IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20111102

Docket: 09‑2110

Registry: Victoria

Between:

Holly Galvon

Plaintiff

And

William Daniel Hopkins

Defendant

Before: The Honourable Madam Justice
Kloegman

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: As a result of a motor vehicle
accident on June 4, 2007, the plaintiff commenced this action claiming, amongst
other things, that she had suffered injury to her head, neck, upper and lower
back, and hip areas.

[2]            
Defendant’s
counsel, out of a concern that she had as yet received no expert medical‑legal
reports, set a case planning conference before Master Bouck on August 16, 2011.
Counsel persuaded Master Bouck that, in order for counsel to have sufficient
time to consider settlement and arrange for rebuttal reports, she needed to
know which medical experts plaintiff’s counsel had arranged for the plaintiff
to see.

[3]            
Master Bouck made
an order that the plaintiff notify counsel for the defendant of the name of the
neurologist with whom the appointment had been made and the date of the
appointment, and secondly, that the parties were to provide opposing counsel
with written notice forthwith upon any appointment being set for the plaintiff
with medical experts, such notice to include the name of the expert, the
expertise of the expert, and the date of the appointment.

[4]            
Prior to making
these orders, Master Bouck made a number of comments that reflected her
reasoning. When counsel for the plaintiff was asked by Master Bouck to divulge
voluntarily the name of the neurologist referred to in the order, she said:

I
don’t believe that I’m in a position to be able to delve into the solicitor’s
brief at this point to tell my friend who it’s with.

[5]            
Master Bouck
responded:

All right. Well,
I disagree, and the reason is, is that the rules do provide for the service
requirements, but the whole object of this new regime is to try to resolve
matters earlier rather than later, and again, the standard practice of waiting
till the last minute and then having to … or not the last minute, the service
requirements, I suppose, and then having the defence in this case then identify
what kind of expert is needed defeats that purpose.

In
my view — and the other rule, I can’t remember off the top of my head now if
it’s 11-3(2) or one of the rules that asks that the nature of the expertise be
identified in a case plan order, or else that expert should not be called as a
witness at trial. So that rule tells me that a master or judge sitting at a
case planning conference should identify or ask the party to identify who or
the nature of the expertise so at least the defence can then make arrangements
for their own individual in that area. I don’t see it as delving into the
solicitor’s brief.

[6]            
The plaintiff
appeals Master Bouck’s orders on the grounds that the master had no
jurisdiction to abrogate the plaintiff’s privilege that protected the plaintiff
from having to disclose any information identifying any
consultation with any potential expert witness prior to the plaintiff’s
election to call that witness at trial.

[7]            
The plaintiff
argues that this lack of jurisdiction amounts to an error in law and the
standard of review is correctness.

[8]            
The defendant does
not disagree that the question of jurisdiction is a question of law and subject
to correctness, but says that the orders were made within the jurisdiction of
the master, and therefore her decision cannot be interfered with unless clearly
wrong.

[9]            
The defendant
argues that no privilege attaches to the area of expertise of the plaintiff’s
forensic medical experts or the appointment dates with those experts. The
defendant further argues that no solicitor‑client privilege attaches to
the names of such experts, only a “litigation privilege”, which is subject to
abrogation by a master exercising her discretion under our new Supreme Court
Rules.

[10]        
In my view, the
only issue to be answered on this appeal is whether the master had the
jurisdiction to make the orders she did. I would not interfere with the
exercise of her jurisdiction at the case planning conference if she were
empowered by our rules to make such an order. However, in my opinion, our rules
do not empower a presider at a case planning conference to ride roughshod over
a fundamental principle of civil litigation such as the principle of the
solicitor’s brief privilege.

[11]        
Counsel for the
defendant argued that consultation with experts falls into the category of
litigation privilege, not solicitor‑client privilege, and therefore this
privilege is neither absolute nor permanent: Blank v. Canada, 2006 SCC
39. She argues that the courts have always retained the discretion to override
this principle in the name of full disclosure and fairness.

[12]        
In British Columbia, there is ample authority to suggest that litigation privilege or the
solicitor’s brief rule, as I prefer to call it, is alive and well. In Hodgkinson
v. Simms (1988), 33 B.C.L.R. (2d) 129, the British Columbia Court of Appeal
made it clear that it would be rare, if ever, that the need for disclosure
would displace privilege.

[13]        
In a more recent
decision, Cahoon v. Brideaux, 2010 BCCA 228, Smith J.A. confirmed the
majority judgment in Hodgkinson v. Simms, and noted that it was
consistent with the statement of the Supreme Court of Canada in Blank v.
Canada that there is a need for a protected area to facilitate the
investigation and preparation of a case for trial by the adversarial advocate.

[14]        
In Teck Cominco
Metals Ltd. v. Shanghai Boiler Works Co., 2010 BCCA 51, the Court of Appeal
again confirmed the rule in Hodgkinson v. Simms. Justice Hall stated
that the conclusions and opinions of an expert conveyed to counsel are
privileged, unless and until counsel seeks to rely at trial upon such
conclusions and opinions, in which case notice must be given under the appropriate
rule.

[15]        
As Justice Hall
said at para. 15 of that case:

That
is a decision for counsel … to make in due course.

[16]        
Justice Stewart in
Singh v. Brar, 2004 BCSC 1757 [Singh], made an interesting
comment that is applicable to the case before me. In Singh, the defendant
had applied for an order that the plaintiff answer questions on discovery about
her attendance at medical examinations. Stewart J. concluded that the defendant
was only seeking the order it requested as part of an attack aimed at getting
what the plaintiff, as litigant, not as patient, had been doing. This is
an important distinction and I would suggest that a defendant has no right to
know what a plaintiff, as litigant, does in the preparation of her claim, Firstly,
it is not relevant to the matters contained in the pleadings, and secondly, it
is an aspect of confidentiality that is worthy of protection.

[17]        
Counsel for the
defendant relies on a number of Supreme Court Rules, 5‑3, 7‑2(18),
7‑4, 7‑5(2), 9‑2, and 11‑6, where a party’s privilege
appears to have been abrogated in the name of early disclosure and settlement. However,
these rules clearly and expressly allow the court to make the specific orders. It
has always been the case that common‑law privilege can be overridden by
legislative intervention:  see Blank v. Canada.

[18]        
I do not see
anything in Rule 5‑3 governing case planning conferences that clearly,
expressly, and specifically allows the presider to compel a party to provide
another party with the details of any potential expert witnesses before that
party has even consulted with the expert or made an election whether to call
the witnesses’ evidence at trial.

[19]        
In Leung v.
Hanna, [2000] 1 W.W.R. 600 (B.C.S.C.), Justice Burnyeat dealt with the
question of whether anything in old Rule 26(2.1) suggested that the legislature
intended to erode solicitor‑client privilege as it applied to document
production. I note parenthetically that although the privilege is described in
the case as one of solicitor‑client, it clearly concerned the solicitor’s
brief rule of Hodgkinson v. Simms.

[20]        
Burnyeat J. stated
at para. 16:

The
maintenance of solicitor-client privilege is a right afforded to every person
seeking legal advice . . .The legislature cannot take away this
fundamental right without very clear language and there is nothing in Sub-Rule
2.1 which would suggest that it was the intention of the legislature to erode
either solicitor-client privilege or the duty of the lawyer to maintain
solicitor-client privilege.

[21]        
I agree with
counsel for the plaintiff’s submission that Rule 5‑3 cannot be read as to
allow the case planning conference judge or master to disregard the common‑law
principle of privilege.

[22]        
In my view, Master
Bouck was fixated upon settlement of the litigation; always a commendable and
important goal of a case planning conference, but not at the cost of ignoring
the boundaries of her jurisdiction. It may well be that such information could
have been exchanged at a settlement conference, which is a voluntary and
without prejudice process, but it should not be mandated as part of trial
preparation.

[23]        
Furthermore, in my
view, Master Bouck fell into error when she assumed that any medical expert
with whom the plaintiff and her solicitor conferred automatically become a
witness at trial. She did not appear to consider the possibility that the
plaintiff would receive advice from the expert that would not result in a
report being prepared or the expert being called at trial. She did not appear
to consider that the object of the rules to avoid trial by ambush only apply to
evidence that would be used at trial, not to expert advice received through
consultation.

[24]        
By requiring the
plaintiff to disclose the very fact of her attendance before a medical expert, and
run the risk of an adverse inference if she did not call the expert at trial, the
master was also interfering with the plaintiff’s right to elect which witnesses
to call. Such interference is not sanctioned, nor warranted, I might add, by
our Supreme Court Rules.

[25]        
Having concluded
that our rules do not grant the presider at a case planning conference the
power to make the orders made by Master Bouck, it follows that she did not have
the jurisdiction to do so.

[26]        
The appeal is
allowed and Master Bouck’s orders will be set aside.

[27]        
Subject to any
submissions, the plaintiff, as the successful applicant, is entitled to her
costs.

[28]        
MS. MASON: 
Thank you, My Lady.

[29]        
MS. BYRAM: 
Thank you, My Lady. I submit that costs should be in the normal course,
given that the lower court had awarded or granted the orders requested and we were
only the respondent in this appeal.

[30]        
THE COURT:  Do you
have anything to say about whether they should be in the cause or not?

[31]        
MS. MASON: 
No, My Lady.

[32]        
THE COURT:  All
right, then we will leave it as costs in the cause.

“Kloegman J.”