IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20111216

Docket: S088168

Registry:
Vancouver

Between:

Allan James Scott
Burgess

Plaintiff

And

Buell Distribution
Corporation, Buell Motorcycle Company, 636221 B.C. Ltd. doing business as
Barnes Harley-Davidson/Buell, XYZ Companies,

John Doe 1, John
Doe 2, John Doe 3 and Harley-Davidson Motor Company Group, LLC and Fred Deeley
Imports Ltd. doing business as

Deeley
Harley-Davidson Canada

Defendants

And

 Harley-Davidson
Motor Company Group, LLC and Fred Deeley Imports Ltd. carrying on business as
Deeley Harley-Davidson Canada

Third
Parties

Before:
Master Baker

Reasons for Judgment
In Chambers

ISSUE

[1]
This is a personal injury proceeding in which the defendant numbered
company applies under Rule 7-1 for production of Worksafe BC (“WBC”) records for
Mr. Burgess for the period January 1, 2000 to August 18, 2005.  The application
is opposed by Mr. Burgess.

BACKGROUND

[2]
Mr. Burgess is a 57 year-old longshoreman, but has not worked since the
accident May 15, 2007.  As a consequence of that accident Mr. Burgess claims a
multitude of problems, including traumatic brain injury, injury to left
shoulder, back, and neck, vision and hearing problems, memory problems and
amnesia, sleep problems and mood impairment.  One result of the injuries, he
alleges, is “…loss of earnings and/or earning capacity, past, present, and
prospective…”

[3]
In common with many other longshoremen he has a history of job-related
injuries and, not surprisingly, the records of WBC seemingly reflect this.  One
document, apparently a WBC record dated September 9, 2005 and headed “Medical
File Review” contains the following reference:

Prior Claims / Prior Medical:  20
prior claims, including 2 recent low back injuries (2000 & 2002.)

Similarly, Mr. Burgess’ general
physician’s notes for July 8, 2006 include the comment:

3.  Chronic back pain.

Taken together, the defence now argues that further and
wider disclosure of documents is required, and specifically that the WBC
documents from 2000 to 2005, as above, are producible.

ANALYSIS

[4]
Rule 7-1 is a fairly broad Rule concerned exclusively, of course, with
the pre-trial discovery of documents.  Contained within it, however, is a
myriad of aspects of disclosure: the Rule moves from documents that will prove
or disprove a material fact or will be relied upon at trial (the “evidentiary”
and “reliance” documents) to insurance policies, privileged documents, and
documents in the possession of strangers to the litigation (“non-party
documents”).  The Rule also provides, of course, for the listing, inspection,
or copying of documents and for processes in the event of disputes.

[5]
The current Supreme Court Civil Rules (“SCCR”) changed the process and
requirements of document disclosure.  Prior to the SCCR the ambit of producible
documents in the first instance was extremely wide: a party was obliged to
disclose any document that may lead to a path of enquiry[1].
In the pursuit of proportionality the SCCR reduced the obligation by narrowing
the required production in the first instance to those documents, as I said
above, that will either prove or disprove a material fact, or that a party will
rely on in court.  Gone was the far more tenuous connection of “…may lead to
a path of enquiry”.  The obvious intent behind the Rule was to lessen the burden
on (and thus time spent by) either counsel or client, and to discourage fishing
expeditions.

[6]
It is still open for a party to challenge the disclosure made
under Rule 7-1(1) or to request the wider class of documents and to do so under
Rule 7-1(11), but in doing so must establish that the documents:

(a) are within the listing party’s possession, power or
control,

(b) relate to any or all matters in question in the
action…

[7]
There is another provision in Rule 7-1 under which the defence may have
proceeded, the non-party document Rule, as the documents are WBC records:

(18)      If a
document is in the possession or control of a person who is not a party of
record, the court, on an application under Rule 8-1 brought on notice to the
person and the parties of record, may make an order for one or both of the
following:

(a)        production, inspection
and copying of the document;

(b)        preparation
of a certified copy that may be used instead of the original.

[8]
The recitation of the Legal Basis in the Application as simply “Rule 7-1”
would be wide enough to encompass both bases for production i.e. the enlarged
search contemplated by Rule 7-1(11) and the non-party Rule (7-1(18)).
Nevertheless Part 3 of the Application specifies that the legal authority lies
in Rules 7-1(11) and (14).

[9]
This was reiterated by Ms. Groves in argument and, moreover, she argued
that the records qualify as documents that should have been produced under Rule
7-1(1).  She also argued that even if the documents do not fall under Rule
7-1(1) she has met the threshold test for a broader duty to disclose and that
the 2005 entry in the WBC record (para. 3, above), taken with the plaintiff’s
claim of physical injuries consisting in part of back and neck injuries and
damages including loss of earnings and/or earning capacity, past, present, and
prospective…” will permit the defence to use the records to disprove, or
significantly erode, any claim that the accident in May 2007 caused Mr.
Burgess’ loss of earning capacity.  Put in other words, they intend to prove
that his work-related injuries caused or seriously contributed to his back
injuries or disability or to his loss of earning capacity and that he may have,
by the date of the accident or soon thereafter, become incapacitated from his
longshoreman’s employment due entirely or largely to his work-related injuries.

[10]
Mr. Brown disputes this.  In his Response to Application he argues that
this Application is just one example of the “barrage of requests” that the
defence has made of the plaintiff and that the plaintiff has made consistently
reasonable and proportionate response in disclosure.  Moreover he argues that
the Application’s reference to “Rule 7-1” is unacceptably wide and vague.
Finally, he submits that the Application addresses documents that may be
relevant, but argues they will not prove or disprove a material fact.  In
argument, for example, he submitted that the September 9, 2005 entry or record
(para. 3 above) would not be admissible in court, as its provenance, origin, or
authorship are not reliably established.  He submitted that proving or
demonstrating that the documents are relevant is not sufficient.

[11]
I am not persuaded that the defence’s reference in its Application to
“Rule 7-1” has misled the plaintiff or justified refusal of the relief sought.
Without deciding the necessary standard of specificity for Applications I think
that the reference by the defence in para. 2 of Part 3 of its Application makes
clear that the defence will argue that the documents sought will assist in
proving or disproving a material fact.  That, in fact, was the position taken
by Ms. Groves in argument (para. 9, above).

[12]
Owing to the novelty of Rule 7-1(1) and its narrowed spectrum of
producible documents there is not a lot of jurisprudence on the matter.  One
case of assistance is Master Bouck’s decision in Przybysz v. Crowe[2],
also a personal injury case and also pertaining to disclosure of medical (in
this case MSP) records.  The defence had pled a pre-existing injury, and argued
that MSP records could assist the defence in disproving causation of the
injury.  Master Bouck ultimately refused production and said at para. 26:

The effect of such a ruling would
mean that historical MSP print-outs should be produced by plaintiff’s counsel
as a matter of course whenever a pre-existing injury or condition is pled by
the defence.

[13]
In my respectful view Master Bouck concluded that, without more than pro
forma pleadings and the basic submission made, the application was a fishing
expedition.  She concluded that, particularly when one imposes the standard of
proportionality emphasized by the SCCR, the defence had not met the standard
imposed by Rule 7-1(11).

[14]
The court is authorized by Rule 7-(14) to either excuse or order further
disclosure.  That Rule, by reference, includes demands either for Rule 7-1(1)
documents (i.e. the evidentiary and reliance documents) or for Rule
7-1(11) documents (the Guano documents).  And while Mr. Brown is entirely
correct that the test for materiality is a narrower one than for relevance, the
distinction may be lost once Rule 7-1(14) is invoked.  In Global Pacific
Concepts Inc. v. Owners of Strata Plan NW 141[3],
reversing an egregiously errant master, Dillon J. firstly recognized the
narrower scope for materiality[4],
but concluded that the wording of Rule 7-1(14) is “much closer to the test
traditionally known, prior to the new Rule 7-1(1) as the Peruvian Guano
test of relevancy”, and held that:

The question is whether a
document can properly be said to contain information which may enable the party
requiring the document either to advance his own case or damage the case of his
adversary, if it is a document which may fairly lead him to a train of inquiry,
or if it may have either of those two consequences.  Therefore, it is
acknowledged that the initial disclosure under Rule 7-1(1) relates to a
materiality requirement, but that a party can apply to the court, as the
defendant did here, for broader disclosure pursuant to Rule 7-1(14).[5]

In summarizing and enumerating
the many sins of the master, Dillon J. concluded that he had erred:

…thirdly, by failing to properly apply the broader test
mandated by R. 7-1(14) which is closer to the Peruvian Guano test…[6]

[15]
I would have thought that if one party is dissatisfied with the other’s
disclosure under Rule 7-1(1) and therefore makes demand under Rule 7-1(10),
that the specific standards of Rule 7-1(1) (i.e. materiality) would have
governed.  Rule 7-1(14) is curious, however, in its reference to specific
sub-rules (1,3,6,15,16,10, and 11) in allowing the court to excuse a
party from compliance but its complete lack of any equivalent specificity in
ordering compliance.  Thus it is that Dillon J. concluded that the wider
ambit of disclosure will apply in compliance orders.

[16]
But notwithstanding this, I am satisfied that the defence has met the
onus on it and that it has established facts i.e. ongoing and repeated
injuries, including injuries to Mr. Burgess’ back, in sufficient proximity to
the accident that the WBC records could (without deciding the issue) disprove
in whole or part the alleged cause of Mr. Burgess’ post-accident injuries,
symptoms, or damages.  They are likely, therefore, to be documents within the
narrow confines of Rule 7-1(1).  If I am wrong in that, I am satisfied that
this is a case, in any event, where the court’s discretion under Rule 7-1(14)
should be applied and that the records bear such obvious relation to Mr.
Burgess’ accident-related injuries and damages that they should be produced.

[17]
As I said above (para. 7) this application could have been brought and
argued under Rule 7-1(18), the non-party document Rule.  Indeed, at some point
that must have been contemplated as WBC, keeper of the records, was served with
the Application. Quaere whether the specific (and narrower) standard of
Rule 7-1(1) would have then applied, as Rule 7-1(18) makes no reference to
either the materiality or relevance aspect of the documents, nor to the sub-rules
that Rule 7-1(14) references.  Indeed it specifically refers only to applications
“…under Rule 8-1”.  It is possible that Rule 7-1(14)’s general reference to
“…an application brought under subrule (13) or otherwise…” (my
emphasis) would capture non-party documents and then impose the wider
application of Global Pacific Concepts Inc., supra.

SUMMARY

[18]
The application is therefore allowed, with costs in the cause.

“D.
Baker, M.”