Rabanes v. Pureza

2015 BCCA 27 Rabanes v. Pureza

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Rabanes v. Pureza, 2015 BCCA 27 Date: 20150122 Docket: CA041466 Between: Medardo Rabanes and Myra-Flor Rabanes Appellants (Plaintiffs) And Guillermo Laylo Atienza Pureza Respondent (Defendant) Before: The Honourable Madam Justice Newbury The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein On appeal from: An order of the Supreme Court of British Columbia, dated November 1, 2012 (Rabanes v. Pureza, New Westminster Docket No. S81726). Counsel for the Appellants: A.C.K. Oh Counsel for the Respondent: M.G. Siren Counsel for the Attorney General of British Columbia: L. Greathead Place and Date of Hearing: Vancouver, British Columbia January 14, 2015 Place and Date of Judgment: Vancouver, British Columbia January 22, 2015 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Stromberg-Stein Summary: Division dismissed appeal as abandoned, and for failure of appellants to comply with Order of the Registrar re preparation of transcripts. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] On January 14, 2015, we dismissed the appellants' applications to (i) adjourn the respondent's application to have this appeal dismissed as abandoned, and (ii) consider whether the question of the constitutionality of Rule 20

of the Rules of this court should be set down for determination by a division. We also granted the respondent's application to have the appeal dismissed. These are our "reasons to follow". [2] The underlying action is a claim by the appellants for damages for personal injury arising out of a motor vehicle accident. On November 1, 2012, a jury rendered a verdict after a trial of 26 days, fixing the appellants' damages at approximately $65,000 in total, considerably less than what the appellants had sought. They had alleged that they suffered chronic pain and depression due to the accident, while the respondent took the position that if the appellants were experiencing chronic pain and depression, they were due to pre-existing "psycho-social issues" and, to quote from the judge's charge to the jury, "the adoption of a sick role with secondary gain issues that arose as a result of [their] new immigrant status." [3] On December 23, 2013, some 13 months after the jury award, the appellants purported to file their Notice of Appeal. They then sought and obtained an extension of time for the filing. The chambers judge at that time also granted them a declaration of indigent status. [4] After long-running correspondence between counsel concerning the transcripts that would be necessary for the appeal, counsel appeared before the Registrar, Ms. Jordan, who directed on April 29, 2014 that

the appellants produce the transcript evidence specified in Mr. Murphy's letter of February 21, 2014 to Mr. Azevedo. The transcripts ordered were to include the evidence of 22 witnesses, many of whom were experts, who gave evidence at trial. [5] On June 13, 2014, Mr. Justice Low, sitting in chambers, dismissed the appellants' application to vary the Registrar's order. [6] The appellants sought a review of Low J.A.'s order and on October 6, 2014 a division of the Court dismissed that application. The division also dismissed an application by the appellants to have the hearing adjourned to permit them to file a constitutional challenge to the validity of Rule 20 of the Court of Appeal Rules. [7] By late October, the appellants had been advised that unless they could pay a deposit of $10,000, the company they had retained to prepare the transcripts would not proceed. The appeal was remitted to the inactive list on December 23, 2014. [8] Having been told that the appellants could not afford to produce the transcripts ordered by the Registrar, the respondent applied for an order, returnable in January 2015, dismissing the appeal as abandoned. By this time the appellants had become aware of the decision of the Supreme Court of Canada in Trial Lawyers Assn. of British Columbia et al. v. British Columbia (Attorney General) 2015 SCC 59. Mr. Azevedo for the appellants filed an amended

motion for an order adjourning the respondent's application for dismissal of the appeal and an order that Rule 20 of the Court of Appeal Rules be declared unconstitutional on the basis of the Trial Lawyers' decision. (The motion was silent on the Charter issues previously raised.) He then wrote to the Registrar, Mr. Outerbridge, asserting that a single justice of the Court lacked jurisdiction to make such a ruling and requested that the Chief Justice appoint a quorum of the Court or a five-member panel to hear his motion. I understand that the Chief Justice set down the applications returnable for January 14 before this division in order to ensure that the Court had the necessary jurisdiction in the event that it elected to hear the applications brought on behalf of the appellants. [9] The appellants served the Attorney General of British Columbia with the required notice of constitutional challenge, pursuant to the Constitutional Question Act. Counsel for the Attorney General, Ms. Greathead, appeared on the Attorney General's behalf for the initial part of the hearing before us. [10] Obviously, the appellants had taken the position at least since January 2014 that they were unable to comply with the order of Registrar Jordan--i.e., that they did not have the funds to pay for the transcripts she directed. At the hearing on January 14, 2015, however, Mr. Oh advised the Court

that as of 8 a.m. that day, the appellants had obtained the necessary financing to pay the $10,000 deposit. Counsel advised that the deposit has not yet been received by his clients from an (unnamed) lender or been remitted to the transcript company. He said the appellants were abandoning their constitutional challenge to Rule 20 but sought an extension of 30 days in which to secure the transcripts in accordance with Registrar Jordan's order. [11] For his part, Mr. Siren on behalf of the respondent said he wished to proceed with his client's application to have the appeal dismissed. He referred to the three considerations described by Lowry J.A. in Redpath v. Redpath 2008 BCCA 400 at para. 13 - i.e., whether the delay has been inordinate, whether it has been inadequately explained, and whether any prejudice has been suffered. In his submission, the delay in this case had been inordinate; the appellants had provided no explanation as to why funds were suddenly "available" (although not yet in hand) after such a long period of alleged indigency; and the respondent had been prejudiced by the long delay. In particular, he noted, the respondent had had to appear in this court on four occasions since the expiration of the original 30-day appeal period. Counsel said he did not have instructions to seek an order for security for costs against the appellants. [12] Mr. Oh was asked about

the merits of the appeal from the jury's award. As I understand it, the appellants wish to question the "propriety" of a reference made by the trial judge, in the course of a charge that was approximately 100 pages long, to the "immigration status" of the appellants in her description of their legal position at trial. Most notably, at para. 402 of the charge, the judge told the jury: If you accept that Mr. Rabanes suffers from a chronic pain disorder, the defendant says that this was not caused by the accident but relates to significant psychosocial issues and the adoption of a sick role with secondary gain issues that arose as a result of his new immigrant status. He suggests that Mr. Rabanes could not find the work he wanted and had high expectations coming to Canada that were not met, and he wrongly blames the accident for all of the problems he says he has endured since. [13] Having read most of the charge, I must say that if this is the appellants' only argument, it seems to me to be a very weak one. The judge's reference to the appellants' "immigrant status" was an accurate reflection of some of the expert evidence dealing with possible "stressors" that might be contributing to the appellants' chronic pain and depression. There is nothing on the face of the charge that would indicate it was somehow "improper" or discriminatory. It is a sad reality that new immigrants to

this country often face substantial challenges in finding meaningful and well-paying work commensurate with their skills. [14] In light of the inordinate delay, the failure of the appellants to explain the sudden location of financing until literally the last possible minute, and the dubious merits of the underlying appeal, I formed the view that it would not be in the interests of justice to subject the respondent to further delay and litigation in this matter. For these reasons, I concluded that the appellants' applications should be dismissed and that the motion to dismiss the appeal should be granted, both on the basis that it has been abandoned and on the basis that the appellant failed to comply with the order of Registrar Jordan, as confirmed by the orders of Mr. Justice Low and by a division of this court. The Honourable Madam Justice Newbury I AGREE: The Honourable Madam Justice D. Smith I AGREE: The Honourable Madam Justice Stromberg-Stein