Prospect of success unlikely with only testimonial evidence
The British Columbia Court of Appeal has found that an application for review of an order granting security for costs on appeal was not completely devoid of merit, but none could be detected based on the materials in evidence.
In Din v. Fraser Health Authority, 2022 BCCA 108, Yin Yin Hla Din filed a notice of civil claim alleging negligence against the respondents, a health care authority in B.C. Din claimed that the respondents failed to adequately provide care to their father, who was suffering from terminal cancer. The respondents brought an application for summary dismissal.
The judge ruled that the matter was “not suitable for disposition by way of summary trial” due to conflicting testimonial evidence on informed consent. Ultimately, the action was dismissed due to a lack of expert evidence.
In a claim of medical negligence where one of the issues is appropriate standard of care, expert evidence on that issue is required, and absent such evidence, it is extremely difficult to see how the plaintiff could possibly succeed in this type of case, said the court.
Din filed her notice of appeal. In response, the respondents filed a motion for security for appellate costs and a stay of the appeal until the security was posted.
The justice ordered security for costs on the appeal. Because there was no transcript of the proceedings on the day the action was dismissed, he said that while he couldn’t say that the appeal was completely devoid of merit, he could not detect any merit based on the materials before him.
Din filed an application to review the order, alleging that the justice was unable to properly appreciate her circumstances.
The application for review was dismissed.
The appellate court was not persuaded that the justice erred in a way that would require appellate interference. He considered all the factors, and his conclusions were grounded and supported by evidence, said the court. Further, the court ruled that since the order under appeal is discretionary, it is entitled deference.
