Previous Admissions of Potential Violence Ordered Disclosed in Personal Injury Claim Against Security Guard

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the scope of document production in a case alleging injury caused by a security guard.
In today’s case (Ash v. Zellars Inc.) the defendant security guard “arrested the plaintiff for theft“.  In the course of restraining the 16 year old girl the Defendant “used his legs as a lever to get the plaintiff to the ground”.  The plaintiff’s head struck the floor.  She lost consciousness and allegedly suffered a fractured skull.
In the course of the lawsuit the Plaintiff learned that the Defendant unsuccessfully applied to become a police officer with the RCMP, the Vancouver PD, and the Transit Police.  The Plaintiff sought the applications to be disclosed but the Defendant refused.  The Court held that while the full applications were not relevant, portions were, and ordered that the portions questioning about past violent altercations to be disclosed.  In ordering partial production Master Taylor provided the following reasons:
[14]         Plaintiff’s counsel maintains that the application forms are important due to questions asked about the applicant’s propensity for violence, propensity for inappropriate sexual behaviours and propensity for dishonesty. These questions are located at page 16 of the application form under the heading, Personal Relationships. There are thirteen questions under this heading and I set them out below with the question number from the application form:
58.       Provide details on all physical altercations you have had with a spouse or partner, or anyone associated to you in a domestic or family relationship.
59.       What is the worst emotional experience you have ever had?
60.       provide details on when you have used, or threatened to use, physical violence toward any adult person. (Sports or otherwise) (their emphasis)
61.       Provide details where you have used physical force toward a child.
62.       Provide details of the time/s where you may have paid, or been paid, for sexual activities.
63.       Have you ever sexually forced yourself on another?  Have you ever been accused of forcing yourself on another?
64.       Have you ever been involved in the sex trade industry in any capacity (i.e.) driver, receptionist, answering phones, street worker, etc)?
65.       Tell us about any time you may have retained, or been involved with the service of an escort agency, massage parlour, prostitutes (i.e. cruising for prostitutes, buying for friends, etc.)
66.       Have you ever had any sexual involvement with anyone without his or her consent?
67.       Has anyone had any sexual involvement with you without your consent?  If yes, provide details.
68.       Have you ever been involved in a sexual manner with a child (under the age of 16) regardless of your age?  If yes, provide details of all incidents. (Include ages of participants)
69.       Give the circumstances of your involvement in a sexual act that if you were caught, you may have been prosecuted. Provide details of all incidents. (i.e. sexual contact with an animal, exposing yourself in public, incest (sexual relations with a family member), sexually explicit anonymous phone calls, or peeked into someone’s window for sexual purposes etc.
70.       Provide details of your use of pornography.
[15]         The defendants submit that the information sought about an applicant for employment by the Transit Police force deals with a wide range of sensitive and intensely personal topics. As well, the application form also seeks to elicit identifying information about the applicant’s entire family members, including in-laws, former spouses, deceased parents, as well as character references. One can only imagine that the other two police forces likely seek answers to similar questions…
[17]         The defendants maintain that in order to succeed in her application, the plaintiff must first satisfy the court that the documents sought contain information which may relate to a matter in issue, and that the application is not in the nature of a fishing expedition, citing Gorse v. Straker, 2010 BCSC 119 at paragraph 16. As Macaulay J. said in Gorse, the formulation of this test stems from the well-known decision ofPeruvian Guano (1882), 11 Q.B.D. 55 at pp. 62-63 (C.A.) and permits access to documents that relate to a matter in issue indirectly as well as directly…
[20]         Taking into account that I have determined the documents sought relate only to a matter indirectly in issue, I have to now decide whether any of the information from the application forms is to be provided to the plaintiff.
[21]         In my view, questions 58 and 60 from the employment application form for the Metro Vancouver Transit Police, as set out above, and their answers are such as was discussed in Przybysz v. Crowe, 2011 BCSC 731 at paragraphs 27 -28, as those documents which assist in a train of enquiry as contemplated in Peruvian Guano. The others, in my view, are merely in the nature of a fishing expedition.
[22]         Accordingly, I order that the defendants provide to the plaintiff copies of the personal defendant’s applications to the three stated police forces with all answers completely redacted but for questions 58 and 60 and the answers thereto as provided by Magdaluyo, or similar equivalents in the application forms for employment by the Vancouver Police Department and the RCMP.

Ash v. Zellars Inc., bc injury law, master taylor

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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