Louie v. Webber,


2013 BCSC 1763

Date: 20130925

Docket: 44241



Mary Louie also
known as Mary Lawrence



Richard Webber



The Honourable Mr. Justice Rogers


Reasons for Judgment

Appearing on her own behalf:

M. Louie also known
M. Lawrence

Counsel for the Defendant:

D.R. Lewthwaite

Place and Date of Trial/Hearing:

Kelowna, B.C.

September 17, 2013

Place and Date of Judgment:

Kelowna, B.C.

September 25, 2013



This is an application by the defendant to dismiss the plaintiff’s claim
for want of prosecution. The action concerns a 1998 motor vehicle accident.
Unusually, the plaintiff bases her opposition to the motion on allegations of
malfeasance by the defendant’s counsel.

Litigation History

On September 11, 1998 the plaintiff’s vehicle was struck from behind by
the defendant’s truck. The plaintiff commenced this proceeding in March 1999.
The defendant filed an appearance and statement of defence in October 1999.
Liability for the collision has never been an issue; the only live issue is the
quantum of the plaintiff’s damages.

The plaintiff has had intermittent legal representation. Her lawyers
have been:

Ms. Flewelling, March 1999 to March 2002;

Ms. Thompson, one week in December 2003;

Ms. Evans, December 2004 to April 2005; and

d)    Mr. Poyner,
November 2011 to May 2012.

The defence has set the case for trial five times. Each date was lost
due to the plaintiff’s failure to be ready for trial. The plaintiff has twice
refused to attend her examination for discovery, and on one occasion when she
did attend she refused to provide responsive answers. The plaintiff cited her
lack of legal representation as the reason for not attending her discovery and
for not answering discovery questions.

In 2009 the defendant applied for an order dismissing the action for
want of prosecution. The matter was not dismissed, but the court did order that
the plaintiff comply with the litigation process.

The matter was most recently set for trial in March 2013. A trial management
conference was set for January 29, 2013. The plaintiff failed to attend. The trial
management conference was reset for February 5, 2013. The plaintiff attended
that conference. She did not have legal representation. The parties and the
court reviewed the history of the litigation. In the course of that review it became
clear, and the plaintiff acknowledged, that she was simply unable to prepare or
present her case on her own. The plaintiff advised the court that her case
could not and would not proceed unless she had a lawyer to represent her. Given
that state of affairs, the court determined that it would be unfair to the
plaintiff to leave her in jeopardy of further defence applications to dismiss
her claim while she sought out another lawyer. It was also clear that if she
was left to her own devices, the plaintiff would not take the necessary steps
to bring her case forward. Accordingly, the court ordered that the proceeding
be stayed until the plaintiff obtained legal representation.

Currently, the plaintiff asserts that among many other injuries, she
suffered a traumatic brain injury in the accident. The plaintiff maintains that
as a result of the collision she is severely disabled.

The plaintiff has now given her daughter Michelle Lawrence her power of
attorney and asked her daughter to assist her in finding counsel.

Application to Dismiss

On August 22, 2013 the defendant filed the present application. The
defendant seeks to dismiss the plaintiff’s proceeding for want of prosecution.
The defendant cites the fact that the plaintiff has not obtained legal
representation, and argues that the plaintiff’s overall delay has been
inordinate and inexcusable and that the defendant has suffered actual prejudice
as a result of the delay.

In support of the latter point, the defendant adduced evidence showing
that several of the plaintiff’s physicians and medical advisors have either
retired from practice or cannot now be located and that two of those physicians
have, in the ordinary course of their practices, destroyed their records
concerning the plaintiff. The defendant argues that the loss of those witnesses
and their records prejudices the defendant’s ability to properly prepare a defence
to the plaintiff’s claim.

That said, the defendant acknowledges that the plaintiff does have a
claim for damages and that it is willing to resolve the plaintiff’s claim on a
reasonable basis.

The plaintiff’s circumstances have not changed. She continues to be unable
to prepare her case for trial on her own. She acknowledges that she must have a
lawyer if her case is to proceed. The plaintiff maintains that in the summer of
2013 she contacted Mr. Weatherill, an experienced personal injury lawyer
who practices in Vernon B.C. The plaintiff adduced evidence of her daughter
Michelle’s email to Mr. Weatherill asking him to take her case. The
plaintiff also adduced evidence of Mr. Weatherill’s reply. The relevant
portions of that reply are:

Hi Michelle:

I have spoken with Don Lewthwaite to get his perspective on
your mother’s claim.

It is his view that, although, your mother does have medical
issues, many of them are unrelated to the accident of Sept. 11, 1998 that is
the subject of her claim.

He tells me that the mishap occurred during rush hour with
traffic creeping along, and the rear end collision was not very substantial. It
may have triggered some soft-tissue type injuries, but ICBC is having a hard
time relating the complaints your mother has had over the years to it.

The difficulty in these matters is always trying to assess
what a judge would award if all the evidence was before him/her. I have no
knowledge about the case, your mother’s background or her injuries so I cannot
advise you on what to do.

I can advise you, though, that Don Lewthwaite is very highly
regarded in legal circles and is well liked by people who deal with him,
including judges. He is a straight shooter and is very reasonable to deal with.
The fact that your mother had issues with him and the fact that she has gone
through as many lawyers as she has in the course of the case, frankly, raises
concerns about how reasonable your mother is being with her demands.

For those reasons, I am not able to consider acting for your

The plaintiff cited Mr. Weatherill’s correspondence in her
opposition to the defendant’s motion to dismiss her claim. The plaintiff
maintains that Mr. Lewthwaite lied to Mr. Weatherill about the
quality of her claim and that he has lied to her previous lawyers as well, thus
scaring them away from her case. The plaintiff argues that so long as Mr. Lewthwaite
continues to misrepresent her claim to lawyers she wants to retain, she will be
unable to hire a lawyer and will be unable to move her case forward.

The Law

The court’s authority to dismiss a case for want of prosecution lies in
Rule 22‑7(7):

(7)        If, on application by
a party, it appears to the court that there is want of prosecution in a
proceeding, the court may order that the proceeding be dismissed.

The new Rule has been found to be essentially unchanged from the former
Rule 2(7): 0690860 Manitoba Ltd. v. Country West Construction Ltd. 2009
BCCA 535. The jurisprudence concerning the old Rule is therefore applicable to
applications brought under the new Rule.

The requirements for dismissing a claim for want of prosecution were
laid down in the leading case of Irving v. Irving (1982), 38 B.C.L.R.
318 (C.A.):

1.       There has been
inordinate delay;

2.       The inordinate delay
is inexcusable; and

3.       The
delay has caused, or is likely to cause, serious prejudice to the applicant.

If those tests are met, the court must go on to consider whether or not
the balance of justice demands that the action should be dismissed.

In 0690860 Manitoba, the court considered the concept of
prejudice to the defence. In that context, Low J.A. wrote:

[19]      Rule 2(7) raises the possibility of dismissal of an
action other than on its merits. Therefore, it should be applied with
considerable caution. Lengthy delay by a plaintiff in bringing a claim to trial
must be carefully considered in the context of evidence presented by both sides
as to actual prejudice to the defendant in presenting its case at trial. Any
prejudice will only be material to the extent that it was caused by the plaintiff’s
inordinate delay, not by other events.

Dismissal for want of prosecution is a draconian remedy. The court
should exercise caution and restraint when it considers the motion. This means
that, among other things, the court should not dismiss the proceeding in order
to punish the dilatory plaintiff. The discretion to dismiss for want of
prosecution should only be exercised when the delay has affected the balance of
justice so as to impair the opportunity for the parties to have a fair trial.


In the present case the plaintiff’s delay has been inordinate: it is now
14 years after the event and the plaintiff is still not ready for trial. Her
delay has also been arguably inexcusable: a competent lawyer or a motivated
self-represented litigant could certainly have brought this case forward in a
shorter period of time. Other than blaming Mr. Lewthwaite, the plaintiff
has offered no real excuse for not having prosecuted the case efficiently. I
will return to that issue in a moment.

The defence has shown that the delay of prosecution has caused actual
prejudice to its ability to present its case. That prejudice lies in the
unavailability of medical personnel and medical records relevant to the
plaintiff’s health before and since the collision.

I will turn now to the question of Mr. Lewthwaite’s influence on
the plaintiff’s advancement of her case. Nothing in the materials before me
could support the proposition that Mr. Lewthwaite has acted outside the
scope of the normal and expected remit of defence counsel. Mr. Lewthwaite’s
job is to defend against the plaintiff’s claims – should he perceive that the
plaintiff’s problems are not related to the collision, then it is his duty to
advance that proposition in defence of the case. In my opinion, the plaintiff’s
complaints about Mr. Lewthwaite are, in actuality, complaints about
whatever frailties her claim may have. The plaintiff would rather ignore the
potential that those frailties exist and she would rather that Mr. Lewthwaite
not point those difficulties out to her lawyers. It is, however, Mr. Lewthwaite’s
duty to best represent his client. That duty does not encompass a
responsibility to stay silent when he is asked whether he believes that the
plaintiff’s case has any weaknesses.

In the result, I find that the plaintiff cannot properly blame Mr. Lewthwaite
for her not having a lawyer and for the delay caused by her lack of
representation. Based on the evidence and the record of the case before me, I
find that the delay in the prosecution of the plaintiff’s case was caused by
the plaintiff’s failure to keep a lawyer retained on her case. The plaintiff’s
only excuse for not having a lawyer – i.e.: that Mr. Lewthwaite lied to
her lawyers and caused them to quit her case – is not persuasive. The plaintiff
offered no other explanation for her delay. For that reason I find that the
plaintiff’s delay is inexcusable.

The question in this application comes down to whether the balance of
justice requires that the action be dismissed. On side is the fact that the
plaintiff does have a legitimate claim for damages for personal injury and that
the defence is prepared to settle the case upon payment of a reasonable sum. On
the other side is the fact that the 14-year delay in moving this matter ahead
has caused actual prejudice to the defence’s opportunity to put forward its

The plaintiff’s capacity to effectively represent herself has not
changed. If the plaintiff is left on her own, there is no reason to think that 6
or 12 months from now the case will be in any difference state than it is now.
The plaintiff does, however, now have her daughter acting under her power of
attorney. Her daughter seems willing, at least in a limited way, to take up the
reins of the case. Given the advent of that circumstance, it is appropriate to
lift the stay of proceedings. Perhaps the plaintiff’s daughter will be able to
move this matter on from this point forward.

The plaintiff does have a claim and is probably entitled to some
damages. She feels strongly about her claim. Despite the prejudice that the
defence has experienced, in my opinion justice requires that the plaintiff have
one last opportunity to put her case before the court.

This case cannot, however, be permitted to slide into limbo and the
defence should not be put to further unnecessary expense or placed in jeopardy
of further prejudice. For that reason I will make an order that I rarely
pronounce: a guillotine order. The order is this:

1.       The
stay of proceedings of this matter pronounced at the trial management conference
February 5, 2013 is vacated.

2.       On
or before October 31, 2013 the plaintiff must file a notice of trial setting
this matter down for trial commencing on a date convenient to her and to the

3.       The
trial will be set for not less than 10 days.

4.       The
plaintiff will be responsible to pay the filing fees for the notice of trial.

5.       The
trial date shall be peremptory on the plaintiff.

6.       In
the event that defence files a requisition and affidavit by defence counsel
certifying that the plaintiff has not complied with one or more of paragraphs
2, 3, or 4 of this order, this proceeding shall be immediately dismissed with
costs to the defendant throughout and the defence shall be at liberty to file
an order to that effect.

7.       The
plaintiff shall not be required to approve the form of this order prior to

8.       The defence shall have the
costs of this application on Scale B in any event of the cause.

“P.J. Rogers J.”
The Honourable Mr. Justice Rogers