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CIVIL PROCEDURE - Pleadings - Striking out pleadings or allegations

Wednesday, September 22, 2021 @ 6:18 AM  


Appeal by the defendant Province from orders of a case management judge that struck the Province’s response to civil claim for failing to comply with its document disclosure obligations, granted judgment on liability against the Province, ordered it to pay $150,000 as an advance on damages and ordered it to pay special costs to the plaintiffs. The Province and others were sued as a result of a fatal tubing accident in a Provincial Park. After being served with the notice of civil claim in 2015, the Province did not take necessary steps to research its records and disclose documents until 2019. In June 2019, the Province produced its ninth Amended List of Documents. The result was that approximately 42,000 additional pages of documents were produced after the Province, on two occasions, swore affidavits confirming its Lists of Documents. The judge found that this was an extreme case of non-compliance. He found the Province did not provide actual final substantive document disclosure until the summer of 2019. He also found the plaintiffs had to make numerous court applications to compel the Province to turn its mind to the issues raised by the pleadings and diligently search for documents that were relevant or might be relevant. The judge found striking the Province’s response to civil claim amounted to a fit punishment. He found the plaintiffs were frustrated in their pursuit of a just outcome and the delay and consequences arising from the Province’s approach to its obligations would essentially require them to begin again.

HELD: Appeal allowed in part. All orders except the special costs award were set aside. The judge erred in striking the Province’s response by basing his determination on an erroneous factual foundation and by giving no or insufficient weight to the Province’s partial compliance with its disclosure obligations or the detailed explanations for its conduct that it proffered through counsel and in affidavit form. As a result, the impugned order was unduly draconian and disproportionate given the true nature of the Province’s defaults, the extreme prejudice caused to the Province by the order and the realistic prospects for its future compliance. Contrary to the judge’s statement, there were not numerous, but two, applications and directions focused on the Province’s failure to meet its document disclosure obligations. The judge also incorrectly stated that the Province had already been required to pay special costs due to its failure to provide documents and improperly characterized the verifying affidavit directed by his 2017 order as a false affidavit. The record also did not support the judge’s finding that the plaintiffs had to completely restart their litigation based on the Province’s recent voluminous disclosure. The record did not support the judge’s blanket findings that the Province did not take necessary steps to research its records and disclose documents until 2019, and that, despite a 2017 order and its verifying affidavit, it did not comply with its disclosure obligation for over 20 months thereafter. While the judge awarded special costs against the Province based on an erroneous factual foundation, the Province approached its disclosure obligations and the disclosure applications in a distinctly unsatisfactory manner which contributed significantly to the long delays in moving the litigation forward and seriously prejudiced the plaintiffs. The conduct merited rebuke. The interests of justice were best served by leaving the special costs award in place.

Barrie v. British Columbia (Minister of Forests, Lands and Natural Resource Operations), [2021] B.C.J. No. 1866, British Columbia Court of Appeal, G. Dickson, B. Fisher and S.A. Griffin JJ.A., August 30, 2021. Digest No. TLD-September202021005