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April 22, 2005 , E.C.B. No. 27/02/257
| Between: |
Harbans Kaur Bhullar
Claimants |
| And: |
City of Surrey
Respondent |
| Before: |
Sharon I. Walls, Vice Chair |
| Appearances: |
Tony Bhullar, Counsel for the Claimant
Anthony Capuccinello, Counsel for the Respondent |
REASONS FOR DECISION
[1] This is the third application that has been set down by the respondent seeking answers and documents arising out of an Examination for Discovery of Sonny Bhullar on August 20, 2004.
[2] The claim is for a partial taking for the widening of the Fraser Highway in Surrey, British Columbia in August 2002. The claimant has pled that as a result of the partial taking of the commercial premises owned by her she has suffered damages in the sum of $800,000. Inter alia she claims for a reduction in the market value of the remainder on any future sale of the property, and in particular, claims that the remainder has been rendered useless as a result of the lack of parking. Further she claims for loss of rent and tenants and development potential and for time spent dealing with the partial taking. She also claims for damages for mental distress and punitive damages for the manner in which the respondent dealt with the claimant. She says she is entitled to relief pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms.
[3] On August 15, 2002 the respondent made advance payments to the claimant in the sums of $77,403.65, $7,850.00 and $325.
[4] On this application there were Affidavits from counsel for the respondent, Anthony Capuccinello, and from an administrative assistant, Marleen Gamracy. From this and earlier Affidavits filed for previous applications the following sequence of events can be ascertained:
| Summer 2002 |
Partial expropriation of lands owned by the claimant |
| December 11, 2002 |
Form A filed by claimant |
| January 3, 2003 |
Form B filed by respondent |
| March 6, 2003 |
Respondent served a Demand for Discovery of Documents on claimant |
| June 12, 2003 |
Board received a copy of a book of documents from the claimant. This book contained a number of documents relating to different issues under various tabs. |
| August 24, 2004 |
Examination for Discovery of Mr. Sonny Bhullar, property manager and son of the claimant. |
| September 13, 2004 |
Mr. Capuccinello’s correspondence to Mr. Tony Bhullar, counsel for the claimant and brother to Mr. Sonny Bhullar, enclosing the list of outstanding requests for documents or information arising out of the transcript. |
| October 4, 2004 |
Mr. Capuccinello wrote Mr. Tony Bhullar requesting the answers to the requests. |
| October 4, 2004 |
Mr. Tony Bhullar replied to Mr. Capuccinello that Mr. Sonny Bhullar was working on the responses and some information may require some “digging” |
| October 4, 2004 |
Mr. Capuccinello wrote Mr. Tony Bhullar and asked that Mr. Sonny Bhullar provide those answers that he could at this time. |
| October 5, 2004 |
Mr. Tony Bhullar wrote Mr. Capuccinello and said that he did not want Mr. Capuccinello to rush Mr. Sonny Bhullar who wished to be diligent in his answers. The answers would be provided in a timely manner – keeping in mind his other duties. |
| November 9, 2004 |
Mr. Capuccinello wrote Mr. Tony Bhullar demanding the outstanding answers. The letter went on to say that unless the answers were provided within one week an application would be made to the Board seeking an order compelling production. |
| January 31, 2005 |
Mr. Capuccinello wrote Mr. Tony Bhullar requesting a date when he was available for an application for an order compelling the production of the answers. |
| January 31, 2005 |
Mr. Tony Bhullar replied to Mr. Capuccinello that he would check his calendar and provide dates to Mr. Capucinello next week. |
| February 8, 2005 |
Mr. Capuccinello wrote Mr. Tony Bhullar by email attaching a cover letter and a Notice of Motion and asking for an address for documents to be served. |
| February 9, 2005 |
Mr. Tony Bhullar wrote Mr. Capuccinello saying that Mr. Sonny Bhullar had lost the earlier list for outstanding requests and he asked that Mr. Capuccinello provide him with another copy. He went on to say that he would attempt to get Mr. Sonny Bhullar to complete the answers in a timely fashion. |
| February 9, 2005 |
Mr. Capuccinello wrote Mr. Tony Bhullar asking for his new fax number as an earlier number did not work. He also asked for confirmation of the office address. |
| February 9, 2005 |
Mr. Tony Bhullar wrote Mr. Capuccinello providing a new fax number. |
| February 24, 2005 |
Hearing of an application in Vancouver to compel outstanding answers and copies of documents requested at the Examination for Discovery. Claimant’s counsel did not appear. |
| February 28, 2005 |
Reasons for Decision stated that although it was clear that Mr. Tony Bhullar knew about the application, there was insufficient evidence of service to allow an order to be granted. Reasons go on to say if there continues to be a need for an order for outstanding requests from the Examination for Discovery this application may be brought again to be heard by teleconference. |
| March 9, 2005 |
Service on the claimant of a Notice of Motion returnable on March 17, 2005 to compel List of Documents in prescribed form and outstanding answers and copies of documents requested at the Examination for Discovery. |
| March 11, 2005 |
Mr. Tony Bhullar emails Mr. Capuccinello a list of responses to many outstanding requests. |
| March 16, 2004 |
Mr. Capuccinello wrote Mr. Bhullar by email and listed which questions remained outstanding. |
| March 17, 2005 |
Hearing of the application by teleconference to compel List of Documents in prescribed form and outstanding answers and copies of documents requested at the Examination for Discovery. Respondent begins to outline the requests that were still outstanding one by one and to explain why the responses sent March 11, 2005 did not fully answer the questions posed. Claimant intervened after several requests have been discussed; he agreed that there were still outstanding requests and consented to provide those answers. Oral Order made that by April 4, 2005 the claimant was to provide the List of Documents in prescribed form under Rule 26 and Form 93, including property manager’s file, together with outstanding requests and documents from the discovery. |
| April 8, 2005 |
Service on the claimant of a Notice of Motion returnable on April 21, 2005 seeking that the claimant’s claim be dismissed for failure to comply with the Rules and the Board’s order. |
| April 21, 2005 |
Hearing of the application for dismissal of the claim by teleconference. Mr. Bhullar had provided nothing to the respondent. He stated that he was preparing information for April 24, 2005 to say that Mr. Sonny Bhullar was ill. He thought the hearing of the application was scheduled for April 24, rather than April 21, 2005. |
[6] This matter is set for hearing August 14 to August 23, 2005.
[7] Rule 26 and 27 of the Rules of Court set out the procedures to be followed for discovery of documents and examination for discovery or parties. These rules have been expressly adopted by the board in the board’s Practice and Procedure Regulation, B.C. Reg. 452/87. Both of these rules are to promote the resolution of disputes on their merits by forcing disclosure in advance of documents and information on which the party may rely at the hearing and, in addition, all relevant documents and information which may assist the other party to destroy his opponent’s case. The test for relevance is wide and is subject only to privilege. It is counsel that must decide which documents are relevant and the issue is not to be left to the client. Visa International v. Block Bros. (1983), 45 B.C.L.R. 305 (S.C.). Privileged documents must be identified and described in the relevant part of Form 93.
[8] Rule 2 of the Rules of Court sets out the effect of non-compliance with the rules, including Rules 26 and 27. Relevant parts of Rule 2 are as follows:
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(2) |
Subject to subrules (3) and (4), where there has been a failure to comply with these rules, the court may |
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(a) |
set aside a proceeding, either wholly or in part, |
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(b) |
set aside any step taken in the proceeding, or a document or order made in the proceeding, |
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(c) |
allow an amendment to be made under Rule 24, |
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(d) |
dismiss the proceeding or strike out the statement of defence and grant judgment, or |
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(e) |
make any other order it thinks just |
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... |
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(4) |
An application for an order under subrule (2) (a), (b) or (d) shall not be granted unless it is made within a reasonable time, and the application is made before the party applying has taken a fresh step after knowledge of the irregularity. |
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(5) |
Where a person, contrary to these rules and without lawful excuse, |
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(a) |
refuses or neglects to obey a subpoena or to attend at the time and place appointed for his or her examination for discovery, |
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(b) |
refuses to be sworn or to affirm or to answer any question put to him or her, |
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(c) |
refuses or neglects to produce or permit to be inspected any document or other property, |
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(d) |
refuses or neglects to answer interrogatories or to make discovery of documents, or |
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(e) |
refuses or neglects to attend for or submit to a medical examination |
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then |
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(f) |
where the person is the plaintiff, petitioner or a present officer of a corporate plaintiff or petitioner, or a partner in or manager of a partnership plaintiff or petitioner, the court may dismiss the proceeding, and |
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(g) |
where the person is the defendant, respondent or a third party, or a present officer of a corporate defendant, respondent or third party, or a partner in or manager of a partnership defendant, respondent or third party, the court may order the proceeding to continue as if no appearance had been entered or no defence had been filed. |
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(6) |
Where a person, without lawful excuse, refuses or neglects to comply with a direction of the court, the court may make an order under subrule (5) (f) or (g). |
[9] Although the claimant has provided some information, the chronology makes it clear that the claimant has treated these matters in a casual and dilatory manner and failed to appreciate her obligations under the Rules of Court. In this case the claimant has failed to answer outstanding questions, failed to produce requested documents and neglected to make full discovery of documents as required under the rules. The claimant is in breach of the Rules. Further the claimant is in breach of the Board order requiring a List of Documents in compliance with Rule 26 and Form 93, together with the outstanding answers and documents arising from the discovery to be produced by April 4, 2005.
[10] The claimant’s excuse for her failure to comply with the Rules and the Board order is that Mr. Sonny Bhullar continued to have some medical problems. At some later point in the application Mr. Tony Bhullar stated that he had not found time to research the law of fixtures to answer one of the outstanding questions.
[11] In the hearing on March 17, 2005 Mr. Tony Bhullar indicated that Mr. Sonny Bhullar suffered from heart problems and that, as a result, there might be further information that would emerge at some later point and he would not want to be precluded from using that information. I pointed out that most of the outstanding questions were to provide documents and that Mr. Tony Bhullar could obtain any portions of Mr. Sonny Bhullar’s property management file not already in his possession and Mr. Tony Bhullar could deal with these requests. I also said that it appeared that the total number of documents in this matter was relatively small and that several of the outstanding requests overlapped. Some of these remarks were repeated in writing in a letter to the parties dated March 24, 2005.
[12] The claimant has not established that there has been lawful excuse for her failures to comply with the Rules or the Board order. However, the remedy sought is one of last resort and the claimant will have one further chance to rectify her failures. The claimant is to deliver to the respondent by 5:00 pm on April 29, 2005:
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(a) |
List of Documents in strict compliance with Rule 26 and Form 93 to include inter alia documents from the property manager’s file from 1995 to the present including all records, notes and documents, and all leases or draft leases in relation to the Property and all correspondence and documents in relation to litigation with any tenant or tenants of the Property. |
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(b) |
all outstanding request from the discovery, namely: |
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questions (3), (8), (9), (10) (11), (21), (27), (33), (34), (35), (36), (38), (44), (50), (51), (52), (65), (68), (69), (70), (71), (72), (73), page 8 of the transcript, line 34; page 64, line 8; page 88, line 11; page 110, line 16; page 112, line 12; page 136, line 3. |
[13] In the circumstances the claimant is denied her costs for the interlocutory applications seeking further answers and documents arising from the Examination for Discovery and for a List of Documents in a proper format held on March 17 and April 21, 2005.
EXPROPRIATION COMPENSATION BOARD
______________________________________
Sharon I. Walls
Vice Chair
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