Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, providing useful comments on disclosure obligations of personal injury litigants under the BC Supreme Court Civil Rules.
In today’s case (Holmberg v. McMullen) the Plaintiff suffered “significant injuries” as a result of two vehicle collisions and sued for damages. In litigation the Defendants requested various pre accident medical records and pharmacological records arguing that when serious injuries are alleged such documents must be produced. A Master disagreed and dismissed the application. The Master’s decision was appealed which was also dismissed.
In noting that parties have no obligation to produce documents not in their possession or control in the first phase of document production and further that pre accident medical records are not producible on demand and as of right even in the face of serious injuries being disputed on the pleadings Mr. Justice Johnston provided the following reasons:
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering broad document production from past litigation in a case of potential indivisible injuries.
In today’s case (Easton v. Chen) the Plaintiff was injured in a 2011 collision and sued for damages. The Plaintiff was also involved in four prior collisions that resulted in injury claims, all of which settled prior to trial.
The Defendant requested production of past examination for discovery transcripts, expert reports and mediation documents on the basis that the injuries may be indivisible. In ordering production Master Muir provided the following reasons:
 I agree with the submissions of the defendant. I am satisfied that the prior documents, the discovery transcripts and the experts reports from the prior actions could be used to prove or disprove material facts in this action and on that basis alone I would order their production. I also conclude that in any event a sufficient foundation has been laid for their production under Rule 7-1(11). Further, I conclude that it is in the interests of justice to relieve against the implied undertaking of confidentiality. Thus, the documents are to be disclosed.
 The mediation documents sought raise another issue and that is settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC 670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, for the proposition that the disclosure of these documents is necessary in order to prove what the plaintiff received in compensation in the prior accidents and to prevent injustice through potential double compensation.
 In Dholliwar, Master Scarth held:
 It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298 (CanLII), but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial.
 In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach
 Similarly in this case, indivisibility is an issue and the defendants argue there is a potential for double compensation. The only evidence available showing what the plaintiff was compensated for in the prior actions will be found in this documentation. As a result, I conclude that the mediation documents should be disclosed.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing document relevancy issues in a disputed brain injury claim.
In today’s case (Mackinnon v. Rabeco Holdings (1989) Ltd.) the Plaintiff was involved in a 2010 vehicle collision. He sued for damages alleging that “he sustained a brain injury…as a result of the accident which caused or contributed to an increase in the frequency and severity of his pre-accident sexually aberrant behaviour culminating ultimately in a criminal conviction“.
Prior to the collision “the plaintiff took clandestine photos of a woman. The incident was reported to police in Langley who investigated, but no charges were laid.”. In a post collision incident, the Plaintiff plead guilty to “surreptitiously unlawfully observing or recording for a sexual purpose a person in circumstances that give rise to an expectation of privacy contrary to s.162(1)(c) of the Criminal Code”.
The Defendant sought production of police materials from these incidents arguing the documents were relevant given the allegations in the lawsuit. Master Harper agreed and ordered production. In doing so the Court provided the following reasons:  The plaintiff will attempt to prove at trial that the injuries sustained in the motor vehicle accident caused or contributed to the escalation of his sexual proclivities. That fact, if found by the trier of fact, is material. The defendants seek to obtain evidence as to the timeline of the escalation in the Plaintiff’s sexually aberrant behaviour and compare his behaviour pre- and post-accident…
 Because the defendants are not seeking production of the videos and photographs themselves (sensibly, in my view because I would not have ordered their production), secondary documents which refer to the nature of the images and the dates on which they were made are a reasonable substitute for those original documents. I find that certain specific documents in the possession of the RCMP with respect to the 2009 incident should be produced. These are: the incident report; any statements made by the plaintiff to the RCMP and the investigating police officer’s notes, with identifying information of the victims to be redacted.
 I find that certain specific documents in the possession of the RCMP with respect to the June 25, 2012 incident should be produced. These are: the Narrative Report to Crown Counsel; the notes of the investigating police officer or officers and any statements made by the plaintiff to the RCMP.
 The video catalogue was referred to by Crown Counsel as being made by someone other than Crown Counsel. There is no evidence as to who that someone is. It is possible that the video catalogue was not made by the RCMP and is not in the possession of the RCMP. There is no evidence before me in this application that the video catalogue is in the possession of the RCMP and no evidence from which I can draw an inference that the video catalogue is probably in the possession of the RCMP. Therefore, I dismiss that part of the application.
 As stated above, counsel for the Defendants is not seeking disclosure of the videos and photos themselves. Any identifying information of the victims will be redacted.
I’ve previously discussed the 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 (Spenst v. Reemeyer) the Plaintiff alleged injury s a result of a motor vehicle/pedestrian incident which occurred in 2010. In the course of the lawsuit ICBC denied liability on behalf of the motorist. ICBC refused to produce two ‘investigative reports’ they commissioned arguing these were protected by litigation privilege. Master Caldwell found the evidence ICBC produced in support of their claim fell short of the mark to obtain the protection of privilege and ordered production of the documents. After summarizing the legal principles involved Master Caldwell provided the following reasons:  In short, the determination as to whether litigation is contemplated as a reasonable prospect is not merely subjective and arbitrary but rather must be objective and based upon reasonable information obtained by appropriate investigation.  What does the evidence before me reveal when viewed in the light of the above tests?  First, I have absolutely no evidence from that adjuster who apparently had conduct of the file for the first 18 months. I am not told whether or not any investigations were undertaken during that time as to either the issue of liability or the extent of damages. Plaintiff’s counsel submitted, and defence counsel did not dispute, that no denial of liability was ever communicated to the plaintiff prior to the delivery of the Response to Civil Claim.  Second, Ms. Roach notes that the plaintiff retained counsel. Plaintiffs have a right to obtain legal advice, including legal advice regarding their rights and responsibilities arising out of motor vehicle or personal injury matters. Consultation with counsel is not a direct or even reasonable guarantee that one is on the road to active litigation; the involvement of counsel may well enhance the possibility of resolution short of trial.  Third, Ms. Roach says that she only handles claims that are being litigated or are likely to be litigated and thus she determined that since the file was transferred to her it would be litigated. Strangely however, Ms. Roach, in her own correspondence of May 8, 2012 (the day she commissioned the investigations/reports) wrote to plaintiff’s counsel: To minimize costs, I will work with you to conclude this matter as quickly as possible. If it is determined that your client is entitled to compensation, I will be prepared to release settlement funds only when the entire claim, including taxable costs and disbursements, has been resolved and the necessary release documentation completed. I look forward to working with you on this matter.  At the time Ms. Roach wrote this conciliatory letter referencing concluding the matter, entitlement to compensation and settlement funds in response to a similarly conciliatory letter of introduction from plaintiff’s counsel, action had not yet been commenced, no position on liability had been taken and there is no evidence that any substantive investigation or even basic inquiry had been undertaken regarding any aspect of the plaintiff’s claim. The mere arbitrary assertion that this file is likely to go to litigation because this adjuster handles only litigation files and she had decided it would go to litigation is not objectively defensible on the evidence before me.  Fourth, Ms. Roach says that the end of the limitation period was approaching and, by implication, litigation would have to be commenced. What this assertion fails to recognize is that there is a significant difference between the commencement of an action in order to protect against the expiry of a limitation period and the active conduct of litigation. In her May 8 correspondence, Ms. Roach expressly confirmed that her letter was not “a waiver or extension of any applicable limitation”. In order for any legitimate, even-handed settlement discussions to take place, as invited by her letter, it was necessary for plaintiff’s counsel to preserve the plaintiff’s right to claim at law for her alleged injuries in the event that negotiations failed.  Counsel for the defendant advised in submissions that the investigative reports were obtained not on the issue of liability but rather on the issue of quantum of damages. There was no evidence in the material to support that submission and counsel failed to indicate why that distinction would make a material difference in regard to the investigation/dominant purpose assessment.  The evidence before me fails to objectively establish to any certainty that the reports which were commissioned and which are sought by the plaintiff were commissioned for any purpose other than for basic investigation of the plaintiff’s claim. There is no evidence to indicate that the adjusters had undertaken any type of earlier investigation to determine whether there was a reasonable, objective basis upon which liability should be denied or quantum questioned. The reports are ordered produced forthwith.
In the ever developing landscape of disclosure obligations in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing the discoverability of medico-legal reports obtained in previous litigation.
In the recent case (Wright v. Thomas) the Plaintiff was involved in a personal injury lawsuit that went to trial in 2007. In that lawsuit various expert reports were introduced into evidence. The Plaintiff was injured in a subsequent collision and advanced another lawsuit. The Defendant wished to rely on the previous medico-legal reports but the Plaintiff objected arguing these reports were not relevant and production violated the implied undertaking of confidentiality. In ordering that the reports be produced Master Bouck provided the following reasons:  Whether the implied undertaking rule even applies in this case might be in doubt. In Cochrane v. Heir, 2011 BCSC 477, the court ruled that a plaintiff must provide records obtained in a previous personal injury action as part of disclosure obligations under Rule 7?1. Furthermore, one might query whether evidence disclosed at a public trial and now part of a public record is subject to the implied undertaking rule. The underlying purpose of the implied undertaking rule is to protect the privacy of an individual who is compelled to disclose certain information in the pre?trial process.  In the case at bar, I understand that some of the reports were used at trial and thus any breach of privacy has already happened. However, this last point was not argued, so I must still determine whether the documents at issue involving the same plaintiff also concerned the same or similar issues to the case at bar…  In the present action, the clinicians also make mention of possible conversion disorder.  The alleged probative value of the reports in the earlier action is to show that the plaintiff has a history of, or perhaps a susceptibility to, these non?organic conditions.  In my view, in the absence of some medical evidence in support, the court should not make the leap and decide that all of the above?described conditions fall within the same diagnostic category. In fact, the only similar or same diagnosis is the conversion disorder. Presumably the existence of this condition historically forms the factual basis for one of the defences to this action, otherwise the defendant would not be pursuing the application.  The defendant’s pleadings were not before me. It might have been helpful to have that pleading as an exhibit to an affidavit. One option for the court would be to dismiss the application with liberty to reapply upon providing such evidence. Obviously a further application will result in additional cost to one or both parties. To avoid such cost, I have instead reviewed the electronic record of this pleading, which is a matter of public record. The presumption of the plea of pre?existing condition was confirmed.  Thus, in my view, the defendant has met the threshold test of relevancy with respect to the following reports: Dr. Rocheleau dated October 24, 2005; Dr. Rocheleau dated December 21, 2005; and Dr. Kemble dated November 28, 2005…  I now turn to the question of prejudice. First, there is no evidence from the plaintiff that she is prejudiced by the use of this information. The contents of the affidavit of Katheryn MacDonald can be given no weight, as any statements regarding possible prejudice are based on double hearsay. Other parts of the affidavit are akin to argument.  In any event, the implied undertaking rule is not intended to prevent attacks on the plaintiff’s credibility. Indeed, in many of the cases before me, leave is granted to permit a challenge to a party’s credibility using the evidence given at a previous examination for discovery. Prejudice to the plaintiff has not been established.  Nevertheless, in my view, the order sought by the defendant with respect to the use of the reports at trial is too broad. Rather, the order will go that the defendant is given leave to list the three reports in her list of documents.
Adding to this site’s archived caselaw addressing examination for discovery, useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, making the following points:
1. silence (or even agreement) to a discovery request does not compel a party to comply with it
2. the court has no power to order that answers to questions outstadning at an examination for discovery be put in writing
3. the narrower scope for document production requirements is not circumvented simply by asking for production of documents at an examination for discovery
In this week’s case (LaPrarie Crane (Alberta) Ltd. v. Triton Projects Inc.)Master Bouck provided the following reasons addressing these points:  As for the outstanding requests from the examinations, Triton submits that when there is no objection to production on the record — or indeed, where a positive response from the examinee is made — such requests must be answered : Winkler v. Lower Mainland Publishing Ltd., 2002 BCSC 40 at para. 17. In other words, the party being examined is not able to reflect upon requests unless counsel states on the record that the request will be taken under advisement or an objection is raised. Nor can a party have a change of mind upon reflection, or upon taking legal advice.  The principle that a party should not be permitted to subsequently revoke agreements made at an examination for discovery is laudable. However, silence does not mean consent: Gellen v. British Columbia (Public Guardian and Trustee of), 2005 BCSC 1615 at para. 17 (S.C.). Furthermore, it is difficult to see how the principle enunciated in Winkler can be applied after the introduction of time limited examinations for discovery: Rule 7-2 (2).  If counsel is expected to pause and consider the relevancy of every question asked of the witness, the time allotted for a party’s examination might well be consumed by objections, interventions and even argument. In recent decisions, the court has strongly discourage such intervention at examinations for discovery: see More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166 at para. 13 foll’g Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para. 18. Given this change in procedure, I decline to follow Winkler.  If a person declines to provide the additional information requested, the examining party is not without a remedy: Rules 7-2 (22)-(24). This appears to be the remedy pursued on this application. Nonetheless, the court has no power to order that answers to questions outstanding at an examination for discovery be put in writing: Diachem Industries Ltd. v. Buckman (1994), 91 B.C.L.R. (2D) 312 at p. 314 (S.C.) [my emphasis].  Finally, it is acknowledged that under the SCCR, the duty to answer questions at an examination is broader than the duty to produce documents: More Marine Ltd. v. Shearwater Marine Ltd., supra, at para. 7. However, a party does not get around the application of Kaladjian v. Jose principles by asking for the documents at these examinations: Maxam Opportunities Fund (International) Ltd. Partnership v. 893353 Alberta Inc., 2012 BCSC 553.
Reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing an ICBC application to compel production of a Plaintiff’s vacation photos.
In the recent case (Dawn-Prince v. Elston) the Plaintiff was injured in a 2007 collision. In the course of her lawsuit she was examined for discovery where she “testified that she had been on these vacations…(and) about her activities on the vacations“.
ICBC brought an application to have access to any photos taken of these holidays. The Court dismissed this application finding that while canvassing the scope of a Plaintiff’s vacation activities is fair game at discovery production of photos is not required. In dismissing the application Master McCallum provided the following reasons:  In the authorities to which I was referred, the court has on some occasions ordered production of photographs in similar circumstances where on vacation…  The difference in this case is that the plaintiff acknowledges that she engaged in the sporting and physical recreational activities, including the very ones that are referred to in the Fric decision; hiking, scuba diving, and so on. The photographs that are requested have been reviewed by counsel or someone in cosunsel’s office, Marler, who swears in her affidavit that she reviewed 23 photographs in which the plaintiff was shown and says that they do not depict the plaintiff in strenuous physical activities; rather they depict her standing, sitting, or walking, by the pool, or on the beach…I am satisfied from that evidence that production of this evidence, which is clearly the second stage of documentary discovery contemplated by the Rules, is not appropriate. These photographs, from the evidence on this application, will not assist the defendant in defending the claim. The evidence of the plaintiff, of course, with respect tow hat she did on her vacations nay well assist, but the photographs neither contradict nor confirm that. They show the plaintiff on the evidence in activities that are not inconsistent with anything other than standing, sitting, or walking, none of which she says she cannot do,..  The application for production of photographs…is dismissed.
Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, finding that in the context of personal injury claims, the relevance of clinical records should be determined on an entry by entry basis.
In last week’s case (Hyvarinen v. Burdett) the Plaintiff claimed permanent physical disability as a result of a 2008 collision. In the course of the litigation the Defendant requested various records the Plaintiff refused to produce. A court application was brought resulting in mixed success with some of the withheld documents being ordered to be produced. In adjudicating the matter Master MacNaughton provided the following sensible reasons addressing the vetting of irrelevent medical records:
While I accept that when a document is produced by a party, it should generally be produced in its entirety, the exception is where a party is able to establish a good reason for a document not to be produced. In North American Trust Co. v. Mercer International Inc. (2000) 71 B.C.L.R. (3d) 73 (BCSC), Justice Lowry, then of this court, reiterated the general principle but said:
…But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purposes in resolving the issues. (para. 13)
In this case, there are two reasons why the general rule about redacted documents should not apply. The first is because the documents sought in unredacted form are not, although generally listed as such, single documents. Rather, they are a series of records compiled over time from a number of interactions with the plaintiff. These records should not be approached globally as if they were a single document. Each entry requires a separate analysis as to whether it may prove or disprove a material fact or relate to a matter in a question in this action.
Second, and importantly in this case, the court must be careful not to unnecessarily infringe on the plaintiff’s privacy interests. Recently, in Kaladjian v. Jose, 2012 BCSC 357, Justice Davies reiterated the importance of a plaintiff’s privacy interests in a personal injury action. He said:
Every individual’s health and the medical treatment of it is a personal and private matter that should not be lightly interfered with. In today’s world of medical specialization, disclosure of even the name of a medical professional consulted by an individual for reasons wholly unrelated to a defence plea of a prior existing condition is an unwarranted and unnecessary invasion of privacy. (para. 75)
As previously discussed, when a Plaintiff fails to beat a Defendant’s formal settlement offer at trial they can be exposed to significant costs consequences. One factor that Courts can consider when using their discretion is the financial status of the parties including whether the Defendant is insured. Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, using this factor in shielding a Plaintiff from potentially hefty costs consequences.
In this week’s case (Cunningham v. Bloomfield) the Plaintiff was injured in a collision. She sued for damages and the claim proceeded to jury trial. Prior to trial the Defendant provided a formal settlement offer of $12,500. The jury awarded $5,000 in total damages triggering a Defence application for payment of post offer costs. Mr. Justice Crawford rejected the application finding stripping the Plaintiff of all her costs was a more appropriate result. In addressing the financial position of the parties the Court provided the following reasons:
The award of the jury was low. But as noted in Cairns at para. 50, the unpredictability of a jury is a relevant consideration.
It is said that the plaintiff is not lacking in income and no evidence as to her assets have been put forward to properly consider her position. But as discussed in several of the cases, the defendant through their insurer is able to cover their costs. The plaintiff on the other hand has a dependent husband and a reduced income, though that by choice.
The other factor I consider appropriate is of course my assessment of the plaintiff’s case upon the issuing of the writ and I have found counsel’s assessment was over-optimistic and therefore the plaintiff is already deprived of costs.
In the circumstances I will allow the plaintiff her disbursements throughout, but I will make no order as to costs payable to either side.
Rules 7-1(16) and (17) deal with producing relevant documents to opposing litigants and costs associated with doing so. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the rate of reasonable photocopy charges.
In last week’s case (Perone v. Baron) the Plaintiff was involved in a motor vehicle collision. In the course of his lawsuit ICBC requested copies of relevant documents agreeing to pay $.30 per page for photocopy expenses. The Plaintiff agreed to produce the documents but insisted that $.35 should be paid per page. The difference was ultimately resolved via Court Application with Master McDiarmid providing the following reasons:
33]I accept what Esson J.A. wrote, namely that photocopying charges under Rule 7(1)(16) are more closely akin to what would be allowed in a solicitor-client costs review. I also note, though, that at the time Giulianiwas decided, just over 14 years ago, the registrar’s rate was only 60% of what it is now.
After reviewing the facts before me and the law presented to me, I consider that the rate of 30¢ per page is appropriate. I order the production of the documents by the respondent on the terms sought. Paragraphs 1 and 2 of the application are granted.
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.