IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120130

Docket: 10-0412

Registry:
Victoria

Between:

Megan M. Edwards

Plaintiff

And:

Robert Ganzer

Defendant

Before:
Master Bouck

Reasons for Judgment

Introduction

[1]            
The parties in this personal action have each brought applications
before the court for determination.

[2]            
In her notice of application, the plaintiff sought an adjournment of the
trial in this action, scheduled to commence in April 2012.

[3]            
The defence opposed the adjournment. However, as a condition to any
adjournment (and as part of his separate application), the defendant asked for
an order that the plaintiff attend an independent medical examination with
Dr. John Watterson, rheumatologist, on April 25, 2012, at 1:30 p.m.
(the “IME”).

[4]            
Although the plaintiff’s response is not clear, Ms. Edwards does not
object to attending the IME.

[5]            
The defendant also sought an order that the plaintiff produce her
Medical Services Plan (“MSP”) and Medication Profile (“Med Profile”) record in
advance of the IME. The plaintiff resists production of these documents.

[6]            
After hearing submissions, I ordered that the trial be adjourned
generally. The plaintiff was also ordered to attend the IME. These reasons
address the defendant’s application for production of the sought-after records.

The Facts

[7]            
All of the affidavit material filed by the parties has been reviewed and
considered. For the sake of conciseness, I will attempt to summarize only those
facts relevant to the document production order.

[8]            
The plaintiff claims damages for injuries suffered in a motor vehicle
accident that occurred on April 18, 2008.

[9]            
Ms. Edwards was involved in a second accident in November 2010. A
separate action has been commenced by the plaintiff with respect to injuries
allegedly suffered in that accident.

[10]        
Liability for the accidents is not in issue.

[11]        
The plaintiff’s two actions are to be heard at the same time, subject to
the directions of the trial judge.

[12]        
Ms. Edwards’ principal complaints arising from the accidents are ongoing
cervical, thoracic and lumbar back pain and discomfort. In addition, the
plaintiff complains of jaw pain and fatigue.

[13]        
As a result of these ongoing complaints, the plaintiff was referred by
her family doctor to Dr. K. Northcott (rheumatologist) for investigation of a
possible fibromyalgia diagnosis. Dr. Northcott prepared at least two consult
reports but declined to provide a written medical-legal report. The consult
reports have been provided to defence counsel.

[14]        
Initially, Dr. Northcott raised the spectre of a “distinctly separate,
second diagnosis” of spondylitis. Further investigations and tests of the
plaintiff were recommended. The tests did not support the spondylitis
diagnosis. Instead, Dr. Northcott confirms a positive diagnosis of
fibromyalgia.

[15]        
Plaintiff’s counsel next took steps to arrange an assessment by a second
rheumatologist so that a medical-legal report could be prepared and presented
at trial.

[16]        
Ms. Edwards is scheduled to see this physician in June 2012.

[17]        
The plaintiff’s complaints have been investigated by a number of medical
professionals including two general practitioners, a physiotherapist, massage
therapist and chiropractor. Much of the plaintiff’s potential medical evidence
has already been disclosed to the defence in the form of clinical notes and
records.

[18]        
Upon the defendant’s request, the plaintiff attended an independent
medical examination with Dr. James Filbey, physiatrist. In a report issued
March 2, 2011, Dr. Filbey opines that the plaintiff’s then symptoms were
“primarily soft tissue in nature” with “no objective findings”.

[19]        
Consistent with other medical professionals, Dr. Filbey recommends that
the plaintiff pursue an active rehabilitation program.

[20]        
In addition, Dr. Filbey recommends that the plaintiff take amitriptyline
to deal with non-restorative sleep issues. Ms. Edwards apparently discontinued
the use of this medication due to side-effects.

[21]        
The impact of the accident-related injuries on Ms. Edwards’ working life
is not entirely clear. Ms. Edwards reported to Dr. Filbey that she is able to
“tolerate” her work “with no significant limitations”. Other medical records
indicate something quite different; that is, the plaintiff is simply choosing
to tolerate the pain and discomfort at work but with limitations on her
functioning. As well, plaintiff’s counsel indicates in a letter issued August
2011 that Ms. Edwards was off work due to the injury-related symptoms.
Apparently, the plaintiff was back at work by late November 2011 but still
experiencing pain and discomfort in her daily functioning.

[22]        
While the plaintiff has complied with the majority of the defence
requests for document disclosure, Ms. Edwards has rejected the repeated request
for production of certain MSP records and the Med Profile record in its
entirety.

[23]        
The plaintiff has provided the defence with her MSP record for the
following periods:

April 18, 2006
to April 18, 2008 (delivered on June 1, 2010);

April 18, 2008
to March 19, 2009 (delivered on April 1, 2009);

March 18, 2009 to December 16, 2009
(delivered on June 1, 2010).

[24]        
The plaintiff has in her possession, but is refusing to produce, the MSP
record for the following periods:

April 18, 2005
to April 17, 2006;

December 17,
2009 to July 9, 2010;

September 27,
2010 to November 8, 2011.

[25]        
The plaintiff has not requested a copy of her Med Profile record from
the College of Pharmacists of B.C.

[26]        
In his notice of application, the defendant seeks production of the
plaintiff’s MSP record from March 1, 2009 to date and the Med
Profile record from January 1, 2006 to date.

[27]        
Ms. Edwards was examined for discovery on February 4, 2011. The
plaintiff gave evidence at the examination with respect to her consumption of
medication, including the names of those medications. As well, the plaintiff
deposes that she has fully disclosed the names of treating practitioners relevant
to the action.

[28]        
The parties’ affidavit material details the requests made by the defence
for production of the plaintiff’s MSP and Med-Profile records as well as the
plaintiff’s response to these requests.

The Parties’ Positions

[29]        
The defendant premises his application on Rule 7-1(14) of the Supreme
Court Civil Rules (“SCCR”).

[30]        
As set out in his notice of application, the defendant says that the MSP
and Med Profile records “are related to matters in question in the action in
that they:

a.  allow the Defendant a way of discovering if the
Plaintiffs evidence as to her pre- and post-accident condition and treatment is
consistent with the record of her treatment in the Medical Services Plan
print-out and the Medication Profile print-out;

b.  allow counsel for the Defendant an important summary of
the medical treatments received, and medications used, by the Plaintiff on an
historical basis;

c.  allow the Defendant to assess whether other medical
issues have affected the Plaintiff or will affect the Plaintiff in the future,
as this impacts on issues of wage loss and capacity loss, both past and future;

d.  allow the Defendant an independent record by which to
objectively assess the severity of the Plaintiffs condition, through an
analysis of treatments obtained and medications utilized;

e.  provide counsel for the Defendant with an independent
record of the Plaintiffs medical history, both pre- and post-Accident, with
which the Defendant can assess the adequacy of document production; and

f.  provide counsel for the
Defendant with an independently prepared and complete record of all medical
attendances, which can assist the Defendant in proving or disproving a matter
in question and can also assist in directly cross-examination of witnesses, in
particular expert witnesses, at trial.”

[31]        
The defendant also observes that the MSP and Med Profile records are the
least costly discovery tool available to the defendant and the least intrusive
to the plaintiff.

[32]        
The plaintiff takes the position that none of the information contained
in the requested records relate to a material fact and are irrelevant to the
action. Thus, the plaintiff is under no obligation to list or produce the
documents under Rule 7-1(1) of the SCCR.

[33]        
In addition, in terms of proportionality, the plaintiff says that the
production of MSP and Med Profile records is unnecessary and redundant. The
defendant will shortly be in possession of up-dated clinical records from the
plaintiff’s treating medical professionals. Those records will provide the
defence with a more complete picture of the plaintiff’s  health than the MSP
and Med Profile records could possibly offer. Production of the MSP and Med
Profile records will simply add another layer of costs to the litigation in
having the plaintiff review and list the documents.

[34]        
Furthermore, the legal assistant to plaintiff’s counsel addresses the
question of proportionality by stating that “in her experience” defence counsel
will request production of the records of all practitioners listed on the MSP
record as a matter of course. Thus, the plaintiff will be put to this
additional, but unnecessary, cost and expense.

[35]        
Finally, the plaintiff submits that the production of MSP and Med
Profile records violates her right to privacy.

Discussion

[36]        
The defendant suggests that the law with respect to production of
documents under Rule 7-1 of the SCCR requires greater clarification from
the court.

[37]        
In this case, the defendant submits that production of a plaintiff’s MSP
and Med Profile records is essentially a given once a demand has been made
under Rule 7-1(11).

[38]        
With respect to the law decided under Rule 7-1, the parties cite the
following authorities: Biehl v. Strang, 2010 BCSC 1391; Przybysz v.
Crowe, 2011 BCSC 731; Global Pacific Concepts Inc. v. Owners of
Strata Plan NW 141, 2011 BCSC 1752; Balderston v. Aspin, 2011
BCSC 730; Zecher v. Josh, 2011 BCSC 311.

[39]        
Biehl v. Strang is the seminal decision of Punnett J. addressing
(mostly) the primary obligation of document disclosure under Rule 7-1(1) (a).
The remaining decisions touch upon, if not directly address, the document
disclosure obligations under both Rule 7-1(1)(a) and Rule 7-1(14) of the SCCR.

[40]        
In addition, Master Baker has recently discussed the application of Rule
7-1 in Burgess v. Buell Distribution Corp., 2011 BCSC 1740.

[41]        
I understand the principles outlined in these various decisions,
together with the applicable Rules, to be as follows:

a. The initial production
obligation under Rule 7-1 (1) (a) (i) is limited to what is required to prove
or disprove a material fact: Biehl v. Strang at para. 14;

b.  Rule 7-1(10) allows the
opposing party to issue a written demand requiring the listing party to amend
the original list and produce documents that should have been disclosed under
Rule 7-1(1)(a)(i);

c.  In addition, Rule 7-1(11)
allows the opposing party to issue a written demand requiring the listing party
to amend the list and produce documents which ought to be disclosed under a
test “close to” that set out in Compagnie Financiere et Commerciale du
Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63, (the
“Guano test”): Global Pacific at para. 9;

d.  The distinction between the two types of disclosure
provided for under Rule 7-1 is stated in Global Pacific as follows:

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).

(my emphasis.)

Para. 9

e.  Both the demand by the
requesting party and the response of the opposing party should be set out in
writing addressing the terms and criteria used in Rule 7-1. Whether the demand
and response provide sufficient particularity is a matter of the court’s
discretion;

f.  If an application is brought
under Rule 7-1(13) for the listing or production of  documents, the court may
either order compliance with the demand, excuse full compliance, or order partial
compliance: Rule 7-1(14);

g.  The objectives of the SCCR,
including proportionality, may be taken into account by the court when
exercising its discretion under Rule 7-1(14). The proportionality rule can be
applied to either expand or restrict the required production of documents: Global
Pacific citing Whitcombe v. Avec Insurance Managers Inc., 2011 BCSC
204.

[42]        
Interestingly, a party may be excused from compliance with Rule 7-1(1)
generally, but the court is not given the specific power to order compliance
with a demand made for the listing and production of the so-called “materiality”
documents. Rule 7-1(14) only specifically allows for an order requiring
compliance with a broader disclosure demand under Rule 7-1(11): Global
Pacific; Burgess v. Buell Distribution Corp. Whether this distinction is an
oversight or intentional is difficult to say. It might well be the former,
given that Rule 7-1(13) contemplates a compliance order by the court if a
demand for the “material” documents is issued. The distinction is more fully
canvassed in Burgess v. Buell Distribution Corp. at para. 15.

[43]        
In this particular case, the application for production of the documents
falls within the parameters of Rules 7-1(11), (13) and (14).

[44]        
I find that the defendant applicant has set out his demand for
production in sufficient particularity to allow consideration of an order under
Rule 7-1(14).

[45]        
The defendant submits that once the demand is shown to be properly made,
the court may look to decisions rendered under Rule 26(11) of the former Rules
of Court with respect to production of documents. That is because the test
under that Rule is analogous, or even equivalent, to the test for production
under Rule 7-1(11) (i.e. the Guano test). On this point, I reiterate
that the authorities cited only go so far as to say that the broader disclosure
test under Rules 7-1(11)(b) and (14) is “close to” the Guano test.

[46]        
It is submitted that under the broader disclosure test under Rule
7-1(14), the court should order production of the MSP and Med Profile records
on the grounds discussed in such cases as Creed v. Dorio, [1988] B.C.J.
No. 2479 (S.C.) and Lee v. Schenoni, 2008 BCSC 1881 (Master).

[47]        
Creed v. Dorio concerned an appeal from a Master’s order denying
production of MSP records. In overturning that order, E.R.A. Edwards J. decided
the following:

[12]      The core question is whether the effect of the
master’s decision in this case is to impose an inappropriately high onus on the
defendant to demonstrate more than that the M.S.P. printout "may" be
relevant, in the sense that it "may fairly lead to a line of inquiry"
which may "either directly or indirectly enable the party [defendant] …
to advance his own case or damage the case of his adversary": Cie.
Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at 63,
applied in Dufault v. Stevens (1978), 6 B.C.L.R. 199 (B.C.C.A.) which
was in turn cited and applied in M. (A.) v. Ryan (1994), 98 B.C.L.R.
(2d) 1 (B.C.C.A.).

[13]      I have concluded the effect of the master’s
decision in this case is to require the defendant to demonstrate more than is
required under the Peruvian Guano test, by requiring "some evidence
[be] laid before the court" as to the relevance of the M.S.P records.
There was no such requirement imposed for the treating physician’s clinical
notes, which the plaintiff conceded must be produced, even though they may disclose
no pre-accident treatment relevant to the claim or defence, which of course
cannot be ascertained until they are produced and examined.

[14]      Further, the decision
under appeal gives no effect to the principle that wide production of documents
is required to ensure "…not only that all relevant non-privileged
documents have been produced, but that the defendant has been afforded a means
of satisfying himself that is in fact the case": Stingl v. Messmer
(1987), 18 B.C.L.R. (2d) 81 at 84 (B.C.C.A.). Without the production of the
M.S.P printout, the defendant will have no way of discovering if the
plaintiff’s subsequent discovery evidence as to her pre-accident condition and
treatment is consistent with the record of her treatment in the M.S.P record.

[48]        
Based on the authorities cited, I do not disagree with the defendant’s
contention that decisions made under former Rule 26(11) may assist the court in
the exercise of its discretion under Rule 7-1(14).

[49]        
With respect to the production of MSP and Med Profile records generally,
there has always been a requirement that the applicant provide some grounds
justifying production: see Moukhine v. Collins, 2010 BCSC 621 at para.
22.

[50]        
For example, in Marsh v. Parker, 2000 BCSC 1605, production of a
pre-accident MSP record was denied for these reasons:

[7]        There is nothing in the affidavit of Ms. Greffard,
a legal assistant to defendant’s counsel, or in the exhibits, which suggests
that the plaintiff has suffered any previous injury or medical condition which
might be relevant to the question of damages. My attention was not drawn to
anything in the pleadings raising such issue. Counsel for the plaintiff says
that I should nevertheless, make the orders sought because a plaintiff’s
pre-accident state of health is always in issue in an action for damages for
personal injury.

[8]        Counsel for the plaintiff has referred me to Creed
v. Dorio [1998] B.C.J. No. 2479 as authority for the proposition that a
defendant is entitled to a plaintiff’s MSP printout for any time period during
which the plaintiff’s health is in issue. I do not doubt that proposition but
the question is, when is the plaintiff’s pre-accident state of health in issue?
In Creed v. Dorio it was conceded that the plaintiff’s state of health during
the period for which the printout was requested was a fact relevant to her
claim. That is not conceded here.

[9]        Of more persuasive, and, perhaps, binding
authority is Dhaliwal v. Hurst (1982) 26 CPC 151 (BCCA). In that case
the British Columbia Court of Appeal rejected the argument that when a claim
for damages for personal injury is advanced, the pre-accident state of health
of the claimant is always relevant. I take from that decision that there
must be something either by way of evidence or by way of the pleadings which
raises the plaintiff’s pre-injury state of health as an issue.

(my emphasis.)

Paras. 7-9

[51]        
Thus, in a personal injury action, a plaintiff’s MSP and Med Profile
will not be ordered produced to the defence regardless of the facts of the
case. At the very least, there must be some “air of reality” between the
documents and the issues in the action: Moukhine v. Collins at para. 22.

[52]        
Correspondingly, decisions where the production of these kinds of
records have been denied will likely have little or no precedential value to
the plaintiff here as the facts are bound to differ from those in the case at
bar.

[53]        
Neither of these propositions represents a change in the law since the
introduction of the SCCR.

[54]        
What is new to this discussion is the role that proportionality plays in
making an order under Rule 7-1(14). Although not specifically provided for in
Rule 7-1, it is only logical that the court should take into account the
objects stated in Rule 1‑3 (2) when exercising its discretion
with respect to compliance with the broader disclosure demand: see Kim v.
Lin, 2010 BCSC 1386 at para. 29. Indeed, those objectives have been
considered by the court in the decisions already cited.

[55]        
In terms of relevancy, the plaintiff has already acknowledged the
relevancy of the MSP and Med Profile records by disclosing these records on her
initial list of documents. It would seem apparent that the plaintiff concedes
that this document ought to be produced under the Guano test.

[56]        
While the plaintiff’s submissions suggest that privacy concerns come
into play, there is no evidence from the plaintiff herself (either directly or
on information and belief) which might justify a Halliday form of order:
Gorse v. Straker, 2010 BCSC 119 at paras. 12, 13 and 36.

[57]        
Paraphrasing the test set out in Global Pacific, the issue to be
determined is whether the MSP and/or Med Profile records sought can properly be
said to contain information which may enable the defendant to
advance his case or damage the case of the plaintiff, if it is a document which
may fairly lead to a train of inquiry, or if it may have either of these
consequences.

[58]        
Both the evidence and pleadings raised issues of mitigation (i.e.
rehabilitation efforts; following professional advice on medication). In that
respect, both the MSP and Med Profile record may enable the defence to prove
that the plaintiff has failed to mitigate her damages. In addition, these
records may serve the purpose described in Creed v. Dorio; that is, to
test the credibility and reliability of the evidence presented by the plaintiff
to date on her post-accident health.

[59]        
I have concluded that on the facts of this case, the plaintiff’s MSP
record and the post-accident Med Profile ought to be listed and produced
pursuant to the demand made under Rule 7-1(11).

[60]        
With respect to the Med Profile record, I am not persuaded that either
the pleadings or the evidence presented on this application provide the
requisite grounds to compel an inquiry into the plaintiff’s pre-accident
medication history.

[61]        
Even if the defendant has met the threshold test for production, the
court retains the discretion to limit such production of the records, either in
part or on the whole.

[62]        
As the authorities decide, the proportionality test might be applied to
either limit or expand document production.

[63]        
Ms. Edwards’ medical situation has become objectively more complex. The
new diagnosis of fibromyalgia stands in contrast to Dr. Filbey’s prognosis
and, indeed, the apparently common diagnosis by other medical professionals
that Ms. Edwards was experiencing the repercussions of a soft tissue
injury.

[64]        
Whether this new diagnosis impacts on the amount involved in the
proceeding is impossible to determine. However, the first indication that the
plaintiff might be missing work (and thus present a wage loss claim) came after
the fibromyalgia diagnosis. It is not unreasonable to suppose that the new
diagnosis will result in the plaintiff seeking more compensation than initially
thought by the defendant.

[65]        
In the circumstances of this case, I find that proportionality test
supports the production of the MSP records from December 17, 2009 to date,
but the Med Profile only from April 18, 2008 to date. The
plaintiff is ordered to list these documents and make the documents available
for inspection and copying pursuant to Rules 7-1 (15) and (16).

Costs

[66]        
The plaintiff was successful on her application for the adjournment of
the trial. The defendant was successful on his application for production of
records. The order requiring the plaintiff’s attendance at an independent
medical examination was not opposed. In the result, the parties will bear their
own costs related to preparation for all three applications and attendance
before the court on January 10, 2012.

                       “C.
P. Bouck”                   

Master
C. P. Bouck