Perretta v. City of Coquitlam Date:, 2012 BCPC 27

Citation: Perretta v. City of Coquitlam Date: 20120109 2012 BCPC 0027 File No: C11062 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LEILA PERRETTA CLAIMANT AND: CITY OF COQUITLAM DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Appearing on their own behalf: The Claimant, L. Perretta, with N. Peters, Native Court Worker Counsel for the Defendant: L. Afonso Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 9, 2012 Date of Judgment: January 9, 2012 [ 1 ] THE COURT: On June 8th, 2010, Ms.

Perretta commenced an action against the City of Coquitlam alleging that she was entitled to damages against this defendant by reason of a fall that she had had at a place referred to in her Notice of Claim called the Coquitlam Leisure Centre. [ 2 ] As I understand her Notice of Claim, she alleges that she suffered injuries to her person when she slipped and fell on a piece of exercise equipment that was located within the Coquitlam Leisure Centre.

The fall is said to have occurred on January 21st, 2010 at 11:45 a.m. [ 3 ] The defendant, City of Coquitlam, has filed a lengthy reply in this matter taking serious issue with its responsibility to pay anything to the claimant to compensate her insofar as money is able to do that as a result of the injuries she alleges she suffered on the above referred to date. The reply was filed on June 17th, 2010. [ 4 ] After those pleadings were filed in this matter, a settlement conference was held in front of my brother Judge Steinberg on February 4th, 2011. At that time, Ms.

Nicole Peters, a Native Court Worker who appeared to assist Ms. Perretta in an agency capacity, was present for her, and the City of Coquitlam at that time was represented by Ms. Afonso who is counsel before me today as well for the City of Coquitlam. [ 5 ] The settlement conference proceeded in front of Judge Steinberg and got to the point where the money damages that the claimant had suffered -- in the event that this matter proceeded -- were agreed upon. He also made one further order that is material for purposes of this matter today.

He ordered that each side would provide the other with a witness list, and a short

summary of what that witness would say in trial, "within 60 days of today's date". [ 6 ] By my calculation, the date by which that information should have been provided by each side to the other, and that would certainly include by Ms. Perretta to the counsel for the City of Coquitlam, would be on or about April 5th, 2011. That type of order is

standard operating procedure in this court and Ms. Afonso says that it is her submission and understanding that the statements were to not only include what third party witnesses would say, but as well what the claimant herself would say at any future trial. [ 7 ] I am told today by Ms. Afonso that the information ordered by Judge Steinberg was in her view not properly provided to the defendant. [ 8 ] On my perusal of the file, I see a number of, apparently, certificates of service of summonses to witnesses including, by way simply of an example, one directed to a Henry Hodaly.

This appears to have been served on this gentleman by the claimant, as I read the certificate of service, on May 3rd, 2011. [ 9 ] In the fullness of time, interestingly enough on the same day, May 3rd, 2011, the claimant filed a two-page typewritten list of witnesses of the claimant and says that the statement contains a brief

summary of the evidence. This document filed on May 3rd, 2011 according to counsel for the defendant reached the City of Coquitlam sometime in May 2011. [ 10 ] This list would suggest that the claimant intended to call something in the order of eight to nine witnesses at a future trial. One of the witnesses shown as number 2 on the list is the aforementioned Henry Hodaly. The reference to this gentleman is his name, the word "witness", and then the following statement: I was having coffee with Leila before the slip had happened.

I will recall what I have noticed before she left. [ 11 ] Almost the same statement appears with respect to each and every one of the other witnesses.

That I think is a fair and accurate statement with respect to those witnesses shown on this document in paras. 3 through to 7. [ 12 ] Paragraph 8 discloses the name of a witness, Wendy Koeppen, and simply the word "witness" thereafter and there is no attempt to set out what her evidence would be. [ 13 ] By way of stating the obvious, not only is this document late, but it certainly does not in my view comply with the order that was made by my brother Judge Steinberg that was to be performed by the claimant on April 5th, 2011. [ 14 ] I cannot divine by reviewing this document that any reasonable effort was made by the claimant, with or without the assistance of Ms.

Peters, to tell the defendant what her witnesses would say at any future trial. [ 15 ] This document simply does not suggest that any effort was made on the part of the claimant to speak to these witnesses and to jot down a quick note of what their evidence was going to be. The fact that for each of them the exact same statement appears rather suggests to me that what is normally done when a witness is interviewed was not done in any way, shape, or form with respect to the potential witnesses in this case. [ 16 ] I do understand that Ms.

Perretta is not a lawyer and that she does not have a lawyer acting for her, but I am told that it was made clear to her what was required here by counsel for the defendant. [ 17 ] Following the defendant's receipt of this document, an application was brought by the City of Coquitlam with Ms. Afonso again being counsel and this application was filed on May 17th, 2011 and it was returnable before my brother Judge Stone on June 13th, 2011. [ 18 ] One of the orders sought in this application is as follows: 2.

We seek a dismissal of this claim pursuant to Rules 7(15), 16(7), 19(2) and 26 for failure to comply with the court order of Judge Steinberg, or alternatively an order that the claimant provide her witness statements to the defendant's counsel within three weeks of the date of the court order, failing which her action will be dismissed. [ 19 ] In support of this application is a lengthy affidavit that I have had an opportunity to review. It is sworn by one Rumelda Trudeau. [ 20 ] In this affidavit she states that she is a legal assistant to counsel before me, Ms. Afonso.

This affidavit was sworn on May 16th, 2011, and I have no doubt in the normal course it made its way into the possession of Ms. Perretta who would have reviewed it before appearing in front of Stone P.C.J. on the 13th day of June, 2011. [ 21 ] It states in

part in para. 6 that this witness, Ms. Trudeau, was advised by counsel, Ms. Afonso, and verily believed that on March 7th, 2011 (and I am paraphrasing a bit here) Ms. Afonso spoke with the claimant, Ms. Perretta, and advised her that she must provide a list of all of the witnesses she would be calling at trial, along with a written description of what she anticipated each would say and all of the documents and photographs the claimant wished to rely upon at trial.

She was further advised by counsel and believed that during this conversation counsel told the claimant very clearly that the claimant had to include a statement of what she would say at the trial. [ 22 ] In para. 7, Ms. Trudeau deposes that a letter was then sent on March 16th, 2011 (which is appended as an exhibit to the affidavit) directed to the claimant by Ms.

Afonso, again as a staff lawyer with the Municipal Insurance Association of British Columbia, and that letter confirms the telephone discussion that she had on May 7th, 2011 with the claimant and states in part: I advised you that you must provide me with a list of all witnesses that you will be calling at trial along with their addresses and a

summary of what they will say. This includes a

summary of what you will testify to at trial. [ 23 ] There then follows in Ms. Trudeau's affidavit a paragraph that asserts that on March 25th she spoke with the claimant and advised the claimant that the defendant, would require her witness statements by the deadline date and she further advised that these must include a statement of what she would say at trial. It further deposes that the claimant, advised that she would have them to Ms. Afonso in the next week. [ 24 ] This affidavit is quite lengthy but I am satisfied that it makes abundantly clear to the claimant precisely what was required.

[ 25 ] What seems to have been received by the defendant, at least as far as this affidavit is concerned, is a handwritten note on Native Court Worker stationery that is undated that is frankly very difficult to understand but has what appears to be a signature possibly of a witness. It certainly is not in my view in compliance with the order made by Judge Steinberg. [ 26 ] So these then are the materials that came before my brother Judge Stone on June 13th, 2011 I am told on an application date in this court. At that time again, Ms. Peters was present and Ms.

Afonso was present on behalf of the defendant. [ 27 ] After considering this matter, the order that I have referred to above, number 2 on the application, is said to have been granted and there is language as follows: that the claimant needs to file will-says and all documents, a list of her witnesses, a list of what each person will say, and any documents she will rely on to be put into a book and binder format, three copies, and the matter was adjourned to the next application date. [ 28 ] This as I say was an order made on June 13th, 2011.

On the face of this application and record in our court file, there is not a precise date by which this information was to be provided. However, I accept that by today's date the pre-trial conference or trial preparation conference -- there was an expectation on the part both of the defendant and the court that the earlier order that was made by Judge Steinberg that was essentially reiterated by Judge Stone ought to have been complied with. I am told that no proper will-say statements have yet been filed. [ 29 ] The application that I have made reference to filed on May 17th, 2011 relies upon various rules.

The first one referred to is the settlement conference rule, Rule 7(15), and that rule provides that if a party does not comply with an order under various sub-rules of sub-rule (14), namely, (f), (g), (h), or (j), a judge may at any time dismiss the claim. That is the relief that is sought today by Ms.

Afonso, counsel for the defendant, whose position I think when all is said and done is that the defendant has been patient and has waited long enough for the claimant to comply with not one but two orders made by the court. [ 30 ] There is not in Rule 7(14), the rule dealing with the powers if you will of a judge at a settlement conference in this court, an express reference as I read it to the court having an ability to order that a person appearing at a settlement conference must pursuant to a court order make and file what is often called a will-say statement, or a statement of what a witness that is intended to be called by a party will state at a trial. [ 31 ] Nonetheless, Rule 7(14)(

f) does state that a judge at a settlement conference can order a party to produce any information at the settlement conference or anything as evidence at trial. [ 32 ] I am satisfied that that rule, general as it is in its ambit, is sufficient to cover a situation that frequently occurs in a settlement conference in this court where the presiding judge orders each party to produce a witness statement or a series of witness statements relating to the witnesses that they intend to call at a future trial and provide the same to the other side. [ 33 ] This frequently occurs and there must be a basis upon which the judge has jurisdiction to make an order.

Hence, under Rule 7(15), in my view it can be said that the claimant in this matter has not complied with not only an order but orders that have been made under Rule 7(14)(f). That certainly would cover the situation of the order made by my brother Judge Steinberg earliest in time.

I think it is fair to state that the order made by Judge Stone in June of 2011 was not made at a settlement conference so it would not be covered by Rule 7(15). [ 34 ] Next, the defendant earlier in time and again today relies on the provisions of Rule 16(7) of our Rules of Court. [ 35 ] Rule 16(7) is a rule that merely provides for a manner in which a party may apply to a judge for relief. One of the orders that can be sought at a hearing in front of a judge under Rule 16(6)(

m) is the judge can be invited to make an order where a party has failed to obey a rule. Possibly there is jurisdiction under that Rule and is supportive of what the defendant wishes to do here. [ 36 ] Far more importantly, the claimant relies as well on Rule 19(2) which is the contempt rule in this court and that Rule almost in its entirety rewards: Consequences of refusing to comply at a hearing

(1) If a person at a hearing before a judge … (

b) refuses to produce a record or other evidence … the judge may issue a warrant …. [ 37 ] Then it goes on to say in subrule (2): If the claimant or applicant refuses to comply

(2) If a person who does anything referred to in subrule (1) is (

a) the claimant or applicant … the judge may dismiss the claim or application. [ 38 ] This rule is said to be a rule of last resort and one case that was decided under Rule 19(2) that I have alluded to is the case of Strauss v. McCall Pontiac Buick Ltd. , [1996] B.C.J. No. 2223 a judgment of His Honour Judge Shupe of this court. A brief

summary of this case found in the Small Claims Act and Rules Annotated binder in frequent use in this court is to this effect: in an action for damages for assault and battery the claimant was required under Rule 7(9) to file a certificate of readiness with attached medical reports and record of expenses or losses. The claimant did not file a certificate and at a settlement conference, the court ordered that the certificate be filed by a certain date. The claimant did not comply with the order and did not seek an extension. The defendant applied to have the claim

dismissed under Rule 19(2), failure to comply with a settlement conference order or to apply for an extension, which was held to be a contempt for which dismissal under Rule 19(2) is the only appropriate remedy. [ 39 ] That is but an example of how a brother judge construed this Rule that I have alluded to that is referred to by the defendant in its application filed May 17th, 2011. [ 40 ] To come full circle, the defendant applies today before me orally at this pre-trial conference renewing her application first heard before Judge Stone seeking a dismissal of the claim made by the claimant based on her inability to comply with the orders made by both Judge Steinberg and Judge Stone. [ 41 ] I should state that during the course of the brief hearing in front of me today there was some suggestion on the part of the claimant who appears with the assistance again of Ms.

Peters, a Native Court Worker, that she required an interpreter.

When I sought clarification on that point from counsel for the defendant, I was advised that this was the first that she had ever heard of the need on the part of the claimant to have an interpreter and explained that historically she had been able to deal with the claimant using the English language and in essence did not feel that the claimant was failing to understand what she was told. [ 42 ] I am quite satisfied that historically the defence counsel in this matter did everything that was reasonably required of her to be fair to an unrepresented party in this litigation in this court, including by explaining to the claimant what was required on her part to comply with the orders made by both Judge Steinberg and perhaps to a lesser extent by Judge Stone.

I am not prepared to accept for purposes of this application that the claimant has failed to understand what was expected of her. Rather, the claimant simply has for reasons perhaps best known to her refused to comply with these court orders. [ 43 ] I note that we are now in the eve of the trial. This matter in fact is set for trial in this court on April 27th, 2012. In my view, the claimant has had more than ample time to comply with these orders that have been made by the court.

They are usual and necessary orders in that they assist each party in understanding the case they have to meet at trial. [ 44 ] While the procedures in this court are intended to be simple and straightforward I think it can be said that but for things like will- say statements, each party when they go to a trial in this court often really have no full ability to understand the case they have to meet in advance without these will-say statements which are therefore not inconsequential documents.

They are ordered to be provided because they serve a useful and worthwhile purpose where there is not really any form of discovery in this court that exists for example in the Supreme Court of British Columbia. [ 45 ] The oral application advanced today by the defendant is successful, and in my view the only remedy that I think I can properly make in this case under both Rule 7(15) and Rule 19(2) is an order that the claim of the claimant against the City of Coquitlam be dismissed. [ 46 ] In my view, this is an appropriate case having regard to the conduct on the part of the claimant that if the defendant seriously wishes to recover any costs that it has foregone in this matter, they are entitled to those costs under Rule 20 including Rule 20(6), and my order in that regard will be as follows: [1] The defendant if it wishes to seek to recover costs under Rule 20 against the claimant will provide the claimant with a letter within the next 30 days setting out the claims that it has for costs against her. [2] If the parties are able to resolve the quantum of the defendant's costs within 60 days from today's date, then they will do so and no further action on the part of the court may be necessary.

The claimant will pay these agreed on costs to the defendant. [3] If they are unable to agree upon the costs that the defendant is rightfully entitled to, including as set out in the letter that I have directed the defendant to send to the claimant, then the costs in this matter are to be determined by the registrar of the court pursuant to provisions of Rule 20(3) and I hereby refer that matter to the registrar of the court to determine. [ORAL REASONS FOR JUDGMENT CONCLUDED]