IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Moukhine v. Collins, |
| 2010 BCSC 621 |
Date: 20100503
Docket:
M081051
Registry: Vancouver
Between:
Serguei
Moukhine
Plaintiff
And
Gerard
F. Collins and Michelle C. Collins
Defendants
Before: The Honourable Mr. Justice D.C. Harris
Reasons for Judgment
Counsel for the Plaintiff: | Yan |
Counsel for the Defendants: | William |
Place and Date of Hearing: | Vancouver, April |
Place and Date of Judgment: | Vancouver, May |
[1]
Introduction
[1]
This is an application by the defendants for an
order for production of documents pursuant to Rule 26(11) of the Rules of
Court.
[2]
The action arises out of a motor vehicle
accident that occurred on April 23, 2007. The plaintiff pleaded particulars of
non-pecuniary damages as well as a variety of pecuniary damages including
special damages, loss of income and loss of income earning capacity. The
defendants have pleaded that any injury, loss or damage was not caused by the
motor vehicle accident but is attributable to previous accidents or
pre-existing conditions.
[3]
The defendants seek clinical records from Dr. Stewart
from January 1, 1992 to the present and from Dr. Davis and Advanced
Homeopathic Clinic from the date of treatment. In addition, the defendants seek
PharmaNet records and the Medical Services Plan Claims History Report from
dates they are available and employment records from the date of hire to the
present.
Issues
[4]
The issues arising on this application are:
a.
whether a mere allegation in a pleading that a
plaintiffs injuries are not the result of an accident, but are caused by his
or her pre-accident health condition is enough, without more, to entitle a
defendant to production of pre-accident medical records; and
b.
whether in the circumstances of this case an
order to produce medical, clinical and employment records should be in a Halliday
v. McCulloch (1986), 1 B.C.L.R. (2d) 194 (C.A.) or a Jones v. Nelson (1980),
24 B.C.L.R. 109 (C.A.) format.
Positions
of the Parties
[5]
The defendants submit that a mere allegation in
a pleading is sufficient basis for an order for production of documents, even
where the documents requested pre-date the accident by as much as 15 years. Evidence
is unnecessary and the application can properly be made before an examination
for discovery has been conducted, even though one was in this case.
[6]
Briefly put, the defendants argue that the test
to determine whether documents are producible was set out in Compagnie
Financiere et Commerciale du Pacifique v. Peruvian Guano (1882), 11
Q.B.D. 55 (C.A.). Documents are producible if they are relevant to an issue in
the action. Whether they are relevant is determined by reference to the
pleadings. No distinction should be drawn between documents that would be
producible directly by a party under Rule 26 (1) and those that should be
produced under Rule 26(11). Provided the pleadings raise the issue, questions
can properly be asked of a plaintiff at an examination for discovery about his
or her pre-accident health and, if that is so, then there is no principled
basis to require anything more than pleading to require production of documents
dealing with the same issue. The criterion of relevance is the same whether the
issue is the obligation to answer questions on discovery or to produce
documents. It follows, therefore, that pleadings alone are sufficient to put
pre-accident health conditions in issue and an application of this kind need
not be supported by evidence or be made after examinations for discovery.
[7]
By contrast, the plaintiff argues that it is
settled law that pleading alone is not sufficient to justify an order
compelling the production of pre-accident records. On the basis of Dufault
v. Stevens (1978), 86 D.L.R. (3d) 671 (B.C.C.A.) and Gorse v. Straker, 2010
BCSC 119, he says that pleadings alone support a mere fishing expedition
which is to be discouraged. The mere possibility that pre-accident records
might contain relevant information is insufficient to support an order for
their production. There must be evidence to support both the existence of
documents applied for and evidence that they contain information that is
relevant to the matters in issue in the action. Pre-accident health records are
producible under Rule 26(11) only if there is evidence that connects the
plaintiffs pre-accident health conditions to the issues in the action. Gorse
is cited as reaffirming the test for production and as an example of an order
for pre-accident records being refused where the evidence was insufficient to
support the order.
[8]
The plaintiff points out that in Gorse
the statement of defence pleaded that the losses or injuries were the result of
pre-existing conditions and subsequent accidents. Nonetheless, the court found
that the defendants were inappropriately fishing and, therefore, failed to
meet the threshold test established in Dufault. The court in Gorse had
evidence relating to pre-accident events, but held that the defendants had not
demonstrated a connection, beyond a mere possibility, between certain records
and the issues in the action.
[9]
The plaintiff concedes that post-accident
records, to the extent that they have not already been produced, must be
produced. He submits, however, that they should be produced under the terms of
a Halliday order. This is so in order to protect litigation privilege.
The plaintiff does not seek to justify a Halliday order on other available
grounds such as the protection of privacy.
[10]
The defendants respond that litigation privilege
can be adequately protected within the framework of a Jones order.
Analysis
[11]
Rule 26(11) provides as follows:
Where a document
is in the possession or control of a person who is not a party, the court, on
notice to the person and all other parties, may order production and inspection
of the document or preparation of a certified copy that may be used instead of
the original. An order under Rule 41(16) in respect of an order under this
subrule may be made if that order is endorsed with an acknowledgement by the
person in possession or control of the document that the person has no
objection to the terms of the proposed order.
[12]
The background to Rule 26(11) and the documents
to which it applies was described in Grewal v. Hospedales, 2004 BCCA 561
at paragraphs 38 and 39:
McLachlin and Taylor, British Columbia
Practice, 2nd ed. at 26-123, contains a history of Rule 26(11) in which the
differences between MR 361 and MR 362A and the present rule are discussed,
including the requirement for materiality:
The present Rule
does not, however, contain an express requirement of materiality because the
draftsman, in omitting the words, "and the production of the document at
trial might be compelled", which appeared in the predecessor Rule, failed
to appreciate that those words contained within them the basic premise of
materiality. Nevertheless, despite the absence of an express requirement of
materiality, it is clear that the document must be material in the sense of
being relevant because to order the production by a non-party of an immaterial
document would be absurd: M(A) v. Ryan (1994) BCLR (2d) 1 (CA), affd on
other grounds (1997) 29 BCLR (3d) 133 (SCC).
Guidance as to what constitutes a document
"relating to any matter in question in the action" has been taken
from what was stated by Brett L.J. in Cie Financière du Pacifique v.
Peruvian Guano Co. (1882), 11 Q.B.D. 55 at 63 (C.A.):
It seems to me that every document relates
to the matters in question in the action, which not only would be evidence upon
any issue, but also which, it is reasonable to suppose, contains information
which may — not which must — either directly or indirectly
enable the party … either to advance his own case or to damage the case of
his adversary. I have put in the words "either directly or
indirectly," because, as it seems to me, a document can properly be said
to contain information which may enable the party … either to advance his own
case or to damage the case of his adversary, if it is a document which may
fairly lead him to a train of inquiry, which may have either of these two
consequences.
[13]
Dufault is the
starting point of the analysis. There the Court of Appeal held at p. 675 that
the intent of Rule 26(11) is to provide any party to an action with production
of a document:
… if the
applicant is able to satisfy the judge that the document contains information
which may relate to a matter in issue…. A party applying for an order under Rule
26(11) must satisfy the court that the application is not in the nature of a
fishing expedition: Rhoades v. Occidental Life Ins. Co. of California, supra.
He must show that a person who is not a party to the action has a document or
documents in his possession which relate to a matter in issue. …
[14]
Rhoades v. Occidental Life Insurance Co. of
California, [1973] 3 W.W.R. 625, is
instructive because there the Court of Appeal made it clear that Rule 26(11) could
not be used for the mere purpose of obtaining discovery from a person not a
party. To allow the Rule to be used in that way would be to permit a fishing
expedition.
[15]
Rule 26(11) stipulates that a court may order
production of documents. This wording demonstrates that such orders are
discretionary. The court must be satisfied that the documents, or information
in them, may relate to a matter in issue. If that test is satisfied, then an
order for production should go in the absence of compelling reasons why it
should not be made.
[16]
Dufault does not,
however, offer clear guidance on the material that should be before the court
so that it may exercise its discretion judicially, although at paragraph 15 of
the judgment there is a reference to the pleadings defining the matters in
issue in the action.
[17]
The plaintiff argues that Dufault stands
for the proposition that it is incumbent on a defendant to satisfy the court by
relying on evidence in addition to pleadings that production should be made. Pleadings
establish a mere possibility that documents may be relevant and that is not
sufficient to satisfy a court to make the order. He relies in addition on what Master
Chamberlist, as he then was, said in Cannelle v. Richard (1997), 33
B.C.L.R. (3d) 364 at paras. 16 and 17:
The plaintiffs opposition is founded in law
on the decision of our Court of Appeal in Dhaliwal v. Hurst et al,
(1982) 26 C.P.C. 151(B.C.C.A).
In that case,
the court concluded that before an order will be made under Rule 26(11) for the
production or inspection of medical records of a plaintiff relating not simply
to the injuries alleged to have been suffered in an accident but also to his
general state of health before and after the accident, some evidence must be
laid before the court upon which it could exercise the discretion to make such
an order. On the facts of that case, the court concluded that the material in
support of the application it was dealing with did not afford any basis upon
which a judge in chambers could properly exercise its discretion under Rule
26(11). In that case, the only evidence before the court was a very general
statement in the affidavit in support whereby the deponent averred that:
In order to
properly advise the Defendants concerning the matters and issues in this case,
I verily believe it is necessary to obtain complete medical information
concerning the Plaintiff from the medical records, x-rays and documents in the
possession of the said doctors, not only in respect to the allegation of injury
set out in paragraph 8 of the Statement of Claim, but also with respect to the
pre-existing condition of the Plaintiff prior to the said accident.
[18]
In my opinion, nothing in Dufault is
authority for the proposition that pleadings alone are insufficient to make an
order under Rule 26(11) or that evidence is always necessary. Similarly, Dhaliwal
does not address the relevance of pleadings as a basis for making a Rule 26(11)
order. There is no reference in the judgment to the issues pleaded in the
action and whether pleadings would have affected the outcome. The case deals
only with the sufficiency of the evidence that was before the court. I do not
draw from the case the proposition that pleadings standing alone and defining
the issues in the action are never a sufficient basis to satisfy the court to
make a Rule 26(11) order.
[19]
In Marsh v. Parker, 2000 BCSC 1605 at para. 9,
Master Horn concluded that Dhaliwal stood for the proposition that
there must be something either by way of evidence or by way of the pleadings
which raises the plaintiffs pre-injury state of health as an issue. I agree.
Indeed, in Creed v. Dorio, [1998] B.C.J. No. 2479, Mr. Justice
Edwards, at paragraph 13, rejected the proposition that some evidence was
necessary to establish relevance.
[20]
In Lee v. Schenoni, 2008 BCSC 1881, a
case in which there was some evidence that a plaintiff had denied pre-existing injuries,
Mr. Justice Groves had this to say about the right to test matters put in
issue by pleadings (at para 4 and 5):
I said to counsel during argument that all
those bases of approach to a determination of pre-existing injury are
completely reliant upon the word of the plaintiff which though not necessarily
wrong, in fact, one cannot even suggest for a moment that there is any basis to
determine that this plaintiff is wrong, it does not completely forestall the
question which is whether or not the defendants who have pled pre-existing
injury have a right to do a reasonable exploration to support their pleading
beyond hearing from the plaintiff. Again, a plaintiff would only report to a
given family doctor injuries if he happened to see the given family doctor at
that time. A plaintiff would only report pre-existing injuries to an
independent clinical practitioner is (a) asked, (b) remembered, and (c) was
completely honest.
In this case and
in regards to medical MSP printouts generally, it is not, in my view, an
obtrusive level of inquiry for the plaintiff to suffer by requiring them to
produce their Medical Services Plan records and, for that matter, their
PharmaNet records. These records are somewhat generic. I disagree with the
suggestion in some of the cases cited at the masters level that somehow the
production of a Medical Services Plan record is an obtrusive inquiry. Under our
Rules of Court, parties to litigation are allowed to explore through
medical records and through discovery of documents all reasonable inquiries in
regards to positions they set out in their pleadings. These defendants have
chosen to plead a pre-existing medical condition and they should be entitled to
make reasonable inquiries which are unobtrusive and do not require onerous acts
on behalf of the plaintiff.
[21]
Lastly, the plaintiff submits that Gorse establishes
the requirement for some evidence going beyond mere pleading. I disagree.
The primary focus of that case, dealing with an application for specific
pre-accident records, was the nature of the onus to be met to justify a Halliday
order in preference to a Jones order. Mr. Justice Macaulay had
before him evidence relating to pre-accident injuries and treatments. On the
basis of the evidence, he was able to satisfy himself that there was no
possibility that those injuries, arising from a motorcycle accident more than
20 years before, were related to the issues in the action and that other
treatments were for obviously unrelated matters. The case did not deal with the
question whether some evidence was always necessary to lay a foundation for a
Rule 26(11) order. It simply dealt with the availability of an order on the material
that was before the court.
Conclusion
[22]
In an appropriate case pleadings are a sufficient
basis on which to exercise a discretion to order production of at least some
documents. In some cases it is reasonably obvious that records may contain
relevant (in the sense that term is used in Peruvian Guano) information
and should be produced, subject to production following a Jones or Halliday
format. Evidence may be required in order to resist a production order. That
does not mean, however, that an order will always go on the basis of pleadings
alone and it may be premature in some circumstances to make such an order
before discovery (see, for example, Mehdipour v. Shingler (18 March
2009), Vancouver M080517 (S.C.)). Merely pleading pre-existing conditions
does not deprive the court of its discretion to refuse to make the order sought
when, for example, there is no air of reality about the alleged connection
between the documents sought and the issues in the action. Evidence may
therefore, on occasion, be required to establish the relevant connection to
overcome the conclusion that the documents are irrelevant to the claim.
[23]
Plaintiffs counsel conceded that pre-accident
MSP and PharmaNet records should be produced for the two years before the
accident. He made that concession based on the Lee case. Counsel for the
defendants argued that there was no reason to provide any time restriction on
those records and that records of that kind should not be treated as a special
category of records.
[24]
I am satisfied that the defendants have a right
reasonably to explore the issues they have raised in the pleadings and that they
would be unable to do so properly without production of the plaintiffs
pre-accident records. I am also satisfied that the request for records is
unreasonably broad. There is no basis on which I could conclude there is any
real possibility that records going back 15 years may contain relevant
information.
[25]
I have concluded that the plaintiff should be
required to produce MSP, PharmaNet, medical, clinical and employment records
for a period of two years pre-accident. It is premature to order a production
to an earlier time; however, if those records lay the necessary foundation, the
defendants have liberty to reapply for further production.
[26]
The last remaining question is the form of the
order. The plaintiff concedes that there are post-accident reports yet to be
produced. Plaintiffs counsel agrees that they should be produced but on the
basis of a Halliday order. The sole basis of his opposition to a Jones
order is to protect privilege. Defendants counsel submits that a Jones order
is sufficient and that he, in the execution of his professional
responsibilities, can ensure that litigation privilege is protected.
[27]
I am satisfied on the basis of the material
before me that there is a legitimate interest in privilege to be protected and
that therefore the appropriate form is a Halliday order. As plaintiffs
counsel is going to have to request post-accident records from those persons or
institutions from whom he will also be seeking pre-accident records, I do not
think it sensible to direct that the Halliday format apply for
post-accident records and Jones for pre-accident records. The order will
go in the Halliday format for all records. In so ordering I am aware of
the conclusions reached in Gorse on the conditions necessary to justify
a Halliday order, but also of the result in Creed in which a Halliday
order was made in respect of MSP records.
Harris J.