IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110715

Docket: M104188

Registry:
Vancouver

Between:

Kamini Parti

Plaintiff

And

Ivo Pokorny

Defendant

Before:
The Honourable Mr. Justice Verhoeven

Reasons for Judgment

I.          INTRODUCTION

[1]          
The defendant applies for an order to allow production and use of a
transcript of the case planning conference (“CPC”) conducted by me in this
matter on March 15, 2011.

[2]          
The defendant’s application is made pursuant to R. 5-2(7) of the Supreme
Court Civil Rules (the “Rules” or “SCCR”), which reads as
follows:

Proceedings at a case planning
conference must be recorded, but no part of that recording may be made
available to or used by any person without court order.

[3]          
The defendant seeks an order allowing production and use of a transcript
to be prepared by a court reporter, who would access the CPC recording.

[4]          
The plaintiff’s action concerns claims for injuries she sustained in a
motor vehicle accident that took place on February 12, 2009. As is almost
universally the case in relation to actions arising out of motor vehicle
accidents occurring in B.C., the defendant is insured by the Insurance
Corporation of British Columbia (“ICBC”), and counsel for the defendant is
retained by ICBC.

[5]          
On behalf of the defendant, and in reality ICBC, defence counsel argues
that in deciding whether to order production of a transcript, the court should
start from the presumption that CPC transcripts should ordinarily be made
available to the public in accordance with the open court principle. On that
basis, transcripts should routinely be made available upon application in
accordance with R. 5-2(7), in the absence of some compelling reason for denying
access.

[6]          
The plaintiff argues to the opposite effect. The plaintiff argues that on
the plain meaning of R. 5-2(7) and as a matter of statutory construction, the
court should start from the presumption that the CPC transcript should not be
made available absent a compelling reason that is specific to the case.

[7]          
The defendant does not contend that the transcript is needed for any
specific purpose connected with this action. Indeed, on the hearing of the
application, I was advised that this case is scheduled for a mediation to take
place shortly. It is possible, therefore, that this decision may soon be
rendered entirely moot, as it relates to this specific case.

[8]          
However in the course of submissions, I was advised by defence counsel
that the transcript of this CPC or other CPC transcripts from other cases would
be used by ICBC for educational purposes, for the benefit of ICBC adjusters and
employees, and for the future guidance of other counsel retained by ICBC. It is
contended as well that the transcript could have some value as a precedent, in
the sense that it could be used as an example and relied upon at other CPCs.

[9]          
At the CPC in this case, I made orders for early disclosure of expert’s
reports and early disclosure of the names and areas of expertise of the expert
witnesses the parties intended to rely upon at trial. I infer that the kind of orders
I made in this case could be sought by ICBC on behalf of other defendants in
other cases, and that perhaps the CPC transcript could be used to that end.

[10]       
The plaintiff opposes production of the transcript. The plaintiff notes
that the defence does not put forward any reason for production of the
transcript having anything to do with this case. The plaintiff argues that the
application should therefore be refused.

II.         BACKGROUND

[11]       
The plaintiff’s action was commenced by filing a notice of civil claim on
September 1, 2010. At the same time, she issued a notice of fast track action,
thus rendering the action subject to R. 15-1 of the SCCR. Rule 15-1
relates to claims for $100,000 or less, or where the trial for the action can
be completed within three days, or where the parties consent, or where the
court so orders (R. 15-1(1)). In a fast track action, with certain exceptions,
a party may not bring an application to court unless a CPC or a trial management
conference has been conducted: R. 15-1(7).

[12]       
The defendant has admitted liability for the accident.

[13]       
In accordance with R. 5-1(1) and (3), on December 7, 2010, the defendant
filed with the court and served a notice of case planning conference. In due
course, both parties filed and served case plan proposals in accordance with R.
5-1(5). By the time of the CPC on March 15, 2011, the trial had been scheduled
for January 18, 2012, for three days.

[14]       
Following the CPC, counsel settled the terms of the case plan order
required by R. 5-3(3). There is no suggestion of uncertainty about the terms of
the order.

[15]       
On April 4, 2011, the defendant applied for an order for production and
use of transcripts of the CPC of March 15, 2011. There was no previous
indication that a request for a transcript would be made.

III.        DISCUSSION & ANALYSIS

A. Shen v. Klassen

[16]       
The argument of the defendant in this case appears similar if not
identical to that made to Madam Justice Beames in Shen v. Klassen, 2011
BCSC 234, [2011] B.C.J. No. 301 (QL). There, the defendants applied by way of a
letter to a master for an order permitting production of a transcript of the CPC.
The letter gave reasons for wanting the transcript that are similar to those
that I have been given in this case. The letter stated:

As Case Planning Conferences are an integral part of the new
Supreme Court Rules, we require transcripts in order to familiarize our client
with the new procedures involved in conducting one.

In addition, comments made by
[the master] with respect to the appointment of joint experts and the
scheduling of trials in Rule 15-1 actions are of particular interest to our
client.

[17]       
The master refused the application. The defendants appealed. In her
reasons for judgment on the appeal, Beames J. stated:

[21]      Counsel for the defendants urges me to accept that
the starting point with respect to the transcription of case management
conferences ought to be that the transcript, when requested, will be prepared,
absent compelling reasons for refusing to permit transcription. This argument
is founded on the open court principle.

[22]      The Supreme Court of Canada has consistently held
that courts in this country are to be, absent compelling circumstances, open to
the public. As Fish J., speaking for the Court, said in Toronto Star
Newspapers Ltd. v. Ontario, 2005 SCC 41 [Toronto Star]:

[1]  In any constitutional climate,
the administration of justice thrives on exposure to light — and withers under
a cloud of secrecy.

…

[4]  Competing claims related to court proceedings
necessarily involve an exercise in judicial discretion. It is now well
established that court proceedings are presumptively “open” in Canada. Public
access will be barred only when the appropriate court, in the exercise of its
discretion, concludes that disclosure would subvert the ends of justice
or unduly impair its proper administration.       (italics in
original)

[23]      The open court
principle has been applied to court documents as well as court proceedings, and
in all types of proceedings: see, for example, Toronto Star, supra; Nova
Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175; Edmonton
Journal v. Alberta (Attorney General) (1990), 64 D.L.R. (4th) 577 (S.C.C.);
Leung v. Leung, [1993] B.C.J. No. 395 (S.C.). There is no question
that open court is an important principle that must be given great weight.

[18]       
As Beames J. said, there is no question that the open court principle
must be given great weight.

[19]       
Indeed, the Supreme Court of British Columbia’s Court Record Access
Policy (publicly available on the Court’s website) expressly recognizes the
open court principle, by providing that in the usual case the public may obtain
a transcript of court proceedings. However the Policy also provides that R.
5-2(7) creates an exception to the general rule.

[20]       
Excerpts of the Policy are as follows:

at p. 7:

British Columbia’s court system is based on fundamental
principles of openness and accessibility. These principles reflect society’s
interest in providing for public scrutiny of its key institutions, including
the court, so that there can be confidence that these institutions are
functioning as they should.

…Members of the public may
attend any court proceedings, subject to some limited exceptions where a
statutory rule or safety or other significant concerns require a closed
courtroom.

at p. 19:

With some exceptions… anyone who was entitled to be
present in court for a civil proceeding may have access to the transcript of
the proceeding including the right to have a copy of the transcript. If a
transcript has not been prepared, upon payment of the appropriate fee, a person
entitled to have a transcript may request that a transcript be prepared.

…

Because of
Supreme Court Civil Rules 5-2(7), no one may have access to a transcript of a
case planning conference unless the court makes an order permitting access to
the transcript of the case planning conference.

[Emphasis added]

[21]       
Beames J. recognized that the open court principle is not absolute. She
said:

[24]      On the other hand, there
are instances where the principle of open court must give way. Access to court
records, or to court proceedings, may be restricted in order to protect other
social values. Such values include, among others, protecting the innocent,
ensuring a fair trial, protecting privacy, and protecting settlement
negotiations, as in the case of judicial settlement conferences.

[22]       
The defendant does not challenge the constitutional validity of R. 5-2(7). 
Thus the defendant acknowledges that the open court principle is not absolute,
and that the court may refuse access to the CPC transcript. The defendant’s
argument is focussed on the question of what principle or principles ought to
guide the exercise of the court’s discretion in making or refusing an order to
permit production or use of a transcript of the CPC proceedings, in accordance
with the rule.

[23]       
In Shen, the plaintiff did not oppose the defendants’
application.  Beames J. therefore did not have the benefit of any argument in
opposition to that of the defendants in the case before her. For that reason,
she declined to attempt to set out guidelines to be applied in future cases. She
allowed the appeal and granted the order allowing the defendants to obtain a
transcript of the CPC only because the plaintiff did not oppose the application.

[24]       
In this case, the plaintiff has provided a thorough argument in
opposition to that of the defendant.

B.        Interpretation of Rule 5-2(7)

i.          Grammatical & Ordinary Sense of the Words in the Rule

[25]       
The principles of statutory interpretation apply to the SCCR: Evans
v. Jensen, 2011 BCCA 279 at para. 16, [2011] B.C.J. No. 1090 (QL). There,
the Court of Appeal adopted the reasoning of Pitfield J. in Owners, Strata
Plan LMS 1220 v. North Fraser Holdings Ltd., 2003 BCSC 1051 at
para. 23, [2003] B.C.J. No. 1618 (QL):

Because they are created by regulation, the rules are a form
of legislation to which the principles of statutory interpretation apply. The
overriding principle of statutory interpretation which prevails in Canada is
that expressed in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC
42. At para. 26, the Supreme Court of Canada repeated the formulation
found at page 87 of Elmer Dreidger’s Construction of Statutes (2nd Ed. 1983) as
follows:

Today there is only one principle or approach, namely,
the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of parliament. [Emphasis added]

[26]       
Similarly in Jones v. Donaghey, 2011 BCCA
6 at para. 6, 330 D.L.R. (4^th) 138, K. Smith J.A. wrote:

It is trite to say that words
take their meaning from their context. The "modern principle" of
statutory interpretation mandates that "words are to be read in their
entire context in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of
Parliament": Elmer A. Driedger, The Construction of Statutes, 2d
ed. (Toronto: Butterworths, 1983) at 87. This approach is equally applicable to
subordinate legislation, like the Supreme Court Civil Rules, enacted by
the provincial legislatures. …

[27]       
The words of R. 5-2(7) in their grammatical and ordinary sense support
the view that a production order may be granted only exceptionally on
reasonable grounds to support the making of the order. The wording of R. 5-2(7)
is prohibitory in nature: “no part of that recording [of a CPC] may be made
available to or used by any person without court order”.  The legislature
expressly required that the court exercise discretion before allowing access to
or use of the recording. The legislature must have intended that the court
exercise its discretion on reasonable grounds. Thus, the order permitting
access to the recording or for a transcript must only be made where there are reasonable
grounds to do so. The defendant’s interpretation turns the express language of
R. 5-2(7) on its head: a transcript of the recording is presumptively available
in every case, absent grounds to refuse it.

[28]       
In relation to the proper interpretation of the rule, Beames J.
commented to the same effect in Shen:

[30]      …I have not had the opportunity to hear the
argument that might be developed in support of the approach of the master in
this case, to the effect that the transcript should not be produced absent a
compelling reason for its production.

[31]      The words used under
Rule 5-2(7) may support such an argument. The rule reads “no part of that
recording may be made available to or used by any person without court order”.
This phrase might be interpreted as meaning that litigants are presumptively
disentitled from accessing the CPC record unless the court orders otherwise.
This interpretation is consistent with the spirit of the new Rules in
encouraging the settlement of claims and in the narrowing and/or even
elimination of the number of issues at the trial proper. It might be said that
a litigant should feel safe to discuss his or her own case, as well as the
opposing party’s case, and to wrestle with any tendered settlement offers
without facing the threat that a transcript may be used against him or her
should trial nonetheless proceed.

ii.         Scheme of the Act, the Object of the Act and the Intention of
Parliament

[29]       
Consistent with the comments of Beames J. just quoted, in my view
consideration of the “scheme of the Act, the object of the Act, and the
intention of Parliament” conclusively establishes that transcripts of CPCs are
to be made available or used only exceptionally, on reasonable grounds. 
Furthermore, in my view, given the clarity of the intention of the legislature
as reflected in the wording of the rule, and the strong policy considerations
underlying the rule, the required reasonable grounds should be compelling.

[30]       
The lineage of the CPC rules as found in the new SCCR is of
assistance in reaching that conclusion. The SCCR were brought into force
on July 1, 2010 after a lengthy process of review and consultation. In Shen,
supra, Beames J. summarized that process:

[25]      The SCCR were developed following the
November 2006 publication of Civil Justice Reform Working Group’s report to the
B.C. Justice Review Task Force entitled Effective and Affordable Civil
Justice. That report offered recommendations with respect to how the civil
litigation process might be improved. One such recommendation was summarized at
p. v-vi as follows:

The second recommendation is that
parties to Supreme Court actions attend a case planning conference before they
engage the system beyond initiating and responding to a claim. The conference
will address:

• settlement possibilities and processes

• narrowing of the issues

• directions for discovery and experts

• milestones to be accomplished

• deadlines to be met, and

• setting of the date and length of trial.

[26]      With respect to the issue of confidentiality in
CPCs, the Working Group stated at p. 16:

In order to encourage full and
candid discussion, the CPC will be a “confidential” process and discussions
will be considered to be “without prejudice” and protected from disclosure.
[Footnote 35: If CPCs are recorded, the tape or digital record will not be
available to a party or counsel without an order of the court.] However,
given that the CPC also incorporates management and planning functions, any
applications made by a party during the CPC and discussions specifically
related to an order made as a result of a CPC should be stated to be “on the
record.” Only those portions of the tape or digital recording stated to be “on
the record” may be ordered to be available to the parties and counsel in the
event of an appeal.

[27]      Comparing the SCCR to the recommendations of
the Working Group, Rule 5‑1 directs that the parties address “dispute
resolution procedures” in their Case Planning Proposals, which must be
exchanged before the CPC (Rule 5‑1(6)(c)). Pursuant to Rule 5-3(1)(o),
the court may make an order:

(o) requiring the parties of record
to attend one or more of a mediation, a settlement conference or any other
dispute resolution process, and giving directions for the conduct of the
mediation, settlement conference or other dispute resolution process.

[28]      The CPC rules do not expressly direct, as
recommended by the Working Group, that the parties, with the assistance of the
court, explore settlement “possibilities”. Nonetheless, I recognize that the
exploration of settlement possibilities may well take place at CPCs. Even where
the parties do not enter into settlement discussions, the parties may, with the
court’s assistance, have a “full and candid” exploration of the issues, in
furtherance of the object of the SCCR:

Rule 1-3 — Object of Rules

Object

(1) The object of these Supreme
Court Civil Rules is to secure the just, speedy and inexpensive determination
of every proceeding on its merits.

Proportionality

(2) Securing the just, speedy and
inexpensive determination of a proceeding on its merits includes, so far as is
practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

[Emphasis added]

[31]       
Thus, it is clear that the objective of the prohibition found in R. 5-2(7)
is “to encourage full and candid discussion” as stated in the Report.

[32]       
The topics to be fully and candidly discussed at the CPC cover a broad
range. Under R. 5-1(6) a party’s case plan proposal must address:

(a) discovery of documents;

(b) examinations for discovery;

(c) dispute resolution procedures;

(d) expert witnesses;

(e) witness lists;

(f) trial type, estimated
trial length and preferred periods for the trial date.

[33]       
The judge or master presiding over the CPC has broad powers to
make orders to be included in the required case plan order: R. 5-3(1) and (3). Orders
may be made on a wide range of matters relating to the efficient management of
the litigation and also relating to potential settlement avenues, such as
offers to settle (R. 5-3(1)(m)) and dispute resolution processes (R.
5-3(1)(o)). However, the judge or master may not, in general, hear applications
supported by affidavit evidence or make an order for final judgment: R. 5-3(2).
CPCs are not generally the forum to determine contested applications: Vernon
v. British Columbia (Liquor Distribution Branch), 2010
BCSC 1688 at para. 23, 13 B.C.L.R. (5th) 194 [Vernon].

[34]       
I share the view of Beames J. that the prohibition in R. 5-20(7)
supports the objective of full and candid discussion, in furtherance of the
object of the SCCR set out in R. 1-3. In that regard, Master Bouck
recently commented in Przybysz v. Crowe, 2011 BCSC 731 at para. 59, [2011]
B.C.J. No. 1039 (QL) as follows:

…Such conferences are most
productive when there is frank and uninhibited discussion between the parties,
counsel and the presider. Knowing that comments or representations made by
counsel (let alone remarks from the presider) will become fodder in unrelated
actions may well stifle that kind of discussion.

[35]       
Litigants and counsel attending a CPC should be free to discuss openly
and candidly all aspects of the case, including matters relating to the narrowing
of the issues, the merits of the case and the issues, management of the case, or
settlement prospects and procedures, without concern that some unguarded
comment made during the course of the conference may later be sought to be used
to their detriment. The ready availability of transcripts of the proceedings
would inevitably inhibit such discussions and frustrate the objectives of the
CPC procedures as well as the object of the Rules.

[36]       
The open court principle is well-recognized in the caselaw. The
legislature is presumed to have been aware of the open court principle when it
enacted R. 5-2(7) of the SCCR, limiting the application of that principle
in the context of CPCs.

[37]       
In Sullivan on the Construction of Statutes, 5^th ed. (Markham,
Ontario: LexisNexis Canada, 2008) at p. 205, the author states:

Presumed knowledge.
The legislature is presumed to know all that is necessary to produce rational
and effective legislation. This presumption is very far-reaching. It credits
the legislature with the vast body of knowledge referred to as legislative
facts and with mastery of existing law, both common law and statute law, and
the case law interpreting statutes. The legislature is also presumed to have
knowledge of practical affairs. It understands commercial practices and the
functioning of public institutions, for example, and is familiar with the
problems its legislation is meant to address. In short, the legislature is
presumed to know whatever facts are relevant to the conception and operation of
its legislation. [Footnotes omitted]

[38]       
The restriction on use of the recording now found in R. 5-2(7) was the
subject of learned debate prior to enactment of the SCCR. For example, in an
address at a Civil Litigation Conference on November 22, 2007, Chief Justice
Finch remarked as follows (at para. 26):

I would ask you to consider
carefully whether the new rules will lead to the creation of an adequate record
in respect of those orders made in conference. Rule 4-4(5) [now numbered R. 5-2(7)]
provides that: “proceedings at a case planning conference must be recorded, but
no part of that recording may be made available to or used by any person
without an order of the case planning conference judge or master”. As a result
of Rule 4-4(5), provided a person is able to secure an order of the judge, they
would be able to use the audio recording to access counsel’s or the party’s
submissions and the judge’s ruling. However, the question remains as to
whether, aside from the recording, there will be a permanent record of the
materials on which an order in conference is based?

[39]       
In short, the legislature must be taken to have been fully aware of the
legal and practical implications of the prohibition in R. 5-2(7) when it
enacted the SCCR.

iii.        Educational and Precedent Considerations

[40]       
The defendant argues that CPC transcripts would have educational value,
in the sense that they could be used to educate insurance adjusters, defence
counsel, or the public as to CPC proceedings.

[41]       
The educational value of an open court process was recognized by Madam
Justice Wilson in Edmonton Journal v. Alberta (Attorney General), [1989]
2 S.C.R. 1326 at p. 1360(j), [1989] S.C.J. No. 124 (QL) at para. 60:

It is also worth noting that
there is an important educational aspect to an open court process. It provides
an opportunity for the members of the community to acquire an understanding of
how the courts work and how what goes on there affects them. …

[42]       
The prohibition upon obtaining or using the recording without a court
order is a very limited derogation of the open court principle. The rule as
enacted does not go as far as the Civil Justice Reform Working Group’s
recommendations that the CPC be “a ‘confidential’ process”, “‘without
prejudice’” and “protected from disclosure”.  Unlike judicial case conferences
in family cases, CPCs are not, in general, confidential. The conference is held
in open court. ICBC adjusters or any member of the public may attend. There is
nothing in the rules prohibiting disclosure of what takes place at a CPC.  Therefore,
discussions may be had concerning CPC procedures and practices in papers,
meetings or seminars, during which attendees may discuss their experiences. Judges
or masters presiding over CPCs may issue reasons for judgment in relation to
matters arising at a CPC. In the event of an appeal, an order for a transcript
can be made. The rule goes no farther than it needs to in order to support the
goal of fostering full and candid discussion at the CPC.

[43]       
The only constraint imposed by the rule is the general unavailability of
transcripts of the discussions at CPCs. This poses a minimal constraint upon
educational values as they pertain to CPCs.

[44]       
The defendant also argues that the transcripts could have value as
precedents for other cases.

[45]       
As I have said, a judge or master may decide to issue reasons for
judgment in relation to matters arising from a CPC, for example in a case where
the decision is thought to be of value as a precedent. Absent actual reasons
for judgment, I fail to see how a bare transcript would have any appreciable value
or utility as a precedent.

iv.        Scope of the Prohibition

[46]       
It might be suggested that a distinction should be drawn between the
portions of the CPC where the possibility of settlement is discussed and the
portions where other matters such as litigation management procedures are
discussed. The 2006 Report refers to a distinction between “on the record” and
“off the record” discussions. No such distinction was carried forward into the
rule as enacted, which provides that the entirety of the recording is
unavailable and may not be used without court order. In any event, such a
distinction would be impractical, for at least two reasons. First, it would
require excessive and awkward formality in the conduct of the CPC. Second,
procedural and litigation management matters are interwoven with the issues and
merits of the case, and thus with settlement prospects and procedures. There is
no easy demarcation between settlement prospects and other matters. Perhaps for
that reason, the CPC rules clearly stipulate that both litigation management
matters and settlement matters should be discussed at the CPC, and may be the
subject of court orders. To reiterate, the purpose of R. 5-2(7) is to foster
full and candid discussions as to all aspects of the case.

[47]       
 There could be a separate issue concerning whether a transcript or
portion thereof may be considered to be confidential or privileged on
the basis of settlement negotiation privilege. This could become an issue in
subsequent proceedings, and does not arise on this application.

IV.       CONCLUSIONS

[48]       
I reject the argument of the defendant that there ought to be a
presumption in favour of production of the CPC transcript. The defendant’s
application fails as it has not established any compelling grounds for the
exercise of the court’s discretion for the order sought.

[49]       
The plaintiff argued that there should be a presumption against the
making of an order for the availability or use of a CPC recording. Strictly
speaking, the application of the rule does not require a presumption. I simply
interpret the rule to require compelling grounds for the exercise of the
court’s discretion to make the order. It makes no difference whether that is
considered a presumption.

[50]       
The plaintiff also argues that the necessary grounds arise out of the
specific case before the court. That would seem logical; however, that is not
an issue I need to decide as the defendant has not demonstrated any compelling grounds
for the order, whether arising out of this case or not.

[51]       
The application of the defendant for an order pursuant to R. 5-2(7) is
dismissed, with costs.

“Verhoeven
J.”