May 18, 2005, E.C.B. No. 27/02/259

REASONS FOR DECISION

1.  INTRODUCTION

[1]  This is the fourth 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. The claim is for a partial taking from a property with a small commercial building with two tenants for the widening of the Fraser Highway in August 2002. For an account of these applications to date see written Reasons for Decision made in this matter on April 22, 2005 under E.C.B. Number 27/02/257. At the conclusion of these reasons the Board made the following Order:

The claimant is to deliver to the respondent by 5:00 pm on April 29, 2005:

(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.

(b) all outstanding request from the discovery, namely:

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.

2.  CHRONOLOGY

[2]  Following the release of written reasons on April 22, 2005 the Affidavits filed on this application set out the following sequence of events. I have also included the key events before April 22, 2005:

3.  SUBMISSIONS

[3]  Mr. Capuccinello submitted that the Order of the board had been clear and although a List of Documents and some information in response to outstanding requests had been provided, the claimant had not complied with the Order. He provided various particulars of the omissions.He pointed out that no further information had been provided since May 4, 2005 when the Notice of Motion and supporting Affidavit had been served on the claimant nor had there been any Affidavit material filed with respect to particular documents or requests. He also commented that the affidavit from Mr. Sonny Bhullar indicated that he was currently employed.

[4]  In response to Mr. Capuccinello's particularizing each of the outstanding requests, Mr. Tony Bhullar replied to two or three particular requests including one for the original copy of a lease with one of the tenants which he said did not exist. He explained references in the transcript to Mr. Sonny Bhullar saying that he had reviewed such a document by saying that he must have been confused.

[5]  Mr. Tony Bhullar referred me to the Affidavit of Mr. Sonny Bhullar in which several allegations of bad faith by the respondent are set out. These included the fact that the advance payment was too low, that the respondent would not pay the full amount of the appraisal report the claimant had obtained, and the subject property after the taking had sold for considerably more than the valuation in the appraisal report served on the claimant by the respondent with the advance payment. The Affidavit went on to assert that he, Mr. Sonny Bhullar, had attempted to answer the requests for information with the utmost care and to the best of his ability on two separate occasions. Mr. Capuccinello was being vexatious and asking repeatedly for redundant information and Mr. Sonny Bhullar believed that this was because he (Mr. Sonny Bhullar) had made a complaint to the Law Society and that Mr. Capuccinello had a personal animus against the claimant and her agent. Mr. Tony Bhullar pointed out the letter from Dr. Jeremy Johnston, a physician, which was attached as an exhibit to the Affidavit. The letter dated May 11 th, 2005 stated that Mr. Sonny Bhullar had suffered from a myocardial infarction in February 2003 and now suffers from coronary artery disease and ongoing angina. Dr. Johnston stated that Mr. Sonny Bhullar is not fit to withstand unusual stress or activities. Tony Bhullar submitted that Mr. Sonny Bhullar had used his best efforts to comply with most of the requests and that in any event the respondent too had obligations to provide documents.

4.  ANALYSIS

4.1  Rule 2

[6]  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:

[7]  The orders made on March 17, 2005 and in Reasons for Decision dated April 22, 2005 deal with two separate matters: provision of a List of Documents and provision of answer and documents to outstanding questions from the Examination for Discovery of Mr. Sonny Bhullar on August 24, 2004.

4.2  List of Documents

[8]  The claimant provided a book of documents to the board and to the respondent in connection with a case management in June 2003. There appeared to be over 50 different documents in this book but there was no index or list. At the Examination for Discovery of Mr. Sonny Bhullar on August 24, 2005 12 separate documents were marked as exhibits, including seven contained in the claimant's book of documents, the claimant's Form A, two documents from the respondent's files and two documents from Supreme Court proceedings between the claimant and a tenant of the premises that were not part of the claimant's book of documents.

[9]  Despite the service of the Notice of Motion on March 9, 2005 and the board Order made March 17, 2005 the claimant did not provide any. List of Documents by the date specified in the Order, April 4, 2005. In a letter to the parties dated March 24, 2005 confirming the oral Order made March 17, 2005 I included the following instructions:

This List of Documents is to enumerate the contents of the property manager's files dating 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.

I note that I agree with the respondent that the test set out in the case law for the scope of documents to be provided by a party in response to a demand for discovery of documents is quite wide. All documents that are relevant must be listed with the test for relevance being all those "which may — not which must — either directly or indirectly enable the party … either to advance his own case or to damage the case of his adversary." Those documents that are privileged must be listed in Part 3 of the List of Documents as specified in Rule 26 and Form 93 but are exempt from being produced (unless there is further application). Full disclosure of documents so that each party knows the case that they have to meet is the underlying purpose of Rule 26.

A number of the requests from the examination for discovery overlap and include simple requests for documents which are to be listed in the List of Documents. As I indicated during the application I do not anticipate that the total number of documents in this case is that numerous.

[10]  Even after the next Notice of Motion was served on April 9, 2005 there was no List of Documents provided before the hearing of the application on April 21, 2005. On being dialled in to the teleconference on April 21, 2005, claimant's counsel said that he was not aware that the matter was to be heard on April 21, 2005 and that the reason for failure to provide the List of Documents in compliance with the March 17, 2005 Order was that Mr. Sonny Bhullar was ill and that he had intended to provide a written medical letter to that effect before the date when he thought the hearing had been scheduled. As I indicated in the Reasons for Decision dated April 22, 2005 during the March 17 hearing I had pointed out that irrespective of Mr. Sonny Bhullar's ongoing heart problems, 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 the items being requested in the application. The Reasons for Decision dated April 22, 2005 also contained the following instructions:

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.

[11]  In the Reasons for Decision dated April 22, 2005 the claimant was given one final chance to provide a List of Documents in strict compliance with Rule 26 and Form 93, which list was 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.

[12]  The claimant's List of Documents dated April 27, 2005 contains 24 items in Part 1 and one document, the claimant's appraisal report, in Part 3. The respondent has pointed out that despite the wording of the Order the List of Documents does not contain a writ of summons/statement of claim and an affidavit in what appear to be two different proceedings in the Supreme Court between the claimant and one of the tenants of the premises, which documents were marked as exhibits at the Examination for Discovery of Mr. Sonny Bhullar. Mr. Capuccinello indicated that the respondent had obtained these documents by searching the court files. The List of Documents contains only one court document, namely a petition, in what appears to be a third proceeding. There are no other documents in the List that appear to relate to any of these court proceedings with the exception of a lease that I was told was negotiated as a settlement or one or more of the proceedings. Although there were over 50 different documents in the claimant's book of documents, all of them or virtually all of them relevant, there are only 25 documents listed in the List of Documents. The List of Documents does not appear to contain a full listing of the documents from the property management file of Mr. Sonny Bhullar in either Part 1 or Part 3. Not all of the leases in the claimant's document book are listed. One of the requests at the Examination for Discovery was to provide the financial records for this property that Mr. Sonny Bhullar said that as property manager it was his responsibility to keep. In his responses to this request dated March 11, 2005 Mr. Tony Bhullar stated that the financial records were in the appraisal report and would be provided in accordance with the Evidence Act. In the responses of Mr. Sonny Bhullar dated April 27 2005 he says the respondent can look at the [financial] records by making an appointment. There is no reference to any financial documents in the List of Documents.

4.3  Outstanding Requests

[13]  There were numerous outstanding requests from the examination for discovery of Mr. Sonny Bhullar on August 20, 2004. I would note that from my review of the transcript a number of these outstanding requests arise because Mr. Sonny Bhullar said that he would have to check his file before he could provide an answer. Many of the requests were for documents. Many of the requests overlapped.

[14]  In the first scheduled hearing of a motion in Vancouver on February 24, 2005 claimant's counsel did not appear. In Reasons for Decision dated February 28, 2005 I said that "while it is clear that Mr. Tony Bhullar knew about the application" I did not have sufficient evidence of proper service to make any Order. I went 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.

[15]  No answers of any kind were received until March 11, 2005 after the claimant had been provided with the second Notice of Motion. On March 16, 2005 Mr. Capuccinello wrote to Mr. Tony Bhullar acknowledging receipt of some answers to questions from the examination and specifying 27 questions that he said remained outstanding. During the application on March 17, 2005, Mr. Capuccinello began detailing the questions that remained outstanding by reading the question from the transcript together with the answer that had been provided. After five or six questions had been described Mr. Tony Bhullar interrupted and agreed that those questions had not been adequately answered and that he would provide further information. Despite the deadline in the board Order that all of these outstanding requests be provided by April 4, 2005 nothing further was received until after notice of a third application had been served and eventually heard on April 21, 2005. As indicated above, the excuse that was provided for the failure to answer the outstanding questions in compliance with the board Order was that Mr. Sonny Bhullar was ill.

[16]  Reasons for Decision dated April 22, 2005 stated that the claimant had not established lawful excuse as to why there had been failure to comply with the Rules of Court or the board Order but the claimant had a final chance to provide the outstanding requests.

[17]  In answers dated April 27, 2005 Mr. Sonny Bhullar provides responses to 17 questions. Mr. Capuccinello replied on May 3, 2005 stating that there had not been compliance with the Order in the Reasons for Decision dated April 22, 2005. He particularized 10 questions that remained outstanding. Nothing further was received from the claimant and the Affidavit filed by Mr. Sonny Bhullar contains no information with respect to any of these requests. One of the outstanding requests was particulars of the $800,000 claim made by the claimant. During the hearing on May 16, 2005 Mr. Tony Bhullar stated that he had not complied with this request because he did not have the information. He went on to comment that Mr. Capuccinello was on a fishing expedition, wanting precise figures and breakdowns for his own convenience and that he Mr. Tony Bhullar was trying to provide a larger picture of the claim and the dealings between the parties. Another request that had not been satisfied was to provide a copy of Mr. Sonny Bhullar's property management file. Mr. Sonny Bhullar had stated that Mr. Capuccinello could inspect this file but he did not have to provide a copy under the Rules of Court. He ignored the board Order that the file be provided subject to any claim of privilege. Another request that has not been satisfied was for particulars of the electrical upgrade and the amounts expended. Another request was for particulars of an allegation in the Form A that said the respondent lacked jurisdiction to expropriate the land. There had been reference during the discovery to a flaw in an OIC and the claimant was asked to clarify or particularize this flaw. It is apparent from reviewing the transcript that some of the answers were provided without first reviewing the transcript to obtain the context of the request.

[18]  A further request that has not been satisfied was whether an access permit for entry onto the Fraser Highway had been granted to the claimant. In his answers dated April 27, 2005 Mr. Sonny Bhullar refused to answer this question unless ordered to do so by the board because during the discovery Mr. Tony Bhullar had objected to the question on the basis that it was irrelevant. The transcript of the Examination for Discovery reveals that the objection had been made but this had never been raised in any of the earlier hearings and the order had already been made that the question be answered. It is too late to raise this matter but I note that if the objection had been drawn to my attention during the earlier hearing I would have rejected it. The question is relevant and the respondent is entitled to the answer. The claimant's objection is a matter to be raised in argument, not in response to requests for information at examination for discovery.

4.4  Board's Findings

[19]  After numerous applications the claimant has provided a List of Documents and some information in answer to the outstanding requests for information. However, the claimant continues to show a flagrant disregard for the Rules of Court and the Orders of this board.. The List of Documents is clearly far from complete. There can be no confidence that all relevant documents have been disclosed when a large number of documents that are known to exist have not been included. Similarly, there has not been an adequate effort to answer the outstanding requests in relation to the rules.

[20]  The claimant has brought a substantial claim and the respondent is entitled to the discovery process under the Rules of Court in the conduct of its defence. Further, in accordance with Rule 1 the respondent is entitled to a just, speedy and inexpensive determination of the proceeding on its merits. See Kozicki-Belyk v. Girard 2002 BCSC 750 and Toronto Dominion Bank v. Pan Pacific Auto and Diesel Services Ltd. et al 2001 BCSC 1841. The claimant has not been diligent, has not obeyed board Orders, and, in my view, continues to fail to appreciate her obligations under the Rules of Court. The respondent has been put to needless delay and expense as a result of the claimant's casual and non responsive approach and still does not have an adequate response to what it was seeking pursuant to the Rules of Court.

[21]  The claimant provided evidence that Mr. Sonny Bhullar suffers from a heart condition but I have not been provided with anything that amounts to a lawful excuse for failure to provide the List of Documents or the outstanding requests in compliance with the board Orders. See my earlier reasons and Sampson v. Gemill, unreported June 2, 1992, Nos C880724, 880725 Vancouver (B.C.S.C.) where the court held that a chronic medical problem that was not sufficiently acute to prevent a party from attending discovery did not constitute a lawful excuse.

[22]  The claimant has been provided with a number of opportunities to produce a proper List of Documents and adequate answers to the outstanding questions from the discovery. The claimant has not established that there has been lawful excuse for her failures to comply with the Rules or the board Order, which failures are ongoing.

Under Rule 2(6) as well as Rule 2(5)(b)(d) and (f) I dismiss the claim.

[23]  While this is not a factor in my reasons, I would note that the Affidavit of Mr. Sonny Bhullar that was filed contains evidence that appears to undermine the claimant's claim. The remainder of the subject property sold a short time after the taking for considerably more than what the section 20 appraiser had valued the property after the taking. If the property sold within a short time it would appear that any business loss was for a minimal time and is not ongoing. Further, a sale that occurred a short time after the taking helps to minimize the uncertainty with respect to any losses in market value suffered by the claimant's property as a result of the partial taking. While this sale may suggest that compensation for the strip of land that was taken was insufficient, it may also suggest that the compensation for the reduction in market value of the remainder was too generous. A claimant is only entitled to compensation for economic losses that they have suffered. During the hearing, Mr. Tony Bhullar referred to claims for rebuilding the commercial premises because of the partial taking. There cannot be any claim for rebuilding premises that are no longer owned by the claimant.

[24]  In the circumstances the claimant is denied her costs for this interlocutory application.

EXPROPRIATION COMPENSATION BOARD

______________________________________

Sharon I. Walls

Vice Chair