IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100311

Docket: M081927

Registry:
Vancouver

Between:

Shekib Yousofi

Plaintiff

And:

Terry Phillips

Defendant

Before:
The Honourable Mr. Justice Hinkson

Oral Reasons for Judgment

In
Chambers

(Judgment on
Plaintiff’s application for adjournment of trial)

[1]            
THE COURT: I am going to order that the trial in this matter be
adjourned generally and that the case be removed from Rule 66 protocol and be
dealt with as a normal personal injury case. I will leave it to counsel to set
a new trial date.

(Judgment on
defendant’s application re documents and particulars request)

[2]            
THE COURT:  I am going to deal firstly with the motion for particulars.

[3]            
The entitlement of a party to particulars is described in Rule 19 of the
Rules of Court and is discussed by Mr. Justice Joyce in Delaney
& Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al,
2005 BCSC 371, beginning at paragraph 9.

[4]            
In that case, His Lordship makes the point that:

Particulars are provided to disclose
what the pleader intends to prove. How that party intends to prove the material
facts and particulars is a matter of evidence. The pleading party is not
required to, and indeed, is not entitled to set out in the pleadings the
evidence that he or she intends to adduce at trial to prove the facts that have
been pleaded.

[5]            
In David et al v. Her Majesty the Queen in Right of Canada et al,
2004 BCSC 1306, Mr. Justice Cohen considered the distinction between the
material facts and evidence and referred to an earlier decision of Mr. Justice
Joyce when he was a master of this court, Firestone v. Smith,
[1991] B.C.J. No. 2660 (S.C.)(QL), where Master Joyce said at paragraph
11:

In my view the concern raised by
the plaintiff at this stage is that he does not know but would like to know now
what precise evidence the defendant may lead in support of his allegations of
fact. In my respectful opinion the plaintiff is not entitled to ascertain the
evidentiary basis of the defendant’s case by way of this demand for particulars.

[6]            
Turning to the notice of motion for particulars, the particulars sought
at a relatively late juncture following examinations for discovery include a
request for further and better particulars with respect to:

(a)      The
Plaintiff’s Past and Prospective Loss of Enjoyment of Life

In my view, that is an
inappropriate request for particulars and is a matter that can and should be
pursued by way of examination for discovery. In my view, it is not necessary to
provide particulars with respect to that head of damage.

(b)      The
Plaintiff’s Past and Prospective Physical Disability

The injuries alleged by the
plaintiff have been set out in the statement of claim and the extent of his
disability arising therefrom is not a matter that is required as an item of
pleadings. It, too, should be pursued by examination for discovery.

(c)      The Plaintiff’s
Past and Prospective Loss of Earnings

Insofar as the past loss of
earnings is concerned, this is information that can be identified and
quantified and should be provided by the plaintiff to the defendant. It is not,
in my view, appropriate that it be provided as particulars, but I am satisfied
it should be provided in some fashion to the defendant, and I am going to
direct that the plaintiff quantify his claim for past loss of earnings and
provide that information to the defendant.

Insofar as prospective loss of
earnings is concerned, I am not satisfied that that is a matter that can be
necessarily particularized, and I leave it to the defendant to pursue that
through examinations for discovery.

(d)      The
Plaintiff’s Past and Prospective Loss of Earning Capacity

Like the prospective loss of
earnings, I do not consider this to be an appropriate subject matter for
particulars, and it is a matter that can be pursued by way of examination for
discovery.

(e)      The
Plaintiff’s Past and Prospective Loss of Opportunity to Earn Income

This is a head that is hard to
distinguish from past and prospective loss of earning capacity. To the extent
there is any difference, in my view it should be treated the same as the
request for particulars of past and prospective loss of earning capacity.

(f)       The
Plaintiff’s Past and Prospective Loss of Housekeeping Capacity

This is another matter that in my
view does not warrant particularization in the pleadings. It can be pursued
through examinations for discovery.

(g)      The
Trust Award on Behalf of the Plaintiff’s Friends and Family

This, too, is not a matter that, in
my view, should be dealt with by way of particulars, with this exception:  The
individual or individuals for whom a trust award is claimed should be
identified in the statement of claim where the trust award is advanced.

(h)      The
Plaintiff’s Special Damages

These are matters that should be
identified by the plaintiff for the defendant, but not as particulars of the
pleadings.

[7]            
I have mentioned a variety of matters that can be dealt with by way of
examination for discovery. I understand from counsel for the defendant that
some of these matters have been pursued by examination for discovery, but complete
answers have not been provided. In the circumstances, it is my view that the
defendant should be entitled to continue the examination for discovery
previously conducted to pursue the areas that in my view should be pursued by
way of examination for discovery.

(Judgment on
defendant’s motion for further production of documents)

[8]            
THE COURT:  The defendant seeks a variety of records in a personal
injury action which arises from a motor vehicle accident that occurred on May
7, 2006.

[9]            
The plaintiff was born, I understand, in Uganda and emigrated to Canada
in his late teens or sometime thereafter.

[10]        
The defendant seeks a wide variety of records. I will deal with each
request.

[11]        
The defendant seeks an order that the British Columbia Institute of
Technology deliver any and all records it may have regarding the plaintiff
within 14 days of an entered order of this court. As I understand it, that
application is not opposed. The Institute has been served, so that order will
go.

[12]        
A second application is for records from the North Burnaby Adult and
Continuing Education Centre for any and all records it may have regarding the
plaintiff within 14 days. That is not opposed, and the Centre has been served,
so that order will go.

[13]        
The third application is for the records of the Securiguard Services
Limited, who were the employers of the plaintiff at the time of the accident. I
am advised that it is the belief of counsel for the plaintiff that that
business is no longer operative. I understand that their address for service
was used to provide notice of the motion. In the circumstances, I will grant
that order, and it may be that if there is no business still operating that it
will not be complied with, but that remains to be seen.

[14]        
The fourth application is for the records of the Eileen Dailly Leisure
Pool and Fitness Centre, the fifth, for the records of the Bonsor Recreation
Centre, and the sixth for the records of the Eastburn Community Centre. Each of
those centres has been served with notice of the motion. It is not opposed. The
records, as I understand it, relate to efforts at rehabilitation by the
plaintiff. I will grant the orders sought in the terms sought for each of those
institutions or businesses.

[15]        
The next is that the plaintiff deliver records to the defendant. The
first is the complete police file. I am advised that the plaintiff will consent
to an order that those records be produced, but that the police in question
have not been served with any notice. So I will adjourn that application
generally.

[16]        
The next is a request that the plaintiff provide a list of special
damages, and I understand that has been done, so that motion is not being
pursued. I will adjourn it generally.

[17]        
The defendant also requests the following:  copies of any documents
relevant to the proceedings from a folder referred to during the examination
for discovery of the plaintiff, copies of financial records with respect to
monies forwarded by the plaintiff to his relatives in Europe, copies of
financial records with respect to monies forwarded by the plaintiff to his
relatives in Asia, and copies of financial records with respect to monies
related to the plaintiff’s school funding May 7th, 2006 to the present. Those
applications are opposed by the plaintiff.

[18]        
I consider that if the plaintiff was making reference to documents at
his examination for discovery that any documents he was referring to should be
produced. I do not consider that the financial records concerning monies
provided by the plaintiff to his relatives have any real potential relevance to
the proceedings and I will dismiss that application.

[19]        
The financial records with respect to funding of the plaintiff’s
schooling have potential relevance, and I will order that they be produced if
they exist.

[20]        
The next application is for copies of the high school transcripts of the
plaintiff for the years 1996 to 1999, which I understand to be records from
either Uganda or Pakistan. I do not consider that the issues in the action
warrant the expense necessary to try and obtain those records, and I will
dismiss that application.

[21]        
The next group of documents are records relating to the computer science
studies undertaken by the plaintiff in Pakistan or Canada. I will grant an
order for production by the plaintiff of any records in his possession that
emanate from either Pakistan or Canada, but I will not require that he apply to
obtain any records that are not already in his possession.

[22]        
The next request is for copies of any and all certificates or diplomas
granted to the plaintiff. I consider that to be an unreasonably expansive
request and dismiss that application.

[23]        
The next group of documents requested are copies of all credit card
bills, receipts or other bills from May 6th to the present, copies of all
financial documents relating to payments made by the plaintiff for his sister’s
wedding, copies of all financial documents relating to payments made by the
plaintiff for his grandmother’s passing, and a schedule of his outstanding
debts for the years 2004 to 2009 inclusive. I do not consider that the request
for these documents is a reasonable one and I dismiss that aspect of the
defendant’s application.

[24]        
There is a request for a copy of an e-mail sent by a police officer to
the plaintiff after he was assaulted in the summer of 2007. If that document is
still in the possession of the plaintiff, it should be provided to the
defendant. If it is not in his possession, it cannot be.

[25]        
Finally, under this group of requests, there is application that the
plaintiff produce copies of any and all records relating to his accident of
July 6th, 2008 for which he attended at the Royal Columbian Hospital,
including, but not limited to, police records and statements.

[26]        
The police records, I understand, will be the subject of a proposed consent
order, so I will make no order with respect to those. The Royal Columbian
Hospital has not been served with an application, so I am not in a position to
make any order concerning their records.

[27]        
To the extent that there are any other records that can be identified,
the defendant will have to pursue that in examination for discovery, because
the present description is too broad to be of any assistance.

[28]        
Next, the defendant seeks an order that the plaintiff execute and
deliver authorizations for production of records from February 24th, 2010. In a
case referred to as Stead v. Brown, 2010 BCSC 312 (CanLII), I
refused a similar request on the basis that a consent which is not given
willingly is not a consent at all. I remain of that view and dismiss the request
for consent documents from the plaintiff captured in paragraph 8 of the notice
of motion.

[29]        
Next, the defendant seeks potential witness information for specific
individuals that are identified in the notice of motion. In my view, this is a
reasonable request, and if the plaintiff has that information, I order that he
provide it through his counsel to counsel for the defendant.

[30]        
The tenth order sought is costs of all parties for the delivery of
documents for production and inspection be paid forthwith by the defendant and
costs of any party for delivery of a copy of the documents paid forthwith after
delivery by solicitor for the party receiving such documents.

[31]        
To the extent I can understand that, I gather that the defendant is
suggesting that the documents that it has sought and that I have ordered
production of be paid by the defendant, but if the plaintiff wishes copies of
any documents obtained, that the plaintiff or his counsel should pay that cost.
If that is the thrust of the tenth numbered relief sought, then I grant that
order.

[32]        
Finally, the defendant seeks costs of the application in any event of
the cause. In my view, there has been divided success on the application and
the parties should bear their own costs.

[33]        
Does that take care of everything, counsel?

[34]        
MS. SHARIFF:  Yes, your Honour. Thank you so much.

[35]        
MR. CAMERON:  My Lord, just one last matter we didn’t address on
the adjournment application and on the particulars application. I would just
seek costs in the cause.

[36]        
THE COURT:  Well, the adjournment application I probably would have had
difficulty granting but for your personal circumstances, Mr. Cameron, and
your friend quite properly said that she didn’t wish to prevent you from having
surgery.

[37]        
MR. CAMERON:  Actually, you’re — having made that point, you’re
quite correct. I withdraw that on the adjournment application. And I’ll leave
the particulars to your own decision.

[38]        
THE COURT:  Well, on the particulars you have succeeded, Mr. Cameron.
It did not occupy a great deal of time today. I am going to give you costs on a
minimum scale. I forget whether it is (a) or (c), but whatever the minimum is,
you can have the costs of that application.

[39]        
MR. CAMERON:  Thank you, My Lord.

“Hinkson
J.”