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Late Defence Medical Exam May Be Ordered in Exceptional Circumstances

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams.

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.
In this week’s case (Jackson v. Yusishen) the Defendant brought an application for a ‘responsive’ functional capacity evaluation.  Mr. Justice Barrow dismissed the application finding that on the facts before him the evidentiary burden for a late exam were not met.  Despite this result the Court provided the following interesting comments addressing that a late defense medical exam may be justified in exceptional circumstances:
[15]         There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.
[16]         Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.
[17]         The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.
[18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet…
[32]         Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.

Discovery Continuation Distinct from a Further Examination

Written by admin on . Posted in BCSC Civil Rule 7. 93 Comments on Discovery Continuation Distinct from a Further Examination

As previously discussed, the law sets a heavy burden when a party seeks a second examination for discovery in a lawsuit in the BC Supreme Court.  There is a distinction, however, between a second discovery and a continuation of an incomplete one.  This distinction was discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Li v. Oneil) the Plaintiff was examined for discovery at which various requests for further information were made.  When the Defendant sought to schedule a continuation of the discovery the Plaintiff opposed arguing the heavy burden for a further discovery was not met.  Master Muir granted the application noting the distinction between concluding an incomplete discovery based on outstanding requests and a genuine further examination.  The Court provided the following reasons:
[11]         The application before me, despite being framed as an application for a further discovery, was in reality an application that the examination of the plaintiff continue, both in accordance with R. 7-2(22) and generally, based on production of new material such as the list of special damages, medical records and employment records. In support, he relies on the decisions in Cowan v. Davies, 2008 BCSC 1239, and Dhami v. Bath, 2012 BCSC 2077…
[15]         I am of the view that the examination for discovery was adjourned as contemplated by these rules. Thus, the defendant is entitled to continue its examination for discovery regarding questions left on the record and I am of the view that logically extends to questions based on documents requested at the discovery and subsequently produced.
[16]         As the examination for discovery was not concluded, the heavy onus required to justify a further discovery referred to in Sutherland v. Lucas is not engaged. Given the extensive document production since the examination for discovery was conducted, I am also of the view that the defendant is entitled to continue its examination for discovery based on the new material, whether or not it was produced in accordance with a request left on the record.
[17]         If this was an application for a second examination for discovery I would come to a similar conclusion.
[18]         On a review of the listing of documents produced by the plaintiff since her examination for discovery as set out in the defendant’s notice of application, it is clear that many are documents that could prove or disprove a material fact and that they were in existence prior to her examination for discovery and as such required to be produced under rules 7-1(1) and 7-1(9).
[19]         The defendant submits that is sufficient to constitute a failure to make full and frank disclosure as contemplated in Sutherland v. Lucas and is such as to warrant a second discovery.
[20]         I agree. In my view it does not behoove a party to fail to make complete document disclosure prior to an examination for discovery and then to take the position that the examination cannot be continued when proper disclosure is made.
[21]         Thus, in the circumstances of this case I am satisfied that the defendant did not conclude its discovery and thus the heavy onus referred to in Sutherland v. Lucas does not apply. The defendant is entitled to continue its examination for discovery on the new matters, but is not entitled to examine on matters covered on the first day of examination for discovery.

"Overly-Frequent Interventions, Inappropriate Objections, and an Under-Prepared Witness" Leads To Further Discovery

Written by admin on . Posted in BCSC Civil Rule 7. 45 Comments on "Overly-Frequent Interventions, Inappropriate Objections, and an Under-Prepared Witness" Leads To Further Discovery

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering a further examination for discovery of a party due to “overly-frequent interventions, inappropriate objections, and an under-prepared witness“.
In this week’s case (CP v. RBC Life Insurance Company) the Plaintiff was suing for disability insurance coverage she had in place with the Defendant.  In the course of the lawsuit the plaintiff examined a representative of the Defendant and the discovery was “at times disruptive, or event fractious“.  The Plaintiff adjourned the discovery before using her full 7 hours.  The Plaintiff sought an order allowing her to reschedule the examination and seeking to exceed the 7 hour cap.  In finding this was appropriate Master Baker provided the following sensible comments addressing the conduct of discoveries under the new rules of court:
[14]         Ms. Hayman adjourned in part due, she says, to the frequent interruptions and interventions by Ms. Carmichael. She argues that many of the interruptions were in and of themselves improper and that, for example, questions that were objected to should be answered by court direction. But perhaps more concerning to Ms. Hayman is that, she says, it was practically impossible to establish “a flow” to the examination which is, after all, in the nature of a cross-examination.
[15]         I have reviewed the 170 pages of the transcript of the two examination intervals. There are comments, objections, interventions, questions, or the like by Ms. Carmichael on 116 of the pages. It must be said that many are typical of an examination and benign; advice to Ms. Edizel, for example, to speak up, or confirmation to Ms. Hayman that the defense does have the proffered document. But the sheer number of recorded comments and interventions lend support to Ms. Hayman’s submission…
[18]         I worry that there is a trend to more oppositional examinations for discovery and that more and more will, inevitably, result in applications such as this. While the court is always available to apply the Rules of Court and decide on procedural issues, the process for examinations for discovery never intended this level of supervision. I agree with N. Smith J. that the court should generally discourage a question by question approach that, essentially, subsidizes counsel’s fundamental duty to conduct an appropriate discovery, on the one hand, or to permit one (including its broad and wide-ranging nature, often), on the other.
[19]         Rule 7-2(1)(a) inevitably increases the responsibilities in that regard. With a seven-hour limitation, examining counsel is obviously required to be efficient, focussed, and effective in conducting his or her examination. Opposing counsel, on the other hand, is obliged to restrict his or her objections and not consume that valuable time with unnecessary objections or interventions. Quite the contrary: if one thinks strategically, why not allow one’s opponent to use the examining time with irrelevant or non-productive questions? Tedious as they may seem, they would offer an excellent response to any application for increased examination time.
[20]         But that choice would be entirely left to the examinee’s counsel. In the main, it is for him or her to avoid intruding on the examiner’s time unless clearly justified.
[21]         There is a parallel obligation on the actual examinee; with the restriction on examination time comes a heightened responsibility to inform oneself in advance of the examination, so that the time can be used fruitfully and the discovery process serve its purpose. In this case Ms. Edizel had a particularly clear obligation in that regard. She was not the case manager or supervisor during the operative times of C.P.’s claim management; both of those individuals, as I’ve said, have left RBC. It was therefore incumbent on Ms. Edizel to redouble her efforts to examine the file and its history and to inform herself as much as possible. Both Ms. Wadhwani and Ms. Rhodes were apparently unwilling to talk to anyone about C.P.’s claim. The best source of information (other than the file entries themselves, one supposes) were therefore denied Ms. Edizel. I can understand, then, her inability to answer some (perhaps many) questions, but on the whole I am not satisfied that she met her obligation to inform herself as much as reasonably possible in advance of her examination. As a consequence, Rule 7-2(22) applies:
In order to comply with subrule (18) or (19), a person being examined for discovery may be required to inform himself or herself and the examination may be adjourned for that purpose.
[22]         The combination, then, of overly-frequent interventions, inappropriate objections, and an under-prepared witness requires that Ms. Edizel be further examined. I will not restrict that examination to outstanding requests. Moreover, her attendance for further examination in British Columbia will be at the expense of the defendant (subject, obviously, to any future rulings on costs). Ms. Hayman will be permitted a further four hours for examination as requested.

"Investigative Stage" Trumps Claim to Litigation Privilege Regarding Quantum of Damages Investigation

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

I’ve previously discussed the difficulty ICBC has trying to withhold documents in a personal injury lawsuit based on their ‘investigative’ responsibilities.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In this week’s case (Spenst v. Reemeyer) the Plaintiff alleged injury s a result of a motor vehicle/pedestrian incident which occurred in 2010.  In the course of the lawsuit ICBC denied liability on behalf of the motorist.  ICBC refused to produce two ‘investigative reports’ they commissioned arguing these were protected by litigation privilege.  Master Caldwell found the evidence ICBC produced in support of their claim fell short of the mark to obtain the protection of privilege and ordered production of the documents.  After summarizing the legal principles involved Master Caldwell provided the following reasons:
[12]         In short, the determination as to whether litigation is contemplated as a reasonable prospect is not merely subjective and arbitrary but rather must be objective and based upon reasonable information obtained by appropriate investigation.
[13]         What does the evidence before me reveal when viewed in the light of the above tests?
[14]         First, I have absolutely no evidence from that adjuster who apparently had conduct of the file for the first 18 months.  I am not told whether or not any investigations were undertaken during that time as to either the issue of liability or the extent of damages.  Plaintiff’s counsel submitted, and defence counsel did not dispute, that no denial of liability was ever communicated to the plaintiff prior to the delivery of the Response to Civil Claim.
[15]         Second, Ms. Roach notes that the plaintiff retained counsel.  Plaintiffs have a right to obtain legal advice, including legal advice regarding their rights and responsibilities arising out of motor vehicle or personal injury matters. Consultation with counsel is not a direct or even reasonable guarantee that one is on the road to active litigation; the involvement of counsel may well enhance the possibility of resolution short of trial.
[16]         Third, Ms. Roach says that she only handles claims that are being litigated or are likely to be litigated and thus she determined that since the file was transferred to her it would be litigated.  Strangely however, Ms. Roach, in her own correspondence of May 8, 2012 (the day she commissioned the investigations/reports) wrote to plaintiff’s counsel:
To minimize costs, I will work with you to conclude this matter as quickly as possible.  If it is determined that your client is entitled to compensation, I will be prepared to release settlement funds only when the entire claim, including taxable costs and disbursements, has been resolved and the necessary release documentation completed.  I look forward to working with you on this matter.
[17]         At the time Ms. Roach wrote this conciliatory letter referencing concluding the matter, entitlement to compensation and settlement funds in response to a similarly conciliatory letter of introduction from plaintiff’s counsel, action had not yet been commenced, no position on liability had been taken and there is no evidence that any substantive investigation or even basic inquiry had been undertaken regarding any aspect of the plaintiff’s claim.  The mere arbitrary assertion that this file is likely to go to litigation because this adjuster handles only litigation files and she had decided it would go to litigation is not objectively defensible on the evidence before me.
[18]         Fourth, Ms. Roach says that the end of the limitation period was approaching and, by implication, litigation would have to be commenced.  What this assertion fails to recognize is that there is a significant difference between the commencement of an action in order to protect against the expiry of a limitation period and the active conduct of litigation.  In her May 8 correspondence, Ms. Roach expressly confirmed that her letter was not “a waiver or extension of any applicable limitation”.  In order for any legitimate, even-handed settlement discussions to take place, as invited by her letter, it was necessary for plaintiff’s counsel to preserve the plaintiff’s right to claim at law for her alleged injuries in the event that negotiations failed.
[19]         Counsel for the defendant advised in submissions that the investigative reports were obtained not on the issue of liability but rather on the issue of quantum of damages.  There was no evidence in the material to support that submission and counsel failed to indicate why that distinction would make a material difference in regard to the investigation/dominant purpose assessment.
[20]         The evidence before me fails to objectively establish to any certainty that the reports which were commissioned and which are sought by the plaintiff were commissioned for any purpose other than for basic investigation of the plaintiff’s claim.  There is no evidence to indicate that the adjusters had undertaken any type of earlier investigation to determine whether there was a reasonable, objective basis upon which liability should be denied or quantum questioned.  The reports are ordered produced forthwith.

Raising the Bar for "Resposive" Independent Medical Exams

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7. 52 Comments on Raising the Bar for "Resposive" Independent Medical Exams

While the BC Supreme Court can order a Plaintiff to undergo an independent medical exam to allow the opposing party to obtain a ‘responsive’ report, a clear evidentiary foundation must exist in order for such an application to succeed.  Unreported reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, demonstrating this.
In the recent case (Becker v. Zetzos) the Plaintiff was injured in a collision.  In support of his claim he served a report from a physiatrist.   As trial neared the Defendant sought an order requiring the Plaintiff to undergo an independent exam with an orthopedic surgeon for a ‘responsive’ report.    This application was brought after the expiry of the 84 day deadline for conventional expert reports to be served.
In support of the application the orthopedic surgeon provided an an affidavit stating as follows:
In order for me to assist the court and properly prepare a rebuttal to the expert report of Dr. Giantomaso I must physically examine the Plaintiff and ask him the usual questions that a doctor would ask in order to elicit any information upon which to ground my expert rebuttal report.  I could not give a proper rebuttal opinion report of the Plaintiff which assist the court and opines on the movement, functioning, diagnosis, prognosis, distribution of symptoms, recommendations, suitability for work, and etiology of the Plaintiff without physically examining the Plaintiff and where appropriate palpating the Plaintiff.
In finding this evidence falls short of the mark, Master McCallum provided the following reasons:
[17]  In this case I say the evidentiary threshold has not been crossed.  Dr. Dommisse’s letter is simply saying that he cannot give a proper rebuttal opinion report to assist the court without examining the plaintiff.  In support of that position he goes through what seems to me to be simply a description of the work he would do if he were preparing a report in the first instance.
[18]  He has Dr. Giantomaso’s report.  He doe snot say, as he could have, what there is about that report that would lead him to think that he himself needs to examine the plaintiff.  The defendant has not met the evidentiary threshold to support the request for a physical examination of the plaintiff prior to preparation of a rebuttal report.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
 

Can a Liability Admission Reached by Agreement Be Judicially Set Aside?

Written by admin on . Posted in BCSC Civil Rule 7.

The BC Court of Appeal had an opportunity to address this issue and the short answer is yes.
In this week’s case (Goundar v. Nguyen) the Plaintiff was injured in a multi-vehicle collision. The Plaintiff sued two motorists and ICBC initially denied fault on behalf of both.  As the lawsuit progressed the Defendant’s lawyer ‘inadvertently’ agreed to admit liability on behalf of one Defendant in exchange for a discontinuance against the second Defendant.  This deal was agreed to  and an amended Response was filed.  Subsequently a Court order was obtained setting aside the admission of liability accepting that it was agreed to inadvertently by defence counsel.
The Plaintiff appealed arguing the liability agreement superseded the Court’s jurisdiction to set aside the admission.  The BC Court of Appeal disagreed and held that the Court retained the discretion to set the admission aside.  In reaching this conclusion the Court provided the following reasons:
[26]         I have already concluded that Rule 7-7(5) applies to withdrawing an admission even if it arose from an agreement, and determined that the agreement in issue in this case does not purport to attempt to oust the application of the Supreme Court Civil Rules and, in particular, the rule governing the withdrawal of an admission made in a pleading.  The fact of the agreement and the conduct of the parties relying on it is a factor that can, to the extent necessary, be taken into account in the balancing of prejudice as part of answering the ultimate question whether the interests of justice require permitting the admission to be withdrawn.
[27]         In the result, I am satisfied that the chambers judge adopted the correct test in deciding the issue before her.
[28]         Allowing the withdrawal of an admission is a discretionary matter.  Deference is owed to the chambers judge, unless the judge erred in principle in the exercise of her discretion.  Here I see no such error.  The judge found there to be a triable issue.  She concluded that the admission had been made inadvertently.  She balanced any prejudice arising from the proposed withdrawal of the admission.  She addressed the extent to which a prejudice could be compensated by costs.  I would not interfere with the exercise of the chambers judge’s discretion.

Translator's "Poor Performance" Gives Way to Further Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 7.

The current BC Supreme Court Rules cap examinations for discovery in a conventional prosecution at 7 hours unless the Court otherwise orders.   Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing one circumstance when prolonging this cap was appropriate.
In the recent case (Dhami v. Bath) the Plaintiff attended 8 hours of discovery.  A translator was used who “did a poor job“.  The Court exercised its discretion to allow a further 2 hours of discovery and in doing so provided the following reasons:
[5]             This application must be determined on the evidence before the court. The only evidence with respect to the examination itself are the excerpts revealing the translator’s poor performance which objectively interfered with counsel’s ability to conduct the examination in an efficient manner. Put another way, I find that the translator’s conduct made it reasonably impractical to complete the examination for discovery in the time spent to date.
[6]             I am not persuaded that the examination of the plaintiff was concluded such that the defendant must meet the heavy onus suggested in Hogg v. Hansen, 2007 BCSC 958, for a second examination. The additional two hours is allowed to the defendant to complete the one and only examination.

ICBC Application To Withdraw Liability Admission Denied

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court.  When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a vehicle   He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury.  ICBC initially looked at the liability situation and placed the Defendant at fault.  After the lawsuit started liability was formally admitted in the pleadings.  As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence.  The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation.  In dismissing the application Master Bouck provided the following reasons:
[35]         The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.
[36]         The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.
[37]         In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.
[38]         The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.
[39]         The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the Supreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.
[40]         This case bears some resemblance to the circumstances discussed in Rohling (Guardian ad litem of) v. Proudman, [1998] B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:
I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.
[41]         A similar analysis of this question is given in Oostendorp v. Sarai, [1973] B.C.J. No. 570 at para. 10:
It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.
[42]         I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories: Rohling (Guardian ad litem of) v. Proudman at para. 19.
[43]         In the result, I find that the application ought to be dismissed, with costs to the plaintiff.

Case Plan Conference Orders Can't Trump Privilege

Written by admin on . Posted in BCSC Civil Rule 5, BCSC Civil Rule 7. 50 Comments on Case Plan Conference Orders Can't Trump Privilege

Last year I highlighted a decision confirming that the Court’s powers under the new rules of court don’t allow orders to be made which will trump legitimate privilege claims.  Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, confirming this principle.
In the recent case (Blackwell v. Kwok) the Defendant sought an order at a Case Planning Conference requiring the Plaintiff to disclose the specialty of the expert witness(es) the Plaintiff intends to rely on.  The Court refused to make this order finding it would trump the privilege in the Plaintiff’s counsel’s solicitor’s brief.  In dismissing the request Mr. Justice Funt provided the following reasons:
[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:
[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.
[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.
[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …
[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.
[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.
[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.
[15]         The Court declines to make the order sought.
 

Litigants Prohibited From Self-Recording Examinations For Discovery

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 7, Civil Procedure. 80 Comments on Litigants Prohibited From Self-Recording Examinations For Discovery


Adding to this site’s archived posts relating to examinations for discovery under the BC Supreme Court Rules, reasons for judgement were released this week addressing whether a party may self-record an examination for discovery.  In short the answer is no.
In this week’s case (Rassaf v. SNC-Lavalin Engineers and Constructors Inc.) the Plaintiff indicated he wished to record his own discovery.  The Defendant brought an application prohibiting him from doing so.  In granting the application Mr. Justice Goepel provided the following reasons:
[6]             A somewhat similar situation arose concerning the power of parties to videotape examinations for discovery. In Ramos v. Stace-Smith (2004), 24 B.C.L.R. (4th) 333, Mr. Justice Fraser allowed an examination to be videotaped.
[7]             That decision was subsequently followed in Ribeiro v. Vancouver (City), 2004 BCSC 105. The Ribeiro case was appealed. The appeal judgment is found at 2004 BCCA 482. On appeal, Madam Justice Southin held that the decision in Stace-Smith was wrongly decided and similarly the chambers judgment in Ribeiro, which had followed Stace-Smith, was similarly wrongly decided. In reaching her decision, she noted that there was no provision in the Rules for an order for videotaping. She said at para. 3:
There is no provision in the Rules of the Supreme Court of British Columbia for the order which was pronounced in this case. Since time immemorial, that is to say since examinations for discovery were first permitted in this province which I think now is about 80 or 90 years ago, they have never been filmed by any method at all. If they are to be, there must be a change in the Rules of the Court to permit or authorize such a practice, or, in my view, there must be at least a practice direction emanating from the whole of the Supreme Court of British Columbia on the point. In making the latter remark, I am not saying that a practice direction would necessarily be valid in such circumstances. Matters of practice and procedure in the court below must be governed by its Rules, and those Rules must be duly enacted under theCourt Rules of Practice Act. It is certainly open to the Lieutenant Governor in Council to permit what Mr. Potts says is a very good idea but she has not done so. It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism. The course of the court below is the law of the court and the course has never been to engage in such a practice.
Those words apply in these circumstances.
[8]             It has not been the practice that individual parties are allowed to record examinations for discovery. There is no provision for same in the Rules. In these circumstances it would not be appropriate for me to allow such to occur. Accordingly, I am granting the defendant’s order, and the plaintiff will be prohibited from recording by any means his examination for discovery.