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Tag: master taylor

Court Rejects Request to Produce Settlement Documents From Previous Injury Claim

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing a request to produce documents relating to the settlement of a previous personal injury claim in the prosecution of a subsequent claim.
In today’s case (Gamble v. Brown) the Plaintiff was injured in a 2009 collision, brought a claim for damages and ultimately settled.  She was then injured in a 2011 collision.  In the current lawsuit the Defendant requested broad production of the previous file information including “any mediation brief, settlement letter, file memo, communication or similar document” .  The Plaintiff agreed to produce relevant medical records but not all records captured in the broad request.  The Defendant applied to court for an order to produce these documents but this was dismissed.  In finding the sought order was inappropriate Master Taylor provided the following reasons:

[29]         In the case at bar, the first accident occurred on March 19, 2009. The subject accident occurred on September 1, 2011. By account of some of her physicians, and at least one expert report prepared for the defendant, the plaintiff was doing well and not suffering any effects from the 2009 accident well before the occurrence of the 2011 accident.

[30]         As well, the plaintiff has offered the defendant a letter from her previous solicitor confirming the terms of the settlement she received for the injuries she sustained in the 2009 accident, together with medical-legal documents from the previous accident.

[31]         In this case, I am of the view that the defendant/applicant has not shown that the public interest in preventing double compensation has taken precedence over the public interest in encouraging settlement such that I should order the production of the mediation brief, settlement letter, file memo, communication or similar document prepared by the plaintiff’s previous solicitor.

[32]         The final question becomes whether or not the plaintiff should place any terms on the production and disclosure of the documents she has provided to the defendant. In my view that is a matter for the trial judge to determine at the outset of the trial and in the absence of the jury, aside from the issue of the plaintiff maintaining her solicitor-client privilege with Mr. Wytrychowski, which should be preserved in any event.

[33]         In conclusion, I determine that the defendant has not satisfied me that I should order breach of the settlement privilege attached to the documents prepared by the plaintiff’s previous counsel for the plaintiff in the 2009 Alberta case. Accordingly, the defendant’s application is dismissed with costs to the plaintiff.


Plaintiff Ordered To Produce Credit Card Statements In ICBC Brain Injury Claim

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff in an injury lawsuit to disclose credit card statements for a span of several years.
In today’s case (J v. K) the Plaintiff was involved in two motor vehicle collisions.  She allegedly suffered a head injury and the medical evidence noted that the Plaintiff “is probably suffering with residual frontal lobe dysfunction with respect to impulsive behavior, impulsive buying“.
The Defendant requested various financial records to explore the reported impulsive buying behavior.  Master Taylor agreed that this was a reasonable request and ordered that Visa records from a year prior to the collision onwards be disclosed.  In reaching this decision the Court provided the following records:
[24]         I am satisfied by the circumstances and the facts of this case that the request for the plaintiff’s credit card statements which will likely show her spending patterns, and that the information gleaned from the statements is relevant and material to the plaintiff’s claims. I am not satisfied that the plaintiff’s banking records are material to her claim or that her privacy with regard to those items should be breached, aside from one exception as set out in paragraph 26 below.
[25]         Accordingly, I order that the plaintiff disclose her Visa credit card statements and any other credit cards she may have used or statements related to any other credit cards, from one year pre-accident to the present. In this instance, it is one year prior to her first accident which occurred on September 13, 2010. The statements are to be unredacted except for those purchases made by the plaintiff’s brother which may be redacted.
[26]         In the event that the claimant intends to show any impulsive spending by way of debit card transactions, then those monthly statements should be provided to the defendants, but in this case only the monthly statements in which the alleged impulsive spending is to have occurred, and in an unredacted format.

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

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

Sensible Compromise Suggested in Face of Late Medical Developments

When medical developments unfold deep in the litigation process it is not uncommon for adjournment applications to be granted.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, addressing such a situation urging parties to make reasonable compromises to accommodate these developments.
In the recent case (Dhillon v. Bowering) the Plaintiff was injured in two collisions that the Defendants admitted fault for.  In the course of the lawsuit the Plaintiff was assessed by an orthopaedic surgeon who felt some of the Plaintiff’s symptoms may be due to a possible labral tear.  An MRI was suggested.  The Plaintiff obtained an MRI which did indeed show bilateral labral tears.   The Plaintiff served an updated medical report addressing this.  This report, however, was authored and served outside the timelines required by the Rules of Court due to the timing of the MRI.
The Defendants requested a defence medical exam to address this issue.  The Plaintiff consented to this late examination provided the Defendants did not object to the late report the Plaintiff served.  The Defendant did not agree to these terms and instead brought an adjournment application.  Master Taylor refused to adjourn the trial noting the Plaintiff bore some risk in proceeding as the Plaintiff’s late report may not be admitted.  In suggesting compromise in such cases Master Taylor provided the following reasons:
[12]         So on one hand we do not have Dr. Shuckett’s report in evidence, and now we have defendants asking for an adjournment so that they can do what they need to do to buttress their case because of the report of Dr. Shuckett, which is not in evidence.
[13]         In my view, this problem could have been easily resolved by both parties agreeing to the late service of Dr. Shuckett’s report as well as the DME report from Dr. O’Brien and the matter would have proceeded.  Now we are faced with an adjournment application of a trial that is 11 days away, the first accident which occurred more than five years ago…
[18]         Well, with the greatest of respect to counsel, I do not know if prejudice would be an operating theme here in this application.  I think what is more to the point, and I pointed that out to counsel at the early stage of this application, is that, first of all, there is a hurdle that plaintiffs have to get over before a defendant should be even concerned about this fact.  The fact that they have not had a DME with respect to a labral tear in the left hip is not so much their concern but rather the causal connection.  I have not seen anything in any of the reports that would be suggestive in any way whatsoever that there is anything but the accident as a causal connection.  Now, if that is the only reason, ultimately, that the defendants are relying upon for an application for adjournment in this matter, then I think the defendants do not succeed in their application.
[19]         Accordingly, I dismiss the application for adjournment, and I will award costs to the plaintiff in any event of the cause, not payable forthwith. 

The Answer is Discretion…Jury Strike Application Fails in Case with 32 Expert Reports

Last month I highlighted reasons for judgement where a jury strike application succeeded in a personal injury trial with 30 expert reports was deemed “too complex” for that mode of trial.  In a good illustration that there is no certain outcome when it comes to discretionary orders, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a jury strike application in a case with fairly similar facts.
In this week’s case (Henshall v. Plona) the Plaintiff alleged brain injury from a 2005 collision.  Liability was disputed and further the defendant argued that “credibility of the plaintiff is a key issue at trial. The defendants say that the evidence reveals significant conflicts in the evidence, including the plaintiff’s failure to disclose his significant pre-accident history of head injuries and drug and alcohol use.
The matter was set for a 25 day trial which was combined with two other injury claims the Plaintiff was advancing from subsequent collisions.   In the course of the lawsuit a total of 32 expert reports were obtained by the litigants.  The Plaintiff argued the sheer volume of evidence would “overwhelm a jury“.  Master Taylor disagreed and dismissed the Plaintiff’s application concluding as follows:
[27]         Given the particular facts of this case, I have concluded that the applicant has failed to satisfy me that the jury notice should be struck based on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly, the application is dismissed with costs to the defendants.

"Investigative Stage" Significant Barrier to ICBC Privilege Claims

A trend developing in BC Caselaw is the demonstrated difficulty ICBC has trying to withhold documents in a personal injury lawsuit based on their ‘investigative’ responsibilities.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In this week’s case (Gilbert v. Nelson) the Plaintiff was injured in a 2005 collision with a vehicle.  The Plaintiff was 13 at the time and was riding a bicycle.  Following the collision ICBC investigated the collision and obtained engineering reports and a further report from an independent adjuster.  In the course of the lawsuit the Defendant had access to these documents.  The Defendant refused to produce them claiming litigation privilege.
The Plaintiff brought an application to have these produced.   Master Taylor granted the application finding the documents were created during ICBC’s investigative stage.  In ordering production the Court provided the following reasons:

[35] Saying that litigation is a certainty is not the test for the dominant purpose.

[36] What I do observe from the facts before me is that no counsel was consulted or retained by the defendant or his insurer until after the notice of civil claim was issued in July, 2010.  While the retainer of counsel is not an absolute test as to whether or not documents were created for the dominant purpose of litigation, it is but one factor in this case that indicates that the defendant and his insurer were not preparing for litigation nor directing the course of the defence of a possible law suit, until a notice of civil claim was issued some five years post accident.  One would have thought that the defendants would have sought to establish the dominant purpose by showing on a balance of probabilities that the dominant purpose of the documents was to obtain legal advice or to aid in the conduct of the litigation.

[37] Most certainly the defendant and his insurer had followed a course of investigating the accident, and its dynamics, but other than telephone conversations Ms. Fall had with Mr. Gilbert on June 13 and 15, 2005, there is no evidence before me that the defendant or his insurer made a formal declaration to the Gilbert family by way of letter that liability for the accident was being denied.  In my view, a reasonable person would expect no less especially after the family was told that an assessment of liability would be made after receipt of the traffic analyst’s report which was anticipated to be received by Ms. Fall in August, 2005.

[38] In all of the circumstances, I find that the defendant hasn’t met the onus on him to satisfy me that there exists over either the CWMS notes or the reports currently listed in Part 4 of the Defendant’s List of Documents a litigation privilege, such that disclosure of the documents up to the date of the first letter from counsel for the plaintiff should not be made to the opposite party.  The only caveat will be that all references to reserves are to be redacted.

[39] The plaintiff shall have his costs for preparation for, and attendance at the hearing.

Social Media and Computer Hard Drive Requests "A fishing expedition…without the appropriate bait"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defendant application requesting the production of a Plaintiff’s Facebook postings, Twitter postings, Computer Hard Drive and Iphone.
Today’s case (Dosanjh v. Leblanc and St. Paul’s Hospital) involved allegations of medical malpractice.  The plaintiff said she suffered “cognitive impairment that has affected her thinking process“.  She sued for damages.  The Defendants brought an application seeking that the Plaintiff produce her private social media account information and computer hard-drive data arguing that this information would be relevant to the claimed damages.  Master Taylor dismissed the application finding such a broad application, even in the face of alleged cognitive injuries, was “a classic fishing expedition, but without the appropriate bait.“.  Master Taylor provided the following reasons:

[28] The defendant has not indicated the material fact or facts which it believes can be proved by searching the plaintiff’s personal computer and her social media sites.  Rather, the defendant merely says that health, enjoyment of life and employability are in issue.  Surely more is or should be required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant’s privacy.

[29] To be able to obtain a litigant’s private thoughts and feelings as expressed to friends or family members after the fact is, in my view, similar to a party intercepting private communications of another party.

[30] I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind…

[33] I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait.  I observe as well that the order made by the court in Bishop, supra, was focussed on the times the plaintiff spent on his Facebook account on his computer, and did not give the defendant cart blanche to troll through the plaintiff’s correspondence as is sought in the application before me.

Plaintiff Independent Medical Exams and Litigation Privilege Discussed

Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing the scope of litigation privilege when a Plaintiff attends an independent medical exam arranged on their behalf in the course of a personal injury lawsuit.
In this week’s case (Lanteigne v. Brkopac) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit the Plaintiff’s lawyer had her assessed by a neuropsychologist to explore the possibility of organic brain injury.  The Plaintiff’s lawyer chose not to order a report from the neuropsychologist following the assessment.
ICBC brought an application to compel the neuropsychologist to produce a copy of his clinical records of the assessment.  Master Taylor dismissed the application finding that the notes generated during Plaintiff arranged independent medical exams are subject to litigation privilege.  In addition to canvassing several cases addressing this area of law Master Taylor provided the following useful comments:

[15] On the other hand, the plaintiff says this is not a case where Rule 7-6(1) is applicable because the court did not make an order under this subrule for the plaintiff to attend to be examined by Dr. Coen. Rather, the plaintiff attended upon Dr. Coen by referral from her own counsel. Accordingly, says the plaintiff, what actually applies is the law of privilege, not Stainer v. Plaza.

[16] Thus, the issue is framed – can a defendant or third party who has not obtained a doctor’s report by compulsion of a court order, and prior to disclosure of any medical-legal reports by the plaintiff or in the absence of any reports, obtain access to the non-treating doctor’s notes and clinical findings, or are said notes and clinical records privileged as forming part of the brief of the plaintiff’s solicitor until the time when the plaintiff chooses to rely on the non-treating doctor as a witness at trial and the doctor’s notes must be disclosed…

[21] In my view it is improper to categorize the non-treating doctor or any other third party consultant retained on behalf of the plaintiff as a witness in which there is no property. The very fact that the plaintiff consulted with that physician or other individual during the course of litigation removes that individual from the “witness” category until such time as the plaintiff and counsel make a determination about whether or not that physician will be used as a witness at the trial, and preserves the right of privilege. The fact that the consulted doctor or other consultant never gives evidence preserves the privilege for all time unless waived by the plaintiff.

[22] While the defendant and third party submit they could have the plaintiff examined by their own doctor or proceed with an examination of the doctor pursuant to Rule 7-5, they complain that those alternatives are costly, and, accordingly, the court should assist them by ordering the records of Dr. Coen be produced and thus save them the cost of proceeding with the other alternatives. The defendant also submits that Rule 1-3 provides the court with sufficient justification to order Dr. Coen to provide his notes of the plaintiff’s examination.

[23] In my view, the defendant and third party have not shown any meritorious reason for abrogating the plaintiff’s litigation privilege related to the information obtained by Dr. Coen from the plaintiff as a result of the referral to Dr. Coen by the plaintiff’s solicitor. Nor, in my opinion, does Rule 1-3 provide justification for abrogating the privilege.

More on Document Disclosure: Hard Drives, Phone and Banking Records

(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:
[7]  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
[8]  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….
[13]  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)…
[17]  …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.
[18]  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…
[21]  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.

Injury Trial Adjourned Due to Delayed Medico-Legal Report

Reasons for judgement were recently published by the BC Supreme Court addressing the adjournment of a personal injury trial where the Plaintiff’s independently retained physician failed to author a medico-legal report in a timely fashion.
In the recent case (Barlow v. Smoch) the Plaintiff was injured in a 2006 collision.  He was the passenger in a vehicle which collided with a dump truck-trailer.  He apparently suffered serious injuries including a “severe traumatic brain injury with left sided hemiparesis“.
In the course of the lawsuit the Plaintiff hired a variety of independent experts to provide medico-legal opinion evidence at trial.  One of the experts was a physiatrist who assessed the Plaintiff.  The Plaintiff requested a report however no report was provided within the timelines required by the Rules of Court.  The Plaintiff’s other experts required the physiatrist’s report in order to finalize their opinions.  Because the physiatrist did not author the report in a timely fashion the Plaintiff was unable to adequately prepare his case for trial.
The Plaintiff brought an adjournment application.  The Defendant opposed, arguing an adjournment would be prejudicial.  Master Caldwell ultimately granted the adjournment finding that neither party were to blame for the need of the adjournment and that keeping the current trial date would result in prejudice to the Plaintiff.  In granting the adjournment the Court had the following critical comments for the Plaintiff’s expert:

[20]         The determination I have to make now is whether the plaintiff would be so prejudiced by having this matter proceed to trial, in light of all of the circumstances, or whether the defendant would be prejudiced to the extent that there would be some waning of the memory of the defendant Hilborn.

[21]         Remembering of course that the plaintiff is a severely brain?injured individual with hemiparesis, it would behoove me ultimately to weigh the prejudice in favour of the plaintiff and make a determination that the trial ought to be adjourned, not through any fault of counsel or the parties, but more I think because there is an unexplained failure to provide a report following a medical assessment by a medical professional.

[22]         When I say unexplained, I do not say that meaning plaintiff’s counsel has not explained it; I mean (the physiatrist) has not explained her lack of attention to requests for the report following her assessment of the plaintiff on the 31st of May last, which I think is unacceptable.

[23]         I say parenthetically that this may be a matter that counsel and the parties should be taking up with the College of Physicians and Surgeons, because in this case it is, without a doubt, in my view, (the physiatrist’s) lack of production of the document requested that has ultimately resulted in the adjournment of the trial.

[24]         As for costs, there is not a lot of blameworthy conduct here over which costs could be assessed.  I think every party has had a legitimate rationale for having the positions they have taken with respect to the particular application, which I find to be somewhat unique in the circumstances.  So I will say that I think each party should bear its own costs of this application.

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