After a man sued a Vernon therapy clinic over an injury that transpired due to a collapsed therapy table, a B.C. Supreme Court judge has set aside earlier rulings on who can sue who in the case.
Jungchul (Andrew) Kim filed a notice of civil claim on July 8, 2019, claiming he was injured after a fall that took place about a year earlier at Vernon Active Health Clinic.
Kim was undergoing a physical therapy treatment session with a therapist, defendant Kornelia Matysiak, when the table they were using collapsed.
Cory Hewko of Vernon Active had purchased the table second-hand from a former colleague.
The notice of civil claim named a placeholder defendant, ABC Table Manufacturer, as the manufacturer of the table. The claim said the table was not properly designed, was defective, did not function safely and effectively and exposed the user to unreasonable risk.
Kim’s claim also alleged negligence on the part of Vernon Active and Matysiak, saying they “knew or ought to have known the table was defective or inadequate.”
Matysiak filed a third party notice in July 2020 against Vernon Active and ABC after she stopped working at the clinic in 2018.
Vernon Active filed a response to the civil claim Sept. 1, 2020, identifying the manufacturer of the table as Lifetimer International.
Both Matysiak and Vernon Active sought an order to add Lifetimer as a third party in place of ABC, but in August 2022 they reached a settlement — and did so without informing Lifetimer or the court.
“At no point, at either the time the reasons for judgment were provided or thereafter, did the applicants advise Lifetimer that the plaintiff’s claim had been settled,” wrote B.C. Supreme Court Master Rory Krentz in a judgement published Feb. 10.
“The regulations requires the notice to mediate to be served on every party to the action and yet the respondents did not notify Lifetimer, even though they claimed they were already a party in the action,” Krentz continued.
It wasn’t until Sept. 15, 2022 that Lifetimer was told by the plaintiff’s counsel that a settlement had been reached.
“It was an abuse of process and a tremendous waste, not only of Lifetimer’s time and resources, but this court’s time and resources. The respondents’ duty of complete candour and honesty to the court required that they disclose the fact of the mediation,” Krentz said.
Krentz decided that a threshold had been met for a reopening of the case.
“If the date of the mediation had been known to Lifetimer, I accept they likely would have sought an adjournment of the hearing,” he wrote.
“Accordingly, I conclude that a miscarriage of justice would occur without a rehearing.”
Krentz set aside orders that he made on Sept. 7, 2022. Those orders included an application by Matysiak seeking to grant her leave to file an amended third party notice, and an application by Vernon Active seeking to grant them leave to substitute Lifetimer as a third party. He also dismissed applications to issue third-party notices against Lifetimer.
“As it remains open for the respondents to pursue a separate action against Lifetimer, the issue of the contents of the settlement agreement being disclosed to Lifetimer can be appropriately addressed in that action,” Krentz wrote.