BC Supreme Court 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“. The few cases released to date interpreting this rule have made it clear that the Court is reluctant to deviate from this fall back position. Reasons for judgement were released today the BC Supreme Court, Nanaimo Registry, following this trend.
In today’s case (Darel v. Samy) a variety of orders were made at a case planning conference. The Plaintiff applied for reasons to be published arging that these were desirable “for the intended purpose of bringing the “conduct” of the defendants “to light”. ”
Master Bouck rejected this request and in doing so provided the following brief reasons:  The plaintiff’s request for release of the transcript is denied for the reasons articulated in Parti v. Pokorny. Firstly, a transcript is not required to resolve any dispute about the terms of the case plan order. Second, there is no precedential value in any of the terms of the order. Third, the court does not issue reasons for judgment at the request of a party. And finally, the comments of a presider are not rulings or reasons.
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: 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….
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.
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…
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.
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.
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.
The application of the defendant for an order pursuant to R. 5-2(7) is dismissed, with costs.
As recently discussed, one of the changes in the new BC Supreme Court Civil Rules is the introduction of Case Planning Conferences (CPC’s). 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“. The first reasons for judgement that I’m aware of addressing the issue of a court’s discretion to order a transcript of proceedings following a CPC were released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Shen v. Klassen) the plaintiff was involved in a motor vehicle collision and sued for damages. In the course of the lawsuit a CPC was held. The Defendant wrote the Court requesting a copy of a transcript following the CPC. The plaintiff took no position with this request. Despite this the Master refused to make a transcript available stating that “I see no basis upon which to accede to the request“.
The Defendant appealed. The Plaintiff again took no position. Madam Justice Beames allowed the appeal and permitted the Defendant to obtain a copy of the CPC transcript stating that “there is no compelling reason, in my view, for the court to refuse to order a transcript of a CPC where one party seeks the transcript and the other party does not object“.
The Court was invited by the Defendant to set out guidelines to be applied in future cases addressing the circumstances when CPC transcripts should be released. Madam Justice Beames refused to do so noting that it would be inappropriate to do so when the Court only heard one party’s submissions on this issue.
I will continue to follow the Judicial development of this rule and write about relevant cases as they come to my attention. If anyone is familiar with other cases addressing the Court’s discretion to order the release of CPC transcripts I invite you to bring them to my attention.
If you would like further information or require assistance, please get in touch.
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.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.