Further to my previous post discussing this topic reasons for judgement were released today dealing with the extent of pre-accident record disclosure ICBC (or other defendants) are entitled to when a Plaintiff sues for damages for personal injuries in the BC Supreme Court.
In today’s case (Moukhine v. Collins) the Plaintiff was involved in a 2007 BC car crash. The Plaintiff sued for damages. In the Statement of Defence the lawyer plead that the injuries are not the result of an accident, but are were in fact pre-existing conditions. (This is a rather ‘boilerplate’ pleading raised by the defence in almost every ICBC injury claim). The defence lawyer then asked that the Plaintiff provide medical records which pre-date the accident by as much as 15 years.
The Court was asked to decide “whether a mere allegation in a pleading that a plaintiff’s injuries are not the result of an accident, but are caused by his or her pre-accident health condition is enough, without more, to entitle a defendant to production of pre-accident medical records“.
Mr. Justice Harris went on to hold that in personal injury cases, the mere allegation by the Defence lawyer of a pre-existing condition may be enough to compel the disclosure of pre-accident records. Specifically the Court reasoned as follows:
 In my opinion, nothing in Dufault is authority for the proposition that pleadings alone are insufficient to make an order under Rule 26(11) or that evidence is always necessary. Similarly, Dhaliwal does not address the relevance of pleadings as a basis for making a Rule 26(11) order. There is no reference in the judgment to the issues pleaded in the action and whether pleadings would have affected the outcome. The case deals only with the sufficiency of the evidence that was before the court. I do not draw from the case the proposition that pleadings standing alone and defining the issues in the action are never a sufficient basis to satisfy the court to make a Rule 26(11) order.
 In Marsh v. Parker, 2000 BCSC 1605 at para. 9, Master Horn concluded that Dhaliwal stood for the proposition that “there must be something either by way of evidence or by way of the pleadings which raises the plaintiff’s pre-injury state of health as an issue.” I agree. Indeed, in Creed v. Dorio,  B.C.J. No. 2479, Mr. Justice Edwards, at paragraph 13, rejected the proposition that “some evidence” was necessary to establish relevance….
 In an appropriate case pleadings are a sufficient basis on which to exercise a discretion to order production of at least some documents. In some cases it is reasonably obvious that records may contain relevant (in the sense that term is used in Peruvian Guano) information and should be produced, subject to production following a Jones orHalliday format. Evidence may be required in order to resist a production order. That does not mean, however, that an order will always go on the basis of pleadings alone and it may be premature in some circumstances to make such an order before discovery (see, for example, Mehdipour v. Shingler (18 March 2009), Vancouver M080517 (S.C.)). Merely pleading pre-existing conditions does not deprive the court of its discretion to refuse to make the order sought when, for example, there is no air of reality about the alleged connection between the documents sought and the issues in the action. Evidence may therefore, on occasion, be required to establish the relevant connection to overcome the conclusion that the documents are irrelevant to the claim.
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.
In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).
The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.” This application was dismissed by the Chambers Judge.
The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.
The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:
 At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night. He also testified that he does have a Hotmail account but he had not “checked it forever”. His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.
 In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:
[H]is sleep varies with the time one of his friends goes to bed. This is because he spends a lot of time on Facebook chatting with this friend.
 I conclude that this appeal is prima facie without merit. It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook. Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.
 I dismiss the application for leave to appeal.
You can read the full judgement by clicking here (Bishop v. Minichiello)
Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims. With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.
When you are involved in a suit for damages in an ICBC injury claim can you access the opposing parties driving history? Reasons for judgement were recently brought to my attention making just such an order.
In the recent case (Rothenbusch v. Van Boeyen) the Plaintiff claimed damages against the Defendant. Liability (fault for the car crash) was at issue. During the examination for discovery the Plaintiff’s lawyer asked the Defendant how many speeding tickets he had. He could not recall exactly and indicated “one or two“. The lawyer then asked for him to produce his driving history and he refused.
In the application for production of the Defendant’s driving history Master Caldwell of the BC Supreme Court held that “(the Defendant) was unable to provide an actual firm answer (as to how many speeding tickets he had)…The defence says that the driving pattern is not particularly relevant, unlike defence requests for previous medical records and that type of thing. She indicates that this is a highly invasive application with respect to the privacy of the Defendant, and that unlike a plaintiff who opens their life up to investigation when they commence an action, the same cannot be said of the defence. I am not really satisfied that that is necessarily the case, particularly in a situation where liability is at issue as it is here. I am satisfied based on the questions asked and answered and the form of the answers contained in the discovery transcript, that this record as sought may be producible.”
Despite ordering production of this record the Court went on to note that the same may not be admissible at trial. Specifically Master Caldwell held that “Whether or not (the driving record) is relevant and passes the test of admissibility of trial will be up to the trial judge…I will order that the Defendant provide a copy of his driving record for a period of three years prior to the …accident”.