Ruling gives appellant more time to post security in smaller amount than requested
The British Columbia Court of Appeal recently ordered a patient alleging negligence in a trigger point needling treatment to provide $1,000 as security for costs and stayed her tort claim against a physiatrist until she posted such security.
The patient was the appellant in Lungu v. Cabrita, 2025 BCCA 105. Her family practitioner referred her to a physiatrist, who was the respondent in this case.
The appellant’s tort suit alleged that the respondent’s negligent administration of a trigger point needling treatment lacked informed consent, amounted to battery, and caused her injuries. The judge at the summary trial dismissed all these claims.
First, the appellant alleged that she was not seeking treatment for neck pain and did not know why the respondent administered the trigger point needle procedure. The judge disagreed, noting that the evidence included an intake form referring to neck pain and a letter written by the appellant. The letter said that her family doctor sent her to the respondent due to her constant neck pain.
The appellant also argued that the respondent pierced her bones with needles and thus destroyed her bones, destabilized her body, and injured her spinal cord and ligaments during the trigger point needling treatment. The appellant failed to provide an expert report supporting her allegations despite being informed of its necessity.
The respondent countered that she did not pierce or touch the appellant’s bones with a needle during the treatment. The respondent provided an expert report, which the judge accepted. The expert report stated the following:
Next, the judge found no wrongdoing based on a lack of informed consent. The judge accepted the expert’s evidence that the respondent did not need to notify the appellant of the risks of needles piercing or injuring her bones or causing permanent pain since these were not material, special, or unusual risks.
Lastly, the judge decided that the respondent’s treatment was not battery. The judge saw no air of reality to the appellant’s claim that the respondent intended to harm her bones.
The appellant challenged the unfavourable decision. In January, another judge refused to issue an order exempting the appellant from the requirement to pay court fees. This judge found no discernible merit in her appeal.
The Court of Appeal for British Columbia granted the respondent’s application for security for the appeal costs. The appeal court allowed the respondent to request the dismissal of the appeal as abandoned if the appellant could not post the ordered security within 60 days.
The appeal court first addressed the appellant’s financial situation. It noted that she claimed to have no money and to be on disability income assistance. The appeal court then decided that the respondent’s application was timely enough.
Next, the appeal court discussed the appeal’s merits. The appeal court noted that the appellant gave a signed letter and an unsworn affidavit from her family physician, who said that her assistant had made an error in the referral. The physician said that she never recommended trigger point treatment and that she meant to send the appellant to a psychiatrist, not a physiatrist.
The appeal court accepted that the appeal was not doomed to fail because the appellant’s proposed fresh evidence could potentially raise an arguable ground of appeal. However, the appeal court held that the appeal still had little merit or chance of success. The appeal court said the proposed fresh evidence might not be admissible because it was likely available at trial.
The appeal court found that the appeal only restated the appellant’s claims against the respondent and failed to allege a factual or legal error that could justify the appeal court’s interference with the summary trial judge’s decision.
Lastly, the appeal court deemed it in the interests of justice to order security for costs in an amount smaller than what the respondent requested – $1,000 rather than $5,000. The appeal court also gave the appellant a longer time – 60 days instead of 30 days as requested by the respondent – to raise the security.
In reaching this conclusion, the court considered the positions of both parties. On the part of the respondent, the appeal court noted that she would likely be unable to recover any costs if the appeal failed.
On the other hand, the appeal court found that the appellant genuinely believed that the respondent’s treatment injured her, possibly had an arguable ground of appeal depending on the success of her potential fresh evidence application, and probably could not proceed with her appeal if the appeal court required security for costs.
