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.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defendant application requesting the production of a Plaintiff’s Facebook postings, Twitter postings, Computer Hard Drive and Iphone.
Today’s case (Dosanjh v. Leblanc and St. Paul’s Hospital) involved allegations of medical malpractice. The plaintiff said she suffered “cognitive impairment that has affected her thinking process“. She sued for damages. The Defendants brought an application seeking that the Plaintiff produce her private social media account information and computer hard-drive data arguing that this information would be relevant to the claimed damages. Master Taylor dismissed the application finding such a broad application, even in the face of alleged cognitive injuries, was “a classic fishing expedition, but without the appropriate bait.“. Master Taylor provided the following reasons:
The defendant has not indicated the material fact or facts which it believes can be proved by searching the plaintiff’s personal computer and her social media sites. Rather, the defendant merely says that health, enjoyment of life and employability are in issue. Surely more is or should be required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant’s privacy.
To be able to obtain a litigant’s private thoughts and feelings as expressed to friends or family members after the fact is, in my view, similar to a party intercepting private communications of another party.
I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue. Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation. If not, surely applications in civil proceedings for recordings of private communications can’t be far behind…
I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i). In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait. I observe as well that the order made by the court in Bishop, supra, was focussed on the times the plaintiff spent on his Facebook account on his computer, and did not give the defendant cart blanche to troll through the plaintiff’s correspondence as is sought in the application before me.
The BC Supreme Court Rules set out the requirements of parties to list relevant documents and make these available to opponents in litigation. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the Court’s discretion addressing where and when documents can be inspected by opposing parties.
In today’s case (More Marine Ltd. v. Alcan Inc.) the Defendant’s list of documents included 125 boxes of materials which were stored in Kitimat, BC. The Plaintiff lived in the lower mainland and argued that the documents need to be made available in Vancouver (the location of the Defendant’s lawfirm) for inspection. The Defendant disagreed and argued that the documents should be inspected in Kitimat. The Court sided with the Defendant and in doing so Mr. Justice Burnyeat provided the following reasons:
Rule 7?1(15) of the Rules of Court provides:
A party who has served a list of documents on any other party must allow the other party to inspect and copy, during normal business hours and at the location specified in the list of documents, the listed documents except those documents that the listing party objects to producing.
However, Rule 7?1(17) of the Rules of Court provides:
The court may order the production of a document for inspection and copying by any party or by the court at a time and place and in the manner it considers appropriate.
While Rule 7?1(15) uses the words “must allow” and “at the location specified”, I am satisfied that the Court retains a discretion under Rule 7?1(17) of the Rules of Court to order production at a time and place “it considers appropriate”. If there was no discretion available to the Court, then Rule 7?1(17) would be superfluous.
In McLachlin and Taylor, the Learned Authors make this statement regarding the location specified under Rule 7?1(17):
Place specified for inspection should be reasonable. Books or business records in use are frequently inspected at the place of business. Other documents are commonly inspected at the office of the solicitor representing the party in questions. (at p. 7?123)….
Given the number of documents involved and the nature of the documents, it is unrealistic to expect that either party will want copies made of all of the documents…
Here, it would be very costly to make copies of all of the documents in the 125 boxes and, accordingly, that is not an alternative that is available. The Plaintiff alleges an exclusive contract to carry the product of the Defendant and a breach of that contract. The documents to be inspected relate to work that was undertaken by third parties in alleged contravention of the contract between these parties. A number of the documents are invoices relating to work allegedly lost and the damages flowing to the Plaintiff as a result of the work that was lost. The many thousands of documents may well be summarized by agreement into several pages once totals are taken from the documents inspected in order to arrive at work which is said to be in contravention of the contract between the parties. Accordingly, I cannot conclude that it will take weeks for a representative of the Plaintiff to examine the documents in the 125 boxes.
Here, the business of the Plaintiff was carried on in Kitimat and these business records have been retained in storage in Kitimat. In the circumstances, I am satisfied that I should exercise the discretion available to me to designate Kitimat as the place where the documents will be available for inspection and copying. After initial inspection has been undertaken, it may well be that the principal of the Plaintiff may be in a position to provide specificity of the further documents to be inspected such that it will not be necessary for all 125 boxes of documents to be inspected.
The documents on the List of Documents of the Defendant relating to the documents stored in the 125 boxes of materials in Kitimat will be made available by the Defendant in Kitimat. Costs will be costs in the cause.
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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.
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