



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Rabanes v. Pureza,









2015 BCCA 27




Date: 20150122

Docket: CA041466

Between:

Medardo Rabanes
and Myra-Flor Rabanes

Appellants

(Plaintiffs)

And

Guillermo Laylo
Atienza Pureza

Respondent

(Defendant)




Before:



The Honourable Madam Justice Newbury

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Stromberg-Stein




On appeal from:  An
order of the Supreme Court of British Columbia, dated November 1, 2012 (
Rabanes
v. Pureza
, New Westminster Docket No. S81726).




Counsel for the Appellants:



A.C.K. Oh





Counsel for the Respondent:



M.G. Siren





Counsel for the Attorney General

of British Columbia:



L. Greathead





Place and Date of Hearing:



Vancouver, British
  Columbia

January 14, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 22, 2015





Written Reasons by:





The Honourable Madam Justice Newbury





Concurred in by:





The Honourable Madam Justice D. Smith

The Honourable Madam Justice Stromberg-Stein








Summary:

Division dismissed appeal as
abandoned, and for failure of appellants to comply with Order of the Registrar
re preparation of transcripts.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

On January 14, 2015, we dismissed the appellants applications to (i)
adjourn the respondents application to have this appeal dismissed as abandoned,
and (ii) consider whether the question of the constitutionality of Rule 20
of the
Rules
of this court should be set down for determination by
a division. We also granted the respondents application to have the appeal
dismissed. These are our reasons to follow.

[2]

The underlying action is a claim by the appellants for damages for
personal injury arising out of a motor vehicle accident. On November 1, 2012, a
jury rendered a verdict after a trial of 26 days, fixing the appellants damages
at approximately $65,000 in total, considerably less than what the appellants
had sought. They had alleged that they suffered chronic pain and depression due
to the accident, while the respondent took the position that if the appellants
were experiencing chronic pain and depression, they were due to pre-existing
psycho-social issues and, to quote from the judges charge to the jury, the
adoption of a sick role with secondary gain issues that arose as a result of [their]
new immigrant status.

[3]

On December 23, 2013, some 13 months after the jury award, the
appellants purported to file their Notice of Appeal. They then sought and obtained
an extension of time for the filing. The chambers judge at that time also
granted them a declaration of indigent status.

[4]

After long-running correspondence between counsel concerning the
transcripts that would be necessary for the appeal, counsel appeared before the
Registrar, Ms. Jordan, who directed on April 29, 2014 that the appellants
produce the transcript evidence specified in Mr. Murphys letter of
February 21, 2014 to Mr. Azevedo. The transcripts ordered were to include
the evidence of 22 witnesses, many of whom were experts, who gave evidence at
trial.

[5]

On June 13, 2014, Mr. Justice Low, sitting in chambers, dismissed
the appellants application to vary the Registrars order.

[6]

The appellants sought a review of Low J.A.s order and on
October 6, 2014 a division of the Court dismissed that application.
The division also dismissed an application by the appellants to have the
hearing adjourned to permit them to file a constitutional challenge to the
validity of Rule 20 of the
Court of Appeal Rules
.

[7]

By late October, the appellants had been advised that unless they could
pay a deposit of $10,000, the company they had retained to prepare the
transcripts would not proceed. The appeal was remitted to the inactive
list on December 23, 2014.

[8]

Having been told that the appellants could not afford to produce the
transcripts ordered by the Registrar, the respondent applied for an order,
returnable in January 2015, dismissing the appeal as abandoned. By this time the
appellants had become aware of the decision of the Supreme Court of Canada in
Trial
Lawyers Assn. of British Columbia et al. v. British Columbia (Attorney
General)
2015 SCC 59. Mr. Azevedo for the appellants filed an
amended
motion for an order adjourning the respondents application for dismissal of
the appeal and an order that Rule 20 of the
Court of Appeal

Rules
be declared unconstitutional on the basis of the
Trial Lawyers
decision. (The motion was silent on the
Charter
issues previously
raised.) He then wrote to the Registrar, Mr. Outerbridge, asserting that a
single justice of the Court lacked jurisdiction to make such a ruling and
requested that the Chief Justice appoint a quorum of the Court or a five-member
panel to hear his motion. I understand that the Chief Justice set down the
applications returnable for January 14 before this division in order to
ensure that the Court had the necessary jurisdiction in the event that it
elected to hear the applications brought on behalf of the appellants.

[9]

The appellants served the Attorney General of British Columbia with the
required notice of constitutional challenge, pursuant to the
Constitutional
Question Act
. Counsel for the Attorney General, Ms. Greathead,
appeared on the Attorney Generals behalf for the initial part of the hearing
before us.

[10]

Obviously, the appellants had taken the position at least since January
2014 that they were unable to comply with the order of Registrar Jordani.e.,
that they did not have the funds to pay for the transcripts she directed. At
the hearing on January 14, 2015, however, Mr. Oh advised the Court that as
of 8 a.m. that day, the appellants
had
obtained the necessary
financing to pay the $10,000 deposit. Counsel advised that the deposit has not
yet been received by his clients from an (unnamed) lender or been remitted to
the transcript company. He said the appellants were abandoning their constitutional
challenge to Rule 20 but sought an extension of 30 days in which to secure
the transcripts in accordance with Registrar Jordans order.

[11]

For his part, Mr. Siren on behalf of the respondent said he wished to
proceed with his clients application to have the appeal dismissed. He referred
to the three considerations described by Lowry J.A. in
Redpath v.
Redpath
2008 BCCA 400 at para. 13  i.e., whether the delay has
been inordinate, whether it has been inadequately explained, and whether any
prejudice has been suffered. In his submission, the delay in this case had been
inordinate; the appellants had provided no explanation as to why funds were
suddenly available (although not yet in hand) after such a long period of
alleged indigency; and the respondent had been prejudiced by the long delay. In
particular, he noted, the respondent had had to appear in this court on four
occasions since the expiration of the original 30-day appeal period. Counsel
said he did not have instructions to seek an order for security for costs
against the appellants.

[12]

Mr. Oh was asked about the merits of the appeal from the jurys
award. As I understand it, the appellants wish to question the propriety of a
reference made by the trial judge, in the course of a charge that was
approximately 100 pages long, to the immigration status of the appellants in
her description of their legal position at trial. Most notably, at para. 402
of the charge, the judge told the jury:

If you accept that Mr. Rabanes
suffers from a chronic pain disorder, the defendant says that this was not
caused by the accident but relates to significant psychosocial issues and the
adoption of a sick role with secondary gain issues that arose as a result of
his new immigrant status. He suggests that Mr. Rabanes could not find the
work he wanted and had high expectations coming to Canada that were not met,
and he wrongly blames the accident for all of the problems he says he has
endured since.

[13]

Having read most of the charge, I must say that if this is the
appellants only argument, it seems to me to be a very weak one. The judges
reference to the appellants immigrant status was an accurate reflection of
some of the expert evidence dealing with possible stressors that might be
contributing to the appellants chronic pain and depression. There is nothing
on the face of the charge that would indicate it was somehow improper or
discriminatory. It is a sad reality that new immigrants to this country often
face substantial challenges in finding meaningful and well-paying work
commensurate with their skills.

[14]

In light of the inordinate delay, the failure of the appellants to
explain the sudden location of financing until literally the last possible minute,
and the dubious merits of the underlying appeal, I formed the view that it
would not be in the interests of justice to subject the respondent to further
delay and litigation in this matter. For these reasons, I concluded that the
appellants applications should be dismissed and that the motion to dismiss the
appeal should be granted, both on the basis that it has been abandoned and on
the basis that the appellant failed to comply with the order of Registrar
Jordan, as confirmed by the orders of Mr. Justice Low and by a division of
this court.

The Honourable Madam Justice Newbury

I AGREE:

The Honourable Madam Justice D. Smith

I AGREE:

The Honourable Madam Justice
Stromberg-Stein


