Kemp v. Dickson et al

2006 BCSC 67 Kemp v. Dickson et al

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kemp v. Dickson et al, 2006 BCSC 67 Date: 20060112 Docket: S042674 Registry: Vancouver Between: Brenlee Kemp Plaintiff And Gail Dickson and Dickson Murray, A Professional Corporation Defendants Before: Master Donaldson Reasons for Judgment Counsel for the Plaintiff G. Turriff Counsel for the Defendants D. C. Quinlan Date and Place of Hearing: January 3, 2006 Vancouver, B.C. [1] The Writ of Summons in this action was filed the 13th of May, 2004, the Statement of Claim the 9th of June, 2004. The plaintiff claims for damages against the defendants alleging professional negligence, breach of contract and breach of fiduciary duty relating to services provided by the defendant to the plaintiff from late 1998 through May, 2001. The defendant has set the matter for trial for 10 days commencing the 27th of February, 2006. [2] On the 28th of June, 2004 the defendants made a demand for particulars and on the 22nd of March, 2005 Mr. Justice Sigurdson ordered particulars be provided. He further ordered on the 15th of April, 2005 that particulars be provided by the 20th of May, 2005. [3] On the 16th of June, 2005 Mr. Justice Hood struck various paragraphs of the Statement of Claim. The plaintiff later claimed that she was not aware of the motion heard by Mr. Justice Hood or of the Orders of Mr. Justice Sigurdson's. [4] A motion for

reconsideration was heard on the 30th of June and by consent counsel agreed that the particulars would be delivered by the 5th of August, 2005. [5] Requests were made for lists of documents by the defendants on the 23rd of June, 2004 and the 26th of September, 2005. No list had been provided. [6] At a case management conference on the 19th of October, 2005 I ordered that the list of documents be provided by the 15th of November, 2005 and that discovery of the plaintiff take place no later than the 15th of December. The plaintiff was given liberty to apply to vary should the need arise. [7] A discovery was set by counsel for the defendant for the 18th of November and the plaintiff did not attend. It is that failure to attend and the failure to comply with the 19th of October, 2005 order to produce a list of documents by the 15th of November, 2005 that gives rise to this application that the plaintiff's claim be struck. [8] The action which has given rise to this and other proceedings arose from surgery performed on the plaintiff on the 23rd of August, 1989. She commenced action against the surgeon in 1991 and the matter proceeded to trial for some 54 days beginning the 5th of May, 1997. It concluding on the 12th of December, 1997. Judgment was awarded in favour of the plaintiff on the 30th of October, 1998 in the amount of $1,254,000. She later received an order directing that

her costs be paid at Scale 5 and that she recover 90% of those costs. [9] Two applications were made to the trial judge for reconsideration. The first was heard the 25th of January, 1998 and the plaintiff was represented at that proceeding and she herself brought an application for reconsideration on the 24th of June, 1999. Both were dismissed. [10] An appeal and costs appeal were filed by December 10, 1998 and on the 30th of March, 2001 the Court of Appeal increased the damages awarded to the plaintiff to $1,547,750. [11] The defendants acted for the plaintiff on this stage of the appeal. On the 6th of December, 2001 the Court of Appeal dismissed an application brought on behalf of the plaintiff to adduce fresh or further evidence. The plaintiff hired Marvin R. V. Storrow, Q.C. and Joanne R. Lysyk for further appeals. The 15th of February, 2002 application by then to the Court of Appeal to reconsider was dismissed the 7th of June, 2002. Their 13th of September, 2002 application for Leave to Appeal to the Supreme Court of Canada was dismissed the 13th of February, 2003. [12] In support of this application that the claim of the plaintiff be dismissed the facts are clear. She failed to comply with the 19th of October Order in that she did not file her list of documents within the time set in that Order and further she failed to attend the discovery which was set in accordance

with the Order. [13] She did not avail herself of the provision in the Order granting her liberty to apply to vary the terms of the Order. [14] In argument in opposition to the application counsel on her behalf stated that the plaintiff regrets that the documents were not provided within the time set out in the Order and in answer to the contention on behalf of counsel for the defendant pointed out that if the list does not comply with the Rules counsel has remedy available to him. [15] So far as the failure to attend the discovery is concerned counsel on behalf of the plaintiff stated she has been attempting to get counsel and that her quest to obtain counsel has been interrupted by the requirement that she defend applications such as this brought by this defendant and the defendant in the action the plaintiff has commenced against Roberts and Shewfelt (No. S82021, New Westminster Registry). [16] In general it is the plaintiff's contention that it is this defendant in concert with counsel for the Roberts defendants' strategy to bring motions which prevent her from prosecuting her claims against them and that they are acting in concert to deny her of her right to a trial of the actions she has commenced against them. [17] It is clear from the material filed namely the affidavits in opposition which arrived with the plaintiff at approximately 10:35 a.m. following the

commencement of the application at approximately 10:05 a.m. and that it was the plaintiff herself who drafted the affidavit. [18] The outline of the plaintiff was provided at approximately 11:30 a.m. after the submissions had been made by her counsel. [19] Despite the plaintiff's contention that she has been looking for counsel, to the best of my understanding first raised in March, 2004 Mr. Turriff has appeared on her behalf in the two motions before Mr. Justice Sigurdson in April and May, 2005 and at the case management conference on the 19th of October, 2005, and at this hearing. He has made it clear that he is attending only as agent and not counsel of record. He did however during this hearing advise that he has been retained to represent the plaintiff at a registrar's hearing scheduled to commence the 13th of February, 2006 for 10 days in the Legal Profession Act application brought by Roberts and Shewfelt. Mr. Turriff advised that the Roberts' review had been scheduled for 2003 however adjourned upon the plaintiff advising that she was or had commenced an action alleging negligence against Roberts and Shewfelt. On application on behalf of Roberts the adjournment order was vacated by application heard during the summer of 2005 and the matter set for hearing the 13th of February, 2006. [20] Counsel on behalf of the defendants contends the plaintiff has taken no steps since

the Statement of Claim was filed in this matter in June, 2004 except to provide particulars in August, 2005 following the Order of Mr. Justice Sigurdson dated the 15th of April, 2005 that they be provided by the 20th of May, 2005. It should be noted that following the application before Mr. Justice Hood on the 16th of June, 2005 counsel for the plaintiff and defendant agreed that the particulars be delivered by the 5th of August. Counsel for the defendants refer to a Chronology which I have added as an Addendum to these Reasons. [21] He pointed out the numerous references by the plaintiff attempting to retain counsel including on the 19th of October, 2005 when it was stated on her behalf she expected to have counsel by the end of the month. Correspondence in November, 2005 indicated she was assembling a legal team and at this application it was stated on her behalf she expected to have counsel by the end of January. Counsel pointed out that in her affidavit filed the 3rd of January, 2006 she refers to an "barrage of demands and applications" brought by the defendants and contended that these only involved two applications to the court in March and April requiring particulars and the application to strike before Mr. Justice Hood in June, 2005 as a result of her failure to provide those particulars. In addition there is the Order made on the 19th of October at a case management

conference for a list of documents and discoveries. [22] Counsel for the plaintiff points out that the striking of a plaintiff's claim is a draconian step to be taken only in exceptional circumstances. He further contends that failure to attend one examination for discovery has all but never resulted in the striking of a plaintiff's claim. What is missing from this argument is that the failure to attend the discovery is not a failure to attend a discovery set by notice being provided but rather a failure to attend a discovery directed as a result of a court order. [23] The Order was made by myself on the 19th of October, 2005. It followed a discussion with counsel for the plaintiff in the presence of the plaintiff and with counsel for the defendant directed to ascertaining realistic time frames for firstly the production documents and secondly the setting of a discovery taking into consideration the desires of the plaintiff to obtain counsel. In a forthright and perhaps blunt fashion I cautioned the plaintiff that the importance of producing the list of documents should not be underestimated. [24] Had the discovery been set in the usual way that is to say by notice being filed in accordance with the Rules, in the absence of an Order this application would be easily resolved by ordering that the plaintiff attend for a discovery at a specific date and time. Were she then to fail

to attend that discovery the likely consequence, in the absence of an appropriate explanation for her absence, would be dismissed of her claim. [25] Here however there is something of a hybrid situation in that she was ordered to attend an examination for discovery on seven days notice. It is the first discovery that she has failed to attend. [26] Counsel on her behalf also suggests that the failure of the defendant to provide a reasonable allowance for meal expenses constitutes a failure to comply with the Rules having regard to discovery. [27] Rule 27 provides: (16) Where a party is entitled to examine a person for discovery, the party may fix a time for the examination with an official reporter, and the person to be examined shall attend and submit to examination if (a) at least 2 days before the examination, the person is served personally with a notice of appointment in Form 20 and is tendered the proper witness fees, or (b) the person is a party to and has a solicitor in the action and, at least 7 days before the examination, the notice of appointment is delivered and the proper witness fees are tendered to that solicitor. [28] Schedule 3 of Appendix B fees payable to witnesses, provides in s. 1 that a party is not entitled to a daily witness fee. Section 3 provides as follows: Allowance 3) For any witness, a reasonable allowance for fee expenses made necessary by the

witnesses' attendance and where the witness resides elsewhere then the place of examination, hearing or trial is required to remain over night, a reasonable allowance for over night accommodation. [29] No authorities were cited indicating where the court has or has not distinguished between a party and a witness insofar as travel and meal expenses are concerned. Clearly it is the practice where a discovery is to be undertaken if the person resides more than 30 kilometers from the place of examination that a travel allowance be paid and that anticipated accommodation and an allowance for meals is generally provided prior to the date set for the examination. [30] It is common ground that no "reasonable allowance for meal expenses" was paid to the plaintiff either directly or through the offices of Mr. Turriff, prior to the date set for the examination for discovery. [31] It would seem to me however on a reading of s. 3 the addition of the words "made necessary by the witnesses' attendance" would appear to be operative here. No meal expenses were incurred by the plaintiff as she did not attend the examination. It would appear that Rule 27(16) refers to "proper witness' fees", Schedule 3 seems to use the words "fees" and "allowances" without distinction referring to fees for travel, meals and preparations in the preamble and allowance for meal expenses, etc. in ss. (2) and (3)

dealing with travel and allowances. [32] Here there was no evidence to indicate either that the examination as contemplated would take more or less than the morning and as the plaintiff did not attend and no evidence was provided to indicate that the discovery would take more than the morning I must reach the conclusion that it was not necessary for the plaintiff to receive a meal allowance or fee. Certainly no affidavit was filed by the plaintiff indicating that she did not attend by reason of a failure on the party of the defendant to provide her with a meal allowance or fee. No explanation whatsoever was provided by the plaintiff for her failure to attend. [33] This is not an application that the plaintiff's claim be dismissed for want of prosecution. The conduct of the plaintiff in pressing the matter for hearing is not in issue. What is in issue is the non compliance by the plaintiff of the 19th of October, 2005 Order requiring production of documents and her attendance at an examination for discovery. The plaintiff does not have counsel of record. Mr. Turriff has appeared on a number of occasions as her agent. [34] Whether it can be considered that Dr. Kemp is represented by counsel in this matter or whether she is to be considered a self-represented litigant I am satisfied that she is and was at the appropriate time fully aware of the importance of complying with the

Order of the court made the 19th of October, 2005. Additionally, she was given liberty to apply to vary the terms should there be a difficulty in her complying. She did not bring an application to vary. She simply did not comply. [35] She has failed to provide any answer as to why she did not comply save and except the contention voiced through counsel that there had not been strict compliance with the requirements of Rule 27 so far as production of a meal allowance, and that she wanted to find counsel to act on her behalf. [36] In the absence of an explanation and as a result of her failure to comply with either portion of the Order I am satisfied that her claim should be dismissed and I make that Order. "Master A. Donaldson"