ICBC Law

Further to my previous post on this topic, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether MSP records were producible in a personal injury claim.

Today’s case provides perhaps the most in depth analysis of the issue to date and is worth reviewing in full.  In short the Court held that such records may be disclosable given the right circumstances but a ‘pro forma’ pleading of pre-existing injury is not sufficient to trigger disclosure obligations.

In this week’s case (Kaladjian v. Jose) the Plaintiff was injured in a collision.  The Defendant applied for production of the Plaintiff’s MSP printout.  The Plaintiff’s lawyer had this document but did not produce it arguing it was not relevant.  The Defendant’s application was dismissed at first instance.  The Defendant appealed arguing MSP records were disclosable as a matter of course in a personal injury claim.  Mr. Justice Davies disagreed and dismissed the appeal.  In doing so the Court provided feedback as to the proper procedure when seeking production of such records and gave the following reasons:

[38] Under Rule 7-1(1)(a), a party is now (at least initially) obligated to list only:

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, …

[39] That change has altered the test in British Columbia for determining whether any document or class of documents must now (at least at first instance) be disclosed.

[40] As stated by Edwards J. in Creed, the former broad test of relevance for disclosure purposes, emanated from the decision in Cie Financière du Pacifique v. Peruvian Guano Ltd (1882), 11 Q.B.D. 55 (Eng. Q.B.) [Peruvian Guano], which required disclosure of documents that “may fairly lead to a line of inquiry which may “either directly or indirectly enable the party…to advance his own case or damage the case of his adversary”

[41] Rule 7-1(1) changed that test for documentary relevance at first instance by requiring listing only of documents that could be used at trial to prove or disprove a material fact and documents the disclosing party intends to rely upon at trial.

[42] I say that the test of documentary relevance is changed “at first instance” because Rule 7-1 also provides processes by which broader disclosure can be demanded of a party under Rules 7-1(11) through (14) under which the court can decide whether, and if so, to what extent, broader disclosure should be made…

[46] The introduction of the concept of proportionality into the present Rules together with the need for a party to satisfy the court that additional document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform the interpretation of Rule 7-1(18). It also satisfies me that cases decided under the former Rule 26(11) are of limited assistance in interpreting and applying Rule 7-1(18) in motor vehicle cases.

[47] It would, in my view, be arbitrary and inconsistent with the objects of the present Rules if the production of the records of a party to litigation in the possession of third parties were to be subject to a pleadings-only Peruvian Guano based test of relevance when more narrow tests govern the production of a party’s own documents…

[61] After considering the authorities and submissions of counsel, I have concluded that the pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the present Rules and will usually also govern issues concerning the initial disclosure obligations of a party under Rule 7-1(1), if challenged by a party under Rule 7-1(10).

[62] I have also concluded that the narrowing of the discovery obligations of parties and most particularly the removal of the Peruvian Guano “train of inquiry” test of relevance will generally require a defendant to provide some evidence to support an application for additional documents, whether demand is made under Rule 7-1(11) or Rule 7-1(18).

[63] A requirement for evidentiary support recognizes the difference between the scope of examination for discovery and the scope of document discovery under the present Rules and will allow considerations of proportionality to be addressed in specific cases.

[64] A requirement for evidentiary support in requests for additional documents and third party records also prevents against unwarranted “fishing expeditions” based solely upon pro formapleadings…

70] The all too common pro forma pleading of a pre-existing condition by defendants is not sufficient without more to require disclosure of MSP records which may prove to be wholly irrelevant to the injuries allegedly suffered by the plaintiff.

Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.

In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.

This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.

The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:

21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.

22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.

23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.

24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.

25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.

26. The appeal is allowed and Master Bouck’s orders will be set aside.

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.

As previously discussed, the new BC Civil Rules have changed the test of document production in the pre-trial discovery process.  The test has been narrowed from documents “relating to every matter in question in the action“ to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.  In addition to this the Court must take the concept of ‘proportionality‘ into account when considering an order to produce third party records.

Reasons for judgement were released considering this narrower obligation in the context of an ICBC claim.

In today’s case (Tai v. Lam) the Plaintiff was involved in a 2006 motor vehicle collision.  The Plaintiff was injured and claimed damages.  The Defendant asked that the Plaintiff produce his bank statements from the date of the accident onward in order to “defend against (the Plaintiff’s) claim for loss of earning capacity”  The Plaintiff refused to provide these and a motion was brought seeking production.    Master Baker dismissed the motion and made the following useful comments about document disclosure obligations under the new rules and the concept of proportionality:

[5]             I am not going to make the order sought.  I agree entirely with Mr. Bolda’s view of this, which is that it is essentially one production too far, that the information and details sought goes beyond what is reasonable, even on a redacted basis.  To ask that all the bank statements be produced is a broad, broad sweep.

[6]             Sitting here listening, it struck me, it is as if a party who commences proceedings and says, “look, I have been injured and I have suffered financial losses” is inviting some kind of a Full Monty disclosure, that they are expected to produce all financial information they might ever have out there.  Even if it is suggested or offered today that that be done on a redacted basis, it is still, in my respectful view, a requirement for production that is excessive.

[7]             It certainly raises big issues about privacy and if one says, “well, redaction would fix that”, what does it take for counsel to sit down and patiently, carefully redact their client’s bank records for four and a half years?  If that is not a question of confidentiality and privacy, it is a question of proportionality, which is just as concerning to me today as the other issues.

[8]             The banking records.  I am also persuaded by Mr. Bolda’s argument, and a  common position taken today, that the judgment will be one of assessment, not calculation, that the trial judge will have multiple facets to consider and amongst them the gross income.  And while it is for the defence to present and structure its case as it wishes, it seems to me that if it successfully attacks any of these claims for expenses it can only increase Mr. Tai’s income, and I cannot see the value in that perspective.

[9]             I know that until recently the standard in this province was Peruvian Guano and locally Dufault v. Stevens, but that standard has changed.  There has to be a greater nexus and justification for the production of the documents in a case, and I am satisfied that that standard has not been met here today, so that the application is dismissed.

Important reasons for judgement came to my attention today dealing with discovery of documents in BC Injury Litigation.

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”.

When a Defendant requests Third Party Records Plaintiff’s often consent, obtain the documents, and then exchange a copy of the relevant records.  When the parties don’t consent a Court Motion can be brought.

With this background in mind today’s case dealt with an important topic; when a motion for Third Party Records is brought can the Court order that the Plaintiff sign authorizations to allow the Defendant to get the records directly?  Mr. Justice Hinkson held that such a shortcut is not allowed under the Rules of Court.

In today’s case (Stead v. Brown) the Defendant “brought an application to require the plaintiff to execute consent forms for the production of the records of some ten doctors, three hospitals, two groups of physiotherapists, WorkSafeBC, the Ministry of Housing, and Service Canada“.

The Plaintiff opposed the application on the basis that the Court lacked the power to make such an order.  Mr. Justice Hinkson agreed and held that even if the requests were relevant a Court could not compel disclosure in this fashion, instead the Defendant would have to follow the procedure set out in Rule 26(11) of the BC Supreme Court Rules.

In reaching this conclusion Mr. Justice Hinkson was referred to the BC Court of Appeal decision Peel Financial Holdings Ltd. v. Western Delta Lands where the BC High Court held that “The Supreme Court judge cited no authority fo rhis power to compel a party to consent, and no authority for such a power was provided to us.  As I jhave said, a consent given pursuant to an order is a contradiciton in terms“.

Mr. Justice Hinkson went on to find that while there was another case (Lewis v. Frye) which held that a Supreme Court judge could compel a party to sign an authorization, that decision was wrong.  Specifically Mr. Justice Hinkson held as follows:

Regrettably the decision of the Court of Appeal in Peel Financial Holdings Ltd. was not considered which Hood J. and I am persuaded that the binding nature of that authority if considered would have altered the conclusion reached by him had the authority been brought to his attention.

I conclude that the plaintiff in this case cannot be ordered to execute authorizations for the release of records in the (hands) of third parties.  The mechanism that must be pursued in order to obtain the hospital and doctors’ records is pursuant to Rule 26(11) of the Rules of Court.

This decision is important because it clarifies the procedures that must be used when Defendants in Injury Lawsuits wish to obtain the records in the hands of Third Parties and the Plaintiff does not consent.  Time will tell whether the New Rules of Court which soon come into force will effect this reasoning.