Pre Accident Medical Records Are Not Producible “as of right, or on demand” in Injury Claims
Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, providing useful comments on disclosure obligations of personal injury litigants under the BC Supreme Court Civil Rules.
In today’s case (Holmberg v. McMullen) the Plaintiff suffered “significant injuries” as a result of two vehicle collisions and sued for damages. In litigation the Defendants requested various pre accident medical records and pharmacological records arguing that when serious injuries are alleged such documents must be produced. A Master disagreed and dismissed the application. The Master’s decision was appealed which was also dismissed.
In noting that parties have no obligation to produce documents not in their possession or control in the first phase of document production and further that pre accident medical records are not producible on demand and as of right even in the face of serious injuries being disputed on the pleadings Mr. Justice Johnston provided the following reasons:
 The appellant argues that in personal injury litigation, a defendant is entitled to pre-accident documents containing medical information as part of the first tier of document disclosure because they could be used to prove or disprove material facts under Rule 7-1(1), or they should be available on demand as relating to matters in question in the action under Rule 7-1(11). The first argument overlooks the question of whether records a plaintiff has not obtained, but which are available on the request of the plaintiff, are “in the party’s possession or control” for the purposes of Rule 7-1(1). In Seller v. Grizzle (1994), 95 B.C.L.R. (2d) 297 (S.C.), this court said at para. 17:
In my view, the documents in question, i.e. the records created by the hospital or physician, are not within the patient’s power or control. The right of the patient is to have access to the documents and to obtain copies of those documents at his or her own expense. If copies are obtained, those are documents in the control of the patient. But I see nothing in the Rules of Court which requires the patient to obtain copies simply for the purpose of disclosure and production to the opposite party.
This has been consistently applied since: see Solomon v. McLean, 2016 BCSC 1765; Kondratyeva v. Shazi, 2017 BCSC 2294.
 Blackwater is of no greater assistance to the appellant on this appeal than is Athey. Separately or read together, the two decisions do not establish that a defendant in a personal injury action should have access to a plaintiff’s pre-accident medical, clinical or pharmacology records as of right, or on demand.
 The appellant says that the respondent is making substantial claims that put in issue his health and level of function before as well as after the accident, and relies on the respondent’s examination for discovery where, when asked about the emotional impact of his accident injuries, the respondent replied that he was a completely changed person. With respect, that series of questions and answers related to emotional effects of injuries does not support the argument that the respondent has opened the door to his pre-accident medical records.
 The appellant argues that the Master erred in law by relying on the authority of Kaladjian rather than on Imperial Parking, which the appellant says is the leading decision.
 Imperial Parking was decided two years after Kaladjian but it appears that Kaladjian was not brought to the attention of the court in Imperial Parking, as it is not mentioned. The appellant says Imperial Parking and Kaladjian are inconsistent decisions, and the Master followed the wrong one — Kaladjian — in the decision under appeal. The Master, on the other hand, considered both decisions, concluded that neither was inconsistent with the other, and pointed out the illogicality of the appellant’s position in para. 20 of her reasons.
 On this point, the Master is correct in my view. Imperial Parking confirms that the pleadings control what documents must be produced under the so-called first tier, that is, in the language of Rule 7-1(1) “… that could, if available, be used by any party of record at trial to prove or disprove a material fact”. Kaladjian reaches the same conclusion at para. 41. Imperial Parking says nothing about whether evidence must be produced to support a claim to further documents under Rule 7-1(11), although it does point out that a demand for further documents must be made in writing, with reasonable specificity, and with reasons why such additional documents should be disclosed (para. 24). Kaladjian concludes that evidence is required to support an application for further documents under Rule 7-1(11) at para. 50. That conclusion is consistent with the result reached with respect to the former Rule 26(11) in Dhaliwal.
 I conclude that in order to succeed on an application for further document discovery under Rule 7-1(11), an applicant must provide some evidence to support a connection between the documents sought and the matters in issue between the parties. Pleadings alone are not sufficient.
 If there were true inconsistency between Kaladjian and Imperial Parking, it is relevant that Imperial Parking was decided without the benefit of the earlier authorities, and the court that decided Imperial Parking was denied the opportunity to consider whether, and to what extent, it would follow the earlier decisions of the same court. Although the court that decided Imperial Parking would not have been bound by the rules of stare decisis to follow Kaladjian, as a matter of judicial comity, it would have had to consider whether Kaladjian was distinguishable on its facts, had been overruled by a higher court, or had been decided without the benefit of knowing of some binding authority.
 Re Hansard Spruce Mills Ltd.,  4 D.L.R. 590, established the approach this court should take with respect to earlier decisions of this court on the same issue. This approach was exhaustively considered in Chief Mountain v. British Columbia (Attorney General), 2011 BCSC 1394. Justice L. Smith discussed the principles behind the approach, and the authorities from which the principles have been derived, in detail at paras. 74-92. Her conclusion on the matter is found at paras. 90-92:
 In my view, as a general rule, previous decisions of this court should be followed in constitutional cases as much as in any other type of case. However, in deciding whether a previous decision on the same point of law should be followed, it is necessary to consider the context of both the previous decision and the current decision. It is in those contexts that the specific factors identified in Hansard Spruce Mills and Cairney should be addressed: whether the previous decision has been overtaken by more recent developments in the law; whether it was made without the benefit of full argument or without reference to some binding authority or statute; and whether it is palpably wrong.
 An additional factor in a constitutional case is the far-reaching impact of constitutional decisions. As our understanding of constitutional principles evolves and society changes, we may well need to revisit previous decisions and redevelop the jurisprudence relating to particular areas.
 That said, the starting point is that it is highly desirable to maintain consistency among decisions of the same court.
 Inconsistent prior decisions can cause embarrassment to the court that is later called upon to follow one or the other. That subsequent court is in no position to decide that one of the earlier inconsistent decisions is wrong, at least in the sense of overruling it. As Smart J. said in R. v. Sipes, 2009 BCSC 285 at para. 10:
 … It will almost always be in the interests of justice for a judge to follow the decision of another judge of the same court on a question of law. Consistency, certainty, and judicial comity are all sound reasons why this is so. It is for the Court of Appeal to decide whether a judge of this Court has erred, not another judge of the Court.
 Imperial Parking might very well have been decided differently if Kaladjian and the cases cited, including Przybysz v. Crowe, 2011 BCSC 731, had been brought to the attention of the Court.
 In my view, the Master was correct in her interpretation of the Supreme Court Civil Rules, and her application of the authorities to that interpretation, particularly her analysis and application of Imperial Parking and Kaladjian. Based as it was on a correct application of the law, the Master’s exercise of discretion was not clearly wrong.
 The appeal is dismissed, with costs to the respondent plaintiff.