Tag: bishop v. minichiello

Can A Litigation Guardian Be Ordered to Attend an Independent Medical Exam?


(UPDATE:  Please note Leave to Appeal the Below Decision was granted by the BCCA on January 25, 2011)
When a mentally incompetent person brings a lawsuit in BC they must do so through a litigation guardian or a committee.  Generally, when personal injuries are the subject of a lawsuit, the Defendant is entitled to have the Plaintiff attend an ‘independent’ medical exam.  What about the litigation guardian?  Can they be ordered to attend an independent medical exam?  The BC Supreme Court Civil Rules are silent on this point however, reasons for judgement were released today considering this question using the Court’s ‘inherent jurisdiction’.
In today’s case (Bishop v. Minichiello) the Plaintiff was injured in a 2005 motor vehicle collision.  He was an infant at the time and brought the lawsuit by way of litigation guardian.  The Plaintiff became an adult prior to the lawsuit resolving.  Normally, when this occurs, the Plaintiff files an affidavit and overtakes the lawsuit without the litigation guardian.  In today’s case the Plaintiff did not do this apparently because his injuries may have rendered him “unable to appreciate the extent of his own injuries and unable to effectively conduct the litigation on his own behalf.”.
The Defendant brought a motion that both the Plaintiff and his litigation guardian attend a series of medical exams.  The Plaintiff opposed arguing that the Rule authorizing the Court to compel a Plaintiff to attend an Independent Medical Exam does not empower a Court to extend the order to a litigation guardian.  Mr. Justice McEwan noted that while this was true it could be remedied by resorting to the Court’s inherent jurisdiction.  In granting the application the Court noted as follows:
[12] The defendant submits that although Rule 7-6 (1)-(3) makes no specific provision for a person other than the party to be examined to attend and answer questions, Wong (guardian ad litem) v. Wong [2006] B.C.J. No. 3123 (C.A.) established that the court may, in the interests of justice make ancillary orders to give effect to the purpose of the Rules, found in Rule 1(5) [now Rule 1-3]. In Wong, the question was whether the court could order a plaintiff to video tape an examination…

[13]         Rule 20-2 reads:

(3)        Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must:

(b)        be invoked against the party by invoking the same against the party’s litigation guardian.

[14]         Rule 13-1 reads:

(19)      When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[15]         On the question of inherent jurisdiction I think the characterization found in R & J Siever Holdings Ltd. v. Moldenhauer 2008 BCCA 59, is most apt:

In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg. Prob. 23 at 23-25. As the author said, at 25,

The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.

[16]         The Rules do not, properly speaking, confer jurisdiction. To the extent that they reflect a consensus of the Judiciary (and the Bar) as to the presumptions, or expectations, or shifts in onus that will contribute to the just and expedient conduct of litigation, they are useful in bringing predictability and stability to civil procedure. To the extent that they do not reflect such a consensus, they cannot be regarded as mandatory impediments to doing the right thing in any particular case.

[17]         The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.

[18]         Whether such an order is appropriate requires the court to weigh the plaintiff’s objection against the defendant’s rationale for the request…

[20]         The plaintiff’s objection to the attendance of the litigation guardian is primarily that a conversation between the litigation guardian and the examining physician creates a form of statement that is not controlled within the process and that might well lead to conflict or confusion later, if the guardian and the Doctor do not agree as to what was said.

[21]         The defendant’s point is, primarily, that in a case where the defence is guessing as to the mental status of the plaintiff, it would be prudent to have the person who knows him best, and who is also the litigation guardian, available to answer questions about his condition, especially where it is suggested that, among the effects of the injuries suffered in the accident, is a lack of insight or appreciation on Brandon Bishop’s part of the harm that has occurred.

[22]         In Tsantilas (Litigation Guardian) v. Johnson, Cranbrook Registry #18128 (20100211) Melnick, J. made a similar order in a case involving both counsel who appear in this proceeding. In what I gather to be a case of an under-age person, the court ordered the attendance of the litigation guardian at an assessment…

[23]         I think that as long as the case continues to be conducted by Charlotte Bishop as litigation guardian, the implication that, for reasons related to his injuries Brandon Bishop is unable to conduct the litigation will remain, along with the implication that talking to him will not yield the whole story. The plaintiff’s concerns about possible confusion do not outweigh the defendant’s interest in the appointed examiners getting accurate and complete information. Accordingly, Charlotte Bishop, as litigation guardian, must attend and answer the questions posed by the examiners as they require.

Leave For Appeal Denied in Computer Hard-drive Disclosure Case


In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).
The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.”  This application was dismissed by the Chambers Judge.
The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.
The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:

[22] At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night.  He also testified that he does have a Hotmail account but he had not “checked it forever”.  His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.

[23] In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:

[H]is sleep varies with the time one of his friends goes to bed.  This is because he spends a lot of time on Facebook chatting with this friend.

[24] I conclude that this appeal is prima facie without merit.  It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook.  Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.

[25] I dismiss the application for leave to appeal.

You can read the full judgement by clicking here (Bishop v. Minichiello)

Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims.  With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.

Personal Injury Claims and Privacy – Can ICBC access your Facebook Account?

If you pursue a personal injury claim in the BC Supreme Court you will be bound by the Rules of Court with respect to production of relevant documents.
With our ever-expanding use of technology, more and more documents may become relevant in Injury Litigation.  So, can computer records ever be relevant in personal injury claims?  
Reasons for judgement were released today by the BC Supreme Court (Bishop v. Minichiello) dealing with this issue.  In today’s case the Plaintiff allegedly suffered a brain injury as a result of the negligence of the defendants.  The Defendants wished to analyze the Plaintiff’s computer hard drive to ‘determine the period of time the plaintiff spends on Facebook between eleven at night and five in the morning‘.  The Plaintiff refused to produce his computer hard-drive and this resulted in a Court motion seeking an order compelling the Plaintiff to do so.
Mr. Justice Melnick granted the motion and ordered that ‘the parties agree on an independent expert to review the hard drive …to isolate and produce to counsel…the information sought or a report saying that the information sought is not retrievable.’.
In reaching this conclusion Mr. Justice Melnick engaged in the following analysis and application of the law:

IV. ANALYSIS

[46]            Electronic data stored on a computer’s hard drive or other magnetic storage device falls within the definition of “document” under R. 1(8) of the Rules of CourtIreland at para. 6. 

[47]            Rule 26(1) requires disclosure of documents relating to any matter in question in the action.  The decision of whether to grant an order requiring production under R. 26(10) is a discretionary one: Park at para. 15.  The court has used its discretion to deny an application for the production of documents in the following two circumstances: firstly, where thousands of documents of only possible relevance are in question; and secondly, where the documents sought do not have significant probative value and the value of production is outweighed by competing interests such as confidentiality and time and expense required for the party to produce the documents: Park at para. 15.  Additionally, privacy concerns should be considered in a determination under R. 26(10), where the order sought is so broad it has the potential to unnecessarily delve into private aspects of the opposing party’s life: Park at para. 21.

[48]            Disclosure in the civil litigation context is largely informed by an inquiry into relevance and probative value.  Relevance should be granted a broad scope: Peruvian Guano at 62.  Relevancy is to be determined upon a description of the nature of the documents sought and a reasonable interpretation of the pleadings: Boxer at 359. 

[49]            Relevant to this particular application are the values enshrined in s. 8 of the Charter – the right to be secure against unreasonable search and seizure.  Rule 26(10) confers no power to make an order that is really authorization for a search: Privest Properties Ltd. at para. 38.

[50]            Metadata is information recorded or stored by means of a device and is thus a document under R. 1(8): Desgagne at para. 29.  Metadata is a report of recorded data that is generated by computer software.  It is not something created by the user; rather, it is based on what the user does with their computer.  In both Park and Desgagne, it was held the threshold of relevance had not been met to order production of records of the frequency and duration of computer use.  However, Mr. Justice Myers in Park stated at para. 42 that he did not mean to say that hard drives and other electronic documents need never be produced under R. 26.  Thus, in the appropriate case if the threshold of relevance is met, a hard drive may require production.

[51]            This threshold was found to be met in Chadwick.  Despite agreeing with the plaintiffs that this was a case in which the hard drive was to be regarded as a file repository and not a document itself, Mr. Justice Myers held that such a distinction was not to be determinative of the application. 

[52]            Mr. Justice Bauman, for the Court of Appeal, held that leave to appeal the order should not be granted and the application was dismissed.  The Court of Appeal stated that while an appropriate case may give rise to important issues such as privacy, solicitor-client privilege, expense, and time, this was not that case as Mr. Justice Myers’ order was of narrow scope.

[53]            Similarly, the application at hand is of narrow scope.  The defence wishes to have the plaintiff’s hard drive of his family computer produced and analyzed to determine the periods of time the plaintiff spent on Facebook between eleven at night and five in the morning, each day.

[54]            Examination for discovery evidence of the plaintiff’s mother confirms that the plaintiff is the only person in the family using the family computer between those hours.  The plaintiff suggests that, at times, friends may use the computer once he logs onto Facebook.  But that is an evidentiary issue for trial.  The issues of privacy and solicitor-client privilege are basically resolved as only the plaintiff has the password to his Facebook account and he has not used this account to converse with his counsel.

[55]            It is true the Bishop family computer is more akin to a filing cabinet than a document; however, it is a filing cabinet from which the plaintiff is obligated to produce relevant documents.  This sentiment was approved in Chadwick.  Simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose that which is relevant.  If there are relevant documents in existence they should be listed and produced (or simply listed if they are privileged). 

[56]            The defence argues that this case is distinguishable from Baldwin and that the information sought is relevant.  The plaintiff advised Dr. Zoffman that his sleep varies with the time one of his friends goes to bed.  This is because he spends a substantial amount of time on Facebook chatting with this friend.  The plaintiff alleges that ongoing fatigue is preventing him from maintaining employment and thus his late-night computer usage is relevant to matters at issue in this lawsuit.

V. CONCLUSION

[57]            The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents.  Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.  In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege.  For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff’s family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case.  I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed. 

[58]            At the conclusion of the hearing on March 5, having been made aware that the passage of time was critical because of the potential for the memory of the plaintiff’s family computer to be “overwritten” with ongoing use, I directed that within two weeks of that date, an expert engaged by the plaintiff’s counsel, at the expense of the defence, produce two copies of the hard drive to be deposited with the court pending this ruling.  One of those copies should be used for the analysis I have now ordered.  The other copy should remain with the court as a backup to be accessed only with further order of the court. 

This case should serve as a reminder that technology is rapidly changing the potential scope of document production in Injury Litigation.  Lawyers and Plaintiff’s advancing BC Injury Claims need to be aware of the scope of documents that may be relevant and when doing so should not be so quick to overlook the potential relevance of electronically stored documents not only on a computer hard drive but also those that can be found on social networking sites such as Twitter, MySpace and Facebook.

 

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer