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Plaintiff Lawyer Copies of MSP and Pharmanet Printouts Subject to Litigation Privilege

Reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, finding that plaintiff’s counsel was correct in listing ‘copies’ of MSP and pharmanet printouts as privileged and refusing to produce a copy to the Defendant.

In today’s case (Kang v. Sahota) the plaintiff was advancing an injury claim and in the course of doing so plaintiff’s counsel ordered copies of their clients MSP and Pharmanet printouts.  These were used as tools in deciding what further records to order to advance the claim. The Defendant brought an application for production of these records.  The Court dismissed this noting that counsel was correct to list these as privileged and the application should seek production of these directly from the Ministry of Health.  In reaching this decision Mr. Justice Riley provided the following reasons:

[9]          That brings me to the plaintiff’s claim that what is sought in this application, namely copies of the MSP and Pharmanet records in the possession of plaintiff’s counsel, are protected by privilege because these materials are part of the “solicitor’s brief”. In support of this position, plaintiff’s counsel filed an affidavit from a legal assistant attesting that in personal injury actions such as this one, counsel’s practice is to obtain copies of the client’s MSP and Pharmanet records, which counsel then uses to determine what medical records and reports to obtain for the purposes of proving the plaintiff’s case. Having obtained and used the plaintiff’s MSP and Pharmanet records in this matter, counsel then listed them as privileged documents in Part 4 of the plaintiff’s list of documents.

[10]       Where a lawyer exercises professional judgment and industry in assembling a collection of relevant documents for the purposes of advising or conducting anticipated litigation, the lawyer is entitled to claim privilege over that collection of documents: Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 (C.A.) at p. 142. Applying that reasoning in the case at bar, I am bound to conclude that the copies of the MSP and Pharmanet records in the possession of plaintiff’s counsel are indeed part of the solicitor’s brief and thus protected by litigation privilege. However, for reasons explained below, dismissing the defendant’s application on the basis that the documents in question are privileged is very likely a hollow remedy.

[11]       In opposing the privilege claim, counsel for the defendant maintains that the documents in question – MSP and Pharmanet records – were not created for the dominant purpose of litigation. The original MSP and Pharmanet records were presumably created and maintained by the Ministry of Health, for purposes entirely unrelated to the conduct of this litigation. However, the point made by plaintiff’s counsel is that the copies of these records obtained and kept within his file were assembled by him for the purpose of conducting the litigation. This makes the documents in question, namely copies of the MSP and Pharmanet records within counsel’s file, part of the solicitor’s brief.

[12]       Of course, the privilege only applies to the copies held by plaintiff’s counsel. The original MSP and Pharmanet records, created and maintained by the British Columbia Ministry of Health, would not be protected by any privilege.

[13]       I am therefore bound to conclude that the plaintiff’s position, though technical, is well founded in law. Practically speaking, I would consider counsel’s claim of privilege to be of little utility, since the information in the MSP and Pharmanet records exists independently of the solicitor’s brief. The defendant would presumably be free to seek production of the plaintiff’s post-collision MSP and Pharmanet records directly from the Ministry of Health under Rule 7-1(18).

[14]       The defendant’s application for production of post-collision MSP and Pharmanet records in possession of plaintiff’s counsel is dismissed on the basis that the documents sought are protected by litigation privilege. In the circumstances, I make no order with respect to costs.

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