More on the Production of Case Planning Conference Transcripts: Contested Applications
As discussed earlier this year, Rule 5-2(7) states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order“. Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, addressing the test to be met for production of these transcripts when opposed by other litigants.
In last month’s case (Parti v. Pokorny) the Plaintiff was injured in a motor vehicle collision. In the course of her lawsuit a Case Planning Conference was held. ICBC asked for a transcript of this hearing to be produced. The Plaintiff opposed following which ICBC brought an application for the Court to order production under Rule 5-2(7). ICBC’s application was dismissed and in doing so Mr. Justice Verhoeven provided the following reasons:
[27] The words of R. 5-2(7) in their grammatical and ordinary sense support the view that a production order may be granted only exceptionally on reasonable grounds to support the making of the order. The wording of R. 5-2(7) is prohibitory in nature: “no part of that recording [of a CPC] may be made available to or used by any person without court order”. The legislature expressly required that the court exercise discretion before allowing access to or use of the recording. The legislature must have intended that the court exercise its discretion on reasonable grounds. Thus, the order permitting access to the recording or for a transcript must only be made where there are reasonable grounds to do so….
[35] Litigants and counsel attending a CPC should be free to discuss openly and candidly all aspects of the case, including matters relating to the narrowing of the issues, the merits of the case and the issues, management of the case, or settlement prospects and procedures, without concern that some unguarded comment made during the course of the conference may later be sought to be used to their detriment. The ready availability of transcripts of the proceedings would inevitably inhibit such discussions and frustrate the objectives of the CPC procedures as well as the object of the Rules.
[36] The open court principle is well-recognized in the caselaw. The legislature is presumed to have been aware of the open court principle when it enacted R. 5-2(7) of the SCCR, limiting the application of that principle in the context of CPCs…
[48] I reject the argument of the defendant that there ought to be a presumption in favour of production of the CPC transcript. The defendant’s application fails as it has not established any compelling grounds for the exercise of the court’s discretion for the order sought.
[49] The plaintiff argued that there should be a presumption against the making of an order for the availability or use of a CPC recording. Strictly speaking, the application of the rule does not require a presumption. I simply interpret the rule to require compelling grounds for the exercise of the court’s discretion to make the order. It makes no difference whether that is considered a presumption.
[50] The plaintiff also argues that the necessary grounds arise out of the specific case before the court. That would seem logical; however, that is not an issue I need to decide as the defendant has not demonstrated any compelling grounds for the order, whether arising out of this case or not.
[51] The application of the defendant for an order pursuant to R. 5-2(7) is dismissed, with costs.