Madzar v. Sullivan

2014 BCCA 416 Madzar v. Sullivan COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Madzar v. Sullivan, 2014 BCCA 416 Date: 20141029 Docket: CA041705 Between: Maria Madzar Appellant (Plaintiff) And Dr. Kathleen Mary Sullivan and St. Paul's Hospital Respondents (Defendants) Before: The Honourable Mr. Justice Chiasson The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie Application to vary an order of a Justice of the British Columbia Court of Appeal, (Madzar v. Sullivan, CA041705) The Appellant appeared in person: M. Madzar Counsel for the Respondents: A. Atkinson Place and Date of Hearing: Vancouver, British Columbia September 26, 2014 Place and Date of Judgment: Vancouver, British Columbia October 29, 2014 Written Reasons by: The Honourable Mr. Justice Chiasson Concurred in by: The Honourable Madam Justice Garson The Honourable Madam Justice MacKenzie Summary: Ms. Madzar applies for a review of the decision of a single justice in chambers dismissing her application for indigent status. Dr. Sullivan applies for an order dismissing this appeal as abandoned. The dispute between Ms. Madzar and Dr. Sullivan arose out of eye surgeries performed by Dr. Sullivan in January and February 2010. Ms. Madzar sued Dr. Sullivan and St. Paul's Hospital alleging that the surgery caused her to become blind in her right eye. The action against the hospital was dismissed in January 2013 and against Dr. Sullivan in May 2013. The present appeal is from a decision dismissing Ms. Madzar's application that Dr. Sullivan be found in contempt for being in violation of a Master's order. The chambers judge found the doctor had complied with the order. Ms. Madzar's application for indigent status was dismissed on the basis that the appeal has no merit. Apart from bringing the application for indigent status, Ms. Madzar has taken no steps to prosecute the appeal. Held: application to vary dismissed; appeal dismissed as abandoned. The single justice did not err in principle and correctly concluded that the appeal has no merit. It is clear that on an application to dismiss an appeal as abandoned an appeal may be dismissed because it has no merit: K & M Crane and Equipment Rental Ltd. v. Deer Trail Development Ltd.; Biomet Mining Corp. v. NTBC Research Corp.; Rainbow Country Estates Ltd. v. Whistler (Resort Municipality of); British Columbia (Attorney General) v. Malik. No explanation is given for the failure to comply with the Rules. There is some prejudice to Dr. Sullivan by the delay in proceeding with this appeal. The appeal has no merit. It is in the interests of justice that the appeal be dismissed as abandoned. Reasons for Judgment of the Honourable Mr. Justice Chiasson: Introduction [1] Ms. Madzar applies for a review of the decision of a single justice in chambers dismissing her application for indigent status. Dr. Sullivan applies for an order dismissing this appeal as abandoned on the basis that Ms. Madzar has failed to comply with the provisions of the Court of Appeal Act, R.S.B.C. 1996, c. 77, or Court of Appeal Rules, B.C. Reg. 297/2001. Background [2] The dispute between Ms. Madzar and Dr. Sullivan arose out of eye surgeries performed by Dr. Sullivan in January and February 2010. In January 2012, Ms. Madzar sued Dr. Sullivan and St. Paul's Hospital alleging that the surgery caused her to become blind in her right eye. The action against the hospital was dismissed in January 2013 and against Dr. Sullivan in May 2013. [3] During the course of the litigation, a significant number of applications for leave to appeal were filed by Ms. Madzar arising out of interlocutory proceedings. On June 3, 2013, she appealed the dismissal of her action. On July 18, 2013, I combined the outstanding proceedings into two appeals, ordered that they be heard together subject to the direction of a division of this Court, and gave directions for the further prosecution of the appeals. This Court dismissed the appeals on April 4, 2014. [4] During the course of the trial proceedings, on November 20, 2012, Master McDiarmid made an order requiring Dr. Sullivan to provide Ms. Madzar with the name of the eye surgeon who was going to perform surgery on Ms. Madzar on February 12, 2010, or an explanation if there was no such surgeon, and to produce Dr. Sullivan's clinical records pertaining to Ms. Madzar, including any records that referred to her mental health. [5] By letters dated May 28, 2012 and October 5, 2012, counsel for Dr. Sullivan produced the doctor's clinical records to Ms. Madzar. On November 23, 2012, counsel advised Ms. Madzar that she was never referred to another eye specialist and provided an explanation, as per the terms of Master McDiarmid's order. [6] On March 17, 2014, Ms. Madzar filed a notice of application seeking an order that Dr. Sullivan be found in contempt of court for being in violation of the Master's order. Mr. Justice McEwan dismissed the application on March 21, 2014, holding that Dr. Sullivan had complied with the Master's order. On April 4, 2014, Ms. Madzar filed the present appeal against the decision of McEwan J. In this appeal, on May 21, 2014 she was declared a vexatious litigant by Mr. Justice Low. [7] Ms. Madzar's application for indigent status was dismissed by Mr. Justice Goepel on April 29, 2014. Apart from bringing that application, Ms. Madzar has taken no steps to prosecute this appeal. Reasons of Goepel J.A. [8] The reasons of Goepel J.A. are short. I reproduce them in operative part: [1] Ms. Madzar has appealed an order of Mr. Justice McEwan dated March 21, 2014. [2] She now is applying for indigent status. The test for indigent status is two-fold. One is financial and the other concerns the merits of the appeal. Indigent status will not be granted in appeals that are on the merits bound to fail or there is no reasonable basis for an appeal. [3] By way of background, the application before Mr. Justice McEwan was to hold in contempt Dr. Sullivan for her failure to comply with an order of Master McDiarmid made November 20, 2012. Pursuant to that order Dr. Sullivan was directed to provide the plaintiff with the name of the eye specialist who was going to do her laser surgery on February 12, 2010. She was also to provide copies of her clinical records pertaining to Ms. Madzar. [4] The evidence before Mr. Justice McEwan indicated that on October 5, 2012, Dr. Sullivan's medical records were sent to Ms. Madzar. On November 23, 2012, a letter was sent to Ms. Madzar following the hearing before Master McDiarmid in which she was advised that the doctor, who was going to perform the laser surgery on February 12, 2010, was Dr. Sullivan herself. [5] Mr. Justice McEwan dismissed the application to find Dr. Sullivan in contempt on the grounds that there had been compliance with Master McDiarmid's order. Based on the evidence that is before me today, that appears to be the case. [6] In these circumstances, I find that there is no merit to this appeal and it is bound to fail. The application for indigent status is dismissed. Discussion [9] I shall address Ms. Madzar's review application because it was pending before the application of Dr. Sullivan to dismiss the appeal was made in September 2014. I then shall address that application. Review application [10] This Court's authority to review a decision of a single justice sitting in chambers is found in s. 9(6) of the Court of Appeal Act. It is important for Ms. Madzar to understand the nature of such a review. [11] It is not a rehearing of the application: DeFehr v. DeFehr, 2002 BCCA 139, [2002] B.C.J. No. 418 (C.A.) at para. 6. A division of this Court will only interfere with the decision if the chambers judge erred in principle, was wrong at law or misconceived the facts: Haldorson v. Coquitlam (City), 2000 BCCA 672, [2000] B.C.J. No. 2532 (C.A.) at para. 7. [12] Ms. Madzar asserts that the present appeal is not about her eye surgery, but is about her mental health. She is deeply concerned by the perception that her mental health has been called into question. Her concern is understandable but misplaced because Ms. Madzar's mental health is not at issue in these proceedings. The only issue on this appeal is whether McEwan J. was correct in his conclusion that Dr. Sullivan was not in contempt of the Master's order because she had complied with it. Similarly, the only issue on the present review application is whether Goepel J.A. made any reviewable error in concluding that the appeal has no merit. [13] Applications for indigent status are assessed on the basis of two criteria: the financial position of the applicant and the merits of the appeal: Mahmoodi v. Irankhah, 2008 BCCA 512 at para. 10. As noted by Goepel J.A. at para. 2, "[i]ndigent status will not be granted in appeals that are on the merits bound to fail". [14] Ms. Madzar did not assert that she did not get the clinical records ordered to be produced or was not given the name of the doctor that was going to perform eye surgery on February 12, 2010. These were the only matters before McEwan J. He had evidence that the records had been produced and the information provided. Goepel J.A. had little choice other than to conclude that an appeal that could succeed only if the contrary was established was bound to fail. [15] In my view, this Court cannot interfere with the decision of Goepel J.A. to dismiss Ms. Madzar's application for indigent status. Dismissal of the appeal [16] Section 10(2)(e) of the Court of Appeal Act authorizes a judge to dismiss an appeal as abandoned when an appellant has failed to comply with the Act or Rules. Pursuant to s. 8(5) of the Act, a division of the Court may exercise any power given to a single judge of the Court. Section 28(a) provides that the Court may dismiss an appeal as abandoned if an appellant fails to comply with the Act or Rules. [17] The appeal record in this case was due on or about June 4, 2014 and Ms. Madzar's factum was due 30 days later (Rules 19(a) and 21(1)(a)). [18] The applicable approach to the present application was stated by Mr. Justice Lowry in Redpath v. Redpath, 2008 BCCA 400: [15] Where the delay giving rise to the kind of applications made here is less than a year, it appears the appropriate considerations are, as Ms. Redpath maintains, recognized to be those stated in Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R. (2d) 256 (C.A.), although the delay in that case had been in initiating an appeal as opposed to prosecuting an appeal once the notice of appeal had been filed. See, for example, Wilson v. Newcomb (1998), 111 B.C.A.C. 239, 24 C.P.C. (4th) 28 (Chambers) Rowles J.A.; B.C. v. Leyen, 2006 BCCA 180, 224 B.C.A.C. 285 (Chambers) Ryan J.A.; and Barbeau-Lafacci v. Holmgren, 2003 BCCA 549 (Chambers) Ryan J.A. The considerations are five, of which the last is overriding: 1. whether there was a bona fide intention to appeal, 2. when the respondents were informed of the intention, 3. whether the respondents would be unduly prejudiced by an extension, 4. whether there is merit in the appeal, and 5. whether it is in the interests of justice an extension be granted. Criteria one and two are met by Ms. Madzar. [19] Taking into account the lengthy history of the dispute between Ms. Madzar and Dr. Sullivan and the allegation made that she is in contempt of court, delay in dealing with this appeal is prejudicial to Dr. Sullivan, but taking into account the length of delay in this appeal, I am unable to find that the prejudice is undue ("unwarranted or inappropriate because excessive or disproportionate": Concise Oxford English Dictionary, 11th ed., sub verbo "undue"). [20] It is clear that on an application to dismiss an appeal as abandoned an appeal may be dismissed because it has no merit: K & M Crane and Equipment Rentals Ltd. v. Deer Trail Development Ltd., 1999 BCCA 676 (Chambers) Esson J.A.; Biomet Mining Corp. v. NTBC Research Corp., 2002 BCCA 159 at para. 4 (Chambers) Esson J.A.; Rainbow Country Estates Ltd. v. Whistler (Resort Municipality of), 2011 BCCA 154 at para. 15; British Columbia (Attorney General) v. Malik, 2012 BCCA 58 at para. 21 (Chambers) D. Smith J.A., review dismissed 2012 BCCA 175. [21] As noted, in my view, this appeal is without merit. Dr. Sullivan complied with the order of Master McDiarmid. She could not be found in contempt of it. [22] Although asked at the hearing of this application, Ms. Madzar provided no explanation as to why she had not complied with the requirements of the Rules. Although some leeway must be given to self-represented parties, adherence to the procedural requirements of appeals is necessary in fairness to other parties and the Court: Murphy v. Wynne, 2012 BCCA 113 (Chambers), and the authorities cited therein. [23] No explanation is given for the failure to comply with the Rules. There is some prejudice to Dr. Sullivan by the delay in proceeding with this appeal. The appeal has no merit. In my view, it is in the interests of justice that this appeal be dismissed as abandoned. Conclusion [24] I would dismiss this appeal as abandoned. "The Honourable Mr. Justice Chiasson" I agree: "The Honourable Madam Justice Garson" I agree: "The Honourable Madam Justice MacKenzie"