April 3rd, 2012
When a lawsuit gets underway in the BC Supreme Court the Rules of Court give litigants significant powers to force disclosure from opposing parties and even non-parties. If a formal lawsuit has not been started the Court’s power to order disclosure becomes far more limited. This was demonstrated in reasons for judgement released recently by the BC Supreme Court, Chilliwack Registry.
In last month’s case (Dhindsa (Re)) the applicant was injured in a 2010 hit and run collision. The police investigated the matter. The applicant applied for an order compelling disclosure of the police file. Orders such as these are routinely granted by consent once formal lawsuits are underway. In this case no lawsuit was commenced. The applicant’s lawyer argued that the Court could make the disclosure order using a remedy known as an “equitable bill of discovery“.
Mr. Justice Grist held that even if the Court did have such a right it was not appropriate to exercise on the facts of this case. In dismissing the application the Court provided the following reasons:
 Counsel for Mr. Dhindsa has cited Kenney v. Loewen (1999), 64 B.C.L.R. (3d) 346 (S.C.) [Kenney], a decision of Madam Justice Saunders which references Glaxo Wellcome PLC v. Canada (Minister of National Revenue), 1998 CarswellNat 1388 (F.C.A.), 162 D.L.R. (4th) 433 [Glaxo]. The Glaxo case before the Federal Court of Appeal in turn cited the English House of Lords decision in Norwich Pharmacal Co. v. Commissioners of Customs and Excise,  2 All E.R. 943;  A.C. 133 (H.L.).
 These decisions all recognize that an antique form of action for a remedy known as an equitable bill of discovery remains known to the law and, in appropriate cases, can be the sole remedy sought in a civil action.
 In short form, the bill of discovery would require a third party to reveal the identity of a person the plaintiff says has done them wrong. In Kenney, the plaintiff indicated that he had suffered damages as a result of a slander. He did not know the source of slander and the action for the bill of discovery was designed to force the defendant to reveal the person’s identity. At para. 33 ofKenney, Madam Justice Saunders listed the circumstances under which the remedy would be granted:
(a) the plaintiff must show that a bona fide claim exists against the unknown wrongdoer;
(b) the defendant must establish that the information is required in order to commence an action against the unknown wrongdoer, that is, the plaintiff must establish that disclosure will facilitate rectification of the wrong;
(c) the defendant must be the only practicable source of the information;
(d) there is no immunity from disclosure;
(e) the plaintiff must establish a relationship with the defendant in which the defendant is mixed up in the wrongdoing. Without connoting impropriety, this requires some active involvement in the transactions underlying the intended cause of action.
(f) disclosure by the defendant will not cause the defendant irreparable harm; and
(g) the interests of justice favour granting the relief.
 In the affidavit filed in support of this action counsel for Mr. Dhindsa says at numbered items 6-8:
6. I have not filed a Notice of Civil Claim on behalf of my client and require production of the Police File by the Surrey RCMP to ascertain the identity of the potential defendant(s) and whether or not there is sufficient evidence to ground a claim of negligence.
7. If there is sufficient evidence to found a negligence action, I require the Police File to understand what the objective witness accounts of the Accident are so as to efficiently and correctly plead my client’s case, represent my client at trial and represent my client during settlement negotiations.
8. I do not want to commence an action without first obtaining the Police File in order to adhere to Rule 1-3 of the Civil Rules of Court.
 Assuming for the moment that the application for the bill of discovery brought by way of a requisition satisfies Rule 2-1(2)(a) and Rule 17-1, the application is nonetheless deficient in providing the circumstances indicated in Kenney under sub-paragraphs (a) and (e). The affidavit indicates that Mr. Dhindsa was injured in the motor vehicle accident, but does not give any details to suggest the other driver was negligent. In fact, investigation of the circumstances is listed as one of the reasons for wanting to have access to the police file. Further, there is nothing to indicate that the Surrey RCMP are “mixed up in the wrong doing,” or were actively involved in, “the transactions underlying the intended cause of action.”
 The right to pre-action discovery may have merits beyond the strictures of an action for a bill of discovery, however, that form of proceeding is not applicable on the circumstances of this application.