Berscheid v Marlow Farms Ltd et al, 2019 MBCA 118

Citation: Berscheid v Marlow Farms Ltd et al, 2019 MBCA 118 Date: 20191125 Docket: AI18-30-09176 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner Madam Justice Lori T. Spivak BETWEEN : TIM BERSCHEID ) T. Berscheid ) on his own behalf (Plaintiff) Appellant ) ) - and - ) S. J. Blake and ) A. W.

Challis MARLOW FARMS LTD., DONALD MARLOW, ) for the Respondents FRANK MARLOW, THOMAS MARLOW, ) WALTER MARLOW, M C SCOTT FARMS ) LTD., MYLES SCOTT, CHARLOTTE SCOTT ) Appeal heard and ) Decision pronounced: (Defendants) Respondents ) November 25, 2019 SPIVAK JA (for the Court): [ 1 ] The plaintiff appeals an order dismissing his action for failing to comply with orders to produce documentation (see Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 , rr 30.08(2)(

b) and 60.11(b)). He argues that the dismissal of his action was unfair, biased and unwarranted. [ 2 ] In 2008, the plaintiff commenced an action against the defendants alleging that their nuisance resulted in flooding to his farmland and economic loss. A pre-trial conference was held on September 5, 2017, and trial dates were set for January 21-25, 2019, with timelines to complete outstanding matters.

A second pre-trial conference took place on June 4, 2018, wherein the pre-trial judge ordered that the plaintiff produce, by August 1, 2018, further crop insurance documentation and tax returns relevant to the damages claimed. At a third pre-trial conference on June 29, 2018, the pre-trial judge reiterated his order, at this time requiring production by July 31, 2018, and warned the plaintiff that, if he did not comply, the defendants could bring a motion to dismiss his action. [ 3 ] The documents were not provided and the defendants moved to dismiss the action.

The plaintiff did not attend the motion despite being served and allowed to participate by telephone conference. The pre-trial judge dismissed the action, noting the impending trial and the plaintiff’s failure to produce highly relevant documents with no appropriate explanation. [ 4 ] The pre-trial judge’s decision was an exercise in judicial discretion entitled to deference.

Provided there is no error of law or fact, it will not be overturned on appeal unless it is so clearly wrong as to amount to an injustice. [ 5 ] We are not persuaded that the pre-trial judge erred in law or fact, or that his decision is so clearly wrong as to amount to an injustice. The plaintiff was warned of the potential consequences of refusing to produce critical documentation in the context of an imminent trial. He refused to comply with the pre-trial judge’s orders without reasonable excuse.

In such circumstances, it was reasonably open to the pre-trial judge to dismiss the action. [ 6 ] In the result, the appeal is dismissed with costs on a Tariff B basis. JA JA

JA