By the February 5, 2015 hearing, the plaintiff had substantially,
although not completely, complied with the two orders and it was only at the
last minute that the plaintiff had substantially complied with the two orders,
and only when the threat of the action being dismissed came home to him.
[11]
Going back to the history as to how the parties came to this point,
defence counsel emailed plaintiffs counsel on November 3, 2014, stating
as follows:
I have instructions to proceed to
chambers to have the Plaintiffs economic loss claim struck for failure to
provide documents and information. Can you provide me with your available late November and
December chambers dates?
[12]
On November 6, 2014, defence counsel emailed plaintiffs counsel
again and asked for his available chambers dates.
[13]
This application to dismiss the plaintiffs action was filed by the
defence counsel on December 5, 2014, and I have described the
chambers history.
[14]
After Master Muirs December 19, 2014 order, which required full
compliance by January 16, 2015, plaintiffs counsel emailed defence
counsel on January 13, 2015 saying that he would have the rest of the
documents to her by the next day and would work out a plan to have the work
calendars viewed. The work calendars were documents that were required to be
produced by October 14, 2014 pursuant to the September 23, 2014
consent order.
[15]
On January 21, 2015, plaintiffs counsel emailed defence counsel,
saying:
I will not disclose records that
contain third party information unless there is an agreement or the court sorts
it out for us.
[16]
This statement was made despite the term of the September 23, 2014
consent order providing that the work calendars be produced by October 14,
2014. As defence counsel pointed out, some of the plaintiffs patients could be
witnesses at the trial, because the plaintiff alleges that he could not perform
certain procedures on his patients.
[17]
By the time the matter came before me on February 3, 2015, some but
not all of the required documents and information had been produced.
[18]
The material that was provided by the plaintiff on February 3, 2015
included an application response and an affidavit of plaintiffs counsels
legal assistant.
[19]
Since the matter required the plaintiff to establish a lawful excuse as
to why he had failed to comply with the two court orders, that is, the September 23,
2014 consent order and Master Muirs December 19, 2014 order, I was
concerned that a staff member in the plaintiffs counsels offices was being
put in a position for vouching for the plaintiff and I thought that was
inappropriate. Therefore, I ordered the matter adjourned again to February 5,
2015 and I made it abundantly clear that the plaintiff was on very, very
thin ice in terms of how he had responded to the defendants application.
[20]
What I had before me on February 3, 2015 was the plaintiffs
application response. I am going to read it because it is instructive in
terms of the plaintiffs position on the defendants application to strike as a
result of his non‑compliance with the two court orders. The plaintiff
says that he consents to the granting of the orders set out in para. 3 of
Part 1 of the notice of application, which is the defendants alternative
application that the plaintiff fully comply with the consent order made on September 23,
2014.
[21]
The plaintiff says he consents to the granting of that order on the
following terms:
a) The Plaintiff is willing to comply with the subject Consent
Order and has made many efforts to do so. However, there remains an issue with
respect to paragraph (h) of the subject Consent Order. We ask that defence
counsel undertake to not make use of the third party names listed on the work
calendars of the Plaintiffs two clinics and to not disseminate them to anyone
apart from parties to the within action, or contact them in any way.
b) With respect to providing particulars of the past income
loss claim, the Plaintiff has provided numerous financial documentation to the
Defendant, however, requires more time to properly particularize this part of
the claim given a substantial amount of further documentation received. The Plaintiff
will be able to particularize this loss by February 13, 2015 (which is
more than one month prior to the currently scheduled Trial date).
c) In the alternative, the Plaintiff
seeks additional time to make an application to vary the Consent Order dated September 23,
2014 to include additional terms to protect the identity of the Plaintiffs
clients.
[22]
The plaintiffs application response does not address squarely at all
the issue, which is: why did the plaintiff neglect to comply with the two court
orders?
[23]
On February 5, 2015, an affidavit of the plaintiff was filed and
I will deal with that later.
[24]
First, I will deal with the applicable law. The object of the Supreme
Civil Court Rules is described in Rule 1-3 as the just, speedy and
inexpensive determination of every proceeding on its merits.
[25]
Pursuant to Rule 22‑7(6), and rewording the rule to apply to this
case, if the plaintiff, without lawful excuse, neglects to comply with a court
order, the court has the power to dismiss the action under Rule 22‑7(5). The
test is, therefore, does the plaintiff have a lawful excuse for neglecting to
comply with the September 23, 2014 consent order and Master Muirs order
of December 19, 2014. If he does not, the question then becomes what
sanction should be imposed.
[26]
Striking a claim is a blunt, draconian tool to be used sparingly, only
in the most egregious of cases. I advised counsel on February 3, 2015
that I would not strike the action, but would consider striking the
economic loss claims. As I said earlier, I was concerned that the
only affidavit filed on behalf of the plaintiff was that of plaintiff counsels
legal assistant. Any defence of lawful excuse would have to come from the
plaintiff himself, and I adjourned the application to February 5,
2015 in order for the plaintiff to present evidence of lawful excuse.
[27]
The only case authorities provided on this application were by the
defendant. The plaintiff provided no case authorities. The cases provided by
the defendant are Breberin v. Santos, 2013 BCSC 560, and Balaj v.
Xiaogang, 2012 BCSC 231.
[28]
In Breberin, the plaintiff represented herself and it was a motor
vehicle accident claim. The application was dealt with more than five years
after the motor vehicle accident occurred, and in that case there had been
significant non‑compliance with the rules.
[29]
The decision says:
[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
[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.
[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.
[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 plaintiffs conduct of the claim from its inception does have a
bearing on the seriousness of the default before the court.
[63]
Failing to comply with an order in a manner that
causes an adjournment of trial is seriously prejudicial to the defendants.
[65] The desire to address claims
on their merits is the preeminent objective of the courts.
[30]
In Balaj, the court cites Dhillon v. Pannu, 2008 BCCA 514,
where the plaintiff failed to comply with two successive orders and it was held
that dismissal was warranted in that case.
[31]
At para. 28 of the Balaj decision the court says as follows:
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
[32]
That is consistent with the ruling in Breberin and those
principles are what guide me as I consider this application.
[33]
There is no doubt that there has been non-compliance with two court
orders in this case. The only question is whether there is a lawful excuse for
that non-compliance and, if there is not, what the sanction should be.
[34]
Returning to Breberin, there is a paragraph in that case which
I find particularly instructive as I consider this application.
I started to cite it earlier:
[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 plaintiffs 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.
[35]
In Breberin, the claim was dismissed. However, the facts of that
case were extreme and, without going into too much detail as to the facts in Breberin,
the defaults committed by the plaintiff were numerous, persisting and extreme. The
facts in the Balaj case were extreme as well. In that case, the action
dragged on for nine years and the court showed many indulgences to the
plaintiff before finally striking the action.
[36]
In considering this application, I have paid careful attention to
the affidavit of the plaintiff which was filed February 5, 2015, two
months after the initial application for dismissal was filed.
[37]
The affidavit sets out the plaintiffs background. He is 58 years old. He
is a physiotherapist. He was involved in a motor vehicle accident on November 4,
2010. He sustained numerous injuries, most notably to his shoulder, neck, and
back. He says the injuries have affected his ability to work as a
physiotherapist, and he is making a claim for past and future wage loss.
[38]
He describes that he had been an equal partner in a massage and
physiotherapy centre, and he described how he was paid in that partnership. He
says the partnership was dissolved on June 30, 2013 and since then, he has
operated the business on his own. He says he has been responsible for the
administration of the business since then.
[39]
Now I will quote more directly from the affidavit, the following
paragraphs:
9. I have reviewed the financial documents provided to
the Defendant in this matter and they are accurate and complete. They include
my personal tax returns that have statements of business activities, as well as
financial statements of the partnership, and I have also provided my
individual detailed billings. I do not have any further financial
documents in my possession apart from individual receipts that make up the
expenses as claimed on my returns.
10. I have also provided various statements of loan
documents from the Royal Bank. I do not have any other loan documents in
my possession. I provided what I could from my online banking and
what I was able to obtain from my branch. I do not make any claims
for that loan in this matter or the interest occurred therein.
11. I have been advised on numerous occasions by my
counsel about the requests made by the Defendant in this matter and the Court
order.
12. The work calendars were not readily available to me
initially and I did not know where they were. The storage for the business
was very disorganized and cluttered. When I finally cleaned it out,
I came upon the work calendars.
13. I am not very computer savvy and did not know how
to obtain some of the information requested despite numerous attempts to do so.
I had to finally consult a computer programmer to help me.
14. Since the motor vehicle accident I have been
dealing with my injuries, and since June 30, 2013 I have had the
added task of managing the business on my own since the partnership dissolved
around that time. I have also been trying to maintain my physiotherapy
practice. It has been hard for me to find time to locate the requested
documents and information. I have also been having financial difficulties
since the accident since I was not able to make as much as I used to
before the accident.
15. My claim for past wage
loss is approximately $81,000 gross net income and my future wage claim is
about $100,000. I have read the particulars of past and future wage loss
as provided by my counsel to the Defendant and it is an accurate statement of
my claim under this head of damage. If my claim for past and future wage loss
is dismissed, it would be a significant loss for me. I appreciate I must
still prove my claim at Trial.
[40]
The particulars that were ordered under the September 23, 2014 consent
order were provided on February 4, 2015.
[41]
The affidavit of the plaintiff attempts to explain why he did not
produce the documents earlier. However, even on the plaintiffs own evidence,
I find that he has not provided a lawful excuse for failure to comply with
the court orders. It is clear from the affidavit that he accepts that he was
responsible for producing the documents and information and not his legal
counsel. Therefore, I lay the responsibility at the feet of the plaintiff
and not his counsel.
[42]
Although I find that the plaintiff has neglected to comply with the two
court orders, I cannot find that he refused to comply.
[43]
On his own evidence, the plaintiff admits that he simply failed to take
any adequate steps to comply with the court orders. He does not say anything in
the affidavit as to why he felt justified in simply ignoring the court orders.
[44]
The plaintiff finally produced the particulars of the wage loss claim
along with his affidavit. The amount of the plaintiffs net past wage loss
claim is likely in the range of $50,000 to $60,000, after reducing the gross past
wage loss claim of $81,000 by the income tax payable by the plaintiff on that
amount. The future wage loss claim or future loss of earning capacity put
forward by the plaintiff is $100,000. Therefore, the total of the economic loss
claims is about $150,000. As his total economic loss claim is a significant
amount, the plaintiff was required to adequately address the document and
information production in such a way that would allow the defence to quantify
his claim, instruct their client, make an appropriate offer, and prepare for
trial.
[45]
The non-compliance with these two orders makes it very difficult at this
point for the defence to properly engage in the quantification of the plaintiffs
economic loss claim. The late production of the documents and information may
threaten the trial date. Also, the issue of the work calendars, which is an
important part of the plaintiffs claim, remains uncertain. Counsel for the
plaintiff says he intends to apply for an order varying the September 23, 2014 consent
order to deal with the privacy issues of the plaintiffs patients referred to
in the work calendars. Defence counsel says, quite rightly, she is not sure
what use she can make of those work calendars. The calendars have been produced
to her, but the plaintiff is now asserting a privacy claim on the calendars on
behalf of his patients.
[46]
The defendant has been put through too much extra time, trouble, and
expense in its efforts to limit the order just to compel the plaintiff to
produce the documents and information. There has been a persistent pattern of
non-compliance. The plaintiff has downplayed his responsibility for the non-compliance
with the two court orders. As he has had legal counsel throughout, there is no
excuse for his not understanding his responsibilities.
[47]
The production of the documents and information that did occur at the
last minute and over a short period of time shows that it was possible to
produce the documents and information in a timely fashion.
[48]
I find, therefore, that there has been no lawful excuse for the
plaintiffs non-compliance with the two court orders. I must now consider
the sanction.
[49]
As I said earlier, I do not intend to dismiss the plaintiffs
claim. As for sanction, the only case law provided was by the defendants, and
in those two cases the actions were dismissed. I have decided that
dismissal of the action is too draconian in this matter. I have also
decided that dismissal of the economic loss claims is too draconian, because of
the amount the plaintiff is claiming. If I dismiss the plaintiffs economic
loss claims and if his entire claim is accepted by the court, which is highly
uncertain, the plaintiff could incur a loss of potentially up to $150,000. Even
on the assumption that the court may only order a fraction of that amount, the amount
that the court will award, if any, for his economic losses remains a completely
unknown number. Therefore, in my view, it is very difficult to quantify the
effect on the plaintiff if I dismiss his economic loss claims.
[50]
I therefore am making this decision somewhat in a vacuum. Counsel for
the plaintiff submitted that the three costs orders that have been made amount
to an appropriate lesser sanction. The total of the three costs orders made as
this application wended its way through chambers is about $5,000. The plaintiff
says that that is an appropriate sanction.
[51]
In my view, the costs orders are not sufficient. They are simply orders
for costs and there is no increased amount that is attributable to a sanction.
[52]
So now I have to consider how to exercise my discretion judicially
and proportionately in relation to the application. I have said that an
order dismissing the claims would be disproportionate to the non-compliance. It
is my view that the $5,000 in costs is too low and a dismissal of the economic
loss claims is too high. Of course, there is no way of predicting what the
court will order, if anything, for those economic loss claims, but the claims
are there and I consider them at face value.
[53]
In my view, the sanction has to be sufficient to bring home to the
plaintiff the point that court orders must be obeyed. In addition, the
defendant is entitled to be compensated for the time, trouble, and expense of
dealing with this issue, as well as the prejudice caused by the late production
of documents and information, and the uncertainty with respect to how the work
calendars are going to be used. There is a looming trial date of March 16,
2015. It is uncertain at this point as to whether the trial will go ahead. The
loss of a trial date because of this late production is an additional prejudice
to the defendant.
[54]
So balancing all of those factors, in my view, a sanction of $25,000
would be appropriate. I therefore order that the plaintiff pay to the
defendant the sum of $25,000. The $25,000 will be used to offset against any
settlement or judgment the plaintiff receives in this action.
[55]
There is also the issue of the costs of the hearing of February 5,
2015 and todays attendance, and I will hear submissions on those costs.
I realize that counsel for the defendant is not here and I could
leave that outstanding. I do not intend to order costs that are anything
over and above the bare tariff. As I have already awarded the sanction, I think
it would be appropriate to order costs of $500 for February 5, 2015 and
$500 for today, so probably a total of $1,000.
[56]
Because that is a relatively minor matter and I do not hear any
submissions otherwise, I will order costs of February 5 and todays
attendance at $1,000 in total, and those do not have to be paid forthwith, they
can be rolled into the $25,000 sanction which I have imposed.
[57]
Those are my reasons.
[58]
MR. JIWA: Your Honour, just one matter arising. There were costs
ordered to be paid forthwith by Tuesday, and I appreciate Ms. Kim is
not here, but I wonder if the plaintiff can have until the Friday, which
is —
[59]
THE COURT: Yes. I will make that order.
[60]
MR. JIWA: Sure, thank you.
[61]
THE COURT: There is no intention to be punitive with respect to that,
and so that is a reasonable request. You do not need to perfect that order, if
it is recorded, that will be fine. All right, so you can communicate that to Ms. Kim.
[62]
MR. JIWA: And Your Honour, just to clarify that any settlement or judgment
will be reduced by $25,000.
[63]
THE COURT: That is correct.
[64]
MR. JIWA: Only on the economic claim?
[65]
THE COURT: Well, it is reduced overall so it comes off the top.
[66]
MR. JIWA: Okay, all right. Thank you.
Master Harper