IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110607

Docket: M102658

Registry:
Victoria

Between:

Lisa Hayley
Balderston

Plaintiff

And:

Christopher Scott
Aspin

Defendant

Before:
Master Bouck

Reasons for Judgment

Introduction

[1]            
The plaintiff claims to have suffered injuries as a result of motor vehicle
accident which occurred on September 17, 2008. The defendant denies liability
for the accident.

[2]            
The defence describes the accident as a low velocity collision. The
defence further alleges that at the time of the accident, the plaintiff was
suffering from a number of health issues which are the true source of the
purported injury or resulting disability. Those health issues might have been
caused by a 2001 motor vehicle accident which was the subject matter of a now
resolved claim. Alternatively, the health issues might have arisen independent
of any trauma.

[3]            
The action is set to proceed to trial in February 2012. Examinations for
discovery have yet to be conducted.

[4]            
In a notice of application filed April 5, 2011, the defendant seeks the
following relief:

1. The Plaintiff obtain a Medical Services
Plan printout, including diagnostic codes, from January 1, 2003 to the present
date, and deliver a copy to the Defendant within seven (7) days of receipt;

2. The Plaintiff obtain her complete records
in the hands of Service Canada, and particularly including any relating to
Employment Insurance, and deliver a copy to the Defendant within seven (7) days
of receipt;

3. The Plaintiff produce and deliver to the
Defendant, within seven (7) days of the delivery of this Older, a List of
Documents listing all records that are or have been in her power or control
relating to her 2001 motor vehicle accident;

4. The Plaintiff produce, execute and deliver
to the Defendant, within seven (7) days of the delivery of this Order, an
authorization permitting the Insurance Corporation of British Columbia to
search their files, then list and produce those records relating to the Plaintiffs
April 2001 motor vehicle accident in accordance with Rule 7-1(1); and

5. Costs to the
Defendant.

[5]            
The application was argued in conjunction with a similar application in Przybysz
v. Crowe, 2011 BCSC 731. The reasons for judgment issued in Przybysz
address the basic principles for document disclosure under the SCCR and
as such, have applicability to this case.

Facts

[6]            
The plaintiff is 30 years old. At the time of the accident, Ms. Balderston
was employed as a bookkeeper/receptionist with Keating Collision.

[7]            
According to her statement to ICBC, Ms. Balderston (nee Ash) might have
been in the course of her employment when the accident occurred. The statement
describes the circumstances of the accident and the injuries allegedly suffered
by the plaintiff. Ms. Balderston also states:

I have not had prior problems
with my neck, right shoulder, right wrist or upper back [the injuries allegedly
suffered in this accident]. I did hurt my right hip in a car accident about 8
years ago and never fully recovered. But, I have not had any symptoms as such,
for 6 months or so. I last had treatment on the hip a few years ago.

[8]            
The statement of claim issued June 18, 2010, includes a claim for
damages related to the right hip pain.

[9]            
The defence has pled the following:

(a)  The Plaintiff suffered from other medical conditions or
symptoms prior to this accident, including a prior motor vehicle accident of
significance, and has been followed by specialists since she was a teenager;

(b)  The Plaintiff has an extensive pre-accident medical
history, including low back pain, sciatica and sacroiliitis; and

(c)  The Plaintiff suffered
injuries subsequent to this accident.

[10]        
As part of her obligation under Rule 7-1(1) (a), the plaintiff
has disclosed various pre and post medical information, including the
following:

·      
records of Ms. Balderston’s family doctor for the period July 13,
2005 to October 17, 2008;

·      
Dr. Lynne MacKean’s clinical notes and records from October 26,
2005 to March 10, 2010 and Dr. MacKean’s report of March 10, 2010;

·      
Dr. Pierre Dill’s clinical notes and records covering the period
April 20, 2001 to July 15, 2005.

[11]        
In addition, the plaintiff has disclosed her record of employment for
the period of August 2007 to March 3, 2009 as well as employment insurance
records for the period of October 2008 to September 2009.

[12]        
The medical records appear to confirm the plaintiff’s medical history as
described in the defendant’s notice of application. Specifically, the plaintiff
suffered ill effects from the 2001 accident for at least two years and
complained of low back pain and right side sciatica pain up until 2005.

[13]        
The plaintiff was on and off work for several years as a result of
physical problems. In 2005 and 2006, the plaintiff collected both medical and
regular employment insurance benefits.

[14]        
The last medical record referred to by the defence was made in July 2007
wherein the plaintiff is prescribed Tylenol and codeine. The reasons for this
prescription are not disclosed.

[15]        
Because the accident occurred while the plaintiff was working, a report
to Worksafe BC was necessary. The plaintiff’s statement to Worksafe BC
was in turn disclosed to the defendant. In addition, the plaintiff executed a
broadly worded release allowing Worksafe BC to:

… view or obtain a copy of
records pertaining to my examination, treatment, history, and employment from
any source whatsoever including records of physicians.

[16]        
The plaintiff’s Worksafe BC claim was denied.

[17]        
The plaintiff apparently did not return to her bookkeeper/receptionist
job. In a Functional Capacity Work Evaluation obtained by the plaintiff in
September, 2010, it is recommended that Ms. Balderston not return to this type
of employment, even on a part-time basis.

[18]        
On November 3, 2010, defence counsel wrote to plaintiff’s counsel
requesting, among other things, the MSP and PharmaNet print-outs relating to
the plaintiff from November 1, 2003, to present. No justification is offered
for the request.

[19]        
The request for this additional information appears to have been made
prior to the delivery of the plaintiff’s list of documents. That list of
documents is dated November 22, 2010.

[20]        
In January 2011, plaintiff’s counsel responded that:

Please be advised that as of July
1, 2010, and the change in the Rules, I will no longer be providing MSP
printout. An MSP printout will not assist either party to prove or disprove a
material fact at trial and I cannot see how it would be admissible for trial
purposes.

[21]        
No further correspondence was exchanged (at least on that issue) and the
defence proceeded to set down this application.

[22]        
The plaintiff has not filed any affidavit material with respect to the
application. According to her Response, the plaintiff’s claim with respect to
the 2001 accident was settled after commencing an action but before trial. The
terms of the mediated settlement are said to be global in nature; the specific
terms are said to be privileged information.

[23]        
In that same Response, the plaintiff consents to production of the
examination for discovery transcript and pleadings filed in the 2001 action.
Ms. Balderston will also disclose any additional medical information with
respect to the 2001 action that comes within her power and control.

Discussion

[24]        
In Przybysz v. Crowe, the process for seeking and ordering
disclosure of documents under Rules 7-1(11) to (14) is discussed.
It was observed that a broader disclosure of documents might be ordered by the
court upon the parties following the process set out in those particular Rules.

[25]        
In Przybysz v. Crowe, counsel exchanged correspondence outlining
the respective bases for the request and denial of production prior to the
application for production being brought before the court. However, as was the
case here, a particular set of documents was never the subject matter of a
request under Rule 7-1(11) yet became a subject matter on the application.
Such an oversight was strongly discouraged but with the recognition that the
court should not necessarily reject an application on the basis of procedural oversight
or omission alone.

[26]        
Nonetheless, it is worth reiterating that the litigants who ignore the
processes under the SCCR risk the application being adjourned or even
dismissed: Sutherland v. Banman, 2008 BCSC 1194; Zecher v. Josh, 2011
BCSC 311.

[27]        
In this particular case, the defence believed that the request for the MSP
records was well justified given the plaintiff’s medical history and the
obvious issue of causation. The defence was also aware of Mr. Whitley’s blanket
policy not to obtain or disclose a plaintiff’s MSP records.

[28]        
The request for records from Service Canada (employment insurance) has
never been made in writing. Defence counsel says that the plaintiff’s answer to
the request for production would undoubtedly be “no”.

[29]        
The intent of Rule 7-1(11) is to inform the opposing party of the
basis for the broader disclosure request in sufficient particularity so that
there can be a reasoned answer to the request. The Rule allows the
parties to engage in debate or discussion and possibly resolve the issue before
embarking on an expensive chambers application. Whether this debate or
discussion was had verbally in this case is not clear on the record.

[30]        
Nor does it appear that any written request was made to the plaintiff to
list documents relating to the 2001 motor vehicle accident. Again, the Rules
appear to have been ignored as a matter of expediency.

[31]        
Nevertheless, the plaintiff did not seek an adjournment of the
application so that the process under Rules 7-1(10), (11) and (12) could
be followed. The parties proceeded on the basis that the plaintiff declined the
defence’s requests for additional document disclosure and/or the listing of those
additional documents. In this particular case, the objectives of the SCCR are
met by dealing with the merits of the application rather than rejecting the
application on procedural grounds.

MSP Print-out from January 1, 2003 to
present

[32]        
The plaintiff says that this record need not be obtained or produced for
several reasons, specifically:

(a)  the MSP print-outs do not
address a material fact and, in any event, are likely inadmissible as evidence
at trial; and

(b)  the record is a duplication of
the pre and post -accident medical history already disclosed by the plaintiff;
and

(c)  the decision of Master Baker
in Anderson v. Kauhane and Roome, Unreported (22 February 2011),
Vancouver M103201 (BCSC), is directly on point. The request for listing
and production of an MSP history was refused even though the plaintiff in that
case admitted to a previous injury similar to that suffered in the subject
accident.

[33]        
Furthermore, the plaintiff says that the defendant’s application is
premature. The plaintiff’s pre and post accident health will be explored at an
examination for discovery. The defendant should have brought this application
after that examination was concluded and relying on any evidence obtained at
the examination.

[34]        
The first point raised by the plaintiff has been addressed in Przybysz
v. Crowe.

[35]        
In a nutshell, it was determined that the circumstances of the case, as
disclosed in the evidence before the court, will determine whether an MSP
record should be listed and produced under Rule 7-1(14). There should be
no blanket rule that an MSP print-out is not producible simply because of the
introduction of the SCCR or the fact that examinations for discovery
have yet to be conducted.

[36]        
In this case, the plaintiff acknowledges that she “never fully
recovered” from the hip injury suffered in the 2001 accident. She had no symptoms
for six months prior to this accident. However, Ms. Balderston discussed the
right hip condition with her family doctor on a bi-annual basis. This
circumstance can be contrasted with the plaintiff in Anderson who
apparently “had not had any problems for several years”: para. 3. In this
respect, Anderson is not strictly on point.

[37]        
The most recent pre-accident medical evidence is the July 2007
prescription for Tylenol and codeine. The plaintiff has produced clinical
records from July 2007 to the date of the accident, including those of a
physiatrist. None of those records were before the court on this application.

[38]        
On the one hand, the defendant is not being asked to simply take the
plaintiff’s word on her pre-existing conditions and recovery. The plaintiff has
made disclosure of medical evidence that would allow the defendant to test the
veracity of any claim for full recovery of the right hip injury – or, indeed,
any other complaint that may be relevant to the issue of causation.

[39]        
On the other hand, there is some “air of reality” to the plea of
pre-existing injury: Moukhine v. Collins, 2010 BCSC 621 at para. 22. In
the specific circumstances of this case, the defendant should be given a
reasonable opportunity to explore the plaintiff’s pre-accident health: Lee
v. Schenoni, 2008 BCSC 1881, and Moukhine v. Collins. Given the
disclosure that has been made to date, that reasonable opportunity amounts to
the plaintiff obtaining her MSP history for the two-year period preceding the
accident date.

Service Canada records

[40]        
The defendant’s purpose or objective in having the plaintiff disclose
the Service Canada records is not clear. The medical records reveal that the
plaintiff has been in receipt of employment insurance benefits from time to time.
That is no mystery.

[41]        
Some of the Service Canada records have been disclosed. The defendant
does not refer in his written material to any other specific information or
document in the Service Canada file that might be relevant to this claim. My
notes indicate that the defendant wishes to see any medical evidence on the
file. The plaintiff says that she will produce these medical records – if not
already listed and produced.

[42]        
This request for employment-related records is akin to that made by the
defendant in Gorse v. Straker, 2010 BCSC 119 at paras. 66-70. The
request was denied. As with the court in Gorse, and accepting the
plaintiff’s submission, I find that the request for production of the Service
Canada file is no more than a fishing expedition.

The 2001 motor vehicle accident
records

[43]        
The defendant seeks disclosure of these records by two means: first, by
requiring the plaintiff to list “all records” that have been in her power or
control relating to the accident; and second, by having the plaintiff execute a
release that will allow the defence to review the internal ICBC file and
thereafter disclose any relevant documents.

[44]        
While framed in different language, the second method of disclosure
proposed by the defendant is really asking the court release ICBC from an
implied undertaking with respect to the internal file. Quite properly, defence
counsel does not wish to proceed to obtain, list and produce any records in
that file which might be subject to the implied undertaking — unless the
plaintiff consents or the court permits the disclosure: Juman v. Doucette, 2008
SCC 8 and Chonn v. DCFS Canada Corp., 2009 BCSC 1474.

[45]        
In Chonn v. DCFS Canada Corp., the court describes the
predicament of the defence as this:

A party who has documents from earlier litigation that are
impressed with the implied undertaking simply cannot make use of those
documents without the concurrence of the party from whom they were obtained or
leave of the court. The implied undertaking protects documents or oral
discovery obtained in earlier litigation from being used for any purpose
"collateral" to that litigation. Thus, the documents cannot be used
for internal strategic review in subsequent litigation. They cannot be used for
the purposes of drafting pleadings. They cannot be sent to counsel for the
purposes of obtaining an opinion in new litigation. All of these obligations
bound the named defendants in the Current Action as well as ICBC in its conduct
of that litigation

The practical consequences of these restrictions, it will be
seen, are in most cases minimal. In most cases where ICBC or its counsel is
aware, through the pleadings or their direct involvement in earlier litigation,
of relevant documents or other pretrial discovery from that litigation, they
need only contact plaintiff’s counsel to obtain his or her concurrence to the
use of the materials in question. Overwhelmingly, having regard to the
authorities to which I will refer, that concurrence should be forthcoming.

at paras. 25 and
26.

[46]        
The difficulty for the defendant with respect to this aspect of the
application is that the plaintiff has said she is willing to produce the
examination for discovery transcripts and pleadings from the 2001 accident
claim. In addition, the plaintiff has disclosed various medical records with
respect to that claim. She is prepared to disclose any additional medical
information that comes into her possession, or is within her control. What the plaintiff
objects to producing is any information or documentation related to the
mediated settlement.

[47]        
In my view, the defendant’s application is unnecessary given the
plaintiff’s position on disclosure of the transcript, medical records and
pleadings. The plaintiff is justified in resisting any request for production
of the records of the mediated settlement. As the plaintiff argues, the trier
of fact ultimately adjudicating this claim is not bound by the mediated settlement
when making an award for damages.

[48]        
Again, the defence does not identify what documents contained in the
ICBC internal file might be relevant to this claim. Such things as the
adjuster’s notes; statements of the respective parties; correspondence to and
from counsel involved would not appear to have any relevancy to this action.

[49]        
The defendant is requesting the authorization from the plaintiff to
search the file and see what might be discovered. Such a process is a classic
example of the prohibited fishing expedition.

[50]        
The plaintiff has an ongoing obligation to disclose relevant documents: Rule 7-1(9).
Presumably, the plaintiff is in the process of obtaining the pleadings and
examination for discovery transcript with respect to the 2001 claim. Once in
the plaintiff’s possession, the defendant is entitled to receive a
supplementary list of those documents promptly. It would appear to be premature
to order production of such a list, particularly when no demand has been made
by the defendant under Rule 7-1(10).

[51]        
The defendant’s application for production of the supplemental list and
delivery of an authorization from the plaintiff is dismissed.

[52]        
Before concluding these reasons, mention should be made of the
defendant’s argument regarding the Worksafe BC authorization. As I understood
the submissions, the plaintiff’s execution of that authorization should persuade
the court that Ms. Balderston is ready, willing and able to make full and broad
disclosure of medical and employment information to third parties. Accordingly,
the defendant is entitled to the same broad authorized disclosure given to Worksafe
BC.

[53]        
In my respectful view, the kind or breadth of authorization given by the
plaintiff to Worksafe BC (or any other third party, for that matter) is not
relevant to the applications before the court. Ms. Balderston could have
executed that authorization for any number of reasons, likely for the purpose
of obtaining Worksafe BC benefits. The authorization in and of itself does not
allow the court to ignore the SCCR and common law authorities with
respect to document discovery.

Summary

[54]        
The plaintiff is ordered to obtain her MSP history for the period of September 17,
2006 to September 17, 2008, list that document upon receipt and provide the
document along with the supplemental list to the defendant. I will not place
any time frame on this process given that the production is dependent on a
third party. However, if the process is not completed within the next 45 days,
the defendant has liberty to apply to seek specific time frames for production
of the list and MSP record.

[55]        
The balance of relief sought in the defendant’s notice of application is
dismissed.

[56]        
Costs of the application will be in the cause.

          “C.P.
Bouck”               
Master C. P. Bouck