Court Orders Part 7 Action Discovery Transcripts Disclosable in Tort Action
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, allowing a Defendant in a tort action to gain access to a Plaintiff’s examination for discovery transcript from a related Part 7 action.
In the recent case (Gill v. Gill) the Plaintiff was injured in a 2009 collision and sued for damages. ¬†She also sued ICBC for allegedly denying benefits owing under her own policy of insurance. ¬†ICBC defended both actions but appointed separate lawyers to do so. ¬†The Plaintiff was examined for discovery in both lawsuits. ¬†Subsequent to this the Defendant in the tort action applied for a copy of the transcript from the Part 7 action discovery. ¬†Madam Justice Adair held it was appropriate to lift the implied undertaking of confidentiality and ordered disclosure. ¬†In doing so the Court provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms. Simon is correct that the underlying causes of action in the Tort Action and the Part 7 Action are different.¬† In that sense, the issues are different.¬† She also points out, correctly, that the two actions cannot be consolidated for trial or heard together by virtue of s.¬†83(4) of the¬†Insurance (Vehicle) Act, and Part 7 benefits are not to be referred to at the trial of the Tort Action.¬† Moreover, a determination with respect to entitlement to Part 7 benefits does not bind the court in the Tort Action.
¬†¬†¬†¬†¬†¬†¬†¬†¬†However, there are, without any doubt, overlapping factual issues in the two actions, including:
(a)¬†¬†¬†¬†¬† was Ms. Gill injured in the accident and, if so, what injuries did she sustain as a result;
(b)¬†¬†¬†¬†¬† was Ms. Gill unable to work as a result of the injuries sustained in the accident; and
(c)¬†¬†¬†¬†¬† has Ms. Gill incurred expenses in relation to medical and rehabilitative treatment as a result of injuries sustained in the accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Although the causes of action are different, key factual issues will be the same in both actions.¬† Ms. Gill must establish injury, causation and loss arising out of the same event, namely, the accident on April 5, 2009.¬† If, in stating that “the issues are sufficiently different and discrete,” the Master was referring to¬†factual¬†issues in each action, then, in my opinion, the Master was clearly wrong, because many factual issues in the two actions are obviously very closely related, if not identical.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Ms. Gill, as the plaintiff in both actions, can be compelled to testify in both the Tort Action and the Part 7 Action about the same factual issues, so there is no privacy issue that needs to be protected.
¬†¬†¬†¬†¬†¬†¬†¬†¬†On the other hand, there is a compelling public interest in getting at the truth.¬† As Mr. Justice Hood observed in¬†Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd.¬†(1998), 62 B.C.L.R. (3d) 366 (S.C.), 1998 CanLII 5684, at paragraph 22:
[I]t is the possibility of there being inconsistent statements which triggers the special reason for the production of the discovery transcript. ¬†The test over the years . . . has never been higher than ‚Äúlets see what the witness had to say under oath before with regard to these or related matters‚ÄĚ. ¬†What [the witness] has said may be relevant to the evidence [the witness] gives in the second action.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Accordingly, here, the defendant has demonstrated the existence of a public interest of greater weight than the values (privacy, and the efficient conduct of litigation) the implied undertaking is designed to protect…
¬†¬†¬†¬†¬†¬†¬†¬†¬†In summary, the defendant’s appeal is allowed and the defendant’s application to use the discovery transcript from the Part 7 Action in this action is granted.