(Note: I’m informed that the case discussed in the below post is under appeal. When the appellate decision comes to my attention I will update this post)
As previously discussed, one of the areas being worked out by the BC Supreme Court is the extent of document production obligations in personal injury lawsuits under the New Rules of Court. Further reasons for judgement addressing this subject were recently brought to my attention.
In the recent (unreported) case of Shackelford v. Sweeney the Plaintiff was injured in a 2009 motor vehicle collision. He alleged serious injuries including a head injury with resulting cognitive difficulties. The Plaintiff was a successful self-employed recruiter and his claim included potentially significant damages for diminished earning capacity.
In the course of the lawsuit ICBC applied for various records supposedly to investigate the income loss claim including production of the Plaintiff’s computer hard-drive, phone records and banking records. The application was partially successful with Master Taylor providing the following reasons addressing these requests:
 In relation to the cellphone records, the plaintiff gave evidence at his examination for discovery that he conducted most of his business over the telephone or the Internet, and he rarely met with people, and therefore it is suggested that the cell phone records relating to his business are probative. I agree that they can be probative, but I do not believe that the actual phone numbers themselves would be probative in any particular method or way. What is probative is how much the plaintiff used his phone on a daily or weekly basis to conduct his business
 Accordingly, I am going to order that the cellphone records that relate to his business, from January 1, 2007, to the present date, be produced, but in all circumstances every phone number but the area code is to be redacted….
 The Defendants also seek an order that the plaintiff produce the hard drive from the laptop he was using when he was operating (his recruiting business)…
 …As there is an ongoing obligation by the Plaintiff to produce all business records in relation to this claim, I say that the obligation continues with respect to the hard drive that exists, and that the plaintiff has the obligation to examine the hard drive himself and/or with counsel, and extract any of his business records from there and provide them to the defendants.
 If the Plaintiff requires the services of a technician to assist in that regard, then the cost of that will be borne by the defendants. Once the business records have been extracted and redacted for privacy concerns, those documents will be henceforth provided to the defendants within 14 days thereafter…
 I think that only leaves bank statements relating to business income. I think the plaintiff has a positive obligation to provide some information with respect to his income, showing his income being deposited into his bank account. Where that in the bank statements shows, it should be left unredacted, but where it shows anything related to his wife or private unrelated business purchases , those may also be redacted.
This case is worth reviewing in full for other matters such as a declined request for production of the Plaintiff’s passport and client names.
At this time this case is unreported however, as always, I’m happy to e-mail a copy to anyone who contacts me and requests the reasons for judgement.
Tag: document disclosure
Yesterday morning I was teaching as a guest instructor at PLTC (the BC Bar Exam Course) overseeing a Courtroom skills exercise. During the mock court application I asked the soon to be lawyers under what circumstances the Pervuian Guano test applied for document production. Little did I know my question was being answered just across town by Master Bouck who released reasons for judgement addressing this topic at length.
As previously discussed, the New BC Supreme Court Rules replaced the Peruvian Guano test for document production with the narrower test of documents that “prove or disprove a material fact”. However, the rules allow for the Peruvian Guano test to kick in through the second tier of document production set out in Rules 7-1(11),(12) and (13). Master Bouck addressed exactly what’s necessary to get to the Peruvian Guano stage.
In yesterday’s case (Przybysz v. Crowe) the Plaintiff was injured in a motor vehicle collision. ICBC’s lawyer brought an application for the production of various records. The application was largely unsuccessful however before dismissing it the Court provided the following useful feedback about the requirements necessary to get to the Peruvian Guano stage of document disclosure:
 …this application is, in fact, brought pursuant to Rules 7-1(11), (12) and (13). Those Rules contemplate a broader scope of document disclosure than what is required under Rule 7-1(1)(a) Indeed, the two tier process of disclosure (if that label is apt), reflects the SSCR’s objective of proportionality. In order to meet that objective, the party at the first instance must put some thought into what documents falls within the definition of Rule 7-1(1)(a)(i) but is not obliged to make an exhaustive list of documents which in turn assists in the “train of inquiry” promoted in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at pp. 62-63(Q.A.).
 Only after a demand is made under Rule 7-1(11) for documents that relate to any or all matters in question in the action and the demand for productions is resisted can a court order production under Rule 7-1(14). It should be noted that in this case, the demand (and indeed order sought) is for production of additional documents, not simply a listing of such documents: seeRules 7-1(1) (d), (e) and (f).
 The court retains the discretion under Rule 7-1(14) to order that the party not produce the requested list or documents. Again, the court must look to the objectives of the SCCR in exercising this discretion.
 As to the form and substance of the request, it has been suggested by Master Baker that:
… there is a higher duty on a party requesting documents under … Rule 7-1(11) … they must satisfy either the party being demanded or the court … with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed” …
Anderson v. Kauhane and Roome (unreported, February 22, 2011, Vancouver Registry No. M103201) at para. 4
 A similar higher duty or burden rests with the party rejecting the request under Rule 7-1(12): see Conduct of Civil Litigation in B.C (2nd edition), Fraser, Horn & Griffin @ p. 17-7. In my view, the burden is not met by stating that documents will not be produced simply because of the introduction of the SCCR.
 The objective of proportionality might also influence the timing of requests for broader document disclosure. The court has observed in More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, that under the SCCR:
… the duty to answer questions on discovery [is] apparently broader than the duty to disclose documents.
… 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.
 Nevertheless, neither the court nor the SCCR require that an examination for discovery precede an application under Rules 7-1(13) and (14). Depending on the case, proportionality and the existing evidence might support pre-examination document disclosure so that the examination can be conducted in an efficient and effective manner….
 It is suggested by the learned authors of Conduct of Civil Litigation in B.C. that authorities decided under former Rule 26(11) may be applicable to an application for broader disclosure of documents under Rules 7-1(11) – (14): p. 17-7. That suggestion is not inconsistent with Master Baker’s ruling. Again, the questions for the court will be what evidence is presented and does an order for production achieve the objective of proportionality?
Master Bouck also released a second set of reasons (Baldertson v. Aspin) with this further useful feedback of the intent of Rule 7-1(11):
 The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. TheRule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application. Whether this debate or discussion was had verbally in this case is not clear on the record.
 Nor does it appear that any written request was made to the plaintiff to list documents relating to the 2001 motor vehicle accident. Again, the Rules appear to have been ignored as a matter of expediency.
 Nevertheless, the plaintiff did not seek an adjournment of the application so that the process under Rules 7-1(10), (11) and (12) could be followed. The parties proceeded on the basis that the plaintiff declined the defence’s requests for additional document disclosure and/or the listing of those additional documents. In this particular case, the objectives of the SCCR are met by dealing with the merits of the application rather than rejecting the application on procedural grounds.
As previously discussed, the New Rules of Court have limited the scope of pre-trial document production and further have introduced the concept of ‘proportionality‘ in deciding what types of documents need to be disclosed in litigation. The law continues to develop with respect to the application of these changes and recently the BC Supreme Court released reasons for judgement addressing two classes of documents which are often requested in BC personal injury lawsuits; MSP and Pharmanet Printouts.
In the recent case (Anderson v. Kauhane and Roome) the Plaintiff was injured in a 2008 BC motor vehicle collision. She sued for damages. In the course of the lawsuit the Defendant requested her MSP and Pharmanet printouts (government documents which keep track of doctors visits and prescption drug purchases). These documents were routinely produced in injury lawsuits under the former Supreme Court Rules.
The Plaintiff opposed arguing that the narrower scope of the New Civil Rules no longer made such documents automatically producible. Master Baker agreed and dismissed the Defence application for production. In doing so the Court considered disclosure of these documents both under that narrower ‘material fact’ test in Rule 7-1(1)(a) and the broader Peruvian Guano type disclosure under rule 7-1(11). In dismissing the application Master Baker provided the following useful reasons:
The question is: do the documents in dispute, ie, MSP and Pharmanet, come withing the terms of either Rule 7-1(1)(a), ie, documents that can be used by a party of record to prove or disprove a material fact or that will be referred to at trial or, if not, do they come under category 7-1(11), generally, in the vernacular, referred to as the Guano documents…There is no question that there is a higher duty on a party requesting documents under the second category…that in addition to requesting, they must explain and satisfy either the party being demanded or the court, if an order is sought, with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”, and again, there is no doubt that the new Rules have limited the obligation for production in the first instance to the first category that I have described and has reduced or lessened the obligation for production in general…
The question today is, would these documents prove a material fact if available? I think not….I am not satisfied that at this juncture they can or will prove a material fact…
I acknowledge that the defence has pleaded – and I will say this – in what I think are now becoming boilerplate pleadings, has pleaded pre-existing conditions…I am not satisfied that, by simple pleading, that somehow opens up the matter to the higher standard represented by 7-1(11). The obligation is still on the defendant to make that case, as far as I am concerned, and that moves me to the second aspect of this, has a case been made under 7-1(11)?
Has there been, in other words, reasonable specificity indicating why the additional documents or classes of documents should be disclosed? I think not….It seems, in the circumstances, disproportionate to me to give an open-ended order that all Pharmanet records, for example, some seven years, or records with Medical Services Plan going back to January 1, 2004, are proportionate to the claim as it is expressed and understood at this point. So the application is dismissed.
As far as I am aware this recent case is unpublished but, as always, I am happy to provide a copy of the reasons to anyone who contacts me to request one.
As recently discussed, a developing area of law relates to the extent of parties document production obligations under the new Rules of Court. The starting propisition is that parties need to disclose a narrower class of documents then was previously required. A Court can, on application, order further disclosure more in line with the “Peruvian Guano” test that was in force under the former rules. Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, making such an order.
In today’s case (Whitcombe v. Avec Insurance Managers Inc.) the Plaintiff was employed as an Insurance Underwriter with the Defendant. The Plaintiff was let go and sued for wrongful dismissal. The Defendant counterclaimed alleging they lawfully terminated the Plaintiff’s employment and further making allegations of misfeasance by the Plaintiff.
In the course of the lawsuit the parties were dis-satisfied with each others lists of documents. They each applied for further disclosure. Master Caldwell granted the orders sought finding that the concept of ‘proportionality‘ calls for greater disclosure in cases of “considerable importance“. In granting the applications Master Caldwell provided the following reasons:
 In short, both parties make serious allegations of actual misfeasance and in particular allegations which may well have a significant impact on the other’s reputation in the insurance industry and on the parties’ respective abilities to continue in business or to be employed in a professional capacity. This is therefore a matter of considerable importance and significance to the parties regardless of the quantum of immediate monetary damage.
 I find this to be important to my consideration of proportionality as directed in Rule 1-3(2) when interpreting and applying Rule 7-1. In my view, where, as here, the issues go beyond negligence and involve opposing allegations of misfeasance, proportionality must be interpreted to allow the parties a wider, more Peruvian Guano type disclosure in order to defend and protect their respective professional reputations and abilities to carry on in the business community.
 Here one or both sides have levelled allegations involving malice, bad faith, arbitrariness, lack of integrity/fidelity/loyalty and incompetence at the other.
 In addressing Rule 7-1 in the case of Biehl v. Strang, 2010 BCSC 1391, Mr. Justice Punnett said at paragraph 29:
I am satisfied that, if otherwise admissible, the requested production is relevant and could prove or disprove a material fact. Rule 7-1 does not restrict production to documents that in themselves prove a material fact. It includes evidence that can assist in proving or disproving a material fact.
 I am satisfied that in these circumstances the disclosure sought by both parties in their applications is appropriate in that it seeks evidence or documents that can or may well assist in proving or disproving a material fact.
Interestingly the Court implied that Peruvian Guano like disclosure likely will not be made in motor vehicle collision claims noting that “This is not a simple motor vehicle type case, arising in common context and involving straight forward negligence issues and quantification of physical injury compensation.”
As previously discussed, the new BC Civil Rules have changed the test of document production in the pre-trial discovery process. The test has been narrowed from documents “relating to every matter in question in the action“ to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“. In addition to this the Court must take the concept of ‘proportionality‘ into account when considering an order to produce third party records.
Reasons for judgement were released considering this narrower obligation in the context of an ICBC claim.
In today’s case (Tai v. Lam) the Plaintiff was involved in a 2006 motor vehicle collision. The Plaintiff was injured and claimed damages. The Defendant asked that the Plaintiff produce his bank statements from the date of the accident onward in order to “defend against (the Plaintiff’s) claim for loss of earning capacity” The Plaintiff refused to provide these and a motion was brought seeking production. Master Baker dismissed the motion and made the following useful comments about document disclosure obligations under the new rules and the concept of proportionality:
 I am not going to make the order sought. I agree entirely with Mr. Bolda’s view of this, which is that it is essentially one production too far, that the information and details sought goes beyond what is reasonable, even on a redacted basis. To ask that all the bank statements be produced is a broad, broad sweep.
 Sitting here listening, it struck me, it is as if a party who commences proceedings and says, “look, I have been injured and I have suffered financial losses” is inviting some kind of a Full Monty disclosure, that they are expected to produce all financial information they might ever have out there. Even if it is suggested or offered today that that be done on a redacted basis, it is still, in my respectful view, a requirement for production that is excessive.
 It certainly raises big issues about privacy and if one says, “well, redaction would fix that”, what does it take for counsel to sit down and patiently, carefully redact their client’s bank records for four and a half years? If that is not a question of confidentiality and privacy, it is a question of proportionality, which is just as concerning to me today as the other issues.
 The banking records. I am also persuaded by Mr. Bolda’s argument, and a common position taken today, that the judgment will be one of assessment, not calculation, that the trial judge will have multiple facets to consider and amongst them the gross income. And while it is for the defence to present and structure its case as it wishes, it seems to me that if it successfully attacks any of these claims for expenses it can only increase Mr. Tai’s income, and I cannot see the value in that perspective.
 I know that until recently the standard in this province was Peruvian Guano and locally Dufault v. Stevens, but that standard has changed. There has to be a greater nexus and justification for the production of the documents in a case, and I am satisfied that that standard has not been met here today, so that the application is dismissed.
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, addressing whether the new Civil Rules require Petitioners to disclose and produce documents.
In today’s case (Fern Castle Holdings Corp. v. Stonebridge Village Residence Ltd.) the Petitioner sought relief arguing that the Respondents took action that was ‘oppressive to the petitioner‘. In the course of the proceeding the Petitioner sought an order requiring the Respondents to produce a List of Documents pursuant to Rule 7-1. The Respondents opposed arguing that this requirement does not apply to Petitions but only to “an action“. Master Bouck agreed and dismissed the motion. In doing so the Court provided the following reasons with respect to the application of Rule 7-1:
 Rule 7-1(1) of the Supreme Court Civil Rules provides as follows:
7-1(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.
 While this Rule has changed the scope of document disclosure, it has not changed the general rule that such disclosure is not required on a proceeding brought by petition.
 On a plain reading of Rule 7-1(1), it is impossible to import or apply document disclosure processes to this proceeding, even with the parties consent. The Rule can only apply to an “action” which is defined as a “proceeding started by a notice of civil claim”: Rule 1-1. Furthermore, the reference to the use of documents at trial confirms that the Rule does not apply to petitions.
 The Application Respondents suggest that the relief sought on this application can only be pursued when or if the petition is converted to an action. I agree. However, the petitioner did not specifically seek that relief in its application and I am reluctant to make an order converting the petition on my own motion.
As I’ve previously discussed, one of the biggest changes under the New BC Supreme Court Civil Rules is the test relating to pre-trial document production. Under the former rules parties had to disclose documents “relating to every matter in question in the action“. Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.
This new test is supposed to be narrower in scope than the old one. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, interpreting the new test for the first time.
In last week’s case (Biehl v. Strang) the Plaintiff sued the Defendants claiming damages for breach of contract. The alleged contract between the parties was based in part on an a verbal agreement and partly based on the parties actions over the years. The events in dispute occurred over a 4 year period. The Plaintiff was alleged to have a history of illicit drug use during part of this period. The Defendants challenged the reliability of the Plaintiff’s recollection and argued that this was hampered due to drug use.
The Defendants wished to further explore this issue and brought an application to force production of the Plaintiff’s personal diary as this apparently made reference to some of the Plaintiff’s illicit drug use. The Defendant argued that this was material evidence because the reliability of the Plaintiff’s memory is a central issue in the lawsuit. The Plaintiff opposed arguing that his diary is not material in the action. Mr. Justice Punnett ultimately granted the motion for production. In doing so the Court defined what “Material Fact” means under the new Rules of Court. Mr. Justice Punnett provided the following reasons:
What is a Material Fact?
 In Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada, 2009) at para. 2.50, relevance is distinguished from materiality:
§2.50 A distinction has also been drawn between relevance and materiality. Evidence is material in this sense if it is offered to prove or disprove a fact in issue. For example, evidence offered by a plaintiff in a conversion action to prove a loss of profit is not material since loss of profits cannot be recovered in such an action, and evidence that an accused charged with forcible entry is the owner of the land is immaterial since the offence can be committed by an owner. This evidence may very well be immaterial, but it is also simply irrelevant. This excluded evidence is no more required to make out the case than is evidence that the accused owns three other properties or owns a black dog for that matter. There is no probative connection between the fact to be proved and the facts in issue as determined by the substantive law. Little is added to the analysis by adding a concept of materiality, as different results do not depend on the distinction. The concept of materiality, however, requires the court to focus on the material issues in dispute in order to determine if the proffered evidence advances the party’s case.[Footnotes omitted. Emphasis added.]
In other words, the requirement that the disclosure relate to a material fact limits the breadth of what is relevant.
 The authors of The Law of Evidence in Canada define relevance at para 2.35:
§2.35 A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s A Digest of the Law of Evidence, where it is defined to mean:
… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.
Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:
For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter.
 In January 2009, Rule 14.01(1)(a) of the Nova Scotia Civil Procedure Rules changed document production in Nova Scotia by requiring a judge to determine relevancy “by assessing whether a judge presiding at the trial or hearing of the proceeding would find the document … relevant or irrelevant”.
 The Nova Scotia Supreme Court in considering the new rule in Halifax Dartmouth Bridge Commission v. Walter Construction Corporation, 2009 NSSC 403, 286 N.S.R. (2d) 179 at para. 18, stated:
 … As to what is meant by relevancy, in Sydney Steel v. Mannesmann Pipe (1985), 69 N.S.R. (2d) 389 (S.C.T.D.), Hallett, J. (as he then was) stated, at paras. 14-18:
 In the Law of Evidence in Civil Cases by Sopinka and Lederman, at p. 14 the authors also make reference to the quotation from Stephen’s Digest as to the meaning of relevance and make the following statement that is applicable and worthy of consideration when assessing the relevancy of the documents that are before me on this application:
“The facts in issue are those facts which the plaintiff must establish in order to succeed together with any fact that the defendant must prove in order to make out his defence. It is seldom possible to prove a case or establish a defence solely by direct evidence as to the facts in issue and, therefore, the law admits evidence of facts, which, although not themselves in issue, are relevant in the sense that they prove or render probable the past, present or future existence (or non-existence) of any fact in issue.
“The facts in issue are controlled by the date of the commencement of the action. All facts essential to the accrual of a cause of action must have occurred prior to commencement of the action but evidence may be tendered as to facts occurring after the commencement of the action if they merely tend to prove or disprove the existence of the facts in issue. On the other hand any fact giving rise to a defence need not have occurred before the commencement of the action. An admission after the issue of the writ by one of the parties is admissible and conduct which is tantamount to an admission is equally admissible.
“The state of mind of a party may be proved as a fact in issue or as tending to prove or disprove a fact in issue. Thus the knowledge of a party may be directly in issue or relate to a matter directly in issue.” [emphasis by Hallett J.]
Is the Reliability of the Plaintiff’s Memory a Material Fact?
 The defendants argue that the reliability of the plaintiff’s evidence, given the potential memory loss from drug use, is at issue in this case. The plaintiff asserts that reliability includes credibility and a line cannot be drawn between reliability and credibility. Therefore the information relates only to credibility and as such is a non-material collateral fact.
 “Reliable” is defined in the Concise Oxford English Dictionary, 11th ed., as the “able to be relied on.” Credibility relates to whether or not the court accepts or believes the evidence. In assessing credibility, the court may consider how reliable the evidence is.
 In my view, the error in the plaintiff’s position is conflating reliability and credibility when the former is but part of the latter. The ability of the plaintiff to remember is, in my opinion, relevant to proof of a material fact, namely the existence of a contract based on oral terms.
 Frequently courts take into account factual considerations, such as the ability of a witness to see or hear what occurred, in determining whether evidence is reliable and should be accepted. Surely, if an individual has suffered damage to his cognitive or memory functions, that is equally a relevant fact.
 I am satisfied that, if otherwise admissible, the requested production is relevant and could prove or disprove a material fact. Rule 7-1 does not restrict production to documents that in themselves prove a material fact. It includes evidence that can assist in proving or disproving a material fact.
Getting the Insurance Company's Documents; Litigation Privilege and the Trend of Increased Disclsoure
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:
 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.
 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.
Further to my previous posts on the topic of ICBC Claims and Privilege, reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, demonstrating that a party seeking to withhold documents on the basis of ‘litigation privilege’ may face an uphill battle.
In yesterday’s case (Celli v. White) the Plaintiff was a pedestrian who was struck by a vehicle. The Plaintiff was injured and eventually sued for damages. In the course of the lawsuit the Defendants refused to produce a number of documents relevant to the Plaintiff’s Claim on the basis that they were protected by ‘litigation privilege‘.
The Plaintiff obtained legal advice almost immediately after the accident. As a result of this the defence lawyers argued that “litigation was inevitable from the outset.” On this basis the Defendant refused to produce a number of documents which were gathered by the Defendant’s insurer in the immediate aftermath of this collision.
The Plaintiff applied to Court for production of a number of the allegedly privileged documents. The Plaintiff was largely successful and the Defendants were ordered to produce a number of documents which were gathered by the Defendants insurer in the 6 months following the collision. In reaching this decision Master Caldwell summarized the law of litigation privilege in the context of BC Injury Claims as follows:
 The leading case in this subject area is Hamalainen v. Sippola (1991), 62 B.C.L.R. (2d) 254 [Hamalainen]. In that case the Court of Appeal held that two factual determinations were required in order to uphold a claim of litigation privilege:
(1) Was litigation in reasonable prospect at the time the document was produced,
(2) If so, what was the dominant purpose for its production?
 The court indicated that while the first of these requirements would not likely be overly difficult to establish, the second would be more challenging:
22. I am not aware of any case in which the meaning of “in reasonable prospect” has been considered by this Court. Common sense suggests that it must mean something more than a mere possibility, for such possibility must necessarily exist in every claim for loss due to injury whether that claim be advanced in tort or in contract. On the other hand, a reasonable prospect clearly does not mean a certainty, which could hardly ever be established unless a writ had actually issued. In my view litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet. I am satisfied it was met in this case in connection with all of the documents in issue. The circumstances of this accident, and the nature of Mr. Hamalainen’s injuries, were such that litigation was clearly a reasonable prospect from the time the claim was first reported on December 1st, 1986.
(b) What was the dominant purpose for which the documents were produced?
23. A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.
24. When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board,  A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p. 541 of the report:
If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.
25. At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.
26. 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.
27. In that sense there is obviously no absolute rule that the decision to deny liability in such a claim must mark the point in which the conduct of litigation becomes the dominant purpose underlying the production of each and every document of the sort for which privilege was claimed in this case. But I do not read the master’s reasons as invoking any such absolute rule. He was faced with affidavit material filed by the party claiming privilege which was deficient in a number of respects. As already noted it failed to draw any distinction between the purpose underlying the production of individual documents. The risk inherent in that approach was pointed out by Mr. Justice Esson in the Shaughnessy Golf case at p. 319 of the report:
Privilege was claimed for a large number of documents. The grounds for it had to be established in respect of each one. By trying to extend to the whole list the considerations which confer privilege on most of the documents, the plaintiff has confused the issue and created the risk that, because it did not make in its evidence the distinctions that could have been made, it must be held not to have established privilege for any.
28. Furthermore, the affidavit material concentrated on the repetitious assertion by each deponent of his belief that litigation in the case was inevitable, from which fact the dominant purpose underlying the production of all documents was apparently assumed. As already pointed out that approach to the onus facing the deponent on this question represented a mistaken view of the law.
 Gray J. echoed this sentiment at paragraphs 97 and 98 of Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 as follows:
97. The first requirement will not usually be difficult to meet. Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)
98. To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.
 This dominant purpose test was also confirmed by Fish J. in the case of Blank v. Canada (Minister of Justice), 2006 SCC 39 at paragraphs 60 and 61:
60. I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. As Royer has noted, it is hardly surprising that modern legislation and case law
[TRANSLATION] which increasingly attenuate the purely accusatory and adversarial nature of the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [para. 1139]
Or, as Carthy J.A. stated in Chrusz:
The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. [p. 331]
61. While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process. In this context, it would be incongruous to reverse that trend and revert to a substantial purpose test.
In ordering that the Defendants produce the relevant documents the Court held that the dominant purpose of much of the defendants insurer’s early investigations was due to ‘adjusting‘ the potential claims as opposed to in response to anticipated ‘litigation‘.
Since ICBC is a monopoly insurer in British Columbia the analysis of the ‘adjusting‘ phase vs. the ‘litigation‘ stage will be triggered in most multi-party motor vehicle collisions. The lesson to be learned is that many documents which are gathered by ICBC in the early stages which may prove harmful to a Defendant if disclosed may not be protected by privilege if they were gathered by for the dominant purpose of determining how a collision occurred.
As I’ve previously written, when a person sues for damages in the BC Supreme Court they give up certain privacy rights with respect to records (both theirs and those in the hands of third parties) to the extent necessary to ensure that relevant unprivileged documents are disclosed to have a fair trial.
In the context of personal injury litigation documents in the hands of third parties are often requested. For example, where a Plaintiff is injured the Defendant often wishes to obtain the clinical records documenting the injuries. Where a serious injury claim is made seeking damages for past and future wage loss often time employment records, tax records and pre-accident medical records demonstrating pre-existing disabilities are sought.
Once it’s determined that these ‘third party’ records are relevant how are they to be produced? Often times if the records are clearly relevant the Plaintiff lawyer will obtain them and share a copy with the defence lawyer. In cases where the parties can’t consent the party seeking the records can bring a court motion for production.
The BC Supreme Court has come up with two typical routes of disclosure; the “Jones” order and the “Halliday” order. At the risk of over-simplification, a Jones order means ordering that the third party produce records relating to the Plaintiff directly to to the Defendant and a Halliday order means producing the records directly to the Plaintiff who then can vet clearly irrelevant entries before providing the defence lawyer with a copy.
With this introduction out of the way, reasons for judgement were released today by the BC Supreme Court providing perhaps the most thorough analysis of when each format should be used and what is required to trigger the protection of the “Halliday” format.
In today’s case (Gorse v. Straker) both parties sought various third party records relating to the litigants. In considering the applications Mr. Justice Macaulay provided the following detailed and useful overview of this area of the law:
 My general conclusions are as follows. It is necessary to start with a review of the pleadings to determine the matters in issue. Some applications fail at this preliminary point because it is obvious from the specific nature of the documents sought that the party seeking production is engaged in a fishing expedition. There is, at law, no obligation on any third party to produce irrelevant documents. See Dufault.
 Assuming the application survives the initial review for relevancy, the court must then consider the evidence that the parties rely on. It is, at this point, that some of the potential inconsistency appears in the chambers decisions. I discuss some of the cases below and list others that I have reviewed.
 In short, I conclude that a Halliday order is not a default order for medical or other records in which the subject of the record has an obvious privacy interest. The court should grant a Halliday order if satisfied, on the evidence, that there is a likelihood that a Jones order will also result in the inappropriate production and disclosure of irrelevant or privileged documents.
 The problem that frequently presents is that one party seeks access to records of a non-party respecting the other party that are of a type in which it is reasonable to expect that some will be relevant and others irrelevant. A similar problem often arises respecting litigation privilege. It is often reasonable to assume that counsel for the party, who is the subject of the records, will have communicated with the non-party concerning the litigation. Such communications, if in existence, are likely subject to litigation privilege. It is arguable that, inHalliday, Lambert J.A. anticipated that the mechanism he described would operate in all such cases without requiring an evidentiary base. As I set out later, I do not accept that contention.
 The threshold for making a Halliday rather than a Jones order is low. Nonetheless, some admissible evidence is necessary to meet it.
 This leads to another issue that has attracted attention in the case law: whether the party who alleges an adverse impact on his or her privacy interest arising from the production of irrelevant, private information must personally provide evidence. After all, the affected party is ordinarily in the best position to explain how his or her privacy interest would be adversely impacted.
 In my view, the party alleging the adverse impact should ordinarily swear an affidavit setting out, at least in general terms, the nature of the privacy interest but that is not an absolute requirement so long as there is other admissible evidence on the point. These are not final orders so affidavits sworn on information and belief are admissible.
 Keeping in mind that the evidentiary threshold is relatively low, the evidence does not necessarily need to disclose all the details of the privacy interest but must be sufficient to reasonably identify the nature of the interest and why it appears to be unrelated to any material issue in the litigation…
 When a Halliday order is made, so long as counsel fulfills his or her obligations, there is, apart from the minimal delay associated with the two-step process, no prejudice to the opposing party’s discovery rights. If the opposing party feels that relevant information may not have been disclosed, he or she can still apply to the court to make a determination, as with other disclosure concerns. Further, as suggested in Halliday, at 200, any abuse of the order by overextending claims of privilege or unduly restricting relevance can be dealt with in a costs order.
 In my view, privacy considerations add to the justification for making Halliday orders for the production of medical and some other types of records. The reasoning in this regard may be followed through various decisions since Halliday, up to and including the Supreme Court decision in Keller v. Poulin (16 September 2009), Nanaimo S41497 (S.C.)…
 In the result, I am satisfied that, when the record sought is likely to contain not only relevant, producible information but also irrelevant, private information, the order for production should be in Halliday format. This is very often the case with medical records and may also be applicable to MSP, disability, workers’ compensation, employment or educational records.
 When the records at issue relate to medical or psychological assessment or treatment of the plaintiff after a motor vehicle accident, they may well include relevant, producible documents; irrelevant, private, non-producible documents; and documents properly subject to litigation privilege. Counsel for the plaintiff should take care to present evidence to demonstrate that there is, in fact, some irrelevant, private information or documents, properly subject to litigation privilege. It is not enough to identify the mere possibility because the court cannot properly draw an inference from a possibility.
 It follows that I accept the contention of counsel for the defendants that the decision whether to make an order in Halliday format must be evidence based. In his written submissions, counsel asserts, relying on the Supreme Court decision in Grewal at para. 17, that:
A bare assertion of privacy or confidentiality over the records to be produced in the absence of any evidence regarding irrelevant or privileged information does not meet the requisite threshold for a Halliday type order.
The passage in Grewal summarizes authority for the proposition that a bare assertion of privacy or confidentiality, “in the absence of any evidence regarding irrelevant or privileged information,” is an insufficient basis for a Halliday order. In the same paragraph, the judge also referred to authority that an “expression of mere concern” that the records might contain irrelevant or privileged information is not sufficient.
 I agree with those statements. It is not enough for a party or, as is often the case, a paralegal assisting the party’s lawyer to swear an affidavit raising a mere possibility of privileged or irrelevant, private information. In reaching this conclusion, I also considered and followed the reasoning in the following chambers decisions: Wieler v. Bercier, 2004 BCSC 752; Sullivan v. Lockhart, 2002 BCSC 1891; Bhandari v. Waddington, 2003 BCSC 498, 13 B.C.L.R. (4th) 373; and finally, Ross (Committee of) v. Lai, 2002 BCSC 1864.
 The evidentiary burden is not an onerous one. The evidence necessary to support a conclusion that the particular records sought are irrelevant will vary according to the content of the pleadings and the nature of the record. In some cases, it may be possible to conclude, on an analysis of the pleadings, that they are irrelevant and, accordingly, not required to be produced at all. When it is apparent that some, but not necessarily all, of the records should be produced, there must be some evidence respecting the content of the records said to require the review by counsel contemplated by a Halliday order.
 When the documents at issue are said to be private and irrelevant, it is usually the party who provides the evidence. For example, in Grewal, the plaintiff deposed that the consultation with her gynaecologist related to the delivery of her two children and that, in her view, the records were not relevant to the claims that she had advanced. If the question relates to litigation privilege, an appropriate agent or employee of the party’s lawyer should swear to the fact of the communications said to give rise to the privilege without disclosing actual content…
 I return to my suggestion that counsel should, wherever possible, work through the questions of non-party document production in a manner that recognizes and balances the often competing interests. The present applications would likely have been unnecessary if counsel had done that. In the circumstances, neither succeeded in their primary positions in any meaningful fashion. Both sides will bear their own costs as a result.