IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110202

Docket: M119187

Registry:
New Westminster

Between:

Thomas Nikolic

Plaintiff/Respondent

And

Josiah Olson and
Joel Olson

Defendants/Applicants

Before:
The Honourable Mr. Justice Williams

Reasons for Judgment

I.        INTRODUCTION

[1]            
The application before me arises from a personal injury claim. The applicants,
Josiah Olson and Joel Olson [collectively, “the Olsons” or “the defendants”]
seek an order requiring the respondent, Thomas Nikolic [“Mr. Nikolic” or
“the plaintiff”], to provide signed authorizations allowing them to obtain from
certain third parties records relating to the plaintiff.

II.       FACTS

[2]            
The plaintiff is a resident of Saskatchewan. On July 15, 2007, while in
Kelowna, British Columbia, his vehicle was struck from behind by a vehicle
owned and operated by the defendants. Property damage was incurred and bodily
injury is alleged. The defendants admitted liability. The plaintiff has brought
an action claiming relief, namely, general damages, past loss of income and
loss of earning capacity. A two day trial, pursuant to R. 66 of the Supreme
Court Rules, B.C. Reg. 221/90 [the “former Rules”], has
been scheduled.

[3]            
The defendants seek an order from this Court requiring, among other
things, that:

1.         Within seven (7) days of the making of this Order,
the Plaintiff shall deliver to the solicitor for the Defendants:

a.         documentation
pertaining to the wheel alignment conducted by Firestone, including but not limited
to invoices and estimates;

b.         all
invoices and documents pertaining to the repairs performed on the Plaintiff’s
vehicle as a result of the accident on July 15, 2007;

c.         a
signed authorization allowing the Defendants to obtain from SGI a copy of any
invoices and documents pertaining to the repairs performed on the Plaintiff’s
vehicle as a result of the accident on July 15, 2007;

d.         a
signed authorization allowing the Defendants to obtain the complete SGI file
related to the Plaintiff from October 27, 2009 to date;

e.         signed
authorizations allowing the Defendants to obtain the complete clinical records
relating to the care and treatment rendered to the Plaintiff Thomas Nikolic by Dr. Jacek
Steplewski from July 15, 2005 to date and from Dr. Leon Jansen van
Rensburg from July 15, 2005 to July 27, 2007;

f.          a signed authorization along allowing
the Defendants to obtain the Plaintiff’s complete Saskatchewan Workers’
Compensation Board file from July 15, 2005 to date …

[4]            
Clauses (c), (d), (e) and (f) [collectively, the “requested records”] of
the above proposed order are the issues of contention between the parties on
this application.

[5]            
These clauses essentially compel Mr. Nikolic to consent to
production of his records held by or in the possession of persons or agencies
located outside of British Columbia – namely, SGI (Saskatchewan’s equivalent of
the Insurance Corporation of British Columbia), two of his physicians and the
Saskatchewan Workers’ Compensation Board. The effect of the order sought is to
remove the impediment that these third parties will likely raise, which is that
the requested records cannot be released because they are obliged to safeguard the
plaintiff’s privacy interest in those records. An authorization by Mr. Nikolic
releases them from that obligation.

[6]            
The plaintiff does not object to production of the requested records on
grounds of irrelevance, privilege, privacy or confidentiality. Accordingly, I accept
that the requested records are prima facie relevant to the plaintiff’s
personal injury claim and are therefore compellable.

[7]            
The defendants adduced evidence that they made inquiries with the
plaintiff’s counsel with regards to their obtaining the requested records. Some
records have been produced, but others have not. The defendants are not wholly satisfied
that the requested records cannot be produced and accordingly seek the above
proposed order from this Court so they can make their own inquiries.

III.       THE ISSUE & PARTIES’
POSITIONS

[8]            
The issue before me is whether this Court has the jurisdiction to order
a litigant to authorize a third party resident in another province to produce his
or her records (relating to that litigant) to another litigant.

[9]            
The defendants make their application on the basis that the court has
the authority to order the plaintiff to deliver signed authorizations to them
and that the fact that the records are located outside British Columbia is not
a bar to the making of such an order. In support of their position, the
defendants rely on the following cases:

1. Agala
v. Agala (1998), 118 B.C.A.C. 314, [1998] B.C.J. No. 2827 (QL) (Chambers)
[Agala cited to QL];

2. Fiege
v. Rupitz, 2001 BCCA 482, [2001] B.C.J. No. 1579 (QL) (Chambers) [Fiege
cited to BCCA]; and

3. Lewis v. Fry et al.,
2007 BCSC 89, 69 B.C.L.R. (4th) 127 [Lewis cited to BCSC].

[10]        
The plaintiff responds that the court does not have the authority to
order him to authorize third parties to produce his records to the defendants
and that even if the court had such authority it has no jurisdiction to make an
order effectively compelling production of records located outside the province.
In support of his position, the plaintiff relies on these decisions:

1. Peel
Financial Holdings Ltd. v. Western Delta Lands, 2003 BCCA 180, 180 B.C.A.C.
117 [Peel cited to BCCA];

2. Stead
v. Brown, 2010 BCSC 312, [2010] B.C.J. No. 432 (QL) (Chambers) [Stead cited
to BCSC];

3. Benekritis
v. Taylor, unreported May 4, 2005, Vancouver M023575 (B.C.S.C. Chambers) [Benekritis];

4. Allen-Trenholme
v. Simmie, 2006 BCSC 542, 52 B.C.L.R. (4th) 175 (Chambers) [Davies J.
in Allen-Trenholme cited to BCSC]; overturning 2006 BCSC 384, [2006]
B.C.J. No. 507 (QL) [Master Bolton in Allen‑Trenholme cited
to BCSC]; and

5. Kobzos v. Dupuis, 2006
BCSC 2047, [2006] B.C.J. No. 3547 (QL) (Chambers) [Kobzos cited to
BCSC].

IV.      DISCUSSION & ANALYSIS

[11]        
There are conflicting judicial authorities respecting the issue raised
in this application. The line of jurisprudence which holds that the court
cannot make an order requiring a litigant to authorize third party production
is, in my view, troubling. For the reasons that follow, I conclude that this
Court can make an order requiring a litigant to authorize a third party,
whether within or outside this province, to produce records relating to him or
her to another litigant. The jurisdiction to do so is based on the Rules of Court.

A.       Preliminary Observations

[12]        
At the outset, I make three preliminary observations. First, I note that
the defendants are seeking to obtain the requested records by way of an
authorization from the plaintiff and are not seeking an order that would compel
the third party record-holder to produce them.

[13]        
Second, I emphasize that the plaintiff in this case asserts no claim
that the requested records are irrelevant, privileged or confidential in that
their disclosure may affect his privacy interests. If Mr. Nikolic had
established any one of these grounds, then an order imposing the mechanical
steps as outlined in Halliday v. McCulloch (1986), 1 B.C.L.R.
(2d) 194, [1986] B.C.J. No. 223 (QL) (C.A.) – known as a Halliday order
or an order in the Halliday form – might be appropriate. A Halliday order
enables a litigant to obtain the requested records in the first instance so
that his or her counsel may vet them and determine in his or her view what is
relevant, privileged, private or confidential before they are delivered to the
opposing litigant.

[14]        
The Supreme Court of Canada in A.M. v. Ryan, [1997] 1 S.C.R. 157,
143 D.L.R. (4th) 1, described additional safeguards in the disclosure of
sensitive records over which privilege is claimed. I note that although Halliday
v. McCulloch and A.M. v. Ryan were decided under R. 26(11),
which deals with intra-provincial (as opposed to extra-provincial) third
party production, the guidelines contained therein could be adopted and altered
appropriately to suit the needs of other types of production orders, such as
the type the Olsons are requesting. However, neither of these two cases apply here,
as the plaintiff has not provided evidence in support of an order in the Halliday
form. Mere assertion, absent supporting evidence, that the documents sought
might turn out to be irrelevant or privileged is insufficient to justify a Halliday
order: Gorse v. Straker, 2010 BCSC 119, 6 B.C.L.R. (5th) 312, at paras. 39-40
of BCSC.

[15]        
Third, I see no issue with respect to the so-called ‘extra-provincial
effect’ of the sought-after order. This Court, if it were to grant the
application, would be exercising its jurisdiction over the plaintiff himself,
not over the foreign non-party record-holders. The defendants are not asking for
an order directing third parties in Saskatchewan to do anything. Rather, they
seek an order obliging Mr. Nikolic to take an action that may or may not
result in extra-provincial third party production. The third party may decline,
for whatever reason, to release the documents notwithstanding the plaintiff’s
court-ordered authorization. However, for the purpose of the present
application, what becomes of the plaintiff’s authorizations is of no concern to
the Court. Once they are signed, the order has been complied with and the Court’s
jurisdiction over the matter is concluded.

[16]        
On this point, the opinion of Master Bolton in Allen-Trenholme at
paras. 25‑26, is apt:

[25]      In my view, any court must proceed very cautiously
when asked to make orders involving persons who are not parties to the action
and do not reside in the jurisdiction. The reason, to my understanding, is that
orders should not be made which are unenforceable or are likely to trespass on
the jurisdiction of a foreign court.

[26]      But neither these
reasons for caution, nor any others that occur to me, exist here. The order
sought from this court does not even request, let alone order, these foreign
employers [the third party record-holders] to do anything at all. It would
simply require the plaintiff, a resident party to the action, to authorize the
delivery of certain documents, held by non-residents, which the defendant is
unable to obtain directly because of issues of privacy or privity.

Further details of his overturned decision are provided
later in these reasons; but, for now, I note that he made these observations after
coming to the conclusion that given the conflicting state of the law at the
time, there was no binding authority on the issue before him of whether masters
have the jurisdiction to compel authorization of foreign third party production.

[17]        
To conclude, the order being sought is directed at the plaintiff, who is
a party to the litigation and thus subject to the court’s jurisdiction. While
the records at issue are in the possession or control of third parties residing
outside British Columbia, they are, nevertheless, records that the plaintiff is
lawfully obligated to disclose. The fact that the third party
record-holders and the requested records are located outside this province is
not an impediment to granting the defendants’ application.

B.       Underlying Principles &
Policy Concerns

[18]        
It is fundamentally important in civil litigation that litigants are
provided with all relevant documents pertaining to the issues confronting them.
Discovery (a term encompassing document production, interrogatories,
examinations for discovery and medical examinations) encompasses the entire
legal process through which each litigant to the action or proceeding is able
to learn about the opposing case (claim or defence). The objectives are to
promote settlement and, where settlement cannot be reached, to narrow the
issues in dispute before trial. In short, this process gives the parties an
opportunity to ascertain the facts. That opportunity is only meaningful where
the litigants disclose evidence which they each will rely upon or which may
assist opposing parties at trial, in the manner and to the extent required by
law.

[19]        
The purpose underlying the rules of document production was articulated
by L. Smith J. in Homalco Indian Band v. British Columbia
(1998), 56 B.C.L.R. (3d) 114, [1998] B.C.J. No. 2102 (QL) (S.C.), at para. 17
of B.C.L.R.:

What is the
underlying purpose of Rule 26? An examination of its terms and of the
authorities considering it leads to the conclusion that its purpose is to
promote the resolution of disputes on their merits by forcing disclosure in
advance of all documents upon which a party plans to rely at trial and, in
addition, all documents which may assist the other party at trial (subject to
privilege). In this manner, Rule 26 avoids surprise and prevents the
destruction, suppression or fabrication of evidence. The end is trial on the
basis of full information; the means is disclosure of documents.

[20]        
Although considered under the Saskatchewan Rules, I find the view
of Walker J. in Zerr v. Rahn (1987), 63 Sask.R. 74, [1987] S.J. No. 682
(QL) (Q.B.), at p. 4 of QL, that disclosure ought to be obtained in the
most expedient way (both in terms of time and costs) as is appropriate in the
circumstances, to be sound:

The modern
tendency is toward full and complete disclosure and flexibility in the manner
of obtaining it. In keeping with the principle of broad discovery and in all
common sense, it is appropriate to order the plaintiff to make a request to all
physicians, physiotherapists and chiropractors [the third party record-holders]
for the various documents referred to by the defendants as requested. It is
within the power of the plaintiffs to cause the professionals and the hospital
to produce the documents. The plaintiff must make her best efforts. Until the
medical people and the hospital refuse the plaintiff’s request, the documents
are in the plaintiff’s power. Another approach, not requested in this
application, is that the plaintiff be ordered to request these same medical
people, with respect to the same documents, to permit the defendants to inspect
and copy them and to communicate their response to the defendant.

[21]        
Moreover, at least one policy concern arising from the application
before me comes to mind. The dismissal of applications such as the one at bar
may allow a litigant to shirk legal obligations by hiding otherwise compellable
records in the hands of third parties residing outside British Columbia. This general
concern was evident in Sunnar v. U-Haul Co. (Canada), [1998]
B.C.J. No. 1850 (QL), 24 C.P.C. (4th) 179 (S.C. Chambers) [Sunnar cited
to QL], where the sought-after documents (namely, accident claims records) could
not be obtained because they were held outside the province by the corporate
defendant’s insurer and adjuster. The danger, as Allan J. recognized, was
that the legal structure of a corporate entity may effectively thwart the
mandatory production of relevant records (see, for example, paras. 12, 14
and 18). She ordered, presumably under R. 26(1.1) and R. 26(10), the
defendant U-Haul to produce the documents which were sought on the basis that
it had access and thus the power to produce them (at para. 20). The
situation in Sunnar causes me to believe that dismissing applications
for an order compelling authorization of foreign third party production could
potentially lead to unjust results and even possibly to a perversion of the Rules
of Court.

C.       Overview of Relevant Court Rules

[22]        
I mentioned earlier that this Court’s jurisdiction to make an order
requiring a litigant to authorize third party production is founded upon the Rules
of Court. An overview of the Rules is accordingly warranted. While the
present case is decided under the former Rules, equivalent provisions in
the Supreme Court Civil Rules, B.C. Reg. 168/2009 [the “current Rules”],
which may offer further context and future guidance, are provided.

[23]        
I begin by highlighting that the object of the Rules of Court is
“to secure the just, speedy and inexpensive determination of every proceeding
on its merits”: R. 1(5) of the former Rules; R. 1-3(1) of the
current Rules. R. 1-3(2) of the current Rules adds the
principle of proportionality: proceedings ought to be conducted in ways that
are proportionate to “the amount involved”, “importance of the issues in dispute”
and “complexity of the proceeding”.

[24]        
Rule 26 of the former Rules and R. 7-1 of the current Rules
grant the court broad jurisdiction over the discovery of documents; specifically,
the court has the power to order production in any manner it deems just or appropriate.
Rule 26(10) of the former Rules stipulates that “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 thinks just”; and, R. 7-1(17)
of the current Rules stipulates that “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” [emphasis
added].

[25]        
More generally, R. 1(12) of the former Rules provides that
“When making an order under these rules the court may impose terms and
conditions and give directions as it thinks just”; and, R. 13-1(19)
of the current Rules provides that “When making an order under these
Supreme Court Civil Rules, the court may impose terms and conditions and give
directions it considers will further the object of these Supreme Court
Civil Rules” [emphasis added]. These two general powers may be exercised over
any orders made under the Rules of Court, including those pertaining to document
discovery.

[26]        
Rule 26(1) of the former Rules and R. 7-1(1) of the current Rules
deal with litigant-versus-litigant documents. Rule 26(1) of the former Rules
specifies that a party is required, on demand, to deliver a list of documents
that “are or have been in the party’s possession or control relating to every
matter in question in the action”. Under this former Rule, the test for
relevance on an application for discovery of documents is broad. Rule 7-1(1) of
the current Rules does away with the need for a demand, making instead the
preparing and serving of a list of documents mandatory barring the parties’
agreement or court order to the contrary and limits the scope of discovery to
documents that “are or have been in the party’s possession or control and that
could, if available, be used … to prove or disprove a material fact”.

[27]        
The obligation to disclose only refers to documents in a litigant’s
possession or control. In order to be in possession of a document, a litigant
must have a proprietary interest in it; mere custody is not sufficient: Manson
v. Manson, [1997] B.C.J. No. 203 (QL), at para. 11. Control,
on the other hand, means an enforceable right to obtain the documents from the
person who has actual possession of them: Lacker v. Lacker (1982), 42
B.C.L.R. 188, [1982] B.C.J. No. 1514 (QL) (S.C.), at p. 193 of
B.C.L.R.

[28]        
Rule 26(1.1) of the former Rules empowers the court to order a litigant
to deliver “a list of the documents that relate to a matter in question in the
action and that, although not in the possession or control of the party against
whom the order is made, are within that party’s power”. The word “power” is
interpreted to be broader than control: Sunnar at para. 21. “Power”
means the litigant has access to the documents: Net1 Products (Canada) Ltd.
v. Mansvelt and Belamant et al., 2001 BCSC 906, [2001] B.C.J. No. 1282
(QL) (Chambers), at para. 14 of BCSC. Thus, this rule broadens the basis
upon which documents held by non-parties could be obtained from litigants
themselves. Put another way, R. 26(1.1) compels disclosure of documents
that are in the hands of third parties but to which the litigant (to whom the
request is being made) has a right to access. R. 26(1.1) only requires a litigant
to list documents that are in his or her power. The Rules do not expressly
provide for the inspection and/or copying of documents that are within a litigant’s
“power”.

[29]        
Under the former Rules, R. 26(7) governs the inspection of the
listed documents and R. 26(9) provides that copies of documents which a litigant
is entitled to inspect may be requested. Both rules refer only to documents in
a party’s possession or control – the word “power” is not used. Therefore, it
seems on the face of these two rules that a litigant is not required to produce
documents within his or her power. This interpretation, if adopted, would
render R. 26(1.1) meaningless.

[30]        
In any case, R. 26(10) allows the court to “order the production of
a document for inspection and copying”. That document, I note, may be one over
which the litigant has only “power”. In interpreting R. 26(10) in this
manner, I am guided and persuaded by the opinion of Hood J. in Lewis
at para. 88 where he concluded that the drafters intended documents in a litigant’s
power to be treated and produced under R. 26 in the same manner as
documents in a litigant’s possession or control and that the former Rules
do not make much sense if that is not the case.

[31]        
Moreover, I note that R. 26(8) requires a litigant, on notice, to
produce a document referred to in his or her pleadings or affidavits; and, it
is possible that that document may also be one over which he or she has only
“power”.

[32]        
The current Rules seem to do away with what might be seen as the
legislative anomaly of the former Rules. They unify the obligations to
list, inspect and copy documents in one’s possession, control and power. Rule
7-1(11) provides that a party who believes the served list of documents should
include additional documents that “are within the listing party’s possession,
power or control” may, on written demand, require that listing party to serve
an amended list and make the newly listed documents available for inspection
and copying. If a litigant fails to comply with a R. 7-1(11) demand, R. 7-1(14)(b)
empowers the court, on an application for compliance made under R. 7-1(13),
to order a litigant to amend and serve a list of additional documents in that litigant’s
“possession, power or control relating to any or all matters in issue in the
action” and make the newly listed documents available for inspection and
copying.

[33]        
Further, under the current Rules, R. 7-1(15) enables a party
to inspect any listed documents, and R. 7-1(16) enables a litigant to
obtain copies of documents to which he or she is entitled to inspect, that is, all
listed documents. Thus, if a demand under R. 7-1(11) has been made, then
those listed documents (or those documents to which a litigant is entitled to
inspect and/or copy) would include documents in a party’s “possession, power or
control”.

[34]        
Rule 26(11) of the former Rules and R. 7-1(18) of the
current Rules deal with direct third party production. If a listed record
is in the possession or control of a third party residing within the court’s
jurisdiction, that third party may be ordered to produce it directly to the
requesting litigant. I note that the word “power” is not included, probably
because its inclusion would unduly broaden the scope of direct third party
production. It is a pre-condition of the application of R. 26(11) that the
documents sought are not in the possession, control or power of a litigant: Lewis
at para. 31. I conclude this interpretation is implicit given the nature and
object of the rules. Implying such a pre-condition would enhance efficiency by ensuring
that production is sought first through the litigants.

[35]        
The purpose of R. 26(11) is “to provide a litigant with the means
of ascertaining whether documents in the possession [or control] of a non-party
… relate to an issue in the action, or contain information which may relate
to an issue in the action”: Dufault v Stevens (1978), 6 B.C.L.R. 199, [1978]
B.C.J. No. 1219 (QL) (C.A.) [Dufault cited to B.C.L.R.], at
p. 205. However, where a third party resides outside this Court’s
jurisdiction (that is, outside British Columbia), the requesting litigant does
not have the right to apply under R. 26(11) for direct third party production:
Saunders v. Nelson, [1994] B.C.J. No. 3039 (QL), 35 C.P.C. (3d) 168
(S.C.) [Saunders cited to QL], at para. 4.

[36]        
The table below summarizes the Rules of Court pertaining to
document discovery relevant to my analysis of the case before me.

Each of the above can be seen as a separate stage in document
discovery. However, in many cases, the first stage (listing of documents)
flows, without incident, to the next stages (production, inspection and copying).

[37]        
I turn now to application of the former Rules to the facts in
this case. R. 26(11), which allows for direct third party production, is
of no assistance to the Olsons because this Court cannot order non-parties in
Saskatchewan to directly produce the requested records in its possession or
control. However, Mr. Nikolic has a right of access to the documents
sought and therefore has power over them. Accordingly, he may be required to
list those requested records (pursuant to R. 26(1.1)) and to produce them (pursuant
to R. 26(10)) in a manner the court thinks is just (pursuant to R. 1(12)),
for example, by way of an order compelling authorization.

D.       Review of the Parties’ Cases

[38]        
A review of the parties’ cases is in order. In what follows, I examine
the reasoning in each of the cases provided by the parties. In doing so, I also
touch upon other cases not referred to in their submissions.

1.       The Applicants’/Defendants’
Cases

[39]        
In Agala, a personal injury case arising from a motor vehicle
collision, the plaintiff applied to the Court of Appeal for leave to appeal and
for a stay of an order of McKinnon J. that she provide the defendants an
authorization consenting to the release of her income tax returns for the past
four years. The plaintiff had advanced a claim for past loss of income and loss
of earning capacity. Specifically, she alleged that she was unable to obtain
income from craft work to the extent she had been able to do so prior to the
collision. However, it appeared that she did not report profit from this work
in her income tax returns.

[40]        
Hall J.A. held at para. 6 that, notwithstanding objections
that might be made as to ultimate admissibility at trial, “I think it clear
beyond argument that it is at this stage of the litigation producible.” Also at
para. 6, he referred to R. 26(10) of the former Rules, as providing
the court with the discretionary power to “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 thinks just.” Those holdings are, to my mind, relevant to the
present application.

[41]        
At para. 5, Hall J.A. noted that counsel for the plaintiff had
argued that the impugned order created an infringement of a privacy interest
and had sought to argue certain provisions of the Income Tax Act and
federal Privacy Act, S.C. 1980-81-82, c. 111. Regrettably, these
submissions, which may have created a dilemma similar to the one in Rafferty
and Parr, infra (discussed under the respondent’s/ plaintiff’s
cases), were not discussed in Hall J.A.’s written reasons.

[42]        
In Fiege, a personal injury action in British Columbia, the
defendants applied for an order requiring the plaintiff, a citizen and resident
of the United States, to sign authorizations for release of banking and
financial statements and unemployment insurance records by American agencies. The
plaintiff claimed damages for past loss of income and loss of earning capacity
resulting from injuries he sustained in a motor vehicle collision that occurred
in British Columbia. An issue arose as to the income from his home-based
business.

[43]        
The plaintiff made no claim of privilege with respect to the documents
sought by the defendants. Preston J. granted the application on reasons
having primarily to do with relevancy. The plaintiff applied for leave to
appeal and a stay. In dismissing both applications, Levine J.A. disposed
of all seven of the plaintiff’s grounds of appeal, none of which included an
argument that the court lacked jurisdiction to make orders compelling
production by foreign non-parties. Levine J.A.’s ruling on these seven
grounds of appeal are as follows:

1.       She
rejected the argument that the impugned order unfairly required the plaintiff
to file income tax returns with a foreign government before his claim could
proceed. At para. 7, she stated that the order did not require the
plaintiff to file his income tax return, only to provide a copy of it to the
defendants.

2.       She
rejected the argument that the impugned order unfairly dispensed with the
protection afforded by a Halliday order. Following a review of the case
of Halliday, she noted, at para. 15, that the plaintiff had not claimed
privilege or asserted that there might be anything confidential or embarrassing
in the records being sought. She went on to say that “Neither the plaintiff [n]or
the respondent[s] here has provided any authority and I know of none that has
extended a Halliday order to cases involving disclosure of financial
records and it seems to me there is good reason for that.” Levine J.A. held
that “where a plaintiff makes a claim for financial loss, it seems to me that
his financial records must be said to relate to an issue in question in that
matter” (at para. 15).

3.       She
rejected the argument that the plaintiff’s records were irrelevant. At para. 17,
she ruled that “I can find no basis to conclude and no basis on which a panel
of this Court could conclude that these financial records are not relevant to
the claim made for financial loss.”

4.       She
rejected the argument that the defendants had failed to establish any basis for
the assertion that the documents sought provided a record of the plaintiff’s earnings.
Viewing this argument as relating to the issue of relevance, she proposed, at para. 9,
to deal with the third and fourth grounds together. Having found the documents
relevant on the third ground, the fourth ground of appeal was also dismissed.

5.       She
rejected the argument that the impugned order offended the plaintiff’s right to
privacy. At para. 10, she held that “There is no authority of which I am
aware that provides the plaintiff a right to privacy with respect to his own
financial records when he has made a claim for financial loss in these courts.”

6.       She
rejected the argument that the defendants’ demand for production demonstrated
an attempt to threaten, harass and embarrass the plaintiff into accepting an
unfair settlement. At para. 11, she says that “The plaintiff has made a
claim for financial loss and is subject to the Rules of Court which
require him to disclose all of the documents that relate to that claim.”

7.       She
rejected the argument that any probative value of the information sought was
outweighed by the prejudicial inference made by the defendants’ assertion that
the plaintiff lied to the United States government. At para. 12, she said
that the defendants’ application did not relate to whether the plaintiff lied,
but whether the sought-after documents related to an issue in the action.

[44]        
Levine J.A.’s reasoning in Fiege is applicable to the case
before me. Mr. Nikolic is making a claim for relief. As a party to these
proceedings and to the action proper, he is subject to the rules of the court, one
of which requires him to disclose all documents relating to his claim. The requested
records prima facie relate to an issue or issues (namely, damages)
between the parties and hence ought to be produced.

[45]        
In Stingl v. Messmer (1987), 18 B.C.L.R. (2d) 81, [1987] B.C.J. No. 1884
(QL) (C.A.) [cited to B.C.L.R.], the plaintiff claimed damages for injuries she
sustained in a motor vehicle collision. The defendant applied under R. 26(11)
of the former Rules for an order requiring production of medical records
made two years prior to the collision and held by third parties (that is, doctors
and hospitals). The defendant would have been content with a Halliday order.
However, on the eve of the hearing on the application, the plaintiff produced a
number of documents and then, when the matter came before the court, advised
the chambers judge that all relevant documents had been produced. The judge
dismissed the application purportedly because the defendant could not provide specific
dates on which the pre-injury records were said to have been made. The
defendant sought leave to appeal. Shortly before the application for leave was
heard, the plaintiff supplied another batch of documents. Leave was nonetheless
granted. The defendant argued that the chambers judge erred in refusing to make
a production order and in leaving him without means of determining whether he
had received all records to which he was entitled. The plaintiff argued that
all relevant documents had been produced and said she was willing to do
whatever necessary to satisfy the defendant that this was so.

[46]        
McLachlin J.A., as she was then, writing for a unanimous court, allowed
the appeal in part. She was of the view that, given what had taken place, the defendant’s
contention that he was entitled to the order sought from the chambers judge was
not entirely without merit. She opined, at p. 83, that a Halliday order
affords a litigant “not only production of all relevant, non-privileged
documents, but [also] an assurance that all relevant documents have been
produced”. She held, at p. 84, that:

Where the defendant is deprived
of an order on the plaintiff’s assertion (at the last minute) that full
production has been made, he is left without the devices associated with such
an order which provide assurance to him that he has indeed received all the
relevant documents.

McLachlin J.A. went on to state
at p. 84:

Absent a rule of court requiring
verification of documents produced by third parties where no order is made, the
court does not have the power to require such verification. (I pause to note
that some form of verification might be possible through a demand for a
supplementary list of documents verified by affidavit, although this would not
ensure that the third party had produced all relevant documents to the
plaintiff.) Nor would it be appropriate for this court to suggest that an order
for production should be granted where it appears it is not warranted because
all relevant documents have been produced and all requisite assurances in that
respect given to the defendant. That is a matter for the chambers judge, with
whose discretion this court will not lightly interfere. On the other hand, I am
of the view that an application for an order such as that sought here ought not
to be dismissed simply because the judge is assured by the plaintiff that all
relevant and non-privileged documents have been produced.

After elaborating upon the dual
purposes of the Halliday order, she came to the following conclusion at
p. 85:

It follows that the chambers
judge should not refuse an order unless he [or she] is satisfied, not only that
all relevant, non-privileged documents have been produced, but that the
defendant has been afforded means of satisfying himself [or herself] that this
is in fact the case.

[47]        
Although not certain as to what the chambers judge’s reasons were, McLachlin J.A.
ruled that it was not appropriate to decline the order requested, the effect of
which would leave the defendant without the assurance of full production that an
order in the nature of that suggested in Halliday would otherwise provide.
She stated, at p. 85, “In my opinion, the chambers judge, even if assured
by the plaintiff that all relevant, non-privileged documents had been produced,
should have granted the defendant an order requiring production …”.

[48]        
I am of the same mind that unless there is sufficient evidence
confirming full and complete disclosure, litigants (such as the defendants in the
case at bar) are not required to accept a bare assurance from another litigant
that all relevant non-privileged documents have been produced, and that they
are entitled to take all available steps to reasonably satisfy themselves as to
the extent of disclosure. To deny the application that is before me and thus
effectively require the Olsons to accept the plaintiff’s word would, I think,
do harm to the Rules of Court and the principles underlying document discovery.

[49]         
In Lewis, the plaintiff, who alleged injuries and
resulting loss and damages incurred in a motor vehicle collision, appealed an
order of Master Keighley requiring him to execute authorizations for production
of medical records held by three of his doctors. Hood J. found that the
documents in question, while not in the plaintiff’s possession or control, were
within his power and that he was thereby required to produce them under the Rules
of Court.

[50]        
In the course of his extensive discussion, Hood J. explained he did
not find Williamson J.’s decision in Benekritis and Davies J.’s
decision in Allen-Trenholme (cases upon which Mr. Nikolic relies) persuasive.
Those two cases concerned the jurisdiction of a master to make an order
compelling a litigant to authorize production by third parties resident outside
British Columbia. Both justices held that there was no such jurisdiction.

[51]        
In Benekritis, Williamson J. upheld the portion of a
master’s order compelling the plaintiff to sign an authorization with respect
to production by persons residing in British Columbia pursuant to R. 26(11),
but set aside the portion of that order with respect to out-of-jurisdiction
persons on the grounds that the master did not have the jurisdiction to do so.
The oral reasons of Williamson J. in this case are brief; no further
substantive explanations for his order were given. In particular, there was no
mention of R. 26(1.1) and its possible applicability in that case.

[52]        
In Allen-Trenholme, the defendant sought an order requiring the
plaintiff to authorize the release of his employment records in the possession
of companies in Colorado, New York, Nova Scotia and Ontario. Master Bolton
granted the order requested, holding that a master had jurisdiction to do so.
He reached this conclusion by referring to the Rules of Court,
specifically R. 26(1.1), and preferring to follow the Court of Appeal’s
ruling in Fiege as opposed to Benekritis.

[53]        
Master Bolton held, at para. 20, that due to the enactment of R. 26(1.1)
in 1996, Wolansky v. Davidson (1992), 67 B.C.L.R. (2d) 211, [1992]
B.C.J. No. 635 (QL) (S.C.) [Wolansky], (decided four years earlier)
was no longer good law. Master Powers in Wolansky concluded that a
master cannot direct the authorization of extra-provincial third party
production, because the Rules confine production to documents in a litigant’s
possession or control. However, Master Bolton noted that at the time Wolansky
was decided, R. 26(1.1) was not yet enacted. He went on to say at para. 16
that R. 26(1.1) empowers the court to deal with documents in a party’s
“power”, which (per Sunnar) is broader than “control”, and that this new
jurisdiction provides for production of documents in a litigant’s possession,
control or power.

[54]        
Master Bolton cited with approval, at para. 17, Master Powers’
discussion of Parr v. Butkovich (1978), 20 O.R. (2d) 491, [1978] O.J. No. 3453
(QL) (H.C.J.) [Parr cited to QL]. That case involved an
application, made in the context of an action arising out of a motor vehicle
collision, by way of appeal from an order of a judge, sitting as a local
master. The plaintiff had sustained certain injuries and alleged that he had lost
time and progress in school. When it was suggested during examination for
discovery that the plaintiff could sign a direction permitting the school to
release the records, his counsel refused. Section 231(1)(a) of the then Education
Act, 1974 (Ont.), c. 109, stipulated that records maintained or
retained by the school “is not available to any other person … without the
written permission … of the pupil”. The local master refused to grant an
order compelling the plaintiff to give the direction as proposed on the basis
of what he perceived was a conflict between two statutes – the above noted
legislative provision and Ontario’s R. 347, which required parties
to produce “documents that are or have been in his possession, custody or power
relating to any matters in question in the action”.

[55]        
Carruthers J. of the Ontario High Court of Justice disagreed with
the local master’s decision. He reasoned that the Education Act
expressly provides for the waiver of any statutory privilege granted therein by
written permission of the adult pupil. He went on to state:

8          …
We are not dealing here with a situation where the Court is being asked to have
the provisions of a Rule of Practice prevail over the express provisions of an
Act of the Legislature. What is being asked here is to have the pupil, on whose
behalf serious allegations are being made, to do all that he is able to do in
order to permit records which by their nature appear to be relevant to the
issue raised by such allegations to be made available for examination by the
defendants.

9          To
the extent the pupil, as an adult, is able by his written permission to allow for
records of the type in question to be produced is to my mind tantamount to
saying that those records are within the plaintiff’s "custody or
power" as those words are used in Rule 347. It would be unthinkable to
allow a situation to arise and exist where a plaintiff making serious
allegations is able to permit records which may contain information relevant to
such allegations from being made available to the defendants simply by refusing
to give his [or her] permission for their release.

[56]        
In allowing the application, Carruthers J., at para. 13,
ordered the plaintiff to execute written permission to enable production of the
records in question to the defendants, to lodge such permission with the person
or persons in whose possession or under whose care such records are kept, and to
do all other acts that may be reasonably required to enable all such records to
be made available to the defendants for examination. Master Bolton in Allen-Trenholme,
at para. 18, characterized this result as “logically compelling, and, in
order to avoid the ‘unthinkable situation’ described … desirable as a matter
of practice and, indeed, justice”.

[57]        
Turning to his treatment of Benekritis, Master Bolton noted, at
para. 23, that the ruling in that case was contrary to Levine J.A.’s
decision in Fiege. The master stated that:

The appeal [in Fiege] was
dismissed, and although it is silent on the issue before this [C]ourt, it is
clear that neither the learned judge below nor Levine J.A. (nor, indeed,
the appellant’s counsel) had any doubts about the court’s ability to order a
party before the court to authorize a non-resident non-party to produce
documents. (at para. 23)

[58]        
Finding there to be no binding authority on point due to the conflicting
outcomes in Benekritis and Fiege (at para. 24), Master
Bolton concluded that:

Given the lack of any
reasons in principle to refuse the order, and the great evil of allowing a
party to hide documents that could ensue if the order were indeed refused, I am
satisfied that the order should go as sought.
(at para. 27).

He therefore ordered the plaintiff to deliver a further list
of documents and signed authorizations for the release to the defendants of the
documents requested.

[59]        
On appeal, Davies J. set aside Master Bolton’s order in Allen-Trenholme.
He found the Master’s decision to be entirely at odds with Benekritis.
At para. 12, he says:

While it
may be that Justice Williamson did not consider Rule 26(1.1), I do not know
that to be the case, and I note also that that was not the basis upon which the
learned Master refused to follow Benekritis. Rather, the Master referred
to what he considered to be a conflict between Fiege and Benekritis
and concluded that he should follow Fiege.

[60]        
Davies J. then observed, at para. 13, that Fiege addressed
the issue of the jurisdiction of a judge, as opposed to a master, to make the
order sought, and did not require consideration of whether that jurisdiction
was based on the Rules of Court or inherent jurisdiction. He further
stated:

[14]      In
those circumstances, I do not believe that the law would be advanced by my
refusing to follow Benekritis (and Wolansky), thus giving rise to
conflicting authority in this court on the same issue.

[15]      It
may be that the judgments of Master Powers in Wolansky, supra,
and Justice Williamson in Benekritis, supra, have
been overtaken by Rule 26(1.1) but, in my view, that is a matter for
determination by the Court of Appeal.

Deciding to follow Benekritis, Davies J. held
that a master does not have the jurisdiction to order a litigant to sign
authorizations for the release of records held by third parties outside British
Columbia. On my reading of this case, the effect of Davies J.’s decision
in Allen-Trenholme was significantly impacted by the issue of the
master’s jurisdiction, which is not an issue in the present case.

[61]        
I find the analysis by which Hood J. distinguished Benekritis
compelling, though I note that Davies J. did not. Relying on dicta
from Re: Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, [1954] B.C.J. No. 136
(QL) (S.C.) [Re: Hansard], Hood J. reproduced at para. 96 the
three grounds on which a judge of this Court may “‘go against a judgement of
another Judge of this Court’”. He found that two of the three grounds as
outlined in Re: Hansard were met, thereby making a departure from Benekritis
permissible. Hood J. reasoned that the outcome in Benekritis should
not be considered persuasive as follows:

[97]      … I am satisfied that binding authority in case
law and relevant provisions of the Rules, were not referred to His
Lordship, and were not considered by him; that had this been done, His Lordship
would have considered the cases and provisions of the Rules, and would
have, at a minimum, referred to them in his Reasons for Judgment.

…

[99]      Additionally, I noted some
apparent urgency during the hearing before Mr. Justice Williamson, such
that it may be said that the Judgment was unconsidered, a nisi prius judgment
given without any real opportunity to fully consider binding authorities and
relevant provisions of the Rules of Court. It would seem that His
Lordship attempted to accommodate Counsel and was left to do the best he could
on the basis of minimal information in crucial areas which would have assisted
him. It is a situation which is not unheard of today by busy Judges in
Chambers.

I accept this characterization of Benekritis.

[62]        
I also accept as correct the manner in which Hood J. distinguished Davies J.’s
decision in Allen-Trenholme. He saw the dispute in that case as “not
really a question of jurisdiction, rather it was more likely a question of the
mechanics or method of production” – specifically, whether the authorization
order should be made unconditionally or made to contain the Halliday stipulations
(at para. 47, see also para. 49). Davies J. did in fact suggest,
at para. 17, that he “would not have ordered the production of documents
obtained by way of the authorization except by way of production in first
instance to counsel for the plaintiff (as with a Halliday order …
[citation omitted]), in order to appropriately address any issues of
irrelevancy, confidentiality and privacy that might arise”.

[63]        
Moreover, in questioning Davies J.’s reliance on Benekritis,
Hood J. observed at para. 43 that:

… it would appear that Mr. Justice
Davies did not analyze Mr. Justice Williamson’s decision in Benekritis
to any extent, but simply found that he was bound to follow Benekritis;
probably as a result of the brevity of the submissions before him, and the
failure of counsel to refer him to contrary authorities to which His Lordship
makes no reference.

He reached, at para. 101, the
conclusion reproduced below:

While the ultimate decision is
left to the Court of Appeal, at this point I prefer to follow binding
authorities and applicable Rules of Court, which lead me to the
conclusion that Allen-Trenholme should not be considered by analogy, as
authority for the proposition that a Supreme Court judge, and therefore a
Master, does not have jurisdiction to compel a plaintiff to sign authorizations
directed to record holders residing within the Province, or that the same
conclusion should be reached without considering Allen-Trenholme.

[64]        
Further in his reasons in Lewis, Hood J. considered Sunnar,
including the concern expressed in that case by Allan J., to which I
referred to earlier.

[65]        
He then considered Saunders. In that case, Sinclair Prowse J.
dealt with an application for production of medical, employment, UIC
(presumably, the Unemployment Insurance Commission) and financial records held
by third parties residing outside British Columbia. The non-resident plaintiff had
claimed damages in compensation of allegedly extensive injuries she sustained
in a motor vehicle collision that occurred in British Columbia. With respect to
the applicability of R. 26(11), she stated at para. 4 that:

Although there is no dispute that
these documents are at least prima facie relevant to this action, as
these third parties do reside outside the jurisdiction of this court, an
application for production of these documents under Rule 26(11) is not
available to the defendant (United Services Funds (Trustee of) v.
Richardson Greenshields of Can. Ltd. (1987), 18 B.C.L.R. (2d) 360
(S.C.)).

In light of the foreign status of the record-holders, the
defendant sought an order that the plaintiff comply with his request, made
during examination for discovery, for production of the sought-after records
(pursuant to R. 27(20)) and an order that she provide answers to
outstanding questions from her examination for discovery. Only the former is
relevant here.

[66]        
At the time, R. 27(20) provided that a person to be examined for
discovery is required to produce for inspection on the examination “all
documents in his or her possession or power, not privileged, relating to the
matters in question in the action”. The word “power” in R. 27(20) has
since been replaced with the word “control”. On the application for production
under R. 27(20), Sinclair Prowse J. reasoned as
follows:

9          Given that the plaintiff has a recognized interest
and therefore a right to inspect and copy of her medical records (McInerney
v. MacDonald (1992), 93 D.L.R.(4th) 415 (S.C.C.)), in my view by analogy
she also has an interest and a right to inspect the other documents requested.
Therefore the requested documents can be characterized as documents which are
in the possession of third parties but to which the plaintiff has a right of
access.

…

14        Given the fact that the legislators used the term
"power" rather than the term "control" and that other
Canadian jurisdictions have interpreted the term power as including documents
in the possession of a third party, I have concluded that the term
"power" as used in Rule 27(20) does extend to documents that are in
the possession of a third party but to which the party (to whom the request is
being [made]) has access.

15        In my view, this conclusion is in keeping with the
object of the Rules as set out [in] Rule 1(5) – namely, "to secure the
just, speedy and inexpensive determination of every proceeding on its
merits". If this case is any example, to interpret "power" more
broadly than "control" is more likely to secure a just determination
of the proceeding. Moreover, this conclusion is in keeping with the manner in
which the Rules are to be applied – namely, "Rules of Court are the
servants and not the masters of the Court, whose faculty it is to interpret
those Rules in the manner most likely to do justice between the parties" (Fenchurch
v. Export Corporation v. Sitka Spruce Lumber Company Ltd., [1947] 1 W.W.R.
182 (B.C.C.A.)).

16        However, if I am wrong
in this interpretation of this term I draw on my inherent jurisdiction and
order that the plaintiff produce the documents requested. In my view, in the
circumstances of this case, this order is necessary to ensure justice between
the parties. It [is] only because the third parties are in another jurisdiction
that the defendant does not have a right to apply pursuant to Rule 26(11) for
this documentation.

For these reasons, among others, Sinclair Prowse J.
ordered the plaintiff to produce the documents requested by the defendant (at para. 19).

[67]        
Hood J. observed, at para. 35, that Sinclair
Prowse J.’s interpretation of the word “power” is correct and that she did
not have to resort to her inherent jurisdiction. He held, and I agree, that
notwithstanding the amendment to R. 27(20), Saunders remains an
instructive authority with regards to the use of the word “power” in R. 26(1.1).

[68]        
Holding that the master did not exceed his jurisdiction when he issued
the impugned order and that it had not been shown that he was clearly wrong in
any respect in doing so, Hood J. upheld Master Keighley’s order (at para. 106).
The master, he stated at paras. 111 and 115, was permitted by the Rules
of Court, namely, R. 1(12) and R. 26(10), to make the impugned
order requiring the plaintiff to authorize production by third parties residing
in the province. He further concluded, at para. 104, that “the Court has
jurisdiction to compel a plaintiff to sign authorizations pertaining to
documents in the possession of record holders, both within and without the
Province”. At para. 105, he stated the following:

I prefer
the weight of other authorities, and the provisions of the Rules of Court,
including Rule 26(1.1) which have persuaded me that the Court has jurisdiction
to grant an order compelling a plaintiff to sign an authorization pertaining to
the production of documents held by a record holder outside the
Province. In addition to the authorities I have referred to I would add Sunnar
and Saunders, as in my opinion they support this position. They say that
the Court has jurisdiction to order a plaintiff to produce documents in the
possession of a record holder who resides outside the Province where the
documents are within the power of that plaintiff. That being the case, I
fail to see why the Court would not have jurisdiction to order the same
plaintiff to produce the same documents using alternative mechanics or means of
production, such as by signing authorizations directed to the out-of-Province
record holder. For one reason or another, such means may not be the preferred
means in a given case, but the jurisdiction is there.

2.       The Respondent’s/Plaintiff’s
Cases

[69]        
In Peel, a judge of the B.C. Supreme Court made an order adding a
corporation and an individual to the claim and compelling all parties to
consent to an order in the Court of Appeal proceeding. The first two grounds of
appeal (there were three in total) were (1) that a Supreme Court judge has no
power to compel consent to be given, and (2) that a Supreme Court judge has no
jurisdiction to make orders with respect to matters that are the subject of
proceedings in the Court of Appeal. Finch C.J.B.C. allowed the defendants’
appeal on both grounds.

[70]        
With respect to the first ground, the Chief Justice cited at para. 15
Rafferty v. Power, [1993] B.C.J. No. 173 (QL), 1993 CarswellBC 640
(S.C. Chambers) [Rafferty cited to CarswellBC], for the principle
that “a consent given pursuant to an order to do so would be no consent at all”,
or, as he alternatively put it at para. 17, “a consent given pursuant
to an order is a contradiction in terms”. He further held at para. 16 that
a litigant could not be compelled to provide consent merely because consent was
necessary, and that a court does not have the power to make such an order.

[71]        
In my view, what has been taken away from Peel is the proposition
that a Supreme Court judge has no power to compel a litigant to give consent.
In my view, that proposition requires qualification. It seems that a somewhat over-broad
conclusion has been taken.

[72]        
I emphasize three important distinctions between Peel and the
case at bar. First, Peel is contextually very different: Peel had
to do with a consent order, which sought to require the Registrar of the Court
of Appeal to draw down a letter of credit and pay out more than $9.6 million to
the Registrar of the Supreme Court. Certainly, the issue of consent did not
arise in circumstances similar to those at bar. Second, Peel involved a
jurisdictional issue between two levels of court. The second successful ground
of appeal was that a Supreme Court judge has no jurisdiction to make orders
affecting proceedings in the Court of Appeal. Third, the Chief Justice found,
at para. 16, that means other than a consent order may have been available
that would allow for a drawing down of the letter of credit. In short, the facts
upon which his decision was made are unlike those at bar.

[73]        
Notwithstanding what I see as the limited applicability of Peel to
the present case for the above enumerated distinctions, I accept as a general
proposition that consent cannot be forced: it defies the very definition of a
‘consent order’ to require a litigant to endorse something he or she does not
wish to agree to. Where there is a right of choice, such an order will not
result in the voluntary giving of true consent. However, the Rules of Court
pertaining to discovery leave little, if any, room for considerations of
consent. It is a foundational principle that the litigating parties are
lawfully obligated to effect full and complete disclosure and the court has the
discretion to make orders directing a substantive process to occur.

[74]        
In the civil litigation context, litigants do not have the right to
effectively obstruct production. Recall that under the former Rules, if
relevant documents are in a litigant’s possession or control, and I add, or
power, he or she must, on demand by the opposing litigant or on order of
the court, list and produce them, barring claims of relevance, privilege,
privacy or confidentiality (none of which, I reiterate, were made here). In
this respect, consent is not part of the analysis on such applications because
a party to an action or proceeding does not have the right to withhold the necessary
disclosure of records.

[75]        
Moreover, I note that in the civil litigation context, compliance with
court orders is taken seriously: a person who fails to comply with an order of
a court of competent jurisdiction may be subject to contempt proceedings and,
where contempt is found, subject to penalties.

[76]        
In his reasons in Peel, Finch C.J.B.C. referenced Rafferty,
a damages claim arising from a motor vehicle collision, which dealt with
the issue of consent in the context of two competing statutes. There, the
defendants had applied pursuant to the Rules of Court for production of
the plaintiff’s records that were in the possession of the Unemployment
Insurance Commission. The Minister responsible advised that the records would
be released only if the plaintiff consented. The Minister took this position
because s. 96 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1,
stated that the Commission cannot be compelled to produce records or other
documents unless the Minister deems it advisable. In the circumstances, the
Minister deemed it advisable to obtain the plaintiff’s consent because s. 8(1)
of the federal Privacy Act, R.S.C. 1985, c. P-21, prohibits
disclosure of personal information under government control without consent of
the individual to whom it relates.

[77]        
The plaintiff refused to consent, so the defendants sought an order
compelling her to execute an authorization. The defendants relied on s. 8(2)(c)
of the Privacy Act, which provides an exception to the
general prohibition under s. 8(1) if disclosure is “for the purpose of
complying with … [an] order made by a court, person or body with jurisdiction
to compel the production of information or for the purpose of complying with rules
of court relating to the production of information.” Master Brandreth-Gibbs
held at para. 4 that s. 8(2) of the Privacy Act, the opening
words of which read “Subject to any other Act of Parliament”, does not defeat s. 96
of the Unemployment Insurance Act. She ruled, at para. 6, that the
application failed on grounds that the Minister required the plaintiff’s
consent, defined at para. 8 as “a voluntary act of will”, which the
defendants have not been able to obtain.

[78]        
Though noting that “this [C]ourt cannot cause a person to consent”, she went
on to describe, at para. 8, a few examples where courts regularly dispose
of the need to obtain consent:

In some
matters, the court has jurisdiction to dispense with a person’s consent. For
example, the court can dispense with the consent of a natural parent to the
adoption of his or her child under certain circumstances. Additionally, the
court has jurisdiction in appropriate circumstances to order a party to perform
an act against their will, such as pay money, produce a document, vacate
premises, execute authorizations, etc., etc. An example is the transfer of real
property in matrimonial causes. Typically the order specifies that one spouse
shall transfer certain property to the other spouse and, if necessary, that the
court or its officer shall execute the documents of transfer in place and stead
of the obstinate spouse.

[79]        
In my opinion, these situations are analogous to the one before me. As I
have said, consent is not part of the analysis where there is no right of
choice. Thus, consent is not a prerequisite to granting the Olsons’
application.

[80]        
Taking into account the relevant general principles of statutory
construction, the master ruled that:

To order the plaintiff to execute
a document styled ‘consent’ (when it cannot be so if not voluntarily done) for
the purpose of accessing the personal information, notwithstanding the
prohibition in the Unemployment Insurance Act and requirements of the Privacy
Act, would be to choose an interpretation which would nullify Parliament’s
legislative intention. (at para. 26)

In effect, the ratio decidendi of Rafferty is
that courts have no jurisdiction to qualify Parliament’s prohibition of
disclosure of particular classes of information, even for the purpose of
balancing the public interest in the due administration of justice.

[81]        
Rafferty is distinguishable from the case before me. Here, there
is no competing statute at odds with the Rules of Court and thus I am
not obliged to weigh the requirement and need for full and complete disclosure
against any privacy or other interests created by the legislature and/or
Parliament. Indeed, the relevant statute, the Rules of Court, generally
mandates the obligation of a litigant to disclose.

[82]        
Master Brandreth-Gibbs also distinguished between the meanings of
consent on one hand and authorize or authorization on the other. She defined
the latter at para. 9 as “to delegate a power or responsibility” and
concluded that “One can be forced to delegate”; whereas “Consent cannot be
forced”. At the risk of falling into the trap of semantics, I use consent and
authorize interchangeably because I am of the view that authorize, assuming it
means delegate, involves an element of consent. I do not share the master’s conclusion
as to the difference between the two terms. To delegate, a person must permit
another to engage in some action by giving some sort of approval, agreement or
acquiescence.

[83]        
In Stead, the plaintiff alleged a number of injuries as a result
of a motor vehicle collision. Prior to the accident at issue, she had been
involved in three other collisions and had fallen down a flight of stairs. The
defendant brought an application to require the plaintiff to execute consent
forms for production of medical records in the possession of third parties
(namely, doctors and hospitals) residing in British Columbia. Hinkson J.
declined, at para. 25, to follow Lewis on the basis that the
decision in that case would have been different had Hood J. considered Peel.
He cited the second ground in Re: Hansard Spruce Mills, in support of
his decision to depart from Lewis. At para. 27, he stated as
follows:

I recognize
the convenience and cost saving that might otherwise be realized by the Halliday
form of order and question why a party would insist upon the requirement that
application for third party records be made under Rule 26(11) when the
relevance of the records requested is not in issue but I am bound by the
decision in the Court of Appeal in Peel Financial Holdings Ltd. and thus
I must dismiss the balance of the present application.

Thus, while questioning the wisdom in allowing a litigant to
insist that a request for intra-provincial third party records must be made
under R. 26(11) given the expediency of a Halliday order and given
that relevance was not in issue, Hinkson J. felt bound by Peel. He
accordingly concluded at para. 26 that the plaintiff could not be ordered
to execute authorizations for release of records in the possession of third parties
located in the province.

[84]        
For the reasons I mentioned above, the Court of Appeal’s concern in Peel
with respect to consent is, in my view, not applicable to the circumstances
which led to the bringing of the application in this case. With the greatest of
respect, I, therefore, decline to apply the reasoning in Stead to
the case at bar.

[85]        
I reviewed Benekritis and Allen-Trenholme in the previous
section. As I have said, the basis upon which Hood J. distinguished both
cases is, in my view, persuasive.

[86]        
In Desjardins v. Huser, 2010 BCSC 977, [2010] B.C.J. No. 1391
(QL) [cited to BCSC], a damages claim arising from a motor vehicle collision,
I.C.B.C. (as a third party to the proceedings) applied for an order that the
plaintiff sign authorizations for the release of her medical records in the
possession of third parties residing outside British Columbia. The plaintiff did
not suggest that the documents being sought were irrelevant or privileged; her
position was that the court had no jurisdiction to grant the application. Joyce J.
concluded, at para. 35, that the plaintiff cannot be compelled to execute
the authorizations. He reviewed a number of cases, including Allen‑Trenholme,
Peel and Stead, and was persuaded by the Court of Appeal’s
ruling in Peel.

[87]        
At para. 33, he rejected I.C.B.C.’s argument that Hinkson J.
in Stead erred in refusing to follow Lewis because Peel (the
decision Hinkson J. relied on) is distinguishable in that it dealt with
the requirement to sign a consent order (a distinguishing ground to which I
adverted in my review of Peel). Joyce J. found that to be “a
distinction without a difference”, given Finch C.J.A.’s dicta at para. 17
of Peel that “a consent given pursuant to an order is a contradiction in
terms”.

[88]        
Even if I were to accept that the consent order sought in Peel and
the kind of order sought in the case at bar are indistinguishable (which I do
not), I remain of the opinion that when making orders in the context of the
pre-trial document discovery process, consent with respect to production of
relevant non-privileged records cannot be a factor in the court’s analysis and
decision.

[89]        
In the Desjardins case, I.C.B.C. filed further written
submissions seeking to amend its notice of motion nunc pro tunc to
include a claim that if the plaintiff cannot be compelled to sign an
authorization, the records could be obtained by an order under R. 26(1.1).
Joyce J. provided a succinct overview of the relevant former and current Rules,
but ultimately held at para. 39 that “it would not be fair or appropriate
for this [C]ourt to amend the notice of motion as sought by the third party and
make an order without giving the plaintiff the opportunity to argue the matter.”
However, he left open the opportunity for I.C.B.C. to bring a fresh application
under the current Rules, specifically R. 7-1(14).

[90]        
Finally, in Kobzos, the issue concerned whether the motor vehicle
collision had caused the plaintiff’s closed head injury and thus possible brain
damage or whether her alleged use of narcotics had induced a brain disorder.
The defendant applied under R. 30 of the former Rules for an order
that the plaintiff execute a patient declaration and consent to a medical
examination as required by the physician whom the defendant had chosen (a Dr. Baker).
The plaintiff did not object to the examination, but objected to the scope of
the declaration. No further details were given in the written reasons as to the
plaintiff’s objection; specifically, there were no further explanations
regarding what the impugned declaration required of its signatories. Relying on
Rafferty and Peel, Lander J. found, at paras. 14 and
19, that he could not compel the plaintiff to sign the authorization and
consent on the terms as stipulated by the defendant’s chosen doctor.

[91]        
Being of the opinion that the medical examination requested by the
defendant was warranted, he stated at para. 16:

The only way that I can see the
defendant entering onto a level playing field during the course of this
imminent trial is to obtain the services of a physician who does not demand the
authorization and consent such as Dr. Baker.

[92]        
This recommendation may be the type of alternative means to consent
Finch C.J.B.C. seemed to contemplate in Peel. Where there are other
less intrusive methods in reaching a desired outcome without the need to compel
consent, it may be reasonable to expect the requesting litigant to pursue them
first. But, where no alternatives are available (as in the case at bar), then
Lander J.’s recommendation may lead to a result that is contrary to the Rules
of Court and the principle that parties are entitled to full and complete
disclosure. Here, because the plaintiff opposes the application, the only route
available to the defendants to discover the requested records is through a
court order requiring authorization of third party production.

V.       CONCLUSION & ORDER

[93]        
In British Columbia, relevant non-privileged documents are compellable
in a civil action. Full and complete disclosure between or among litigants
prior to trial is essential to the truth-seeking function of the litigation
process and proper administration of justice.

[94]        
This Court has the authority under the former Rules to compel
production and to specify the mechanics of its production orders. Rule 26(1.1)
permits the court to order a litigant to list documents in his or her power, which
may include those held by foreign non-parties. Rule 26(10) empowers the court
to order a litigant to produce a document for inspection and copying in the
manner it thinks just. Furthermore, R. 1(12) grants the court wide
discretionary powers, in the making of orders, to impose terms and conditions
and give directions as its thinks just. Read collectively, a master or judge of
this Court has the jurisdiction to create the mechanisms by which relevant
non-privileged documents in a litigant’s “power” will be produced, including
the jurisdiction to order him or her to execute the necessary documentation allowing
a record-holder, whether residing in or outside British Columbia, to effect the
release of those documents.

[95]        
In my view, the following excerpt from para. 110 of Hood J.’s
reasons in Lewis is apt:

There is also no doubt that the
Court has substantive jurisdiction or power pertaining to the discovery and
inspection of documents under Rule 26, particularly the compelling or ordering
of production of documents. … In my opinion, the manner in which production
is achieved is for the Court. The Court’s substantive jurisdiction or power to
compel the production of documents includes the jurisdiction or power to create
the mechanisms or the means by which production is made.

[96]        
As expressed in the jurisprudence, there are, no doubt, potentially unwieldy
implications of a court order compelling authorization of third party production.
Given these concerns, such orders should not be granted lightly. In this
respect, L. Smith J. in McKay v. Passmore, 2005 BCSC 570, [2005]
B.C.J. No. 1232 (QL), offers worthwhile guidance. That was a personal
injury case arising from a motor vehicle collision. An application was brought
for an order that the plaintiff execute an authorization allowing the
defendants to obtain records held by the Manitoba Workers Compensation Board. Her
Ladyship held, at para. 36, that while the court has jurisdiction to grant
such an application, there was insufficient basis on the evidence to do so. She
concluded, at para. 40, that the circumstances of the case before her did
not warrant the order sought in light of the R. 26(11) criteria provided by
the Court of Appeal in Dufault, which she outlined at para. 38:

1.         The
applicant must satisfy the court that the application is not in the nature of a
"fishing expedition."

2.         He or
she must show that a person who is not a party to the action has a document or
documents in his or her possession that contains information which may relate
to a matter in issue.

3.         If the applicant satisfies
those criteria, the court should make the order unless there is a compelling
reason not to make it (i.e. because a document is privileged or because grounds
exist for refusing the application in the interests of persons not parties to
the action who might be affected adversely by an order for production and the
adverse affect would outweigh the probative value of the document.)

[97]        
Obviously these criteria, among other relevant factors, ought to be
considered by a court considering an application for an order compelling a litigant
to authorize production of documents held by a third party whether located
within or outside British Columbia.

[98]        
For two examples as to how the McKay/Dufault criteria may
apply, see Distinctive Photowork Co. v. Prudential Assurance Co. of England
Property and Casualty (Canada) (1994), 98 B.C.L.R. (2d) 316, [1994] B.C.J. No. 3231
(QL) (S.C. Chambers); and Tetz v. Niering, [1996] B.C.J. No. 2019
(QL), 1996 CarswellBC 1887 (S.C. Chambers).

[99]        
These cases, although they raise slightly different issues, do not detract
from, but rather inform, the basic proposition that where a litigant is under an
obligation to make disclosure of documents, then that obligation must be
honoured. Where such documents are in the hands of third parties, the usual format
will entail the litigant voluntarily agreeing to provide a document authorizing
the record holder to release the material, and that will resolve the matter. However,
in other cases, where consent is refused, litigants are entitled to seek relief
and the court has jurisdiction to enforce the disclosure obligation,
specifically by making an order whereby the party whose records are being
sought will “consent” to their release. While the wording is unfortunate and
has engendered a regrettable state of controversy, the underlying concept is,
in my view, straightforward.

[100]     The Olsons
have a legitimate interest in obtaining the requested records and I am
satisfied that their application is not in the nature of a fishing expedition. I
also find that the third parties named by the defendants in their application possess
the requested records which relate to a matter or matters in this case. By way
of obiter dicta, I note that the common law test for relevance
under the former Rules is broader than what seems to be provided by the
wording of the current Rules. There are, furthermore, no compelling
reasons why the order sought should not be made.

[101]    
Accordingly, I order the respondent/plaintiff, Mr. Nikolic, to
provide signed authorizations allowing the applicants/defendants, Josiah Olson
and Joel Olson, to obtain from the third parties named the records listed in clauses
(c), (d), (e) and (f) of the proposed order reproduced at para. 3 of these
reasons.

“The Honourable Mr. Justice Williams”