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Tag: discovery of documents

Pre-Litigation Police Disclosure Request Denied

Written by admin on . Posted in BCSC Civil Rule 17, BCSC Civil Rule 2, Civil Procedure. 119 Comments on Pre-Litigation Police Disclosure Request Denied

When a lawsuit gets underway in the BC Supreme Court the Rules of Court give litigants significant powers to force disclosure from opposing parties and even non-parties.  If a formal lawsuit has not been started the  Court’s power to order disclosure becomes far more limited.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court, Chilliwack Registry.
In last month’s case (Dhindsa (Re)) the applicant was injured in a 2010 hit and run collision.  The police investigated the matter.  The applicant applied for an order compelling disclosure of the police file.  Orders such as these are routinely granted by consent once formal lawsuits are underway.  In this case no lawsuit was commenced.  The applicant’s lawyer argued that the Court could make the disclosure order using a remedy known as an “equitable bill of discovery“.
Mr. Justice Grist held that even if the Court did have such a right it was not appropriate to exercise on the facts of this case.  In dismissing the application the Court provided the following reasons:

[4] Counsel for Mr. Dhindsa has cited Kenney v. Loewen (1999), 64 B.C.L.R. (3d) 346 (S.C.) [Kenney], a decision of Madam Justice Saunders which references Glaxo Wellcome PLC v. Canada (Minister of National Revenue), 1998 CarswellNat 1388 (F.C.A.), 162 D.L.R. (4th) 433 [Glaxo]. The Glaxo case before the Federal Court of Appeal in turn cited the English House of Lords decision in Norwich Pharmacal Co. v. Commissioners of Customs and Excise, [1973] 2 All E.R. 943; [1974] A.C. 133 (H.L.).

[5] These decisions all recognize that an antique form of action for a remedy known as an equitable bill of discovery remains known to the law and, in appropriate cases, can be the sole remedy sought in a civil action.

[6] In short form, the bill of discovery would require a third party to reveal the identity of a person the plaintiff says has done them wrong. In Kenney, the plaintiff indicated that he had suffered damages as a result of a slander. He did not know the source of slander and the action for the bill of discovery was designed to force the defendant to reveal the person’s identity. At para. 33 ofKenney, Madam Justice Saunders listed the circumstances under which the remedy would be granted:

(a)        the plaintiff must show that a bona fide claim exists against the unknown wrongdoer;

(b)        the defendant must establish that the information is required in order to commence an action against the unknown wrongdoer, that is, the plaintiff must establish that disclosure will facilitate rectification of the wrong;

(c)        the defendant must be the only practicable source of the information;

(d)        there is no immunity from disclosure;

(e)        the plaintiff must establish a relationship with the defendant in which the defendant is mixed up in the wrongdoing. Without connoting impropriety, this requires some active involvement in the transactions underlying the intended cause of action.

(f)         disclosure by the defendant will not cause the defendant irreparable harm; and

(g)        the interests of justice favour granting the relief.

[7] In the affidavit filed in support of this action counsel for Mr. Dhindsa says at numbered items 6-8:

6.         I have not filed a Notice of Civil Claim on behalf of my client and require production of the Police File by the Surrey RCMP to ascertain the identity of the potential defendant(s) and whether or not there is sufficient evidence to ground a claim of negligence.

7.         If there is sufficient evidence to found a negligence action, I require the Police File to understand what the objective witness accounts of the Accident are so as to efficiently and correctly plead my client’s case, represent my client at trial and represent my client during settlement negotiations.

8.         I do not want to commence an action without first obtaining the Police File in order to adhere to Rule 1-3 of the Civil Rules of Court.

[8] Assuming for the moment that the application for the bill of discovery brought by way of a requisition satisfies Rule 2-1(2)(a) and Rule 17-1, the application is nonetheless deficient in providing the circumstances indicated in Kenney under sub-paragraphs (a) and (e). The affidavit indicates that Mr. Dhindsa was injured in the motor vehicle accident, but does not give any details to suggest the other driver was negligent. In fact, investigation of the circumstances is listed as one of the reasons for wanting to have access to the police file. Further, there is nothing to indicate that the Surrey RCMP are “mixed up in the wrong doing,” or were actively involved in, “the transactions underlying the intended cause of action.”

[9] The right to pre-action discovery may have merits beyond the strictures of an action for a bill of discovery, however, that form of proceeding is not applicable on the circumstances of this application.

Scope of Discovery Under the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Uncategorized. 100 Comments on Scope of Discovery Under the New Rules of Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of both discovery of documents and examinations for discovery under the new Rules of Court.
In today’s case (More Marine Ltd. v. Shearwater Marine Ltd) the Plaintiff companies sued the Defendant alleging the breach of marine insurance policies.  The Plaintiff was self represented.  He examined an insurance adjuster that worked for the Defendant.  At discovery the Defendant raised numerous objections including an objection to questions addressing “general practices in the insurance industry“.  A motion was brought seeking guidance addressing whether these questions were permissible.
Mr. Justice Smith held that this line of questioning was appropriate and ordered that a further discovery take place.  In doing so the Court provided perhaps the most extensive judicial feedback to date about the changes with respect to discovery obligations under the New Rules of Court.  Mr. Justice Smith gave the following useful reasons:

[3]             The scope of proper questioning on an examination for discovery is set out in Rule 7-2 (18) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]:

Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

(b)        is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

[4]             The new Rules came into effect on July 1, 2010, but the language in rule 7-2 (18) is identical to the former rule 27 (22).  As Griffin J. said in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556 [Kendall] at para. 7 “the scope of examination for discovery has remained unchanged and is very broad.”  In Cominco Ltd. v. Westinghouse Can Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco], an early and leading case under the former rule, the Court of Appeal said at 151 that “rigid limitations rigidly applied can destroy the right to a proper examination for discovery.”  The court in Cominco also adopted the following statement from Hopper v. Dunsmuir No. 2 (1903), 10 B.C.R. 23 (C.A.) at 29:

It is also obvious that useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose, and it is needless to labour the proposition that in many cases much preliminary skirmishing is necessary to make possible a successful assault upon the citadel, especially where the adversary is the chief repository of the information required.

[5]             In Day v. Hume, 2009 BCSC 587 this court said at para. 20:

The principles emerging from the authorities are clear. An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[6]               While Rule 7-2 (18) is the same as its predecessor, the new Rules create a distinction that did not previously exist between oral examination for discovery and discovery of documents.  The former rule 26 (1) required a party to list all documents “relating to every matter in question in the action.”  Although disclosure in those terms may still be ordered by the court under Rule 7-1 (14), the initial disclosure obligation is set out more narrowly in Rule 7-1(1):

(1)        Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a)        prepare a list of documents in Form 22 that lists

(i)         all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii)        all other documents to which the party intends to refer at trial, and

(b)        serve the list on all parties of record.

[7]             Under the former rules, the duty to disclose documents and the duty to answer questions on oral examination were therefore controlled by the same test for relevance.  Under the newRules, different tests apply, with the duty to answer questions on discovery being apparently broader than the duty to disclose documents.

[8]             Although that may appear to be an anomaly, there are at least two good reasons for the difference.  One reason is that if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required.  The examination for discovery is the most likely source of such evidence.

[9]             The second reason relates to the introduction of proportionality as a governing concept in the new Rules.  Rule 1-3 (2) states:

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[10]         The  former rule governing discovery of documents was interpreted according to the long-established test in Compagnie Financière du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63 (C.A.):

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party … either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party … either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…

[11]         The new Rules recognize that application of a 19th century test to the vast quantity of paper and electronic documents produced and stored by 21st century technology had made document discovery an unduly onerous and costly task in many cases.  Some reasonable limitations had become necessary and Rule 7-1 (1) is intended to provide them.

[12]         The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.

[13]          As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:

A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.

Production of Documents, Forced Authorizations and the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 67 Comments on Production of Documents, Forced Authorizations and the New Rules of Court


As previously discussed, the BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.
It has been a matter of much judicial debate whether the BC Supreme Court could order a Plaintiff to sign an authorization to consent to the release of Third Party Records with Mr. Justice Hinkson recently finding that the Court did not have this power under the Former Rules.
The first case I’m aware of dealing with issue under the New Rules of Court was released today by the BCSC , New Westminster Registry.   Keeping the uncertainty on-going, Mr. Justice Williams found that the Rules do authorize a Court to force a party to sign authorizations for the release of Third Party Records
In today’s case (Nikolic v. Olsen) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a motion to compel the Plaintiff to sign various authorizations.  The Plaintiff opposed arguing that the Court lacked the authority to make such an order.  Mr. Justice Williams disagreed.  The Court provided a lengthy review of the relevant authorities and ultimately provided the following reasons addressing this issue:
[11] There are conflicting judicial authorities respecting the issue raised in this application. The line of jurisprudence which holds that the court cannot make an order requiring a litigant to authorize third party production is, in my view, troubling. For the reasons that follow, I conclude that this Court can make an order requiring a litigant to authorize a third party, whether within or outside this province, to produce records relating to him or her to another litigant. The jurisdiction to do so is based on the Rules of Court…

[93]         In British Columbia, relevant non-privileged documents are compellable in a civil action. Full and complete disclosure between or among litigants prior to trial is essential to the truth-seeking function of the litigation process and proper administration of justice.

[94]         This Court has the authority under the former Rules to compel production and to specify the mechanics of its production orders. Rule 26(1.1) permits the court to order a litigant to list documents in his or her power, which may include those held by foreign non-parties. Rule 26(10) empowers the court to order a litigant to produce a document for inspection and copying in the manner it thinks just. Furthermore, R. 1(12) grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively, a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

[95]         In my view, the following excerpt from para. 110 of Hood J.’s reasons in Lewis is apt:

There is also no doubt that the Court has substantive jurisdiction or power pertaining to the discovery and inspection of documents under Rule 26, particularly the compelling or ordering of production of documents. … In my opinion, the manner in which production is achieved is for the Court. The Court’s substantive jurisdiction or power to compel the production of documents includes the jurisdiction or power to create the mechanisms or the means by which production is made.

[96]         As expressed in the jurisprudence, there are, no doubt, potentially unwieldy implications of a court order compelling authorization of third party production. Given these concerns, such orders should not be granted lightly. In this respect, L. Smith J. in McKay v. Passmore, 2005 BCSC 570, [2005] B.C.J. No. 1232 (QL), offers worthwhile guidance. That was a personal injury case arising from a motor vehicle collision. An application was brought for an order that the plaintiff execute an authorization allowing the defendants to obtain records held by the Manitoba Workers Compensation Board. Her Ladyship held, at para. 36, that while the court has jurisdiction to grant such an application, there was insufficient basis on the evidence to do so. She concluded, at para. 40, that the circumstances of the case before her did not warrant the order sought in light of the R. 26(11) criteria provided by the Court of Appeal in Dufault, which she outlined at para. 38:

1.         The applicant must satisfy the court that the application is not in the nature of a “fishing expedition.”

2.         He or she must show that a person who is not a party to the action has a document or documents in his or her possession that contains information which may relate to a matter in issue.

3.         If the applicant satisfies those criteria, the court should make the order unless there is a compelling reason not to make it (i.e. because a document is privileged or because grounds exist for refusing the application in the interests of persons not parties to the action who might be affected adversely by an order for production and the adverse affect would outweigh the probative value of the document.)

[97]         Obviously these criteria, among other relevant factors, ought to be considered by a court considering an application for an order compelling a litigant to authorize production of documents held by a third party whether located within or outside British Columbia.

[98]         For two examples as to how the McKay/Dufault criteria may apply, see Distinctive Photowork Co. v. Prudential Assurance Co. of England Property and Casualty (Canada) (1994), 98 B.C.L.R. (2d) 316, [1994] B.C.J. No. 3231 (QL) (S.C. Chambers); and Tetz v. Niering, [1996] B.C.J. No. 2019 (QL), 1996 CarswellBC 1887 (S.C. Chambers).

[99]         These cases, although they raise slightly different issues, do not detract from, but rather inform, the basic proposition that where a litigant is under an obligation to make disclosure of documents, then that obligation must be honoured. Where such documents are in the hands of third parties, the usual format will entail the litigant voluntarily agreeing to provide a document authorizing the record holder to release the material, and that will resolve the matter. However, in other cases, where consent is refused, litigants are entitled to seek relief and the court has jurisdiction to enforce the disclosure obligation, specifically by making an order whereby the party whose records are being sought will “consent” to their release. While the wording is unfortunate and has engendered a regrettable state of controversy, the underlying concept is, in my view, straightforward.

[100]     The Olsons have a legitimate interest in obtaining the requested records and I am satisfied that their application is not in the nature of a fishing expedition. I also find that the third parties named by the defendants in their application possess the requested records which relate to a matter or matters in this case. By way of obiter dicta, I note that the common law test for relevance under the former Rules is broader than what seems to be provided by the wording of the current Rules. There are, furthermore, no compelling reasons why the order sought should not be made.

[101]     Accordingly, I order the respondent/plaintiff, Mr. Nikolic, to provide signed authorizations allowing the applicants/defendants, Josiah Olson and Joel Olson, to obtain from the third parties named the records listed in clauses (c), (d), (e) and (f) of the proposed order reproduced at para. 3 of these reasons.

Getting the Insurance Company's Documents; Litigation Privilege and the Trend of Increased Disclsoure

Written by admin on . Posted in Civil Procedure, Uncategorized.


As I’ve previously written, litigation privilege is a principle which allows parties not to share relevant documents with the other side in a lawsuit in limited circumstances.  Despite this principle, the BC Courts seem to be favouring the trend of disclosure making it more difficult for parties not to disclose documents after lawsuits get underway.  Reasons for judgement were released last week demonstrating this trend.
In last week’s case (Beer v. Nickerson) the Plaintiff was injured in 2008 as a result of a slip and fall incident at a Pharmasave in Victoria, BC.  The Plaintiff alleged the fall occurred as a result of the Defendant’s “negligent operation of her scooter in the store“.
The Defendant contacted her insurance company after the incident.  The insurance company conducted an investigation and in the process of this obtained a statement from the Defendant, a drawing of the store prepared by the Defendants daughter, and photographs of the location of the incident.
After the lawsuit started the Defendant’s lawyer refused to provide these documents arguing they were protected by “litigation privilege“.   Master Bouck of the BC Supreme Court disagreed and ordered that these documents be produced.  In reaching this conclusion the Court reasoned that the documents were not privileged because a lawsuit was not a ‘reasonable prospect‘ when these documents were created and further that they were not created for the ‘dominant purpose‘ of use in a lawsuit.  Before reaching her verdict Master Bouck provided the following useful summary of the law:

[17] The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, supra. Those principles are as follows:

1.  The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2.  The test for considering whether litigation privilege is established is two-fold:

(a)  Was litigation a reasonable prospect at the time the document in dispute was created?

(b)  If so, was the dominant purpose of the document’s creation for use in litigation? (commonly known as the “dominant purpose” test.)

3.  Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4.  However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:

Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

6.  It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.

[18] To these principles I would add that the dominant purpose test is consistent with “the more contemporary trend favouring increased disclosure”: Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.

This case is helpful in permitting Plaintiffs to obtain more fulsome disclosure early in a lawsuit.  Our Courts have made it clear that if documents are gathered by an insurance company for the purpose of investigating a claim (as opposed to defending a potential lawsuit) then these documents will have to be disclosed under the BC Supreme Court Rules.

BC Injury Claims and Document Disclosure – Can a Court Order a Plaintiff to "Consent"?

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 51 Comments on BC Injury Claims and Document Disclosure – Can a Court Order a Plaintiff to "Consent"?

Important reasons for judgement came to my attention today dealing with discovery of documents in BC Injury Litigation.
The BC Supreme Court Rules require parties to give discovery of relevant documents in their possession or control.  Often times there are relevant documents that are not in the Plaintiff’s possession or control but the Plaintiff has the ability to easily get these documents.  (For example medical records documenting accident related injuries.)  Such records are commonly referred to as “Third Party Records”.
When a Defendant requests Third Party Records Plaintiff’s often consent, obtain the documents, and then exchange a copy of the relevant records.  When the parties don’t consent a Court Motion can be brought.
With this background in mind today’s case dealt with an important topic; when a motion for Third Party Records is brought can the Court order that the Plaintiff sign authorizations to allow the Defendant to get the records directly?  Mr. Justice Hinkson held that such a shortcut is not allowed under the Rules of Court.
In today’s case (Stead v. Brown) the Defendant “brought an application to require the plaintiff to execute consent forms for the production of the records of some ten doctors, three hospitals, two groups of physiotherapists, WorkSafeBC, the Ministry of Housing, and Service Canada“.
The Plaintiff opposed the application on the basis that the Court lacked the power to make such an order.  Mr. Justice Hinkson agreed and held that even if the requests were relevant a Court could not compel disclosure in this fashion, instead the Defendant would have to follow the procedure set out in Rule 26(11) of the BC Supreme Court Rules.
In reaching this conclusion Mr. Justice Hinkson was referred to the BC Court of Appeal decision Peel Financial Holdings Ltd. v. Western Delta Lands where the BC High Court held that “The Supreme Court judge cited no authority fo rhis power to compel a party to consent, and no authority for such a power was provided to us.  As I jhave said, a consent given pursuant to an order is a contradiciton in terms“.
Mr. Justice Hinkson went on to find that while there was another case (Lewis v. Frye) which held that a Supreme Court judge could compel a party to sign an authorization, that decision was wrong.  Specifically Mr. Justice Hinkson held as follows:
Regrettably the decision of the Court of Appeal in Peel Financial Holdings Ltd. was not considered which Hood J. and I am persuaded that the binding nature of that authority if considered would have altered the conclusion reached by him had the authority been brought to his attention.
I conclude that the plaintiff in this case cannot be ordered to execute authorizations for the release of records in the (hands) of third parties.  The mechanism that must be pursued in order to obtain the hospital and doctors’ records is pursuant to Rule 26(11) of the Rules of Court.
This decision is important because it clarifies the procedures that must be used when Defendants in Injury Lawsuits wish to obtain the records in the hands of Third Parties and the Plaintiff does not consent.  Time will tell whether the New Rules of Court which soon come into force will effect this reasoning.

ICBC Injury Claims, Disclosure Requirements and Credibility

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Litigants in the BC Supreme Court have to make pre-trial disclosure in a variety of ways.  Some of this compelled disclosure may reflect poorly on a party’s credibility but if the documents or evidence is otherwise producible it must be disclosed to the other side despite the potentially harmful effects on your case.  What about documents or facts that don’t relate to the lawsuit directly but do address a parties credibility?  Can these documents be forced to be disclosed?
The answer is usually no.  Credibility, as important as it is, is considered a ‘collateral issue‘ in litigation and matters relating solely to credibility are deemed irrelevant in terms of pre-trial disclosure.  Reasons for judgement were released today by the BC Supreme Court discussing this.
In today’s case (Bay v. Pasieka) the Plaintiff was involved in a 2005 intersection car crash in Kelowna, BC.  The Plaintiff sued the alleged at fault motorist.   In the pre-trial discovery process the Defendant stated he had no recollection of the accident.  In exploring why the Defendant had no recollection the Plaintiff’s lawyer asked him whether he might have been taking any medication at the time of the crash which may have affected his memory to which he replied “I don’t know if I took medication that would affect my memory“.
The Plaintiff’s lawyer brought a motion for the production of the Defendant’s MSP history along with clinical records of treating physicians who cared for the Defendant in the relevant time frame to test “the creditility of the defendant” and to provide “some explanation for why he has no recollection of the accident“.
Master Young ultimately dismissed the motion holding that the evidence on the application was not sufficient for production of the sought records.  Before reaching this conclusion Master Young made some useful comments with respect to sought disclosure in ICBC Injury Claims relating solely to issues of credibility.  Specifically she held as follows:
Credibility is a collateral issue, as stated in the decision of Sandhu (Guardian ad litem of) v. Philipow (1996), 24 B.C.L.R. (3d) 78 (S.C.), and that decision says that it is not a matter which can be examinable in discovery. The defendant quotes from the decision in Roberts v. Singh, 2006 BCSC 906, which confirms that principle and quotes several other decisions which I have reviewed..These records are only being demanded to challenge his credibility, which is not a relevant issue.
There is caselaw that suggests that matters relating solely to credibility may be produced when punitive damages are being claimed (see for example Rioux v. Smith; 1983, 43 BCLR 392) but otherwise it is important to note that credibility is a ‘collateral issue‘ and not relevant for the purposes of pre-trial disclosure.