This dental injury claim in BC involves three lawsuits alleging injury due to negligent dental treatment. This was an appeal from an order of a Master dismissing the injury claim. The dismissal was based on the claimant’s failure to submit for a second time to a medical examination and, more generally, on want of prosecution pursuant to Rule 22‑7(7).
Judge N. Smith commented that, “if a person is unable to deal expeditiously or efficiently with an action because of the very injury that is alleged to have given rise to the cause of action, it would be unfair to permit the defendants to take advantage of that infirmity.”
Dismissal for want of prosecution is a Draconian order that will not lightly made by our BC courts. The court appears to have adopted the English authority, Allen v. Sir Alfred McAlpine & Sons Ltd.,  2 Q.B. 229, where C.J. Diplock said:
… It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.
It was obvious from all the evidence that the claimant’s illness was a contributing factor to the delay. Importantly the Judge did not agree that the distinction of whether the mental state arises from the litigation itself or from the events giving rise to the cause of action is a relevant consideration.
The court also noted one significant change since all of the cases were decided, and that was the introduction of Rule 5‑1 of the Supreme Court civil rules and the system of case planning conferences. In Irving,supra, the court adopted the statement of C.J. Diplock that:
It is thus inherent in an adversary system which relies exclusively upon the parties to an action to take whatever procedural steps appear to them to be expedient to advance their own case, that the defendant, instead of spurring the plaintiff to proceed to trial, can with propriety wait until he can successfully apply to the court to dismiss the plaintiff’s action for want of prosecution […].
The court found that Rule 5‑1 was introduced for the express purpose of permitting the court to take a more “direct role” in directing lawsuits and ensuring it proceeds expeditiously. Interestingly the court implies that insurers will benefit from Rule 5-1 as stated,”The… rules will take some time to develop, but in future applications to dismiss a case for want of prosecution it will at least be arguable that the question of whether or not case planning conferences have been held and whether orders from the case planning conferences are complied with will be a relevant consideration. Indeed, it may give defendants a faster and more expeditious means of having a case dismissed for want of prosecution.”
The Judge allowed the appeal on conditions, including that she attend a insurance company medical examination. Posted by Mr. Renn A. Holness