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Tag: Rule 7-1(1)

"Investigative Stage" Trumps Claim to Litigation Privilege Regarding Quantum of Damages Investigation

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

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:
[12]         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.
[13]         What does the evidence before me reveal when viewed in the light of the above tests?
[14]         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.
[15]         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.
[16]         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.
[17]         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.
[18]         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.
[19]         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.
[20]         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.

Medico-Legal Reports from Previous Lawsuit Ordered Disclosed in Subsequent Litigation

Written by admin on . Posted in BCSC Civil Rule 7.

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:
[16]         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.
[17]         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…
[21]         In the present action, the clinicians also make mention of possible conversion disorder.
[22]         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.
[23]         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.
[24]         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.
[25]         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…
[27]         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.
[28]         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.
[29]         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.

Defendant Ordered to Pay 25% Greater Trial Costs for "Reprihensible" Failure to Attend Examination for Discovery

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 7. 117 Comments on Defendant Ordered to Pay 25117 Greater Trial Costs for "Reprihensible" Failure to Attend Examination for Discovery

Parties to a BC Supreme Court lawsuit can be forced to attend an examination for discovery set up by opposing litigants.  Failure to attend can have a variety of consequences.  Demonstrating one such consequence in action, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, punishing a non-attending part with increased costs.
In the recent case (Stanikzai v. Bola) the Defendant was found 75% at fault for a motor vehicle collision and was ordered to pay damages of just over $189,000.  Prior to trial the Defendant failed to appear at an examination for discovery.  Mr. Justice Smith found this behaviour was “reprehensible” and ordered that the defendant pay post trial costs at a level greater than they otherwise would have been.  In reaching this decision the Court provided the following reasons:
[6]             Parties to civil litigation are required by R. 7-2(1) of the Supreme Court Civil Rules, to make themselves available for examinations for discovery. It is not something a litigant can choose to do or not do on the basis of her own convenience. If Ms. Bola was unable to attend the examination on the day it was set, her obligation was to notify her counsel and discuss alternate dates. Instead, she simply failed to show up.
[7]             I also find it difficult to believe that she had no knowledge of the false information her husband was apparently providing to defence counsel when a second discovery was requested. Ms. Bola showed a complete and unacceptable disregard for her duties under the law. I stress this was not the fault of defence counsel, who attempted to get her cooperation…
[10]         I find that the defendant’s refusal to appear at discovery meets the definition of “reprehensible conduct” and I would not hesitate to award special costs if I thought that conduct had affected the outcome of the trial. But, in the specific circumstances of this case, I find that there is another, more proportionate rebuke available.
[11]         Under normal circumstances the plaintiff, having been found 25 per cent responsible for the accident, would recover only 75 per cent of his costs. This arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333:
3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.
[12]         Although payment of costs in proportion to the degree of liability is the default rule, the court has discretion to depart from it. That departure must be for reasons connected with the case, with the principle consideration being whether application of the usual rule will result in an injustice: Moses v Kim, 2009 BCCA 82 at para 70.
[13]         In these circumstances, I find that the interest of justice can best be served by depriving the defendants of the reduction in costs that they would otherwise benefit from and I award the plaintiff the full costs of this action.
 

"Mere Possibility" of Pre-Existing Injury Not Sufficient To Justify Document Disclosure Request

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further judicially shaping document disclosure obligations under the new rules of court.
In last week’s case (Bains v. Hookstra) the Plaintiff was injured in a 2009 motor vehicle collision.  The Plaintiff agreed to produce his MSP Printout, Pharmanet Records and WCB records from the time of the crash onwards.  The Defendant was not satisfied with this timeframe and sought these records from before the collision.  In support of their application the Defendant produced evidence that the Plaintiff was involved in two collisions in the year prior to the accident at issue in the lawsuit.  The Defendant plead that there was a pre-existing injury but the Court noted this was done in a “very pro-forma way“.
Master Muir ultimately rejected the application finding that evidence of previous collisions leads to no more than “mere speculation” of a pre-existing injury.  In dismissing the application the Court provided the following reasons:
[14]         The applicant must demonstrate a connection between the documents sought and the issues beyond a “mere possibility”: Przybysz v. Crowe, 2011 BCSC 731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53, and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138, at para. 51, “there must be some ‘air of reality’ between the documents and the issues in the action ….”
[15]         The plaintiff has clearly denied that he was suffering from any pre-existing injury at the time of the accident in question or for two years prior. He has further denied that he made any WCB claim during that two-year period.
[16]         The evidence put forward by the defendant does no more than raise the mere possibility of a prior existing condition. In the circumstances of the plaintiff’s denial, that evidence is insufficient to warrant an order for the production of the documents sought.
[17]         The defendant’s application is therefore dismissed

ICBC Denied Access to Plaintiff's Vacation Photos

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized.


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:
[3]  In the authorities to which I was referred, the court has on some occasions ordered production of photographs in similar circumstances where on vacation…
[4]  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,..
[6]  The application for production of photographs…is dismissed.

Medical Record Relevance To Be Determined on Entry by Entry Basis

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.


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:

[18] 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)

[19] 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.

[20] 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)

BC Court Orders Production of Private Facebook Photos in ICBC Claim

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the production of private social media data in the context of a personal injury claim.
In today’s case (Fric v. Gershman) the Plaintiff sued for damages for injuries sustained in a 2008 collision.  The Plaintiff apparently suffered from “chronic severe headaches and soft-tissue injuries” following the crash.  The Plaintiff, who was a first year law school student at the time of the crash, plead damages for various losses including diminished earning capacity.
ICBC sought production of the Plaintiff’s entire Facebook profile, vacation photos and metadata related to digital photos in her possession.  Master Bouck held that while some of this relief was too broad, relevant photos need to be disclosed and ordered production accordingly.  In doing so the Court provided the following reasons:

[54] After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.

[55] The pleadings define the issues between the parties. Here, there is also evidence on which the court can exercise its discretion to allow for broader document discovery under Rule 7-1(14).

[56] In her pleadings, the plaintiff alleges that the accident led to not only loss of amenities of life, but also loss of mobility and diminished earning capacity.

[57] The diminished capacity is said to be the result of pain and fatigue. Ms. Fric claims that the injuries effected her academic achievements and thus ability to secure employment after her second year of law school. The ongoing symptoms continue to impact Ms. Fric’s working capacity.

[58] How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.

[59] Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.

[60] Photographs which show the plaintiff engaging in a sporting or physical recreational activity — from hiking to scuba diving to curling to dancing — are relevant in discovering the plaintiff’s physical capacity since the accident.

[61] I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.

[62] In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident.

[63] Allowing such discovery does not preclude the plaintiff from arguing that some of the produced photographs are inadmissible at trial. The trial judge may accept that the prejudicial effect of a particular photograph outweighs any probative value.

[64] Nonetheless, the order sought by the defendants is too broad…

[70] In my view, the appropriate relief is to order Ms. Fric to produce an amended list of documents which identifies the photographs and video in her possession and control in which in which she is featured:

1.  participating in the December 2008 Law Games; and

2.  on a vacation taken since November 18, 2008.

[71] The photographs should be identified by location, date and time (if this information is available to the plaintiff). The defence may then choose to either inspect the photographs (electronically or otherwise) and/or pay for the photographs’ duplication.

[72] Before disclosure, the plaintiff may edit the photographs to protect the privacy of other individuals appearing in those photographs…

[75] The plaintiff is not obliged to include commentary from the Facebook web?site. If such commentary exists, the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties: Dosanjh v. Leblanc.

[76] Costs of the application will be to the defendants in the cause.

The "Investigative Stage" Bar to Privilege: Plaintiffs vs. Insurers

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.


As recently discussed, claims for litigation privilege can fail when a defendant’s insurer collects statements and information shortly after a collision in what is deemed to be the ‘investigative stage‘.  The simple reason being that such documents typically are not created for the dominant purpose of litigation.
This analysis, however, does not necessarily translate easily to statements obtained by Plaintiffs following a crash because Plaintiffs do not share the same investigatvie responsibilites that insurers do.   This reality was highlighted in reasons for judgement published earlier this year by the BC Supreme Court, Vancouver Registry.
In the recent case (Cliff v. Dahl) the Plaintiff was injured in a 2007 collision.  She hired a lawyer to assist her with her claim.   The lawyer hired an investigator who obtained statements from multiple witnesses to the collision.
ICBC brought an unsuccessful application to force the Plaintiff’s lawyer to produce these documents.  The Plaintiff refused stating these statements were privileged.  ICBC appealed arguing these documents were obtained during the ‘investigative stage‘ and should be produced.  In dismissing the appeal Mr. Justice Smith provided the following reasons highlighting the ‘investigative stage’ and the different duties of Plaintiffs versus insurers:

[22] The Master had before him an affidavit of plaintiff’s counsel which, sketchy as it is, did say that the information was gathered and the statements were gathered for the purpose of preparing for the plaintiff’s case in this action, as opposed to investigating the plaintiff’s case, and the Master apparently inferred from that that litigation was the dominant purpose. Sketchy as that evidence was, I cannot say that the Master was clearly wrong in drawing that conclusion.

[23] Defence counsel refers to a statement of the Master in which he says in effect that it is very hard to see how statements gathered by plaintiff’s counsel once retained would not meet the dominant purpose test. That is probably too broad a statement and certainly if the Master said that it was a general rule of law, that would be a question of law to be reviewable but in my view that is not the basis of the Master’s decision. He made a finding on the evidence before him.

[24] In that regard, I note that while the evidence from plaintiff’s counsel is sketchy, plaintiff’s counsel in this situation is in a somewhat different position from the insurance adjusters whose determination of dominant purpose is often at issue in other cases such as Hamalainen, supra.

[25] The point at which a plaintiff’s counsel moves from the stage of investigating and considering the possibilities of litigation to a firm decision to proceed and the subsequent efforts that have a dominant purpose of litigation depends of course on the information in counsel’s possession. Much of that information must necessarily come directly from the plaintiff and the plaintiff’s counsel must balance the need to show the dominant purpose of the document or the witness statement with the restrictions placed upon him or her by solicitor/client privilege.

[26] I infer from the material before me that the Master reviewed the evidence and found it sufficient to establish a dominant purpose. Whatever decision I might have made had the matter come before me, I cannot say that the Master was clearly wrong.

[27] Those are my reasons for judgment and so the appeal is dismissed.

Of note, this result was revisited after the witness subsequently became a party to the litigation.

"Pro Forma" Pleadings Not Enough To Compel MSP Record Production

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 3 Comments on "Pro Forma" Pleadings Not Enough To Compel MSP Record Production

Further to my previous post on this topic, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether MSP records were producible in a personal injury claim.
Today’s case provides perhaps the most in depth analysis of the issue to date and is worth reviewing in full.  In short the Court held that such records may be disclosable given the right circumstances but a ‘pro forma’ pleading of pre-existing injury is not sufficient to trigger disclosure obligations.
In this week’s case (Kaladjian v. Jose) the Plaintiff was injured in a collision.  The Defendant applied for production of the Plaintiff’s MSP printout.  The Plaintiff’s lawyer had this document but did not produce it arguing it was not relevant.  The Defendant’s application was dismissed at first instance.  The Defendant appealed arguing MSP records were disclosable as a matter of course in a personal injury claim.  Mr. Justice Davies disagreed and dismissed the appeal.  In doing so the Court provided feedback as to the proper procedure when seeking production of such records and gave the following reasons:

[38] Under Rule 7-1(1)(a), a party is now (at least initially) obligated to list only:

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, …

[39] That change has altered the test in British Columbia for determining whether any document or class of documents must now (at least at first instance) be disclosed.

[40] As stated by Edwards J. in Creed, the former broad test of relevance for disclosure purposes, emanated from the decision in Cie Financière du Pacifique v. Peruvian Guano Ltd (1882), 11 Q.B.D. 55 (Eng. Q.B.) [Peruvian Guano], which required disclosure of documents that “may fairly lead to a line of inquiry which may “either directly or indirectly enable the party…to advance his own case or damage the case of his adversary”

[41] Rule 7-1(1) changed that test for documentary relevance at first instance by requiring listing only of documents that could be used at trial to prove or disprove a material fact and documents the disclosing party intends to rely upon at trial.

[42] I say that the test of documentary relevance is changed “at first instance” because Rule 7-1 also provides processes by which broader disclosure can be demanded of a party under Rules 7-1(11) through (14) under which the court can decide whether, and if so, to what extent, broader disclosure should be made…

[46] The introduction of the concept of proportionality into the present Rules together with the need for a party to satisfy the court that additional document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform the interpretation of Rule 7-1(18). It also satisfies me that cases decided under the former Rule 26(11) are of limited assistance in interpreting and applying Rule 7-1(18) in motor vehicle cases.

[47] It would, in my view, be arbitrary and inconsistent with the objects of the present Rules if the production of the records of a party to litigation in the possession of third parties were to be subject to a pleadings-only Peruvian Guano based test of relevance when more narrow tests govern the production of a party’s own documents…

[61] After considering the authorities and submissions of counsel, I have concluded that the pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the present Rules and will usually also govern issues concerning the initial disclosure obligations of a party under Rule 7-1(1), if challenged by a party under Rule 7-1(10).

[62] I have also concluded that the narrowing of the discovery obligations of parties and most particularly the removal of the Peruvian Guano “train of inquiry” test of relevance will generally require a defendant to provide some evidence to support an application for additional documents, whether demand is made under Rule 7-1(11) or Rule 7-1(18).

[63] A requirement for evidentiary support recognizes the difference between the scope of examination for discovery and the scope of document discovery under the present Rules and will allow considerations of proportionality to be addressed in specific cases.

[64] A requirement for evidentiary support in requests for additional documents and third party records also prevents against unwarranted “fishing expeditions” based solely upon pro formapleadings…

70] The all too common pro forma pleading of a pre-existing condition by defendants is not sufficient without more to require disclosure of MSP records which may prove to be wholly irrelevant to the injuries allegedly suffered by the plaintiff.

"Investigative Stage" Significant Barrier to ICBC Privilege Claims

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.


A trend developing in BC Caselaw is the demonstrated 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 (Gilbert v. Nelson) the Plaintiff was injured in a 2005 collision with a vehicle.  The Plaintiff was 13 at the time and was riding a bicycle.  Following the collision ICBC investigated the collision and obtained engineering reports and a further report from an independent adjuster.  In the course of the lawsuit the Defendant had access to these documents.  The Defendant refused to produce them claiming litigation privilege.
The Plaintiff brought an application to have these produced.   Master Taylor granted the application finding the documents were created during ICBC’s investigative stage.  In ordering production the Court provided the following reasons:

[35] Saying that litigation is a certainty is not the test for the dominant purpose.

[36] What I do observe from the facts before me is that no counsel was consulted or retained by the defendant or his insurer until after the notice of civil claim was issued in July, 2010.  While the retainer of counsel is not an absolute test as to whether or not documents were created for the dominant purpose of litigation, it is but one factor in this case that indicates that the defendant and his insurer were not preparing for litigation nor directing the course of the defence of a possible law suit, until a notice of civil claim was issued some five years post accident.  One would have thought that the defendants would have sought to establish the dominant purpose by showing on a balance of probabilities that the dominant purpose of the documents was to obtain legal advice or to aid in the conduct of the litigation.

[37] Most certainly the defendant and his insurer had followed a course of investigating the accident, and its dynamics, but other than telephone conversations Ms. Fall had with Mr. Gilbert on June 13 and 15, 2005, there is no evidence before me that the defendant or his insurer made a formal declaration to the Gilbert family by way of letter that liability for the accident was being denied.  In my view, a reasonable person would expect no less especially after the family was told that an assessment of liability would be made after receipt of the traffic analyst’s report which was anticipated to be received by Ms. Fall in August, 2005.

[38] In all of the circumstances, I find that the defendant hasn’t met the onus on him to satisfy me that there exists over either the CWMS notes or the reports currently listed in Part 4 of the Defendant’s List of Documents a litigation privilege, such that disclosure of the documents up to the date of the first letter from counsel for the plaintiff should not be made to the opposite party.  The only caveat will be that all references to reserves are to be redacted.

[39] The plaintiff shall have his costs for preparation for, and attendance at the hearing.