Breberin v. Santos

2013 BCCA 385 Breberin v. Santos

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Breberin v. Santos, 2013 BCCA 385 Date: 20130829 Docket: CA040862 Between: Dragana Breberin Appellant (Plaintiff) And Jose Santos, Christine Yap, Harish Bhardwaj, Jarnail Khabra, and MacLure's Cabs (1984) Ltd. Respondents (Defendants) Before: The Honourable Mr. Justice Chiasson (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, April 2, 2013 (Breberin v. Santos, 2013 BCSC 560, Vancouver Docket M092011). Appellant via teleconference Counsel for the Respondents: M.V.C. Virgin and A.C. Karlen Place and Date of Hearing: Vancouver, British Columbia July 9 and August 16, 2013 Place and Date of Judgment: Vancouver, British Columbia August 29, 2013 Summary: Directions given whether leave to appeal required and to facilitate the orderly progress of the appeal. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] Before me are a number of applications. The appellant seeks an extension of time to September 30, 2013, to file her appeal record and any relevant transcripts. The respondents seek directions on whether leave to appeal is required with respect to a number of orders referred to in the appellant's amended notice of appeal. They contend that leave is required and that an extension of time to bring applications for leave should be refused. The respondents also ask that a date be set

for the hearing of their motion for security for costs and for directions establishing a timeline for the prosecution of this appeal. Background [2] The appellant, who lives in Edmonton, Alberta, presently is self-represented. She was injured in an automobile accident in Vancouver, British Columbia, on November 5, 2007. An action in the Supreme Court of British Columbia was commenced by then counsel for the appellant on April 24, 2009. In due course, the respondents admitted liability. [3] A number of procedural orders were made in the action requiring the appellant to provide access to medical records and to submit to independent medical examinations. She did not comply with these orders and, on March 19, 2012, Mr. Justice Willcock, as he then was, found her in contempt of court. In reasons for judgment delivered July 9, 2012, the judge described the basis on which he found the appellant in contempt: On March 19, 2012, I found the plaintiff, Dragana Breberin, in contempt for failing to comply with orders made June 3, 2010, September 27, 2011, and November 18, 2011 by: (a) failing to provide authorizations for the release of medical records to the defendants as ordered on June 3, 2010; (b) failing to provide authorizations for the release of records on terms set out in the defendants' case plan proposal dated June 9, 2011 as ordered on September 27, 2011; (c) failing to attend

an independent medical examination set by the defendants to have been conducted by Dr. Peter Wong on November 17, 2011 as ordered by the Court on September 27, 2011; and (d) failing to provide to counsel for the defendants dates when she might attend on additional days of examination for discovery before November 24, 2011, as ordered by the Court on November 18, 2011. (Reasons are indexed at 2012 BCSC 999.) [4] Although the central issue giving rise to the July 9, 2012 order was the respondents' application to strike the appellant's pleadings, a number of matters were addressed. On that day, Willcock J. ordered that: 1. Once the defendants have obtained the medical records they seek, the plaintiff will promptly make arrangements to attend at a continued examination for discovery.

2. The plaintiff attend at an independent medical examination by an orthopedic surgeon in Vancouver at a date to be selected by defence counsel and promptly notify defence counsel if she is unable to attend at the examination on the date selected.

3. The plaintiff may, within seven days of her receipt of an appointment for her examination by an orthopedic surgeon, apply for an order adjourning the date of her examination to another date available to her.

4. The plaintiff forthwith pay the defendants their special costs and disbursements reasonably incurred in relation to all case planning conferences and applications from February 23, 2011 to May 22, 2012 inclusive.

5. The defendants' application to strike the plaintiff's claim is dismissed. [5] On November 14, 2012, the respondents again applied to strike the appellant's claim. The application came before Willcock J. on November 28 and was adjourned to December 12, 2012, because the appellant indicated she would obtain counsel. The matter was heard on that date. The appellant did not have counsel. In reasons delivered April 2, 2013, the judge dismissed the appellant's claim. He stated that the respondents "will have their costs if an order for costs is sought." On July 12, 2013, a costs order was made as was an order quantifying the special costs ordered on July 9, 2012. (Reasons indexed at 2013 BCSC 1238.) [6] On May 2, 2013, the appellant appealed the April 2, 2013 order dismissing her action. She filed an amended notice of appeal on May 16, 2013. [7] On July 9, 2013, the appellant's application for an extension of time to file an appeal record and transcript came before me. I adjourned her application and, on July 10, 2013, I issued a memorandum to the parties providing directions that led to the August 16, 2013 hearing, which is the subject of these reasons. Discussion The Notice of Appeal [8] Para. 6 of the appellant's amended notice of appeal seeks the following relief: 6) That these Defendants are ordered to pay for damages that have been quantified to date in part, and which are

payable under Part 7 Medical Benefits of the Motor Vehicle Insurance Act in the amounts: a. $13,104.25 for housekeeping services b. $19,371.37 for food services c. $7,100.00 for laundry services d. $33,170.40 for concierge services e. $14,463.26 for services by assistants f. $2,480.59 for prescription drug expenses g. $2,109.00 for dental work h. $14,530.00 for medical expenses i. $2,887.09 for special equipment [9] The respondents assert that this Court cannot grant such relief. Essentially, it is a claim by the appellant against the Insurance Corporation of British Columbia ("ICBC") under Part 7 of the Insurance (Vehicle) Regulations, B.C. Reg. 447/83. [10] I agree with the respondents. Apart from the fact that this would appear to be a claim against the ICBC and not against the respondents, addressing these matters is an issue for the trial court, not this Court. [11] The appellant seeks other relief in her amended notice of appeal that the respondents contend should not be dealt with by this Court in this appeal. It is as follows: 4) The Court rescinds the order given requiring the Plaintiff attend an orthopaedic examination in Vancouver due to her current inability to travel due to her injuries as clearly outlined in the Supreme Court case by evidence submitted by Dr. Benjamin Kuhn and Dr. Sarah Toma.

7) The Court rescinds the order requiring the Plaintiff to travel to attend an Independent Medical Examination in Vancouver, due to her current inability to travel due to her injuries as clearly outlined in the Supreme Court case by evidence submitted by Dr. Benjamin Kuhn and Dr. Sarah Toma.

8) The Court rescinds the order requiring the Plaintiff to release gynecological records as they are of a private matter and are not pertinent in any way to this claim nor the defendant's response to the claim. [12] The respondents understand that the orders referred to in para. 7 of the appellant's amended notice of appeal were made on April 28 and September 27, 2011. The orders referred to in para. 8 were made on June 3, 2010 and September 27, 2011. The respondents assert that these pre-July 9, 2012 procedural orders were subsumed in the contempt of court ruling. That is, they were at the root of that ruling. The order finding the appellant in contempt of court was a final order. The appellant did not appeal that order. There is no application to extend the time to do so. This Court does not have the jurisdiction to entertain either the contempt order or the procedural orders that gave rise to it. [13] No authority is provided for the respondents' proposition. I am not prepared to accede to it. [14] In my view, a finding of contempt based on a failure to obey a court order does not result in the court order being subsumed into the contempt order. It is not uncommon for parties who are appealing a court order to be found in contempt for not obeying it. This occurs, for example, in matrimonial and civil disobedience litigation. The fact of an appeal is not a defence to the

contempt allegation; a finding of contempt does not automatically eliminate the appeal, although a court may dismiss or refuse to hear proceedings brought by a party who is violating a court order: Larkin v. Glass, 2009 BCCA 321. [15] The respondents understand that the order referred to in para. 4, was made on July 9, 2012 and concede that it was not subsumed in the July 9, 2012 contempt order. They assert it requires leave to appeal and an extension of time to bring an application for leave, both of which should be denied. [16] It is clear that procedural orders often are considered as subsumed in a final order dealing with the merits of a claim (see Bentley v. The Police Complaint Commissioner, 2012 BCCA 514 (Saunders J.A. in Chambers); Tomic v. Tough, 2013 BCCA 212 (Chiasson J.A. in Chambers); and Aldergrove Credit Union v. Hoessmann Estate, 2013 BCCA 213 (Chiasson J.A. in Chambers)). [17] Willcock J. dismissed the appellant's action because, among other things, the appellant failed to produce medical records as ordered and failed to attend medical examinations as ordered. That is, the orders referred to in the amended notice of appeal were at the core of his decision. The appellant's appeal is based on the contention that these orders should not have been made. [18] I am satisfied that it is in the interests of justice and that the proper administration of this appeal

requires this Court to have before it these impugned orders. Leave to appeal them is not required. [19] I have a different view of the orders dealing with special costs - July 9, 2012, and July 12, 2013. [20] Contempt of court is a discrete issue. It does not depend on the efficacy of court orders that are disobeyed. It is an affront to the court that erodes public confidence in the judicial system. The special costs order was made as part of the judge's consideration of an appropriate reaction to the appellant's conduct. He was not prepared to strike her claim at that time. He stated at para. 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. [21] In my view, the order for special costs and its quantification were not subsumed into the April 2, 2013 order dismissing the appellant's action. [22] The respondents assert that the order for special costs was a final order and that an extension of time to bring an appeal from it should not

be granted. They rely on G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd., 1993 CanLII 2767 (B.C.C.A.), in which Mr. Justice Goldie accepted that concession of counsel that because the special costs were payable forthwith, the order was not interlocutory and leave was not required. No consideration was given to the requirement in the then Court of Appeal Act, S.B.C. 1982, c. 7, that leave to appeal a costs order alone was required. [23] Counsel advised that G.W.L. Properties does not appear to have been referred to subsequently. [24] Leave to appeal a costs order alone is required (Court of Appeal Act, R.S.B.C. 1996, c. 77, s. 7(2); Court of Appeal Rules, Rule 2.1). In my view, whether an order for special costs payable forthwith is a final order is not determinative of the present issue, although assuming such an order is final, that would support the requirement for leave to appeal the order as one dealing with costs alone. The order for special costs in this case was not related to the order dismissing the appellant's action. In my view, the requested relief essentially is an appeal from a costs order alone and leave to appeal is required as is an order extending the time to bring an application for leave to appeal the special costs order and quantification. [25] The respondents also assert that para. 2 cannot stand. It states: 2) Costs of this hearing be payable by

the Respondents. [26] Although the reference to "this hearing" is somewhat ambiguous, the respondents suggest, and I agree, that it refers to the hearing that resulted in the April 2, 2013 order dismissing the appellant's claim. That order provided for costs to the respondents if they sought costs. At the time the present appeal was brought, the order for costs had not been made. That occurred on July 12, 2013. The respondents state that a separate appeal is required and that the appellant is out of time. That is, that the appellant would need to seek leave to appeal and an extension of time to do so. [27] I question whether a separate appeal is required. This Court has made it clear that an appeal of an order for costs follows with an appeal on the merits. In my view, leave to appeal is not required. [28] In summary, leave to appeal is not required for the relief sought in paras. 2, 4, 7 and 8 of the amended notice of appeal. Leave to appeal and an extension of time to bring an application for leave to appeal is required for the relief sought in para. 5 of the amended notice of appeal. The amended notice of appeal should be amended to reflect the orders that are involved. Paragraphs 5 and 6 of the amended notice of appeal are struck out. Extension of Time for Appeal Record and Transcript [29] The appellant wants to extend the time to file her appeal record and transcripts to

September 30, 2013. I indicated previously that I was concerned with an extensive delay, but it has been necessary to address a number of outstanding procedural issues. [30] The appellant asserts that she did not want to be involved in litigation, but as of November 2009, her legal right to recover damages from the respondents would have expired: Limitation Act, R.S.B.C. 1996, c. 266, s. 3(2)(a). She is critical of the respondents, who are represented by ICBC, for not settling her claim, but ICBC became concerned about the appellant's claim, as noted by Willcock J. As an insurer, it was required legally to satisfy the appropriateness of any payment made on behalf of its insureds. The quest for information has been driven by that obligation. [31] In my view, the best interests of the parties and the interests of justice require that this case be advanced. The appellant should have her day in court, but she must take the steps that are required to achieve that objective in a timely way. [32] The appeal record and transcript should be delivered by September 16, 2013. [33] In granting this extension of time, I make no finding concerning the merits of this appeal. Timing of Respondents' Security for Costs Application [34] The respondents filed an application for security for costs. The appellant resists this strenuously. The positions of the parties appear to be articulated well in

the material they have filed. [35] If this Court were to order security for costs, it likely would stay the proceeding pending the posting of security. Although the appellant would remain under the obligation to proceed as directed by me, such an order likely would relieve the respondents from responding to material filed by the appellant until security is posted. An early resolution of this issue is in the best interests of the parties. Conclusion [36] My task has been to attempt to rationalize the proceedings in this appeal to facilitate its resolution by this Court. This is in the interests of the parties and in the interests of justice. The appellant professes not to understand the intricacies of the legal process and appears not to have abided by them. At this stage, they are not complex and are designed to ensure that the parties have a full opportunity to put before this Court information that will allow it to decide whether the Supreme Court judge erred dismissing the appellant's case. The appellant is an intelligent woman. She knows what is required of her. She also must recognize that failure to proceed with this appeal in a timely way will put her at risk: her appeal could be dismissed without a hearing on the merits. I have endeavoured to provide directions that will assist the parties to proceed effectively and efficiently with a full opportunity to advance their

respective positions. Both sides are entitled to this. Frustration of this objective should not be tolerated. [37] Paragraph 2 of the appellant's amended notice of appeal seeking costs is amended to specify that the hearing referred to therein is the hearing before Willcock J. that resulted in his April 2, 2013 order dismissing the appellant's action. [38] The first paragraph of the appellant's amended notice of appeal is amended to include the order of costs of that hearing, which was made on July 12, 2013. [39] Paragraph 4 of the appellant's amended notice of appeal is amended to identify the order referred to therein as para. 2 of the order made July 9, 2012. [40] Paragraph 7 of the appellant's amended notice of appeal is amended to specify that the orders referred to therein were made on April 28 and September 11, 2011. [41] Paragraph 8 of the appellant's amended notice of appeal is amended to specify that the orders referred to therein were made on June 3, 2010 and September 27, 2011. [42] Leave to appeal the July 12, 2013 costs order pertaining to the April 2, 2013 hearing, para. 2 of the July 9, 2012 order and the orders made June 3, 2010, April 28, 2011 and September 27, 2011, is not required. [43] Leave to appeal the order for special costs made July 9, 2012, and the order quantifying those costs made July 12, 2013, is required. [44] If the appellant wants to appeal

the orders concerning special costs, she must file a motion to extend the time to bring an application for leave to appeal and an application for leave to appeal by September 5, 2013 and must follow the time limits in the Court of Appeal Act and the Court of Appeal Rules for such applications thereafter. [45] Paragraphs 5 and 6 of the appellant's amended notice of appeal are struck out. [46] The time for filing the appeal record or any relevant transcripts in this appeal is extended to September 16, 2013. [47] The appeal record should contain all of the orders under appeal and any reasons for judgment pertaining to those orders. [48] As noted in my July 10, 2013 memorandum to the parties: "Rule 20 of the Court of Appeal Rules requires a transcript only of oral testimony. Transcripts of other proceedings or copies of submissions sometimes are contained in an appeal book." [49] The respondents may bring on their application for security for costs on giving the appellant three clear days' notice. [50] Counsel for the respondents will prepare and deliver to the appellant a draft form of order. The appellant will make any comments on the draft within seven days of its receipt. Any disagreement between the parties will be resolved by the Registrar of this Court or referred to me. If the appellant does not comment within seven days, the order may be entered without her approval. "The Honourable Mr. Justice Chiasson"