Tag: Rule 7-1(1)(a)

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

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.

Social Media and Computer Hard Drive Requests "A fishing expedition…without the appropriate bait"


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:

[28] 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.

[29] 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.

[30] 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…

[33] 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.

More on the Scope of the Implied Undertaking of Confidentiality


An important and developing area of law in BC relates to the implied undertaking of confidentiality.  When a lawsuit for damages is brought in the BC Supreme Court, the parties are required to make disclosure of certain relevant documents even if such disclosure is harmful to their interests.
In order to strike a balance between fulsome disclosure and privacy rights, the Courts have developed a rule known as the “implied undertaking of confidentiality” which prohibits a party who receives this forced disclosure from making use of the documents/information outside of the lawsuit without consent of the other parties or a court order.  Reasons for judgement were recently brought to my attention (thanks to Dan Michaluk) clarifying that the implied undertaking even covers documents obtained from the Crown by a party charged with a criminal offence.
While the recent case (R. v. Basi) is a criminal case it is relevant for personal injury lawsuits.  Often times a Defendant in a civil lawsuit faces criminal consequences prior to a civil action.  In the course of the initial prosecution relevant documents are produced.  Many of these documents are equally relevant in a subsequent civil lawsuit.  In clarifying that the implied undertaking extends to these documents precluding their automatic use in subsequent civil proceedings Associate Chief Justice MacKenzie provided the following reasons:

[42] If Bennett J.’s statement left any doubt about the existence of an implied undertaking rule in British Columbia, I would affirm that an accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding.

[43] The basis for this implied undertaking is in the sound policy reasons expressed in Wagg and Taylor and also discussed in the Martin report, all referred to above. As recognized in the civil context in Goodman v. Rossi (1995), 24 O.R. (3d) 359 (C.A.) at 367-368 referring to Lindsey v. Le Suer (1913), 29 O.L.R. 648 (C.A.), the undertaking flows as a necessary implication from the limited purpose for which the recipient has been given access to the documents.

[44] I am aware that the Court in Wagg was reluctant to lay down a rule in the criminal context that could have significant consequences in other types of litigation. However, I am satisfied this concern does not present a barrier in British Columbia in light of the jurisprudence of this Court and the recognition by our Court of Appeal that the practice in this province is not make use ofStinchcombe material for collateral purposes.

[45] As a result, I am satisfied that because the proceeding is over for which the disclosure was provided, the respondents are not entitled to make any further use of the material that remains subject to the undertaking.

I am having a difficult time reconciling this decision with the recent case of Cochrane v. Heir which indicates that Rule 7-1(1)(a)(i) would automatically force a litigant to list relevant documents in a civil suit notwithstanding the implied undertaking of confidentiality.  I suspect the Court of Appeal will eventually be asked to weigh in on this issue.  In the meantime parties to a lawsuit can simply take a common sense approach in agreeing to consent orders to set aside the implied undertaking of confidentiality if it applies to otherwise relevant and clearly producible documents.

Document Disclosure Obligations and the Implied Undertaking of Confidentiality


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that personal injury plaintiffs need to list and produce examination for discovery transcripts from previous claims dealing with similar injuries under Rule 7-1(1) of the Rules of Court.  This decision appears to me to be at odds with previous cases addressing this issue (you can click here to access my archived posts on this topic).  This issue may need to be dealt with by the Court of Appeal in order to have some certainty in this area of law.
In today’s case (Cochrane v. Heir) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  ICBC appointed the same lawyer to defend the claim that defended a previous lawsuit of the Plaintiffs.  In the previous lawsuit ICBC’s lawyer conducted an examination for discovery of the Plaintiff.  He applied for an order to set aside the ‘implied undertaking of confidentiality’ that applied to the former transcript.
Mr. Justice Harris granted the application but went further and ordered that Plaintiffs are obligated to list and produce previous discovery transcripts.  Mr. Justice Harris provided the following reasons:

[5] In my view, there should be no need to relieve counsel for the defendants of his obligation under the implied undertaking. The documents are either in the possession of the plaintiff or they were in her control or possession. The plaintiff has an independent obligation to list and produce them further to her obligations under Rule 7-1(1)(a)(i) of the Civil Rules. The plaintiff cannot shield herself from her obligation to list and produce relevant documents by invoking the implied undertaking against opposing counsel who came into possession of those documents in the previous litigation: see Wilson v. McCoy, 2006 BCSC 1011.

[6] Given that the documents in issue have not yet been listed and produced by the plaintiff, I am prepared to relieve counsel for the defendants of the implied undertaking in respect of the transcripts of the examinations for discovery conducted in the previous action and the documents in issue. The implied undertaking exists to protect privacy rights and to facilitate the free flow of information in litigation by providing an assurance that information compelled to be provided in discovery is not used for collateral purposes.

[7] In Juman v. Doucette, [2008] 1 S.C.R. 1011, the following is said that governs the exercise of my discretion to relieve a party or counsel of the obligations imposed by the implied undertaking:

[35]      The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted. See Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260 (H.C.J.), at pp. 265-66; Crest Homes, at p. 1083; Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323 (C.A.); Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC 998; Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252 (B.C.S.C.).

[8] The application of counsel for the defendants is granted.

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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