IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110125

Docket: S046608

Registry:
Vancouver

Between:

Joanna Roumanis

Plaintiff

And:

Dr. William
Liebenberg, Dr. William Liebenburg Inc.

and Westview
Dental Clinic

Defendants

–
and –

Date: 20110125

Docket: S056473

Registry:
Vancouver

Between:

Joanna Roumanis

Plaintiff

And:

Dr. Brahm A.
Miller, Dr. Sonia S. Leziy, Dr. Brahm A. Miller Inc.,

Dr. Sonia S.
Leziy Inc. and Dr. Sonia S. Leziy & Dr. Brahm A. Miller Inc.,

carrying on
business under the firm name and style of Pacific Perio

Prosthetic Group

Defendants

–
and –

Docket: S066644

Registry:
Vancouver

Between:

Joanna Roumanis

Plaintiff

And:

Dr. Steve J.
Hill, Dr. Steven J. Hill, Dr. Steve Hill and Dr. Steven Hill

Defendants

Before:
The Honourable Mr. Justice N. Smith

Oral Reasons for Judgment

In
Chambers

[1]            
This is an appeal from an order of a Master dismissing the plaintiff’s
claim in three actions.  The dismissal was based on the plaintiff’s failure to
attend for continuation of an independent medical examination that had
previously been ordered and, more generally, on want of prosecution pursuant to
Rule 22‑7(7).  These three actions alleged injury due to negligent dental
treatment at various dates between 2002 and 2004.  The first action was
commenced in November 2004, and the others in December 2005 and October 2006.

[2]            
On January 10th, 2008, Mr. Justice Holmes ordered that the
plaintiff attend an independent medical examination by a psychiatrist, Dr. Wiseman. 
The relevant portion of the order reads that:

The plaintiff attend a psychiatric independent medical
examination to be scheduled in the afternoon for a period of one hour.  If the
examining doctor indicates that more time is necessary to complete the
examination, the plaintiff shall attend a further appointment to be scheduled
in the afternoon for a period of one hour.  The plaintiff will be advised by
counsel for the defendant for scheduled dates as soon obtained…

‑‑ I suppose that should read "as soon
as obtained" ‑‑

…so she can meet the obligation
to attend these appointments.

[3]            
The plaintiff says she did attend before Dr. Wiseman and alleges
that she was traumatized by the visit and hospitalized as a result.  There were
subsequent letters from defence counsel to the lawyer who was then acting for
the plaintiff in one of the three actions, asking that the plaintiff contact Dr. Wiseman
and make an appointment to continue the examination.  There was an initial
response with letters from another psychiatrist indicating the plaintiff was
not in a condition to attend such an examination at that time.  In October
2008, her then counsel withdrew from the matter and the plaintiff has been
without counsel in any of these actions since that time.

[4]            
I was not directed to any evidence of what happened after that until the
spring of 2010 when the matter came before Master Scarth, who ordered, among
other things, that the plaintiff was to, within 30 days, comply with the terms
of Mr. Justice Holmes’ order.  Master Baker said at paragraph 12 of his subsequent
reasons for judgment dismissing the plaintiff’s action:

She has made it clear she has no
intention of going back to Dr. Wiseman and submitting to a further one‑hour
medical examination.  She says, "I will respond to his question.  One
question is all he had," she says, but "I will respond to that either
remotely or in some manner."  I take from that either by telephone or some
other way or I will give a written response.  I have to say I would doubt very,
very much whether either of those alternatives would be acceptable to Dr. Wiseman,
he being the assessing physician, but it is absolutely clear to me that she has
no intention or plans to attend.

[5]            
On the matter of the general application for dismissal for want of
prosecution, the Master said at paragraph 23:

We are often confronted with much
longer delays in the proceedings.  Many applications are brought in respect of
actions in which nothing has happened for four, five, six years.  It could be
said that two years is not all that long, but I think one has to take the past
and use it trajectory, if you will, and extrapolate that into the future and
ask:  Is there any reasonable prospect that this matter will be completed in a
reasonable period of time if the application is refused?  And I am satisfied
there is no reasonable prospect.  I see no indications whatsoever that Ms. Roumanis
will complete these proceedings, set a trial date, retain or instruct counsel.

[6]            
This is an appeal pursuant to Rule 23‑6(8) of the Supreme Court
civil rules.  This standard of review on such an appeal is set out in Abermin
v. Granges Corporation (1990), B.C.L.R. (2nd) at 188:

An appeal from a Master’s order
in a purely interlocutory matter should not be entertained unless the order was
clearly wrong. However, where the ruling of the Master raises questions which
are vital to the final issue in the case, or results in one of those final
orders which a Master is permitted to make, a rehearing is the appropriate form
of appeal. Unless an order for the production of fresh evidence is made, that
rehearing will proceed on the basis of the material which was before the
Master.  In those latter situations, even where the exercise of discretion is
involved, the judge appealed to may quite properly substitute his own view for
that of the Master.

[7]            
Because it involves a dismissal of the plaintiff’s claim, this is
obviously a situation where I may substitute my own view for that of the Master
if I consider it appropriate to do so.

[8]            
On the issue of the plaintiff’s non‑compliance with the order of Mr. Justice
Holmes, I note that the order required defence counsel to set the date for the
independent medical examination and advise the plaintiff of the date, and it
refers to the dates for the examinations, plural.  However, after the first
examination  took place and the need for a continuation arose, the matter seems
to have proceeded on the basis of requests by defence counsel that the
plaintiff contact Dr. Wiseman directly to arrange an appointment.  She was
never given a firm date or a firm appointment that she refused to attend.  I
note the order of Master Scarth in June of 2010 does not purport to change the
procedure envisioned by the order of Mr. Justice Holmes and there is no
evidence before me of what attempts were made by either party to arrange an appointment
with Dr. Wiseman after the date of Master Scarth’s order.  It appears that
defence counsel continued to rely on the plaintiff to contact Dr. Wiseman,
which she clearly did not do.

[9]            
I am not satisfied that the evidence establishes an absolute refusal on the
part of the plaintiff to re-attend before Dr. Wiseman.  The transcript of
the hearing before the Master indicates that, acting on her own behalf, she did
offer to answer questions in writing.  I agree with Master Baker that is
unlikely to be a sufficient means of conducting a psychiatric examination, but
it does not appear to have been made clear to the plaintiff that written
questions were not an option before a decision was made to strike out her
claim.

[10]        
The test on the more general issue of dismissal for want of prosecution
is well known.  It involves three requirements:  There must be an inordinate delay;
there must be no excuse for the delay; and there must be prejudice to the applicant. 
It is conceded here on behalf of the plaintiff that there has been an
inordinate delay.  The case law indicates that on the third requirement, that
of prejudice to the defendants, inordinate delay gives rise to a presumption of
prejudice in the absence of any evidence to the contrary.  I will therefore
accept and proceed on the basis that there is prejudice, although I do note
that to the extent this case relies on the recollection of events now several
years in the past, the defendants may actually be in a better position than the
plaintiff.  As professional defendants, they presumably have clinical notes
that were made contemporaneously with the events at issue, while the plaintiff,
who has the burden of proof, will have to rely on her recollection of events.

[11]        
The real question is the second of the three requirements:  Whether
there has been an excuse for the delay or whether the delay is excusable.  The
decision of the Master in this case referred to the decision of Chief Justice
Brenner in Lambert Fenchurch Ltd. v. Specialty Underwriting Services Ltd.
(1999), 15 C.C.L.I. (3d) 311 (B.C.S.C.).  The Master noted at paragraph 25 of
his decision that there was nothing in the history of the case other than Ms. Roumanis’s
emotional or psychiatric state that has delayed the proceedings.  In Lambert
Fenchurch, Chief Justice Brenner, as he then was, noted at paragraph 15
that the reason offered for delay in that case was an individual’s medical
condition, and then stated at paragraph 16:

If Mr. Webster were
suffering from a condition caused by other than the existence of this
litigation and if there were evidence that his condition was likely to resolve
in the near future, that might serve as a satisfactory reason for the
inordinate delay.  However, in the case at bar, the extant litigation is
apparently the source of Mr. Webster’s difficulty and there is no evidence
whatsoever that his condition will ever improve while this litigation
continues.

[12]        
Applying that test in this case, the Master said at paragraph 29:

In other words, a transient
medical condition can be dealt with by the courts and frequently is, but if
there is no indication that the circumstance is going to approve or, more
pointedly, if the action seems to be a cause, if not the cause of the problem,
then there is no realistic likelihood that the matter will be mitigated or
ameliorated.  In my view, that is very much the case before me, which is why I
have referred in passing to Ms. Roumanis’s state today and to her very
clear advice to the court about how she intends to deal or not deal with Mr. Wiseman.

[13]        
I think all of these authorities must be read in light of the decision
of the Court of Appeal in Tundra Helicopters et al. v. Allison Gas Turbine
et al., 2002 BCCA 145.  There the court referred to the leading case of Irving
v. Irving (1982), 38 B.C.L.R. 318 (C.A.), and in particular to a passage
from Irving where Mr. Justice Seaton said:

A delay as a means of gaining
tactical advantage is not to be compared to a delay forced on the plaintiff by
negligent solicitors, impecuniosity, or illness.  The delay was intentional,
calculated to help the plaintiff and therefore hurt the defendants.

[14]        
In Tundra Helicopters, the court said at paragraph 24:

In my view, the passage quoted
from Irving is applicable only to the type of situation in that case,
one in which the delay was "calculated to help the plaintiff and therefore
hurt the defendants".  That factor was simply not present in this case.

[15]        
The Irving case which the Court of Appeal cited also refers to
the fact that the order for dismissal for want of prosecution is a Draconian
order that will not lightly be made.  The court referred to an adopted English
authority, and in particular Allen v. Sir Alfred McAlpine & Sons Ltd.,
[1968] 2 Q.B. 229, where C.J. Diplock said:

… It should not in any event be
exercised without giving the plaintiff an opportunity to remedy his default,
unless the court is satisfied either that the default has been intentional and
contumelious, or that the inexcusable delay for which the plaintiff or his
lawyers have been responsible has been such as to give rise to a substantial
risk that a fair trial of the issues in the litigation will not be possible at
the earliest date at which, as a result of the delay, the action would come to
trial if it were allowed to continue.

[16]        
Clearly all the evidence was that the plaintiff’s illness has been a
contributing factor to the delay.  I agree with her counsel that one must
distinguish the Lambert Fenchurch case, where the emotional condition of
the party was related to the stress arising from the litigation itself, and a
case such as this where the plaintiff alleges that her emotional condition was
caused by the alleged tort that gave rise to the action.  The evidence before
me doesn’t permit any assessment of whether the plaintiff is correct or not in
that allegation, but her mental condition was obviously an issue in the action;
otherwise, there would have been no reason for an order for an independent
examination by a psychiatrist.  Therefore, I do agree that the distinction of
whether the mental state arises from the litigation itself as in Lambert
or from the events giving rise to the cause of action is a relevant
consideration.  If a person is unable to deal expeditiously or efficiently with
an action because of the very injury that is alleged to have given rise to the
cause of action, it would be unfair to permit the defendants to take advantage
of that infirmity.  If the plaintiff’s inability to deal with the action
continues, it might raise a question about whether the action can proceed in
the absence of the appointment of a litigation guardian, but that issue is not
before me.

[17]        
I also note one significant change since all of these cases were
decided, and that is the introduction of Rule 5‑1 of the new Supreme
Court civil rules and the system of case planning conferences.  In Irving,
the court adopted the statement of C.J. Diplock that:

It is thus inherent in an
adversary system which relies exclusively upon the parties to an action to take
whatever procedural steps appear to them to be expedient to advance their own
case, that the defendant, instead of spurring the plaintiff to proceed to
trial, can with propriety wait until he can successfully apply to the court to
dismiss the plaintiff’s action for want of prosecution […].

[18]        
Under our new Rules of Court, the timing of the steps in an action is no
longer left entirely to the parties.  Rule 5‑1 was introduced for the
express purpose of permitting the court to take a more direct role in directing
an action and ensuring it proceeds expeditiously.  The court may do so on the
application of either party or on its own motion.  The power of the court on a
case planning conference includes the power to set a schedule for completion of
the pretrial procedures and for bringing the case to trial.  The law under
these new rules will take some time to develop, but in future applications to
dismiss a case for want of prosecution it will at least be arguable that the
question of whether or not case planning conferences have been held and whether
orders from the case planning conferences are complied with will be a relevant
consideration.  Indeed, it may give defendants a faster and more expeditious
means of having a case dismissed for want of prosecution.

[19]        
I agree that the plaintiff in this case has not taken steps to pursue
the matter expeditiously, but in view of the evidence before me about the
plaintiff’s health, the fact she has been self-represented and the potential
for confusion about who was to do what in terms of scheduling independent
medical examinations, I am not satisfied, with all due respect to the Master,
that the delay is inexcusable within the meaning of the authorities.  I will
allow the appeal, but I will do so only with certain conditions.  The plaintiff
will attend for a continuation of the independent medical examination by Dr. Wiseman
on a date and time to be arranged by counsel for the defendant and communicated
to the plaintiff.  The plaintiff will be given at least 30 days’ notice of the
date of the examination, and if she is unable to attend, she will be required
to make application before the scheduled examination to obtain a new date.  I
also direct counsel for the defendant to schedule a case planning conference at
the earliest possible date and provide notice to the plaintiff.  I stress that
the plaintiff’s re- attendance on Dr. Wiseman and her attendance at the
case planning conference are independent requirements and neither must
necessarily take place before the other.

[20]        
What I am now about to say is not actually part of the order, but it is
something I am going to say for the guidance of the plaintiff.  I note that in
the matter before Master Baker the issue was raised about the fact that the
plaintiff’s address for delivery was a mail drop and there was some issue about
how frequently she checked for mail at that location.  I agree with Master
Baker that it is the plaintiff’s responsibility to check for mail if she is
going to use that as her address for delivery, and her failure to check or her
failure to pick up her mail is not and cannot be an excuse.  I would suggest
that it would be useful if she would provide defendant counsel a telephone
number or an email address or a fax number where she can be contacted, but if
that is not done, she is going to have to check that mail drop office
frequently, I suggest at least three or four times a week, in case matters
related to this action now are being delivered.

[21]        
That is my judgment.  Thank you.

[22]        
MR. REID:  My Lord, briefly, as I understand ‑‑
and I my friend is only acting for the limited purposes of today’s
application ‑‑

[23]        
THE COURT:  Yes.

[24]        
MR. REID:  — perhaps it could be a term of the order that counsel
for the defendants draft the order and that the plaintiff’s approval as to the
form of the order is dismissed with.  And I do propose to run it by my friend
before submitting it.

[25]        
THE COURT:  Yes.  Yes, as long as your friend does look at it
and ‑‑

[26]        
MR. BOLDA:  I will definitely have a look at it, My Lord.  And I
would suggest in all of the circumstances of the case that costs be in the
cause.

[27]        
THE COURT:  Yes.

“N.
Smith J.”