Tag: Mr. Justice Schultes

IPod Not Deemed "A Meaningful Factor" In Pedestrian Collision

Written by admin on September 28, 2012. Posted in ICBC Liability (fault) Cases. 70 Comments on IPod Not Deemed "A Meaningful Factor" In Pedestrian Collision

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the issue of fault for a collision involving a pedestrian who was listening to music on an iPod when he was struck by a transit bus.
In last week’s case (Whelan v. BC Transit) the Plaintiff was injured when a BC Transit Bus ran over his foot. The parties agreed on the value of the claim but each argued the other was to blame. The trial proceeded on the issue of fault.
The Plaintiff “was listening to music on his iPod by means of its earbuds” as he was walking on the sidewalk. He decided to step briefly onto the curb lane of the street in order to walk around other pedestrians. As he did so he was struck from behind by a BC Transit bus which was leaving the curbside moving forward to merge with traffic. The Plaintiff “did not hear the bus before it struck him“.
The Court ultimately found both parties were to blame for the impact. The Plaintiff for stepping out into the street when it was unsafe to do so and without the right of way, the Defendant for failing to see the Plaintiff who was there to be seen. The Court found the Plaintiff more culpable allocating 60% of the blame to him. Interestingly the Court did not consider his listening to music and failing to hear the bus to be a significant factor. In reaching the split of fault Mr. Justice Schultes provided the following reasons:
[72]         As was obvious from my earlier comments in this discussion, Mr. Whelan was himself contributorily negligent in this accident. In addition to his disregard for the bus’s right of way and his needless decision to place himself onto the travelled portion of the roadway simply to avoid a moment’s pause in his progress, he made an assumption that was even less grounded in objective fact than Mr. Kobbero’s — that the driver checking his shoulder meant that the bus would have moved into the left lane before it reached the area where he stepped off the sidewalk.
[73]          I do not find his use of an iPod to be a meaningful factor in this analysis though. His negligent decision to step onto the road was caused by impatience and a faulty assumption about the actions of the bus driver, and not by any reduction in his ability to hear his surrounding environment…
[75]         I would characterize Mr. Kobbero’s lapse of care in conduct as falling more towards the momentary or minor end of the spectrum than towards the extremely careless end. I have found that it was a decision to focus his attention fairly briefly on an admittedly more pressing task, based on the faulty assumption that there were no risks directly ahead of him. This was not the kind of lapse that was inevitably going to cause harm; it required a pedestrian to do one of the foolish things that Mr. Kobbero has been trained to expect in order for that to happen. I conclude that Mr. Kobbero should bear 40% of the liability for this accident.
[76]         Mr. Whelan’s actions conversely, demonstrate a higher degree of carelessness. As a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong. Accordingly I fix his liability at 60%.

$10,000 Non-Pecuniary Assessment for 4 Month Soft Tissue Injury; Costs Denied Under Rule 14-1(10)

Written by admin on May 1, 2012. Posted in BCSC Civil Rule 14, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries sustained in consecutive motor vehicle collisions.
In last week’s case (Liu v. Thaker) the Plaintiff was involved in two collisions, the first in October of 2007 and the second a month later. Both collisions caused relatively minor soft tissue injuries which largely recovered in 4 months. In assessing Non-Pecuniary Damages at $10,000 Mr. Justice Schultes made the following findings:

[58] On the whole I would say that the plaintiff’s case offered persuasive evidence of relatively minor soft-tissue injuries, rather than the unpersuasive evidence of more serious injuries that is sometimes seen in motor vehicle injury cases.

[59] I find that Mr. Liu did suffer the injuries that he described and that they were caused by the two accidents for which the defendants have admitted responsibility. These were soft-tissue injuries to the neck and shoulder which had largely resolved by the end of February 2009, about four months after the first accident…

[65] In all the circumstances, balancing the various factors, and having due regard to the range, but not being straight jacketed by it, I consider an award of $10,000 for non-pecuniary damages to be appropriate in this case.

Paragraphs 75-82 of the reasons for judgment are also worth reviewing for the Court’s reasoning in denying the Plaintiff costs findng there was no ‘sufficient reason’ to sue in Supreme Court pursuant to Rule 14-1(10).
Lastly, paragraph 56 is worth reviewing for the Court’s comments addressing the Defendant’s ‘low velocity impact’ testimony. Mr. Justice Schultes provided the following criticism:
[56] Except as to the bare contours of his involvement in the first accident, I did not find Mr. Thaker’s evidence credible. He sought to portray the impact as so slight as to be virtually negligible — a mere touching of the vehicles, in his view. But he also sought to absolve himself of the responsibility of having caused the accident, even though liability has been admitted on his behalf. This suggested somewhat of a self-serving perspective on his part, which is at odds with the reality of the situation. It also made no sense to me, if the impact had been as trivial as Mr. Thaker claimed, that he would have asked Mr. Liu if he was okay afterwards, as he described. On his version of a mere touching between the vehicles, such an inquiry would have been completely unnecessary.

More on the Real Consequences of Insurance Fraud

Written by admin on March 1, 2011. Posted in Uncategorized.

Last month I wrote about why I hate insurance fraud. A quick look at comments following stories of personal injury claims in the news provides insight into the harsh judgments personal injury claimants face by some members of the public.

Although the cynicism and doubt cast on legitimate claims is the most unfortunate consequence of insurance fraud , there are more well recognized effects of fraud and these are the costs to the public at large. Fortunately the civil consequences for being caught in a fraudulent scheme can be high and this was demonstrated in reasons for judgement released last month by the BC Supreme Court, New Westminster Registry.
In last month’s case (ICBC v. Wiese) the Defendant was insured with ICBC. Between 1997 and 2005 ICBC alleged that “there were an ongoing series of fraudulent acts and representations by Mr. Wiese to ICBC, both directly asserting certain facts to be true regarding his residence and also providing statements and other updated information though which that pretence was maintained” Over the years the Defendant was apparently involved in “14 separate accidents involving seven different vehicles…resulting in payments out from ICBC of $102,855.48“.
ICBC sued for damages and succeeded. Mr. Justice Schultes awarded ICBC not only the cost of the claims paid out but a further $70,000 in punitive damages to punish the defendant for his repetitive “fraud on the public“.
If you ask a Plaintiff who has unfairly had their credibility called into question by an insurance defence lawyer they will tell you that insurance fraud causes harm to others beyond insurers. Cases such as the above serve as a stark and welcome reminder that the cost and consequences of insurance fraud are high.

More on Valuing Damages for Modest Soft Tissue Injuries

Written by admin on December 31, 2010. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

As previously discussed damages for non-pecuniary loss (pain and suffering and loss of enjoyment of life) are best thought of in ranges. The same injury can be valued differently by individual trial judges and for this reason its important to get a sense of the low end and high end of appropriate compensation for your injury when considering settlement. The best way to do this is to review as many cases as possible dealing with similar injuries.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing non-pecuniary damages for a modest soft tissue injury of nine months duration.
In today’s case (Thomson v. Hunt) the Plaintiff was involved in a December 2007 collision in Coquitlam, BC. Fault was denied by the Defendant although the trial judge found him entirely responsible for the crash. The Plaintiff suffered from soft tissue injuries affecting his left shoulder, arm and neck. These were acute for three months and disabled the plaintiff from work during this time. From there the injuries continued to improve until they were “essentially symptom free” some 10 months following the crash. Mr. Justice Schultes valued the Plaintiff’s non-pecuniary damages at $20,000 and in doing so provided the following reasons:

[60] Bearing in mind that Mr. Thomson’s continuing symptoms were not sufficiently serious to require further medical attention, I find that the link Dr. Fyfe makes between his work duties and the presence of symptoms in the areas described is plausible, particularly in light of what she identified as the difficulties Mr. Thomson endured when undertaking strenuous duties during the earlier stages of his recovery. I find that although Mr. Thomson’s symptoms diminished to such an extent as to no longer require him to seek ongoing medical treatment and engage in physiotherapy, those symptoms persisted in one form or another until the end of August 2008.

[61] Mr. Thomson himself does not suggest that his symptoms were as severe once he returned to work. In his affidavit sworn February 26, 2010, at para. 49 he deposed that:

Most of my injuries had improved quite a bit before I returned to work on March 10, 2008. I remember that the pain in the left shoulder, left arm and between the shoulder blades were still lingering when I returned to work. I had periodic neck pain which was aggravated by work, as my job involved a lot of looking up.

[62] I think this candid description weighs substantially in favour of Mr. Thomson’s credibility and distinguishes him from those plaintiffs who maintain that their physiological problems continue undiminished for very lengthy periods, well past what objective medical or other evidence can possibly support.

[63] In all the circumstances, I think that the duration of Mr. Thomson’s most serious symptoms and the limited extent to which they interfered with his pre-collision lifestyle calls for a lower award than those awarded in the cases he relies on. However I have no concerns on the evidence that Mr. Thomson may have exaggerated his symptoms, so I think that a substantially higher award than the nominal ones in the cases Mr. Hunt relies on is warranted.

[64] I, accordingly, award Mr. Thomson $20,000 for non-pecuniary damages.

If you’re looking for other recent soft tissue injury damages assessments by BC Courts feel free to access my archived posts on this topic (fairly comprehensive from 2008-present). Another great resource is Canlii, a free Canadian legal case-law database.

More on BC Personal Injury Claims and Radiologists Evidence

Written by admin on May 7, 2010. Posted in Civil Procedure, Uncategorized. 54 Comments on More on BC Personal Injury Claims and Radiologists Evidence

(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC Court of Appeal in mind)
Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court. Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show. Excluding such evidence can be fatal to a claim. 2 judgements were released today demonstrating this principle.
In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash. At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘. The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given. Mr. Justice Schultes agreed and in doing so gave the following reasons:

[3] The stated relevance of this evidence is that the x-rays taken after the accident will allegedly show some abnormality in some of the plaintiff’s vertebrae that could have been caused by the accident. This, it is said, will rebut the defendant’s position that the plaintiff’s pain is largely the result of a degenerative condition rather than of the accident.

[4] The basis for the objection to Dr. Wooden’s evidence is that he is an expert witness and no notice of his evidence has been given as required by Rule 40A of the Rules of Court. In addition, the defendant has not been given an opportunity to inspect the x-rays as required by Rule 40(13). ..

…While on the evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury would be prohibited because of the plaintiff’s failure to comply with Rule 40A.

[16] As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…

[17] In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.

[18] I do not think such a passive approach was sufficient. The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it. At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays. It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.

[19] The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.

[20] There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence. Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.

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In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.” The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion. The radiologists report was not put into evidence and the radiologist was not called as a witness.
The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances. The Court agreed. In doing so Madam Justice Kloegman gave the following reasons:

[3] Dr. Chu’s second report discloses that his opinion is based on an assumption that there has been a partial tear of the subscapularis tendon. The defendant takes issue with that alleged fact. The plaintiff has taken no steps to prove the truth of this assumption. Originally, she did not intend to enter the radiologist reports interpreting the MRI scans. Now counsel advises that she could lead them through Dr. Chu. However, all this would do is show the source of Dr. Chu’s assumption. It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.

[4] Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists. Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear. Dr. Chu’s second report is based solely on this assumption of a partial tear. There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.

These cases illustrate that if you wish to prove an injury through diagnostic imaging care should be taken to ensure that appropriate witnesses are available to get the evidence before the Court and further that appropriate notice is given to opposing counsel.

ICBC Medical Exams and Secret Tape Recordings

Written by admin on April 21, 2010. Posted in Civil Procedure, independent medical exams, Uncategorized.

Further to my previous post discussing the topic of taping independent medical exams, reasons for judgement were released today demonstrating that BC Courts are not very receptive to such evidence if secretly obtained.
In the 2006 case of Wong v. Wong the BC Court of Appeal made it clear that permission for a Plaintiff to record a defence medical exam will rarely be granted. Sometimes Plaintiff’s have recorded such exams without seeking the court’s permission first. While the secret audio recording of an independent medical exam by a participant is not necessarily a criminal offence in Canada, it is frowned upon. One remedy a Court can exercise when presented with such evidence is to simply exclude it from trial. Today’s case used exactly this remedy.
In today’s case (Anderson v. Dwyer) the Plaintiff was injured in a 2004 rear end crash. ICBC, on behalf of the Defendant, admitted fault for the accident but disputed the extent of the Plaintiff’s injuries. In the course of the lawsuit the Plaintiff attended a medical exam with Dr. Locht, an orthopaedic surgeon selected by ICBC. The Plaintiff surreptitiously recorded this exam and then her lawyer tried to make use of this recording at trial. Mr. Justice Schultes was not receptive to this and disallowed the use of this recording for cross examination purposes. While the reasons for judgement did not have an analysis of why the Court used this remedy the following was highlighted:

[12] The plaintiff also admitted surreptitiously recording her examination by Dr. Locht, the orthopaedic surgeon who conducted an independent medical examination of her on behalf of the defendant. ( This came to light as a result of an objection by the defendant’s counsel during the cross-examination of Dr. Locht. The plaintiff’s counsel did not use the transcript any further after the objection and nothing in my analysis of Dr. Locht’s evidence turns on its use.)

[13] Her explanation for this action was that she wanted an accurate record of everything that was said during the examination and was concerned that she would not be able to recall it herself without assistance. She felt she had been treated disrespectfully by representatives of the Insurance Corporation of British Columbia during a previous meeting about this litigation and, I gather, that as a result she was suspicious of how the examination would be conducted.

[14] She maintained that she did not originally intend to use the recording in the litigation but that a friend had typed it up for her shortly before the trial so that she could refresh her memory and at that point she found discrepancies between the transcript and Dr. Locht’s report. She intended it to be used during cross-examination only if “the truth wasn’t coming out” in his evidence…

[43] It was suggested to Dr. Locht that his report presented some of the plaintiff’s symptoms in a misleading way. For example, he described her as having “no sleep disorder”, although she told him that her neck pain woke her several times throughout the night. His explanation was that because she was still getting six hours of sleep per night, in total, he did not consider that she had a sleep disorder. Similarly, he described the plaintiff as being “physically capable” of continuing all work, household, and recreational activities that she could do before the accident, despite her descriptions of experiencing severe pain (and in one case nausea) after engaging in them. He explained that his determination that a person is physically able to perform an activity does not depend on whether she in fact avoids that activity because it causes her pain…

[49] With respect to the plaintiff’s general credibility, I did not find her recording of the examination by Dr. Locht, her failure to disclose potentially relevant documents, or her “hands on” involvement in this litigation to be as significant as the defendant suggested. However improper surreptitious recording of medical interviews may be, it appeared to me that this recording was a reflection of the plaintiff’s suspicious and hostile view of ICBC and of her desire to protect herself from the unfair treatment that she expected to receive from its representative, rather than of any desire to manipulate the evidence.

Given the very important role expert witnesses play in injury litigation it is fair to debate whether tape recordings should routinely be used to add greater objectivity to the IME process. Unless and until this comes about our Court’s will continue to struggle with the use this evidence will be put to when parties choose to obtain evidence through surreptitious recording.

Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can

Written by admin on February 18, 2010. Posted in Civil Procedure, independent medical exams. 49 Comments on Court Ordered "Independent Medical Exams" and the Standard of Review – A Second Kick at the Can

When a court orders a Plaintiff to attend an independent medical exam (click here to read some related posts on this topic) in an ICBC or other Injury Claim and the parties appeal what is the standard of review used in the appellate hearing?
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing this issue.
In today’s case (Barbosa v. Castillo) the Plaintiff attended an Independent Medical Exam (IME) with an Orthopaedic Surgeon chosen by the Defendant. He gave an opinion that the plaintiff did not have a “functional problem” with respect to any neurological complaints. The Plaintiff then served expert reports outlining that he had nerve root irritation which negatively impacted his ability to work.
The Defence asked for a second medical exam, this time with a neurologist. On application to Court the presiding Master rejected the motion. The Defendant appealed the ruling. On hearing the appeal Mr. Justice Schultes had to decide, amongst other things, what the legal test was on these types of applications. He ruled that the appeal can be a rehearing (as opposed to requiring proof that the Master was ‘clearly wrong’) in essence giving the appellant a second kick at the can. Specifically the Court held as follows:

[14] Before proceeding further, it is necessary to establish the applicable standard of review of the learned master’s decision. It is well established that on purely interlocutory matters, it must be demonstrated that the master was “clearly wrong” in his or her decision. However, when the ruling raises questions that are vital to the final issue in the case, the reviewing court approaches the matter as a rehearing. When the master’s decision deals with a question of law, the standard of review is correctness: Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1060 (S.C.), and Joubarne v. Sandes, 2009 BCSC 1413 at para. 14.

[15] A decision to deny a defendant the opportunity to have an independent medical examination conducted of the plaintiff can raise questions that are vital to the final issue in the case. In Belke v. Bennett, 2006 BCSC 536, Mr. Justice Barrow provided the following helpful approach at para. 5:

If the Master’s order amounts to a refusal, whether in whole or in part, of an application to have the plaintiff submit to an independent medical examination, it may deprive the defendant of discovering evidence necessary for a full examination of the plaintiff’s claim or of a defence advanced. It is in that sense that a decision may be said to go to an issue vital to the trial. […] If, on the other hand, the Master’s order simply sets terms on which the independent medical examination is to be conducted or directs that such an examination not be performed by a particular professional, the defendant is not deprived of potential evidence, and the order cannot be characterized as going to an issue that may be vital to a final issue at the trial.

[16] I adopt this analysis. I think the master’s decision in this case fell within the first situation envisioned in Belke. Denying the defendant’s application effectively foreclosed any exploration of Dr. Hunt’s opinion, let alone any rebuttal of it, on behalf of the defendant by an expert with the specific expertise necessary to cope with the report on its own terms.

[17] If uncontradicted, Dr. Hunt’s opinion could be determinative of several of the kinds of damages claimed by the plaintiff, in particular as to the true nature and extent of his injuries and their impact on his future earning capacity. These questions appear to be vital to several final issues. Accordingly, I will treat this appeal as a rehearing.

Mr. Justice Schultes went onto allow the appeal and order the second defence medical exam. In doing so the Court provided the following useful summary of the law discussing factors courts can consider in applications for multiple independent defence medical exams:

[19] Turning to the actual merits of the defendant’s application on the rehearing, an excellent summary of the applicable law in this area was provided by Madam Justice D. Smith, then a member of this court, in McKay v. Passmore, 2005 BCSC 570 at paras. 15 – 19:

15. The principles to be followed in deciding whether the defendants have shown an adequate basis for a second IME are set out in Trahan v. West Coast Amusements Ltd.[2000] BCSC 691 (CanLII), [2000] BCSC 691, at para. 48:

The authorities establish that additional medical examinations are in the discretion of the court … (citations omitted).

That discretion is to be exercised judicially, considering the evidence adduced. A second examination to permit the defendant a second opinion on the same subject matter will not be allowed. A second examination may be appropriate where there is some question which could not have been dealt with on the first examination … (Citations omitted).

That the magnitude of the loss is greater than previously known is not in and of itself sufficient to permit a second examination … (Citations omitted).

Where diagnosis is difficult and existing assessments are aged, further assessment may be required …

And in Roberge v. Canada Life Assurance Co. [2002] BCSC 1500 (CanLII), [2002] BCSC 1500 at paragraph 9:

The distinction is quite important. Simply put, when a person in litigation makes a claim for a personal injury, the defendant is, without oversimplifying the matter, almost always entitled to a medical examination of the plaintiff. A much higher standard is imposed when the defendant seeks a second medical examination of the plaintiff.

16. The overriding question is whether a second medical examination is necessary to ensure reasonable equality between the parties in their preparation of a case for trial: Wildemann v. Webster [1990] CanLII 206 (BC C.A.), [1991] 50 B.C.L.R. (2d) 244 (C.A.).

17. Reasonable equality does not mean that the defendant must be able to match expert for expert or report for report. I refer to Trahan v. West Coast Amusement Ltd. and toMacNevin v. Vroom [21 December 2004] New Westminster S072995 (S.C.).

18. The defendants must satisfy the court that there is some question or matter that could not have been dealt with at the first examination: Jackson v. Miller [1999] B.C.J. No. 2751 (S.C.).

19. In considering how to exercise the discretion to grant a second IME, the court should take into account the timeliness of the application in the light of Rule 40A and the practicalities of trial preparation… [citations omitted.]

Disclosure of Medical Records and Privacy Concerns in ICBC Injury Claims

Written by admin on January 7, 2010. Posted in Civil Procedure, Uncategorized. 42 Comments on Disclosure of Medical Records and Privacy Concerns in ICBC Injury Claims

Reasons for judgement were published this week on the BC Supreme Court Website dealing with disclosure of past medical records in the context of an ICBC Injury Claim.
In this week’s case (Sidhu v. Dhani) the Plaintiff was involved in a 2006 BC Car Crash and sued for damages. In the course of the lawsuit ICBC asked that the Plaintiff provide all her medical records for 4 years before the car crash. There was evidence that the Plaintiff attended one specific GP 236 times in the years before the collision. The Plaintiff refused to produce these records and ICBC applied to court. At the hearing the Master largely agreed with ICBC and ordered that the medical practitioners who treated the Plaintiff produce all of their records for the 3 years before the car crash directly to ICBC’s lawyer.
The Plaintiff appealed arguing that the disclosure should not have been ordered or, in the alternative, that the records should go to the Plaintiff’s lawyer first so that clearly irrelevant records could be redacted before sharing the records with ICBC.
On Appeal Mr. Justice Schultes agreed that the the records should be produced but ordered that they be produced with the safeguards the Plaintiff wished.
In coming to this decision Mr. Justice Schultes reasoned as follows:
[8] The learned master ordered the production of the records in what has become known as Jones form, that is, directly to counsel for the third party rather than in so-called Halliday form, in which the plaintiff’s counsel would first have the opportunity to review the records and seek to vet out any matters said to be irrelevant or subject to a privilege. The learned master did not provide the reasoning underlying this aspect of his decision…

the master drew the inference that the sheer number of medical visits, including the remarkable number to one doctor, made it likely that the clinical records contained information that would be relevant to the plaintiff’s claims. The learned master’s reasons, though brief, clearly demonstrate that process of analysis. In particular, the large number of medical visits would be relevant to the plaintiff’s claim that the accident had diminished his employment prospects and ability to earn future income by suggesting some other chronic or ongoing difficulties potentially unrelated to the accident.

[13] To make this distinction clear, it appears to me that speculation and so-called fishing expeditions refer to a situation in which the material in support of an application does not give rise to a reasonable inference that material relating to the matter is likely in the hands of the third party. Material relating to the matter is, of course, that which directly or indirectly allows a party to advance his own case or damage that of his adversary’s: Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.) which is the standard reference on this point.

[14] It follows that I find that the learned master was not clearly wrong in his decision on this aspect of the case and I would therefore dismiss the first part of the appeal…

[15] The plaintiff further argues that even if the learned master was not clearly wrong in ordering disclosure of these records, he erred to that standard in failing to order their disclosure on the so-called Halliday basis, that is, released first to him so that issues of relevancy and privilege could be considered. The source of this basis is the decision ofHalliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194 (C.A.).

[16] The value of the Halliday process is to allow potentially privileged material to be preserved until a proper determination of its status has been made and to allow the plaintiff to delete irrelevant or embarrassing or confidential material, or to make it irrelevant by amending his pleadings before discovery: see Halliday, at pages 199 and 200. The effectiveness of this process, of course, depends on counsel carrying out their duty to disclose relevant material: see Boxer v. Reesor (1983), 43 B.C.L.R. 352 (S.C.). However, as Lambert J.A. pointed out in Halliday any abuse of this method of disputing relevance can be subsequently punished by an order of costs.

[17] On this issue, the plaintiff relies on Grewal v. Hospedales, (2004), 33 B.C.L.R. (4th) 294 (C.A.), and Gibson v. Mian, 2002 BCSC 1836.

[18] In Grewal, the master was found to have erred in failing to consider in a personal injury accident the relevance of the plaintiff’s medical records from specialist whose areas of specialty appeared to bear no relationship to the types of claims that the plaintiff was advancing.

[19] In Gibson, the master ordered medical records of the plaintiff’s family doctor in Halliday form based on the reasoning that such a doctor is likely to deal with irrelevant issues that could embarrass the plaintiff. This analysis was as applicable, in the master’s view, to male plaintiffs as to female plaintiffs. As the master observed:

… in the case of general practitioners, other things being equal, I think that … describing them as the general practitioner with a history of consultations for matters other than the injuries sustained in the accident is enough to meet the necessary standard of lack of relevance and embarrassment.

[20] The Gibson decision, being a decision of a master, is not, strictly speaking, binding on me, but I do find its analysis helpful. While I would not go so far as to say that in all cases the bare assertion that a doctor is a general practitioner who did not treat the injuries complained of as part of the action will justify disclosure on a Halliday format, I do think that it would raise concerns that a court must at least consider and address. In this regard, I disagree with the third party’s submission that the Halliday procedure is restricted to circumstances, like those in Grewal, in which the nature of the practitioner’s speciality is on its face irrelevant to the issues in the litigation.

[21] Here, the learned master did not provide any analysis explaining his decision to order disclosure in Jones format. While he is deemed to know the law and to have applied it correctly in the absence of some contrary indication, I think it was a clear error for him not to have identified that the same large number of medical visits which had made it likely that these records contained relevant evidence also sharply increased the risk of capturing irrelevant and embarrassing information during the process. This seems to me to be the obvious corollary of his disclosure decision and I cannot infer that he addressed it and resolved it in a manner that justified Jones disclosure in the absence of any indication to that effect.

[22] Accordingly, I will allow the appeal to the extent of ordering that records of the doctors whom the plaintiff asserted did not treat him for any matters related to the accident that is the subject matter of this litigation will be disclosed in accordance with the procedure in Halliday.

I should point out that as of July, 2010 the new BC Supreme Court Civil Rules come into force and the tests for what types of documents need to be exchanged will be narrower so it will be interesting to see how this area of law changes under the soon to be in place new system.