IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Laponder v. Birkich,

 

2017 BCSC 1888

Date: 20171006

Docket: 17852

Registry: Salmon Arm

Between:

Timothy Laponder, Gay Laponder and
Paul McGaughan

Plaintiffs

And

Bell Stanko Birkich

Defendant

Before: The Honourable Madam Justice Hyslop

Oral Reasons to Proceed with the Trial
in the Absence of the Defendant

Counsel for the Plaintiffs:

R.A. Chorneyko

No one appeared on behalf of the Defendant

 

Place and Date of Trial/Hearing:

Salmon Arm, B.C.

October 6, 2017

Place and Date of Judgment:

Salmon Arm, B.C.

October 6, 2017

INTRODUCTION

[1]             The morning of October 5, 2017 was to be the second day of the trial of Salmon Arm Registry No. 17852, between the plaintiffs, Timothy Laponder, Gay Laponder and Paul McGaughan, and the defendant, Bell Stanko Birkich. At the end of the first day of trial, which was October 4, 2017, the evidence-in-chief of the expert witness land surveyor, Mr. Joseph Charles Johnson, was completed.

[2]             The following morning, Mr. Birkich was to start his cross-examination of Mr. Johnson. I then anticipated that the plaintiffs would close their case and then Mr. Birkich would open his case and call evidence.

[3]             Mr. Birkich did not show up on October 5 at 9:30 a.m., when the trial was scheduled to resume. That morning, Mr. Birkich telephoned the court registry and reported that he was sick and would not be attending court, but would check-in later. He stated that he had not been feeling well after court on the Wednesday. Mr. Birkich did call in later that day, which I will refer to later in these reasons.

[4]             On the morning of October 5, counsel for the plaintiffs was able to provide the court with telephone numbers for Mr. Birkich – one a landline and the second a cell phone. The latter appeared to have no connection to Mr. Birkich.

[5]             However, the landline was answered by a male who spoke. I had difficulty hearing what he was saying. He then hung up. The clerk dialed again and the line was busy.

[6]             The male sounded as if it could be Mr. Birkich. However, Mr. Laponder, who was in the courtroom, positively identified the male voice as Mr. Birkich. Shortly after, a woman called the court registry identifying herself to a staff member as Mr. Birkich’s mother. She was asked to hang up and was told the court registry would call her back.

[7]             In the courtroom and on record, Mrs. Birkich told me that her son had gone to the hospital. She confirmed that the defendant was her son. She did not know which hospital he went. She also said she was sick and she was going to go to the hospital. Mrs. Birkich made other statements, however, her accent was heavy and I found, at times, it was hard to understand her.

[8]             I adjourned court that day – October 5, 2017 – to 1:45 p.m. Counsel for the plaintiffs appeared, as did Mr. Laponder. Mr. Birkich did not appear.

[9]             Mr. Laponder took the stand and, under oath, stated that he recognized Mr. Birkich’s voice on the telephone that morning and that he was swearing obscenities. I thought I heard obscenities also.

[10]         Mr. Laponder is familiar with Mr. Birkich’s voice as he was first a neighbour of his from 1995 to 1998, and then Mr. Birkich moved. He later moved back and became a neighbour again. Mr. Laponder stated he last heard Mr. Birkich’s voice on the telephone in 2013. Since then, Mr. Laponder and Mr. Birkich have had several face-to-face conversations. In addition, he listened to Mr. Birkich’s voice in the courtroom on the first day of trial.

[11]         Mr. Laponder stated that to his knowledge only Mr. Birkich and his mother, Pina, resided in the Birkich property. There is a brother, Boris, who resides in Calgary, but he does not visit.

[12]         After hearing this evidence, I adjourned court to October 6 at 10 a.m. It was done so with the consent of the plaintiffs, that should Mr. Birkich phone I could speak with him in the absence of counsel.

[13]         On October 5, 2017, at my request, the sheriff made inquiries between 11:30 and 11:45 a.m. that same day, and checked hospitals located in Vernon, Salmon Arm, Kamloops and Kelowna. I was advised there was no record of Mr. Birkich’s admission to the hospital located in each of these cities.

[14]         Mr. Birkich called the court registry at about 3:25 p.m. on October 5, 2017. He asked to speak to me. He was told to hang up and we would call him back.

[15]         I went into the courtroom and, on record, I listened to Mr. Birkich and asked him some questions. A transcript of that exchange in court is filed in this action and is attached to these reasons as Appendix A.

[16]         In summary, Mr. Birkich confirmed he did not go to hospital and would not give me the name of the doctor who attended to him in a walk-in clinic. In addition, he stated that he had hired a lawyer to deal with this file and the one in Vernon, and that he would be picking up documents and he would be coming to the Salmon Arm Courthouse about 2 p.m. the next day. I told him he was to come to the Salmon Arm Courthouse on October 6 at 10 a.m.

[17]         Prior to receiving this telephone call, I was convinced that Mr. Birkich was not truthful about being sick. My discussion with him on the afternoon of October 5 further convinced me that he was being untruthful. He is doing his utmost to prevent this trial from continuing.

[18]         Mr. Birkich did not appear on the morning of October 6, 2017, ready to continue with his cross-examination and then open his case and proceed with his evidence.

[19]         As a result, I make this decision. This trial will proceed in the absence of Mr. Birkich. I did not believe that Mr. Birkich was ill. I believe that it was his voice on the telephone on the morning of October 5, 2017. He has been in court enough times to realize his responsibility to the court is a lot more than telephoning the court registry and stating he is ill and he would not be coming. I would expect he would know that he could speak in the courtroom by telephone.

[20]         However, this is not the end of it. On October 6, 2017, Mr. Birkich telephoned the Vernon court registry to pass on a message to the Salmon Arm court registry that he was in hospital and would not make court that morning. He told a member of the Vernon court registry staff that he tried to get through to the Salmon Arm court registry, but no one answered.

[21]         A member of the Salmon Arm court registry pointed out to the Vernon court registry staff member that they had been answering the telephone all morning. The purpose of the call to the Vernon Court Registry was to pass on this message.

[22]         I rely on legal authority in making this decision to proceed with this trial.

[23]         Rule 12-5(76) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 states:

Failure of one party to appear at trial

(76)If a party is not in attendance when the trial of an action is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party.

[24]         In Bithell v. Surrey Memorial Hospital, 2008 BCSC 684, the plaintiff failed to appear at the trial set for January 7, 2008. The plaintiff was alleging medical malpractice against the defendants. The action had been initiated in 2001. The trial had been adjourned twice – once by consent and another time, though opposed. The plaintiff’s counsel had withdrawn the previous year. Relying on Rule 39(33), now Rule 12-5(76), Madam Justice Martinson stated:

[20]      This application can be dealt with on the basis of Rule 39(33). The rule is not limited to the non-appearance of a defendant. It applies to any party not in attendance. The court can proceed with the trial by requiring the calling of any evidence by the plaintiff. If the plaintiff is not there, no evidence will be offered. The result would be that the claim is dismissed because there is no evidence to support it.

…

[25]      In reaching this conclusion, it was not necessary for me to assess the merits of the claim and the defences advanced. Mr. Bithell is entitled, based on Rule 39(34), to apply to have this dismissal set aside. If he does that, the Miracle Feeds v. D. & H. Enterprises Ltd., [1979] B.C.J. No. 1965 (Co. Ct.) test will be applied. In this context, that will involve a consideration of whether he, in fact, has a meritorious claim.

[25]         In Urbanowski v. Harkins, 2006 BCSC 1741, the plaintiff alleged the defendant issued defamatory statements about him. There was a previous adjournment due to an amendment to the pleadings.

[26]         At the start of the trial, the defendant did not appear. The plaintiff presented evidence which was completed by noon and the trial resumed at 2 p.m. The court registry received a letter at 1:45 p.m. that day from the defendant stating he did not have notice of his trial date and that he was calling in to confirm his trial date. He was told the trial was in progress. The defendant stated he had transportation difficulties and would not be attending that afternoon. Madam Justice Fisher stated:

[6]        While this Court is very reluctant to proceed with any case in the absence of one party, there did not appear to be a viable explanation for Mr. Harkins' failure to attend at all on October 5, 2006. Mr. Holeska submitted that the trial should continue in these circumstances. He pointed out that Mr. Harkins may seek to set aside the verdict or judgment under Rule 39(34).

[7]        In these unusual circumstances, I agreed with Mr. Holeska. He completed his submissions, and the trial concluded in the absence of the defendants.

[27]         More recently, in Morice v. Furlong, 2015 BCSC 627, the plaintiff failed to appear at his trial. Prior to his trial, his behaviour was described by Mr. Justice Myers as egregious in his voice messages to one of Mr. Furlong’s counsel and when he attended court by telephone seeking an adjournment.

[28]         Mr. Justice Myers dismissed the plaintiff’s case and stated:

[16]      In terms of the consequences for Mr. Morice not attending the trial Rule 12-5(76) says:

If a party is not in attendance when the trial of an action is called, the court may proceed with the trial, including hearing a counterclaim, in the absence of that party.

[17]      The court was faced with a similar situation in Bithell v. Surrey Memorial Hospital, 2008 BCSC 684. Madam Justice Martinson proceeded with the trial and dismissed it on the basis that there was no evidence to support it. The defendants urge me to do the same here.

[18]      The only other option is to adjourn the trial in the hope that Mr. Morice may at that time appear. I make all reasonable allowances for Mr. Morice representing himself. However, I do not think the court can countenance an adjournment. The allegations have taken a toll on Mr. Furlong emotionally, physically and financially. There is no reason to expect that Mr. Morice would attend at another trial date. Mr. Morice should not be rewarded for deliberately ignoring the court process. I note that Mr. Furlong has filed an affidavit denying the allegations. Accordingly, I dismiss the action against all defendants.

[29]         Although this action was started in March 2017, the facts relating to this dispute go back several years. Violence has been threatened. Further, Mr. Laponder cannot use his land in the manner he wants until this action is resolved.

[30]         Mr. Birkich came to court on Tuesday, October 3, 2017, stating he was ready to proceed to trial. On Wednesday, the trial started. Mr. Birkich cross-examined the plaintiff. There was no hint or suggestion by Mr. Birkich that he would not appear at 10 a.m. Thursday morning. The trial will continue without the participation of Mr. Birkich. He is not here. Please proceed Mr. Chorneyko.

“H.C. Hyslop J.”

HYSLOP J.Appendix A