IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110315

Docket: 08 3690

Registry:
Victoria

Between:

Alexander Paul
Zecher

Plaintiff

And:

Ranjeeve Josh and
Jit Josh

Defendants

Before:
Master Bouck

Reasons for Judgment

Introduction

[1]          
This is a personal injury action commenced under former Rule 68.
Liability, quantum and causation are in dispute.

[2]          
The defendants’ notice of application seeks an order that the plaintiff and
third parties produce documents and other information ranging from medical records
to particulars of a wage loss claim.

[3]          
The third parties take no position on the application, except as to the
form of any order.

[4]          
The plaintiff agrees to produce the majority of information sought, but
resists three specific requests. At the conclusion of submissions, I dismissed
the defendants’ application with respect to two of the requests while reserving
judgment on the third request. These reasons provide an analysis of my ruling
on all three requests.

Background

[5]          
The plaintiff is a 31 year old man who allegedly suffered injuries in a
March 18, 2008 motor vehicle accident. The injuries pled in the statement
of claim are as follows:

(a)  Shock;

(b)  Injury to neck;

(c)  Injury to back;

(d)  Injury to left shoulder;

(e)  Injury to collar bone;

(f)  Injury to right knee;

(g)  Severe headaches;

(h)  Memory loss;

(i)  Tingling and numbness in left arm;

(j)  Injury to left anteriolateral chest wall;

(k)  Post traumatic stress disorder;

(l)  Insomnia;

(m)  Further particulars of
injuries yet to be determined.

[6]          
At the time of the accident, the plaintiff worked as a bartender in the Victoria
area. In September 2008, Mr. Zecher commenced training to become a helicopter
pilot. A line of credit (the “Student Line of Credit”) was taken out by Mr.
Zecher to finance this training. In or about July 2009, the plaintiff dropped
out of the pilot training program, apparently due to health problems related to
the accident. He has not been employed since that time.

[7]          
With respect to damages, the plaintiff claims the following:

(a)  Pain and suffering;

(b)  Loss of amenities of life;

(c)  Loss of wages, both past and future;

(d)  Loss of savings and interest from savings;

(e)  Future cost of medical treatment;

(f)  Loss of earning capacity;

(g)  Interruption to or impairment of educations, both present
and future;

(h)  Future cost of care;

(i)  Special damages.

[8]          
The plaintiff has been seen by a physiatrist, pain management specialist
and clinical counsellor.

[9]          
Mr. Zecher was examined for discovery on March 24, 2010. Defence
counsel’s legal assistant deposes that “the plaintiff undertook to provide
certain documentation and information at his said Examination for Discovery”.
Exhibited to that affidavit are four letters from Mr. Casey to plaintiff’s
counsel listing the requests for that information and documentation. Also
exhibited to this affidavit are excerpts from the examination for discovery
transcript. Nowhere in those excerpts does the plaintiff agree or undertake to
provide the disputed information.

[10]       
The plaintiff’s affidavit material addresses the efforts made to comply
with the requests for some of the information and documentation listed in the
application.

[11]       
The plaintiff’s response states that no undertakings were given at the
examination for discovery. But in any event, the plaintiff has largely complied
with the requests contained in Mr. Casey’s letters.

[12]       
The requests outstanding from the defendants’ perspective are as
follows:

·        
monthly statements from the plaintiff’s Student Line of Credit
account regarding the costs of his helicopter training;

·        
particulars and a calculation of any past wage loss claim from
March 18, 2008 to September 1, 2008, and from September 1, 2009 to date;

·        
a certified copy of the complete PharmaNet records of the plaintiff
from January 1, 2003 (five years pre-accident) to date.

Plaintiff’s Position

[13]       
The plaintiff says that particulars of the wage loss claim have been
provided through the evidence that supports the claim. The response further
states that all receipts for payments made to the helicopter training school
have been disclosed. Thus, ordering production of the School Line of Credit
records would be redundant.

[14]       
The response states that the PharmaNet records need not be produced as 
those records could not be used to prove or disprove a material fact as that concept
is discussed in Biehl v. Strang 2010 BCSC 1391. Nor do the records assist
the defendants in proving or disproving such a fact. This same argument applies
with respect to production of the School Line of Credit records.

[15]       
In addition, the plaintiff submits that the production of the PharmaNet records
is contrary to the principle of proportionality. The defendants have copies of
the clinical records from the plaintiff’s treating physicians and any
recommendation for medications is contained in those records. Producing the
PharmaNet records would merely add an unnecessary expense to the litigation.

The Notice of Application

[16]       
The relevant portions of the defendants’ notice of application state as
follows:

Part 1:  ORDER SOUGHT

1. Within seven (7) days of receipt of a copy of this Order,
the Plaintiff shall provide to the Defendants the information and documentation
requested from his Examination for Discovery held on March 24, 2010 as follows:

…

(c)  monthly statements from the
Plaintiff’s Student Line of Credit account regarding the costs of his
helicopter training;

…

(g)  particulars and a calculation
of any past wage loss claim from March 18, 2008 to September 1, 2008 and from
September 1, 2009 to date;

…

2. Within seven (7) days of receipt of a copy of this Order, College
of Pharmacists of British Columbia shall prepare and deliver to the solicitor
for the said Defendants, one certified copy of the complete PharmaNet records
of the Plaintiff from January 1, 2003 to date.

Part 2:  FACTUAL BASIS

1. The Plaintiff suffered injuries in a motor vehicle
accident on March 18, 2008.

2. An Examination for Discovery of the Plaintiff was
conducted on March 24, 2010.

3. The Plaintiff undertook to provide various documentation
and information at his said Examination for Discovery.

4. To date, the Plaintiff has failed or neglected to provide
the documentation and information set out above.

Part 3:  LEGAL BASIS

1. Supreme Court Civil Rules 7-1, 7-2, 8-1 and 14-1.

Part 4:  MATERIAL TO BE RELIED ON

1. Affidavit of [K.F.] #2 sworn June 22, 2010 (and filed June
30, 2010)

2  Affidavit of [K.F.] #4 sworn
February 10, 2011.

Analysis

A. Particulars and calculation of the
wage loss claim

[17]       
I have set out the notice of application above to help explain the basis
for dismissing that part of the application relating to wage loss particulars.

[18]       
The legal basis cited in the notice of application is of little
assistance to the defendants (or the court for that matter).

[19]       
Rule 7-1 of the Supreme Court Civil Rules (the “SCCR”)
deals with discovery and inspection of documents. Rule 7-2 deals
with examinations for discovery. Rule 8-1 addresses applications, while Rule
14-1 deals with costs.

[20]       
The request for particulars is broadly worded. The court is unable to
determine from the evidence or argument what those particulars might be. It is
assumed that the defendants are not seeking particulars under Rule 3-7
as that authority was neither cited in the application nor argued in chambers.

[21]       
What the defendants are actually seeking is an assessment of the
plaintiff’s wage loss claim.

[22]       
During submissions, I asked defence counsel whether the SCCR or
any other authority supports an order that the plaintiff provide a calculation
or assessment of the wage loss claim in advance of trial. The answer given was
to the effect that such orders have been given in the past.

[23]       
Neither that answer nor the authorities cited create a legal basis
justifying the order sought.

[24]       
Rules 7-2 (18) and (22) through (24) provide as follows:

7-2 (18) Unless the court otherwise orders, a person being
examined for discovery

(a) must answer any question within
his or her knowledge or means of knowledge regarding any matter, not
privileged, relating to a matter in question in the action, and

(b) is compellable to give the
names and addresses of all persons who reasonably might be expected to have
knowledge relating to any matter in question in the action.

…

(22) In order to comply with subrule (18) or (19), a person
being examined for discovery may be required to inform himself or herself and
the examination may be adjourned for that purpose.

(23) If a person is required to inform himself or herself
under subrule (22) in order to respond to one or more questions posed on the
examination for discovery, the examining party may request the person to
provide the responses by letter.

(24) If the examining party receives a letter under subrule
(23),

(a) the questions set out in the
letter and the answers given in response to those questions are deemed for all
purposes to be questions asked and answers given under oath in the examination
for discovery, and

(b) the examining party may, subject to subrule (2),
continue the examination for discovery.

[25]       
These Rules were not referred to by defence counsel. Under these Rules,
the plaintiff might be obliged to provide information (as opposed to an
assessment) on the wage loss claim. However, as noted, there is no evidence
that the plaintiff was asked at the examination for discovery to inform himself
on the wage loss particulars. Nor do any of the letters sent by defence counsel
include any questions to be answered.

[26]       
I make mention of these Rules primarily to illustrate the
deficiencies in the material filed in support of the application.

[27]       
The importance of properly framing an application was addressed by
Master Baker in Sutherland v. Banman, 2008 BCSC 1194:

[8]        Properly expressing the relief sought and the
authority for it is no trifling thing; to misstate the authority for the relief
can mislead the other party and can, therefore, result in refusal of the relief
expressly sought by the motion. The law has allowed some latitude in the
expression of the authority for the relief sought in a motion. In Braunizer v.
Canadian Pacific Ltd. At par. 7 the court said

I am of the view, and so hold, that
it goes without saying that the term "shall specify any rule or other
enactment relied upon" is directory and not mandatory. It follows,
therefore, that the real test as to the validity of this interlocutory Notice
of Motion is does it give the legal entities to whom it is directed reasonable
notice of the application against them and what is being sought in that
application.

In Borsato v. Basra, however,
while approving of this statement of the law, the court found that it is
possible, by basing a decision on authority not referenced in the notice of
motion, to deprive a party of his or her right to be heard, by depriving that
party of true notice of the application.

[28]       
The court may, of course, conduct its own research to ensure that the
proper legal principles are considered on this application. However, in this
case, to make an order based on the authorities found in that research would be
unfair to at least one if not both parties. The parties should be given an
opportunity to argue the applicability, or lack thereof, of these authorities. Moreover,
it is one thing for the court to go beyond the authorities cited in the notice
of application but quite another to essentially make the defendants’ case by
filling in gaps or omissions in the material presented.

[29]       
The defendants’ application for production of wage loss particulars and
a calculation of any wage loss claim was dismissed due to the inadequacy of the
material and argument presented. Both the factual and legal basis for the
application are wanting.

[30]       
 Form 32 of the SCCR lends itself to providing both the opposing
party and the court with full disclosure of the argument to be made in
chambers. Parties should put in as much thought to the necessary content of that
Form as is done when preparing the supporting affidavits. When a party is
represented, responsibility for that content lies with counsel.

[31]       
No doubt the Lieutenant Governor-in-Council intended Part 3 of Form
32 to contain more than a cursory listing of the Rules that might
support the particular application. For example, common law authorities can and
should be included as well as a brief legal analysis. Such an analysis is
particularly helpful given that parties are not able to present a separate
written argument in civil chambers unless the application is scheduled to take two
hours or more of court time.

[32]       
In my experience and observation, a comprehensive legal analysis can
easily be included in a 10-page notice of application. As well, Rule 8-1
(4) allows the parties to include a list of authorities in the application
record.

[33]       
By providing an effective analysis of the legal basis for (or against)
making the order, the parties may well be able to resolve the application
without attending court.

[34]       
As an aside, I should note that the sparse content of this particular
notice of application is unfortunately not unique; many such inadequate notices
have been presented in chambers. As well, this particular document is not
reflective of the generally good quality of work emanating from the office of
defence counsel.

[35]       
On a positive note, the response prepared by the plaintiff’s counsel is
commendable for its content and represents the standard expected by the court.

[36]       
While the defendants’ application for this particular relief was
dismissed, I will grant leave to pursue this same relief upon the filing a
second notice of application which sets out in greater particularity the
factual and legal basis for the relief sought, including reference to any
common law authorities. This leave is granted as the court should be cautious
in dismissing an application on what might be perceived as technical and
opposed to substantive grounds: Chapman v. Magee 2009 BCSC 2674.

[37]       
Before taking that step, however, the parties may wish to consider Mansoor
v. Majeed, 2008 BCSC 1347, and the other decisions cited therein.

B. PharmaNet Records

[38]       
The notice of application is similarly deficient in identifying the
basis for an order requiring production of these records.

[39]       
 In oral argument, defence counsel noted that the plaintiff has been
seen by a number of specialists and may have a history of mental health issues.
Thus, the defendants should be permitted to explore the plaintiff’s
pharmacological history.

[40]       
The defendant can only be relying on Rule 7-1 for the
relief sought as none of the other Rules cited have any application.

[41]       
Rule 7-1(1) provides as follows:

7-1 (1) Unless all parties of record consent or the court
otherwise orders, each party of record to an action must, within 35 days after
the end of the pleading period,

(a) prepare a list of documents in
Form 22 that lists

(i) all documents that are or have
been in the party’s possession or control and that could, if available, be used
by any party of record at trial to prove or disprove a material fact, and

(ii) all other documents to which
the party intends to refer at trial, and

(b) serve the list on all parties of record.

[42]       
Thus, a plaintiff is only obliged to disclose documents that could be
used by the defendants at trial to prove or disprove a material fact. If not
satisfied with disclosure, the defendants have a remedy under Rule 7-1(11)
before applying to the court under Rule 7-1(14).

[43]       
Although not specifically cited or argued, Rule 7-1(18) may have
application to the relief sought as the PharmaNet records are in the possession
and control of a third party. The defendants must still establish that such
documents will prove or disprove a material fact and are relevant.

[44]       
In Moukhine v. Collins, 2010 BCSC 621, the court considered an application
seeking production of pre-accident PharmNet records.

[45]       
One of the issues determined by the court in Moukhine is “whether
a mere allegation in a pleading that a plaintiff’s 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”: at para. 4.

[46]       
The court went on to rule that:

[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]      Plaintiff’s 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 plaintiff’s 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.

[47]       
As Harris J. observes, the court retains discretion not to order
production of such pre-accident records, depending on the circumstances of the
case: for example, see Gorse v. Straker, 2010 BCSC 119.

[48]       
In this case, I do not have the benefit of knowing whether the statement
of defence pleads a pre-existing condition or injury. It would be wrong for me
to go behind the application record to determine that fact. All that has been
said is that causation is in issue. That statement is not sufficient for me to
determine whether pre-accident pharmacological records are relevant.

[49]       
As for the evidence presented, none of the medical reports exhibited to
the affidavit material suggest any pre-existing condition or pharmacological
use that might be relevant to the plaintiff’s post-accident complaints.

[50]       
The defendants have failed to meet the threshold test of demonstrating
relevancy of the pre-accident PharmaNet records.

[51]       
The defendants did not address the plaintiff’s suggestion that the
PharmaNet records are redundant given other disclosure to date. As a matter of
proportionality, that issue would need to be satisfactorily addressed before
the court would consider granting an order sought.

[52]       
In addition, it should be noted that both Moukhine v. Collins and
Gorse v. Straker were decided before the introduction of the SCCR. At
the time of those decisions, the well-known Peruvian Guano test applied
to the production of documents. That test necessitated a much broader scope of
document production than what is required under Rule 7-1(1) or possibly Rule
7-1(18).

[53]       
The application for production of the PharmaNet records is dismissed.
Again, the dismissal is based largely, if not entirely, on the deficiencies in
the material presented. As with the preceding application, the defendants have
leave to pursue this relief in a second time upon preparing and filing a Form
32 which includes better particulars on the factual and legal basis for the
relief sought. It should go without saying that the issues raised by the
plaintiff in his response need to be addressed in this second notice.

C.School Line of Credit

[54]       
The plaintiff opposes the production of the School Line of Credit
records on the basis that those records neither prove nor disprove a material
fact “beyond what has already been disclosed through the employment records”.
It is submitted that the defendants are on a fishing expedition.

[55]       
In submissions, defence counsel indicated that the objective in
obtaining these records is to determine whether the plaintiff left pilot
training for financial as opposed to health reasons. In other words, the
defendants theorize that the plaintiff may have ended the training solely
because the line of credit was exhausted.

[56]       
The examination transcript excerpts do not disclose whether this theory
was put to the plaintiff.

[57]       
Based on the evidence presented, I agree with the plaintiff that the
defendants are embarking on a fishing expedition for evidence from which an
attack can be made on the plaintiff’s credibility. Such evidence will not be
ordered produced under Rule 7-1 as credibility is not a material fact: Roberts
v.Singh 2006 BCSC 906.

[58]       
The application for production of the Student Line of Credit records is
dismissed.

Order

[59]       
In summary, the application for production of documents or information
described in paras. 1(c), 1(g) and 2 of the defendants’ notice of application
is dismissed.

[60]       
The defendants have leave to pursue the relief sought in para. 1(g) and
2 by way of a second notice of application which sets out in better
particularity the factual and legal basis for the relief sought.

[61]       
Because the dismissal of this application is largely due to the
inadequacy of the material presented, I might be inclined to award the
plaintiff his costs in any event of the cause: Chapman v. Magee.
However, it would seem that the delivery of the application resulted in the plaintiff
providing some of the other information sought by the defendants. As well, the
plaintiff went on to provide certain information that was amongst those items disputed
in the response. Nonetheless, the application should not have proceeded to a hearing.
Accordingly, costs relating to item 21 of the tariff are awarded in the cause
while the plaintiff is awarded his costs for attendance at this hearing (item
22) in any event of the cause.

                  “C.
P. Bouck”         

Master
C. P. Bouck