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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘consent’

Judge Compels Plaintiff to Sign “Consent Form” In Court Ordered Doctor Exam

March 31st, 2017

The law is split on whether a litigant can be forced to sign a consent form when attending a court ordered medico-legal appointment.  Today reasons for judgement were published providing further judicial commentary on the topic finding such an order is permissible.

In today’s case (Wee v. Fowler) the Plaintiff was involved in a vehicle collision and sued for damages.  In the course of the lawsuit an order was made that the Plaintiff attend a defence medical exam. When the Plaintiff attended the doctor required a consent form to be signed.  The Plaintiff refused and the exam did not take place.

The Defendant obtained a new order requiring attendance and signing the form.  In making this order Madam Justice Harris provided the following reasons:

[37]         The only remaining issue is whether the form of consent which Dr. Hirsch proposed is reasonable. While it is not strictly necessary for me to address this issue in light of my conclusions above, in the circumstances of this case, I consider it appropriate to do so.

[38]         The plaintiff objects to the form on the basis that:

                           i.          it requires the plaintiff to agree that Dr. Hirsch is independent of the parties;

                          ii.          that she is not in a doctor/patient relationship with him;

                        iii.          that she received an explanation as to the nature of the assessment; and

                        iv.          that she was there voluntarily or pursuant to a court order arising from Rule 7‑6(1).

[39]         The form of consent proposed by Dr. Hirsch was as follows:

Consent to Independent Medical Examination

I, ________________, date of birth ___________________ consent to participate in an independent medical examination (“IME”) conducted by Dr. Gabriel Hirsch. I am participating in the IME voluntarily or pursuant to Court Order arising from Rule 7-6(1) of the British Columbia Supreme Court Civil Rules.

I understand that Dr. Hirsh is not my treating physician and that no doctor/patient relationship arises from the IME. I also understand that Dr. Hirsch is independent of the parties involved in this matter and is not an employee of the party requesting the IME.

I acknowledge that I have received an explanation as to the nature of the assessment that will be undertaken in the IME and I authorize Dr. Hirsch to perform an assessment that includes a medical history, physical examination, review of medical imaging, tests, medical records, reports, and/or employment and school records related to my condition.

I understand that the assessment may be terminated if Dr. Hirsch determines that it is in the interest of my health and safety. I understand that I may choose to stop the assessment at any time.

I acknowledge that subsequent to the IME and pursuant to Rule 7-6(1) of the British Columbia Supreme Court Civil Rules, Dr. Hirsch may provide a medical-legal report to the referring source for the purposes of litigation. I release Dr. Hirsch and his employees from any claims which may arise as a result of the release of the above information. I am aware that the right to distribution of the report lies with the referring source and not Dr. Hirsch.

In signing this document I consent to take participate in this IME.

Dated this _________ day of _____________, 2016.

 

Signature of Evaluee: _________________________

Print Name: _________________________________

Signature of Witness: _________________________

Print Name: _________________________________

[40]         With respect to the plaintiff’s first objection, the plaintiff suggests that Dr. Hirsch is not “independent” as he receives instructions and communicates with only one party. While it is true that Dr. Hirsch was retained by one party to the litigation, under Rule 11-2, an expert who is retained to provide an opinion, which includes physicians conducting IME’s like Dr. Hirsch, has a duty to assist the court and not be an advocate for any party. Dr. Hirsch is, therefore, to perform a role that is truly independent of the parties to the litigation. In that regard, I note that both parties refer to Dr. Hirsch conducting an “independent medical examination” in their correspondence, which is reflective of the generally accepted role of physicians conducting such examinations. I do not accept that the reference in the consent form to Dr. Hirsch being independent or to his conducting an independent medical examination to be unreasonable.

[41]         The plaintiff also objects to the requirement that the plaintiff confirm her understanding that there is no doctor‑patient relationship arising from the IME. In my view, the statement, read in its context, elucidates its meaning, that is, Dr. Hirsch, although conducting a medical assessment, is not her treating physician. I am not prepared to find, without any evidence, that this statement is ambiguous or outside the knowledge of the plaintiff who, I note from the materials included in the Application Record, is a registered nurse working in a hospital setting. In any event, this is a matter which the plaintiff could ask of Dr. Hirsch should she need any clarification.

[42]         The third objection is that the plaintiff is asked to confirm in advance that she has received an explanation as to the nature of the assessment. Again, I do not have evidence that suggests Dr. Hirsch did not or would not discuss the nature of the assessment prior to commencing the IME or prior to asking the plaintiff to complete the consent form. I find no basis for this objection.

[43]         The final objection to the proposed form of consent is that it requires the plaintiff to agree that her attendance is voluntary or pursuant to Rule 7-6(1). The plaintiff suggests that it is either one or the other. In my view, these are the two usual circumstances under which a party participates in an IME, and the reference is simply descriptive of the basis for the plaintiff’s participation. I do not accept there is merit to the plaintiff’s objection.

[44]         Accordingly, I find that the consent form proposed by Dr. Hirsch to be reasonable.


Court – Consent to Defendant Medical Exam Terms Or Risk Claim Dismissal

January 30th, 2017

Forced consent is a strange concept and one that has found its way into injury litigation yet again.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a plaintiff to attend a Defence medical exam and to sign a consent form or risk claim dismissal.

In today’s case (Gill v. Wal-Mart Corporation) the Plaintiff alleged injury following a slip and fall.  The Plaintiff agreed to attend an independent medical assessment requested by the Defendant but refused to sign the doctor’s ‘consent’ form.  In ordering the Plaintiff to sign or risk claim dismissal Mr. Justice Funt provided the following reasons:

[39]         With respect to the Master’s second reason that the plaintiff would not be signing the form of consent voluntarily, I respectfully disagree. The plaintiff may choose not to sign the consent form in which case the IME will not be conducted. The defendant may, however, bring an application to strike the plaintiff’s claim against the defendant.

[40]         Although not necessary having regard to the binding authority of Kalaora, I note that the case at bar is readily distinguishable from Peel where our Court of Appeal set aside an order requiring particular parties to endorse a “consent order”. Ordering endorsement of a “consent” court order is not consent. In the case at bar, in context, the court is not forcing the plaintiff to sign the form of consent. If the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck. It is the plaintiff’s choice…

[52]         The plaintiff is ordered to sign the subject form of consent used by Dr. Travlos. If the plaintiff refuses to sign the form of consent, the defendant, Mr. Pandher, is at liberty to apply to have the plaintiff’s claim struck.


No Forced “Consent” When Attending Court Ordered Medical Examination

June 28th, 2016

Update January 30, 2017the below case, in reasons for judgement released today, was largely overturned on appeal

______________________________________________

Although there are conflicting authorities on the subject in British Columbia, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding it is not appropriate for a Court to order a Plaintiff to sign a ‘consent’ form when attending a court ordered independent medical exam.

In today’s case (Gill v. Wal-Mart Canada Corporation) the Plaintiff sued the Defendant for personal injuries after a slip and fall incident.  In the course of the lawsuit the Plaintiff agreed to be examined by a physician of the Defendant’s choosing but refused to sign a ‘consent’ form the physician required.  The Defendant asked the Court to order the Plaintiff to sign the consent form but the application was dismissed.  In finding judicially ordered ‘consent’ to be inappropriate Master Harper provided the following reasons:

[31]         In my view, because an order compelling an IME is discretionary, I am not bound by Kalaora or Nikolic to order that the plaintiff sign the consent form. I prefer to follow the reasoning of Peel. In addition, although Dr. Travlos and the College have a legitimate interest in ensuring that a person attending for an IME is properly informed about all aspects of the IME, there are alternative methods to compelled consent to convey the information. I conclude that the plaintiff in this case should not be compelled to sign the consent form required by Dr. Travlos.

[32]         Even if I were of the view that Ms. Gill should be compelled to sign a reasonable consent form, Dr. Travlos’s consent form contains clauses that are not reasonable.

i)       First, Ms. Gill should not be expected to have to agree in writing as to the definition of physiatrist: Slobodzian v. Mitchell and Hameiri (unreported, February 2, 2015, Courtenay Supreme Court Action S085376);

ii)     Second, the last paragraph of the consent form contains this statement: “I am signing this document voluntarily …”. Ms. Gill would not be signing the document voluntarily if compelled to do so by court order;

iii)    Third, the consent form says:

I hereby release Dr. Travlos, his employees and agents, from any and all claims whatsoever, which may arise as a result of the release of the above information.

The clause is difficult to interpret. Dr. Travlos might mean that he is released from liability for releasing the report to the referring source. Or, he might mean that he is released from liability for releasing the report to someone other than the referring source. In either case, a release of liability goes beyond the bounds of a reasonable consent form.

[33]         In Mund v. Braun, 2010 BCSC 1714, the IME doctor required the execution of a jurisdiction agreement. The plaintiff declined to sign it and the court declined to order the plaintiff to sign it on the basis that the court did not have jurisdiction to order the plaintiff to sign a jurisdiction agreement. The release of liability in Dr. Travlos’s consent form is in the same category and is therefore objectionable.

[34]         Both Dr. Travlos and the College have a legitimate interest in ensuring that persons attending IMEs understand the nature and purpose of the IME. Clarity is always better than confusion.

[35]         The options presented on this application were limited to the court ordering the consent form be signed, or not. In my view, there are other options. The desired outcome of a party attending an IME fully informed about the IME could be met if the court were asked to incorporate reasonable terms into the order granting the IME. Those terms would meet the reasonable and legitimate interests of the plaintiff, the defendant, the examining doctor and the College.

[36]         Of course, the terms would have to be acceptable to the doctor or the exercise is meaningless. A drawback to this option is the unnecessary increase in court applications. Both Dr. Travlos and the doctor in Kalaora said that most people seeing them for IMEs consent. It would not be proportionate to require all applications for IMEs to result in a court order.

[37]         The concerns about “improved communication by physicians” and “enhanced understanding by patients” expressed in the guideline could also be met by the doctor providing written information about the IME to the party in advance of the examination. This option would be simpler and less expensive than a court order incorporating the information the doctor seeks to convey to the person being examined.

[38]         An even better option might be for the College to amend its guideline to provide recommendations for physicians conducting IMEs that are court-ordered and not by consent. 


Don't Get in a Fistfight at your Son's Baseball Game

March 21st, 2013

In case there aren’t enough reasons to avoid a fistfight at your kid’s sporting events, here’s one more; being on the wrong end of a subsequent lawsuit in the BC Supreme Court will expose you to loser pays costs consequences.

The BC Supreme Court, New Westminster Registry, released reasons for judgement today with such a result.  In today’s case (Charland v. Cloverdale Minor Baseball Association and Wheeler) the Plaintiff’s son was playing in a Pee Wee baseball game.  The Defendant’s son was the scheduled umpire who arrived late.  He was told to go home the by Plaintiff.  He went home upset and his father came to the baseball game to discuss what happened with the Plaintiff.  After the two fathers exchanged some colourful words the Defendant “walked away 8 to 10 feet” when the Plaintiff “stood up from his chair and moved forward quickly” with “the intention to fight“.  The Defendant hit the Plaintiff in the head and then grappled for a while after that.  The Plaintiff was injured in the incident and sued for damages.

Madam Justice Watchuk dismissed the lawsuit finding it was a consensual fight.  The Court provided the following reasons:

[88]         Consent is a defence to the torts of assault and battery.  If Mr. Wheeler alleges and proves that the parties agreed to the physical contact in question, then Mr. Charland cannot complain of injuries suffered.  The onus of establishing consent is on Mr. Wheeler:

Although the fact that the plaintiff consented to the defendant’s conduct effectively negates the argument that a wrong has been committed, consent is treated as a defence which must be established by the defendant. 

Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 128.

[89]         If a fight is proven to be mutual or consensual, the parties cannot complain of injuries suffered in the course of the fight:

A related matter concern consent to violent acts in other contexts, for example, in the case of “mutual fights”.  The case law supports the proposition that those who engage in fights, even though these activities may be criminal, cannot complain of injuries suffered in the course of the fight, unless the force which is used by one of the combatants is excessive or unnecessary.  The dismissal of the plaintiff’s actions in these cases may be grounded either on the basis of the defence of consent or illegality.

Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 134….

[97]         The conversation then escalated.  Mr. Charland says that Mr. Wheeler’s tone suddenly changed.  I find that the reason for that sudden change in Mr. Wheeler’s tone was Mr. Charland’s telling him to “fuck off”.  After Mr. Charland escalated the conversation to a confrontation, Mr. Wheeler replied with words to the effect of “fat shit”.  There was some loud conversation between the two fathers. 

[98]         Mr. Wheeler then walked away to process Mr. Charland’s response.  He still wanted to resolve the situation and assist his son Cam.  As Mr. Wheeler walked away, Mr. Charland said, “I’ll get you later”, as he told Cst. Lee.  The words he told the court he said, “I’ll do you later”, do not equate, I find, with “I will meet you later”.  In making that statement, Mr. Charland had formed the intention to fight and had chosen to accept what he mistakenly understood to be an invitation to fight from Mr. Wheeler. 

[99]         Mr. Wheeler had walked away 8 to 10 feet to the grassy area.  He walked back part of that distance to Mr. Charland.  Mr. Charland stood up from his chair and moved forward quickly towards Mr. Wheeler.  When Mr. Wheeler saw him coming, he had a real fear of being injured or, as he put it, “run over”.  Mr. Wheeler then hit Mr. Charland once in the head.  The moments of contact between the two fathers included some mutual grabbing which Mr. Geppert described part of, Ms. Brozer referred to as a “kafuffle” and Ms. Korrins described as grappling.  In the course of that interaction, Mr. Charland slipped and fell on the grass.  Mr. Wheeler then walked away after the intervention of some of the other witnesses and observers. 

[100]     Mr. Wheeler did not kick Mr. Charland.  There is no independent evidence of a kick.  If Mr. Charland was injured in his kidney during the altercation at the park, I conclude that the injury occurred from his fall on the grass.  Similarly, Mr. Wheeler’s injury to his eye which resulted in a black eye was a result of the mutual grappling and physical interaction rather than a punch by Mr. Charland directly to Mr. Wheeler. 

[101]     I find that when Mr. Charland got up out of his chair and moved quickly towards Mr. Wheeler who was then 8 to 10 feet away on the grass Mr. Charland had an intention to fight.  Mr. Wheeler reacted by engaging in the fight after walking back toward an angry man.  Mr. Charland’s action in standing up and moving toward Mr. Wheeler, as it created fear, was an assault.  Mr. Wheeler responded with a punch which was a battery.  I conclude that the proper characterisation of the altercation between the two fathers is that it was consensual. 

The Court went on to order that the Defendant pay the Plaintiff’s costs providing an expensive lesson to the Plaintiff for this incident.


Supreme Court Holds Failure To Disclose HIV Status Can Still Vitiate Sexual Consent In Canada

October 5th, 2012

In 1998 the Supreme Court of Canada held that failure to disclose HIV positive status could vitiate consent making otherwise consensual sexual encounters criminal in nature and further exposing the non-disclosing party to civil suits for damages for sexual assault.  This reasoning has been controversial over the years and the Supreme Court of Canada revisited the issue in reasons for judgement released today.

In today’s case (R v. Mabior) Chief Justice McLachlin held that failure to disclose can still vitiate consent but not in all circumstances adding a “significant risk” factor to the analysis.  The Court provided the following reasons:

[104]                     To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status.  Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation).  A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV.  On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used.  However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play.

 


Compelled Independent Medical Exams and "Consent"

October 14th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a much debated topic; can a Plaintiff be forced to sign a ‘consent‘ document when compelled to attend an independent medical exam under the Rules of Court.  In short the Court held that this was possible.

In this week’s case (Kalaora v. Gordon) the Plaintiff was injured in a motor vehicle collision and sued for damages.  In the course of the lawsuit the Plaintiff agreed to attend a defence medical exam.  At the appointment the physician asked the Plaintiff to sign a consent form authorizing the physician to proceed with the medical examination.  The Plaintiff refused to sign this.  The Defendant brought an application to compel this document to be signed.  In granting the application Madam Justice Hyslop provided the following reasons:

[79] Rule 13-1(19) of the Supreme Court Civil Rules provides assistance in this matter:

Orders on terms and conditions

(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[80] In Nikolic, Mr. Justice Williams stated that Rule 1(12) (the former Rule)

grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively [he is referring to the then document rules], a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

Rule 13-1(19) together with Rule 7-6(1), (the medical examination rule) read together, permit the court to order that the plaintiff to sign an authorization.

[81] By refusing to sign a consent or give a verbal agreement, Dr. Smith is open to charges of assault and battery. To insist that the defendant find another psychiatrist to pursue the medical examination without the consent of the plaintiff is unlikely.

[82] When plaintiff’s counsel consented to the medical examination of Mr. Kalaora by Dr. Smith, and Mr. Kalaora appeared at Dr. Smith’s office as scheduled, it certainly could be inferred that Mr. Kalaora agreed to the medical examination. However, when he refused to sign the consent or consent verbally, he withdrew that consent.

[83] Based on the case law, the Supreme Court Civil Rules and their purpose, the underlying need for full disclosure, the court can order a litigant to sign a consent or authorization.

[84] The plaintiff made it clear that they are agreeable to attending a medical examination with Dr. Smith. I order that the plaintiff attend a medical examination with Dr. Smith at a time and place as agreed. I order that the plaintiff sign an authorization or consent in the exact terms as sought by Dr. Smith for the original medical examination which did not proceed.

For two recent case summaries further discussing the Court’s ability to order a Plaintiff to sign authorizations/waivers you can click here and here.  From my perspective there appears to be some inconsistency in the authorities addressing the power of the BC Supreme Court to order a Plaintiff to sign an authorization and clarification from the BC Court of Appeal or by way of Rules Amendment would be helpful.


More on BC Sex Abuse Civil Claims; Consent and School Board Liability

June 14th, 2011

Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $110,000 for damages flowing from a ‘consensual‘ sexual relationship she had with her high school teacher.

While today’s case is likely to receive media attention due to its sexual theme, it is worth discussing more so because it highlights two important topics that sometimes arise in sexual abuse civil prosecutions; consent and vicarious liability.

In today’s case (AB v. CD) the Plaintiff had several sexual encounters with her grade 12 English teacher.   Following this relationship she sued him for damages and the school board claiming they were vicariously liable for the harm caused by the relationship.  The claim against the teacher was successful but the claim against the school board was dismissed.

The nature of the sexual encounters are summarized at paragraphs 28-52 of the reasons for judgement.  There is no need to repeat them here.  The Plaintiff agreed that “she had consented to…the touching incidents“.   Despite this admission, however, people in authority cannot have consensual sexual contact with people under their authority who are under 18 years of age as this is contrary to section 150.1 of Canada’s Criminal Code.

The school board’s lawyer argued that despite this prohibition, “consent remains a defence in a civil action for sexual assault“.  Madam Justice Gray soundly rejected this argument finding as follows:

[102] The Criminal Code provisions recognize that young people are inherently vulnerable to persons in positions of authority or trust.  While such young people may think that they are making a free choice to engage in a relationship with a person in authority, the very nature of the relationship precludes a free choice.

[103]  Like Stromberg-Stein J., I conclude that it would introduce an odd and problematic inconsistency in the law if a young person were considered legally incapable of consenting to sexual activity for the purposes of the criminal law, but were capable of giving such consent in a related civil action.

[104]  The public policy set out in the Criminal Code has the effect that a young person under the age of 18 cannot consent to sexual contact with a person in authority, as a matter of law, whether the applicable proceedings are criminal or civil.

[105]  As a result, CD is liable to AB for any damages she suffered as a consequence of the sexual battery.

(on a related note, click here to read a BC Court of Appeal decision released this week upholding a criminal conviction of an individual who failed to let his partners know he was HIV positive finding this omission was a ‘fraudulent misrepresentation’ which overrides otherwise consensual sexual contact)

The next issue that was noteworthy was the Court’s discussion of vicarious liability.  As previously discussed, the law sometimes holds an employer responsible for the deeds of an employee even though the employer did not act negligently.  The law of the vicarious liability of School Boards for the sexual battery by teachers is still developing in Canada and there are relatively few judgements addressing this topic.

Madam Justice Gray found that the School Board should not be vicariously liable on the narrow facts of this case and in doing so provided a useful discussion of applicable legal principles at paragraphs 131-155 of the reasons for judgement and applied the Bazley principles to the facts of the case at paragraph 157.


Production of Documents, Forced Authorizations and the New Rules of Court

February 4th, 2011

As previously discussed, the BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.

It has been a matter of much judicial debate whether the BC Supreme Court could order a Plaintiff to sign an authorization to consent to the release of Third Party Records with Mr. Justice Hinkson recently finding that the Court did not have this power under the Former Rules.

The first case I’m aware of dealing with issue under the New Rules of Court was released today by the BCSC , New Westminster Registry.   Keeping the uncertainty on-going, Mr. Justice Williams found that the Rules do authorize a Court to force a party to sign authorizations for the release of Third Party Records

In today’s case (Nikolic v. Olsen) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a motion to compel the Plaintiff to sign various authorizations.  The Plaintiff opposed arguing that the Court lacked the authority to make such an order.  Mr. Justice Williams disagreed.  The Court provided a lengthy review of the relevant authorities and ultimately provided the following reasons addressing this issue:

[11] There are conflicting judicial authorities respecting the issue raised in this application. The line of jurisprudence which holds that the court cannot make an order requiring a litigant to authorize third party production is, in my view, troubling. For the reasons that follow, I conclude that this Court can make an order requiring a litigant to authorize a third party, whether within or outside this province, to produce records relating to him or her to another litigant. The jurisdiction to do so is based on the Rules of Court

[93]         In British Columbia, relevant non-privileged documents are compellable in a civil action. Full and complete disclosure between or among litigants prior to trial is essential to the truth-seeking function of the litigation process and proper administration of justice.

[94]         This Court has the authority under the former Rules to compel production and to specify the mechanics of its production orders. Rule 26(1.1) permits the court to order a litigant to list documents in his or her power, which may include those held by foreign non-parties. Rule 26(10) empowers the court to order a litigant to produce a document for inspection and copying in the manner it thinks just. Furthermore, R. 1(12) grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively, a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

[95]         In my view, the following excerpt from para. 110 of Hood J.’s reasons in Lewis is apt:

There is also no doubt that the Court has substantive jurisdiction or power pertaining to the discovery and inspection of documents under Rule 26, particularly the compelling or ordering of production of documents. … In my opinion, the manner in which production is achieved is for the Court. The Court’s substantive jurisdiction or power to compel the production of documents includes the jurisdiction or power to create the mechanisms or the means by which production is made.

[96]         As expressed in the jurisprudence, there are, no doubt, potentially unwieldy implications of a court order compelling authorization of third party production. Given these concerns, such orders should not be granted lightly. In this respect, L. Smith J. in McKay v. Passmore, 2005 BCSC 570, [2005] B.C.J. No. 1232 (QL), offers worthwhile guidance. That was a personal injury case arising from a motor vehicle collision. An application was brought for an order that the plaintiff execute an authorization allowing the defendants to obtain records held by the Manitoba Workers Compensation Board. Her Ladyship held, at para. 36, that while the court has jurisdiction to grant such an application, there was insufficient basis on the evidence to do so. She concluded, at para. 40, that the circumstances of the case before her did not warrant the order sought in light of the R. 26(11) criteria provided by the Court of Appeal in Dufault, which she outlined at para. 38:

1.         The applicant must satisfy the court that the application is not in the nature of a “fishing expedition.”

2.         He or she must show that a person who is not a party to the action has a document or documents in his or her possession that contains information which may relate to a matter in issue.

3.         If the applicant satisfies those criteria, the court should make the order unless there is a compelling reason not to make it (i.e. because a document is privileged or because grounds exist for refusing the application in the interests of persons not parties to the action who might be affected adversely by an order for production and the adverse affect would outweigh the probative value of the document.)

[97]         Obviously these criteria, among other relevant factors, ought to be considered by a court considering an application for an order compelling a litigant to authorize production of documents held by a third party whether located within or outside British Columbia.

[98]         For two examples as to how the McKay/Dufault criteria may apply, see Distinctive Photowork Co. v. Prudential Assurance Co. of England Property and Casualty (Canada) (1994), 98 B.C.L.R. (2d) 316, [1994] B.C.J. No. 3231 (QL) (S.C. Chambers); and Tetz v. Niering, [1996] B.C.J. No. 2019 (QL), 1996 CarswellBC 1887 (S.C. Chambers).

[99]         These cases, although they raise slightly different issues, do not detract from, but rather inform, the basic proposition that where a litigant is under an obligation to make disclosure of documents, then that obligation must be honoured. Where such documents are in the hands of third parties, the usual format will entail the litigant voluntarily agreeing to provide a document authorizing the record holder to release the material, and that will resolve the matter. However, in other cases, where consent is refused, litigants are entitled to seek relief and the court has jurisdiction to enforce the disclosure obligation, specifically by making an order whereby the party whose records are being sought will “consent” to their release. While the wording is unfortunate and has engendered a regrettable state of controversy, the underlying concept is, in my view, straightforward.

[100]     The Olsons have a legitimate interest in obtaining the requested records and I am satisfied that their application is not in the nature of a fishing expedition. I also find that the third parties named by the defendants in their application possess the requested records which relate to a matter or matters in this case. By way of obiter dicta, I note that the common law test for relevance under the former Rules is broader than what seems to be provided by the wording of the current Rules. There are, furthermore, no compelling reasons why the order sought should not be made.

[101]     Accordingly, I order the respondent/plaintiff, Mr. Nikolic, to provide signed authorizations allowing the applicants/defendants, Josiah Olson and Joel Olson, to obtain from the third parties named the records listed in clauses (c), (d), (e) and (f) of the proposed order reproduced at para. 3 of these reasons.


Further Clarity from BC Court of Appeal on Vicarious Liability of Vehicle Owners

September 23rd, 2010

As I’ve previously written, The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.

What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Today the BC Court of Appeal published reasons for judgement clarifying the application of this legal principle.

In today’s case (Snow v. Saul) the the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.

The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the trial judge went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted ”express consent” under section 86 of the BC Motor Vehicle Act (you can click here to read my article summarizing the trial finding).

The Defendant appealed arguing the trial judge incorrectly applied the law.  The BC Court of Appeal agreed and overturned the trial verdict finding the registered owner was not vicariously liable for the crash.  In reaching this conclusion the BC High Court made the following findings:

[16]         The central question raised by this appeal is whether the effect of Vancouver Motors U-Drive is that whenever a person (“O”), of his own free will, permits his vehicle to be driven by “A”, he is deemed to have consented to the vehicle being driven by anyone, and is thus liable to an injured plaintiff for damages caused by “B”.  In my view, the case does not stand for that proposition.  The grammatical structure and wording of s. 86(1) are such that it is the “person driving the motor vehicle” who must have acquired possession with the owner’s consent.  Thus in cases where B negligently causes damage to a plaintiff, the argument made by the plaintiff depends on proof of implied consent (which as noted above is not argued in the case at bar).  In such instances, British Columbia courts have ruled that O will not be liable, without more, for injuries resulting from B’s operation of the motor vehicle.  The plaintiff must in addition show that the owner had an “expectation and willingness” that the vehicle would be driven by B: see Simpson v. Parry (1968) 65 W.W.R. 606 (B.C.S.C.), per MacFarlane J. (as he then was), citing Martell v. Chartier & Dominion Motors Ltd. [1935] 1 W.W.R. 305 (Man. C.A.) and Antilla v. Majeau (1954) 12 W.W.R. (N.S.) 575 (Alta. Ap. Div.).  More recently, in Godsman v. Peck, supra, this court ruled that without evidence that the owner of a motorcycle who had lent it to another (A), expected that A would lend it to a third party (B), the owner’s consent to B’s operating the cycle could not be implied.  As the Court stated:

There should be evidence to show, or support the inference, that the owner turned his mind to the likelihood of that further transfer of possession. If there is no such evidence, a court finding liability on the owner’s part is not implying consent so much as deeming it. One of the commendable goals of s. 79(1) may be to induce owners of motor vehicles to exercise discretion when transferring control of them to others, but to impose liability in a case where such a transfer was not within the contemplation of the owner would do nothing to further that goal, and simply goes too far.  [At para. 28; emphasis added.]

(See also Smaldino v. Calla [1999] B.C.J. No. 2816 (S.C.).)

[17]         Conversely, consent may be implied from a course of conduct or circumstances known to the owner, as illustrated by Deakins v. Aarsen [1971] S.C.R. 609.  There it was held that an owner who had lent her car to her son to use whenever he wanted it, had not discharged the onus on her under s. 105(1) of the Highway Traffic Act, R.S.O. 1960, c. 172, to prove that when the son had lent the car to his girlfriend, he had done so without the mother’s consent.  The Court emphasized in brief reasons that the car was “for all practical purposes” the son’s car and that his mother exercised no control over who was to drive it.  She had been aware the girlfriend was her son’s “constant companion” and the trial judge evidently disbelieved her evidence that she had told her son not to let anyone else drive the car.

[18]         Counsel for the plaintiff submits that the implied consent cases are irrelevant to this case, which he says concerns “consent at law, not consent in fact”.  In his submission, what was in the owner’s mind is irrelevant as long as he gave up possession of his vehicle as a result of the exercise of his free will.  Thus what Mr. Weatherill characterizes as a “mistake” on Mr. Saul’s part when he gave his consent is neither here nor there – just as the “mistake” under which the employees of the car rental company in Vancouver Motors U-Drive Ltd. were labouring was found not to affect the validity of its consent to the fraudster’s operation of its car.

[19]         In my respectful view, however, this case is very different from Vancouver Motors U-Drive, where the appellant’s employees intended to lend the car to the person standing before them, and that person in fact drove the car.  In the case at bar, accepting the trial judge’s findings of fact, the owner did not consent to Ms. Friesen’s driving his truck.  He was told that “Neal” wanted to borrow it.  That is what Mr. Saul expressly consented to.  It defies common sense to say that he in fact consented to Ms. Friesen’s driving it.  Indeed, the trial judge accepted at para. 37 of his reasons that Mr. Saul would not have lent his vehicle to Ms. Friesen, as opposed to Neal Bourgeois.

[20]         Does the fact that we are here concerned with the application of a statutory provision change this common-sense conclusion?  Again, in my view, the answer is no.  Section 86 does not on its face “deem” one to have the owner’s consent when he or she does not have it in fact; nor does it impose a “legal” definition of consent that is at variance with the ordinary and natural meaning of the word.  The respondents rely heavily on the two purposes of s. 86, as described in Yeung, supra.  I do not see that the second objective is engaged in this case since, despite Mr. Weatherill’s suggestion that Mr. Saul had “casually” consented to lending his car, there is no evidence Mr. Saul did anything other than take reasonable care in consenting to Neal Bourgeois’ using his truck.  The trial judge found that Mr. Bourgeois did not share his partner’s drug addiction and that Mr. Saul is a “reasonably careful person who does not take unnecessary chances.”  (Para. 36.)  As for the expansion of the availability of compensation, s. 86(1) goes only so far: it does not state that whenever a person uses another’s car, the owner is vicariously liable.  The intention of the legislation is to place liability on a person who permits his car to be used by another, where that other negligently causes injury to a plaintiff.  In this case, the person to whom Mr. Saul gave his consent was Neal Bourgeois.  It was not Mr. Bourgeois who drove the truck negligently.

[21]         In the result, I would allow the appeal and set aside the trial judge’s order imposing vicarious liability on Mr. Saul pursuant to s. 86(1) of the Act.


A Caution to BC Vehicle Owners – Take Care in Who You Lend Your Vehicle To

March 26th, 2010

Reasons for judgement were published this week by the BC Court of Appeal revealing a valuable lesson to registered owners of vehicles.  Owners must take care in choosing who they lend their vehicle to as they can be found personally liable if such a person carelessly injures others while driving or operating the vehicle.

In today’s case (Robert v. Forster) Mr. Forster (the owner of a vehicle) allowed his daughter to use it.  He had rules restricting the scope of this permission, and these were that she “was not to drink and drive” and that “no one other than (the daughter) was to drive the vehicle“.

On June 2004 Mr. Forster’s daughter took the Jeep out.  She has been drinking at a bar.  After leaving the bar the daughter followed the first rule and did not drink and drive, however she broke her father’s second rule and let a friend drive the vehicle.  As the friend was driving the daughter “wrenched the steering wheel to the right” and caused the vehicle to flip into a ditch resulting in injuries to the occupants.

Various lawsuits were brought.  At trial the daughter, despite being a passenger, was found to be “driving” the vehicle.  She was found to be careless in grabbing the steering wheel with a finding that “t]he only conclusion I can come to on the evidence adduced at trial is that (the daughter’s) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel”  The Court went on to find that not only was she liable for the occupants injuries but so was the father as a result of s. 86 of the BC Motor Vehicle Act which holds as follows:

In an action to recover loss or damage sustained by a person by reason of a motor vehicle on a highway, every person driving or operating the motor vehicle who is living with and as a member of the family of the owner of the motor vehicle, and every person driving or operating the motor vehicle who acquired possession of it with the consent, express or implied, of the owner of the motor vehicle, is deemed to be the agent or servant of that owner and employed as such, and is deemed to be driving and operating the motor vehicle in the course of his or her employment.

The father appealed arguing he should not be held liable because the daughter was a passenger at the time and therefore could not have been “driving” the vehicle.

The BC Court of Appeal disagreed and dismissed the appeal.  In doing so the BC Court of Appeal made it clear that s. 86 of the BC Motor Vehicle Act is to be given a broad interpretation because it is intended to “expand the availability of compensation to injured plaintiffs).”  Specifically the BC High Court held as follows:

[21] This Court considered the purposes of s. 86 in Yeung (Guardian ad litem of) v. Au, 2006 BCCA 217, 269 D.L.R. (4th) 727, affirmed 2007 SCC 45. After reviewing the history and context of the section, Madam Justice Newbury commented as follows:

[38] …  the purposes of s. 86 are, I would suggest … to expand the availability of compensation to injured plaintiffs beyond drivers who may be under-insured or judgment-proof, and to encourage employers and other owners to take care in entrusting their vehicles to others.

The Court concluded in that case that a proper interpretation of s. 86 created vicarious liability on lessors of motor vehicles whose drivers are negligent in their operation if the drivers are in possession of the vehicle with the consent of the lessors.

[22] In my opinion, the conclusion that Ms. Forster was driving the Jeep is in accord with the grammatical and ordinary meaning of the language of s. 86 and the object and intention of the Legislature in enacting it. The decision in R. v. Bélanger establishes that a person sitting in the passenger seat of a vehicle can be regarded to be driving the vehicle if he or she controls the direction of the vehicle by turning its steering wheel. It is consistent with the first purpose of s. 86 articulated in Yeung v. Au to conclude that the Legislature intended an owner of a vehicle to be vicariously liable if a person, in possession of the vehicle with the consent of the owner, commits a deliberate, but negligent, act affecting the direction of the vehicle that causes injuries to another person.

[23] I therefore agree with the conclusion of the trial judge that Ms. Forster was driving the Jeep for the purpose of s. 86.

  • Implied Consent

Another interesting point of this judgement was the Court’s discussion of whether the Father consented to the daughter’s friend driving the vehicle.   You will recall that one of the clear rules was that only the daughter was allowed to drive, not her friends.  At trial Mr. Justice Rogers held that the father nonetheless consented to the friend operating the vehicle and provided the following reasons:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car.  That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro.  (the owner) freely gave the Jeep’s keys to (his daughter).  She freely gave the keys to (the driver).  (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The BC Court of Appeal was asked to overturn this ruling but they refused to do so.  The BC High Court held that, since the driver of the vehicle was not careless (and therefore not responsible for any of the passengers injuries) the issue of whether or not there was consent “is moot and need not be decided on this appeal

You can click here to read my 2008 article discussing the trial judgement.