In 2009 the BC Court of Appeal released reasons for judgement addressing the details necessary when listing privileged documents. The first reasons I’m aware of addressing this issue under the New Rules of Court were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that the law remains unchanged.
In today’s case (Anderson Creek Site Developing Ltd. v. Brovender) the Plaintiff sued various defendants claiming damages for alleged unpaid accounts. The Defendants listed many privileged documents in the course of the lawsuit. The Plaintiff brought an application seeking that these be described with greater detail. Mr. Justice Verhoeven granted the application and in doing so provided the following useful summary describing the necessary details when listing a privileged document under Rule 7-1(7):
Rule 7-1(7) requires that:
The nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable other parties to assess the validity of the claim of privilege.
The description in the list of documents is not sufficient to respond to that requirement.
The defendants argue that the description that they have given on their list of documents is not materially different than the plaintiff’s own description. That may be. That application is not before me at the moment.
It is hard to know in a given case how much description is required to answer the requirement in Rule 7-1(7) without revealing privileged information. It depends on the nature of the case and the nature of the document. In this case, I would expect most documents to be transactional documents. There may be other documents as well.
As a minimum, in order to have any assessment of the validity of a claim of privilege, in the circumstances of this case, it seems to me that what is required to be described are four things: first, something about the nature of the communication, that is whether it is a letter or an e-mail or memorandum or something else; second, the date upon which it was created or sent; third and fourth, the author and the recipient. With that information, it may be possible for the plaintiff to assess the claim of privilege. There may be further disclosure that is necessary at that stage; I cannot tell.
So that application will be allowed to that extent. The defendants will produce a more detailed list of privileged documents disclosing that information. The plaintiff will be at liberty to reapply for a better list, in order to challenge the claim of confidentiality.
(Note:The Decision discussed below was overturned by the BC Court of Appeal on August 25, 2011) As I’ve previously written, the Rules of Court require parties to a BC Supreme Court Civil Lawsuit to disclose relevant documents to opposing parties. Some documents are privileged and need not be exchanged but their existence needs to be disclosed and these documents need to be described “in a manner that, without revealing informaiton that is privileged, will enabel other parties to assess the validity of the claim of privilege“. Failure to do so can result in exclusion of the documents from trial. Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.
In today’s case (Houston v. Kine) the Plaintiff was injured in a 2006 motor vehicle collision. The Defendant admitted responsibility for the crash. The Plaintiff sustained various injuries including a major depressive disorder, pain disorder, anxiety disorder and PTSD following the collision. Madam Justice Gropper found that the collision was responsible for these injuries and assessed the Plaintiff’s damages at $525,000.
There was a 5 month break from the beginning of the trial to its conclusion. During this break ICBC undertook surveillance of the Plaintiff over two periods of time. The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court. When they attempted to put the video into evidence the Plaintiff objected. Madam Justice Gropper sided with the Plaintiff and held that the evidence should not be admitted. In reaching this conclusion the Court provided the following helpful reasons:
 The burden on the party seeking to tender the undisclosed document is to establish to the Court’s satisfaction a reasonable explanation for the failure to disclose. As Henderson J. stated inCarol v. Gabriel (1997), 14 C.P.C. (4th) 376, 75 A.C.W.S. (3d) 858:
 A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.
 Here, the explanation for the failure to disclose is that the videos are not documents and they were never in the defendants’ possession or control. Rather, these videos and the accompanying reports fall clearly within the solicitor’s brief.
 The defendants’ position that it is sufficient that the videos and background materials were disclosed in March 2010, before the recommencement of the trial does not address the requirement of the Rule in 23(13) that the disclosure be “forthwith.” Not disclosing, as a matter of strategy, is not a satisfactory explanation to address the “forthwith” requirement.
 It is therefore my view that the videos have not been disclosed in accordance with R. 26(13) and I must therefore consider whether I ought to exercise my discretion to allow the Mexico video into evidence in accordance with R. 26(14).
 The factors to be considered are described by the Court of Appeal in Stone v. Ellerman, 2009 BCCA 294; 273 B.C.A.C. 126;  9 W.W.R. 385; 71 C.P.C. (6th) 25; 92 B.C.L.R. (4th) 203; 2009 CarswellBC 1633, at paras. 30 and 31. They are:
1. prejudice to the party, in this case the plaintiff;
2. whether there was a reasonable explanation for the other party’s failure to disclose;
3. whether excluding the document would prevent a determination of the issue on the merits; and
4. whether in the circumstances of the case the ends of justice require that the document be admitted.
 Addressing the prejudice to the plaintiff, it is difficult for me to assess the prejudice versus the probative value issue as I have not seen the videos and I have not reviewed the investigators’ notes of the video. I note in addressing this factor that there were hours of video recorded and the defendants’ counsel has provided a summary of what is contained in the videos. Based upon that, I am not satisfied that the videos are sufficiently probative to outweigh the prejudice to the plaintiff in allowing their admission having not been disclosed forthwith on a supplementary list of documents. This is despite the assertion that the plaintiff “lived” the events and that she would not be surprised by the contents. She has given evidence and called her medical and functional capacity experts. The late disclosure of the video evidence has impaired the ability of the plaintiff to meet the evidence.
 The admission of the videos and notes may require that she be recalled, or that she recall some of the experts. These days were added to the trial for its conclusion. The admission of the video evidence will necessarily extend the trial.
 In relation to the second factor, whether or not there was a reasonable explanation for the parties’ failure to disclose, I have already determined that strategy does not provide a reasonable explanation for lack of disclosure. Rule 26(13) requires that supplementary documents are to be disclosed forthwith and they were not.
 Concerning the third factor, whether the document would prevent the determination of the issue on the merits, I have heard evidence including the plaintiff’s evidence and the defendants’ evidence and expert evidence about the plaintiff’s activity and her level of disability. Based on the summary provided by counsel for the defendants of the contents of the video I cannot conclude that I will be prevented from determining the issue on the merits.
 Finally, I am not persuaded that the ends of justice require that videos be admitted.
 I therefore find that the videos are not admissible.
Interestingly, Madam Justice Gropper went even further and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence. The Court’s reasoning behind this decision could be found at paragraphs 22-28 of Appendix A to the Reasons for Judgement.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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