IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120214

Docket: S22808

Registry:
Chilliwack

In the Matter of Damages
to Sukhjit Singh Dhindsa
in a motor vehicle accident on June 1, 2010 and
the Royal Canadian Mounted Police Surrey Detachment

Before:
The Honourable Mr. Justice Grist

Reasons for Judgment
In Chambers

[1]            
The applicant applies for an order directing the Officer in Charge of
the Surrey detachment of the Royal Canadian Mounted Police (the “Surrey RCMP”)
to produce the written results of an investigation into a hit and run collision
on June 1, 2010. The facts set out in the notice of application indicate that
Mr. Dhindsa was injured as a result of being struck by a vehicle driven by an
unknown driver, who then left the scene.

[2]            
The application is brought by way of a requisition for a consent order
filed on May 9, 2011. A civil action for damages has yet to be filed. As the requisition
indicates, the Officer in Charge of the Surrey detachment consents to the form
of order prepared by the applicant and, in fact, has given considerable
information concerning the police investigation by way of a letter dated August
25, 2010. The information provided by the police lists the witnesses to the
event, but does not provide any contact information. This application seems
particularly designed to obtain this contact information.

[3]            
This matter came on in chambers in New Westminster on December 5, 2011.
At that hearing, I indicated that the application by way of requisition appeared
to be an attempt to obtain discovery of information from a third party prior to
an action actually being commenced, and that the Rules did not appear to
provide for such an application. I granted leave for filing a written
submission in support of the application. The written submission was filed on
January 27, 2012.

[4]            
Counsel for Mr. Dhindsa has cited Kenney v. Loewen (1999), 64
B.C.L.R. (3d) 346 (S.C.) [Kenney], a decision of Madam Justice Saunders
which references Glaxo Wellcome PLC v. Canada (Minister of National
Revenue), 1998 CarswellNat 1388 (F.C.A.), 162 D.L.R. (4^th) 433 [Glaxo].
The Glaxo case before the Federal Court of Appeal in turn cited the English
House of Lords decision in Norwich Pharmacal Co. v. Commissioners of Customs
and Excise, [1973] 2 All E.R. 943; [1974] A.C. 133 (H.L.).

[5]            
These decisions all recognize that an antique form of action for a
remedy known as an equitable bill of discovery remains known to the law and, in
appropriate cases, can be the sole remedy sought in a civil action.

[6]            
In short form, the bill of discovery would require a third party to
reveal the identity of a person the plaintiff says has done them wrong. In Kenney,
the plaintiff indicated that he had suffered damages as a result of a slander.
He did not know the source of slander and the action for the bill of discovery
was designed to force the defendant to reveal the person’s identity. At para.
33 of Kenney, Madam Justice Saunders listed the circumstances under
which the remedy would be granted:

(a)        the
plaintiff must show that a bona fide claim exists against the unknown
wrongdoer;

(b)        the
defendant must establish that the information is required in order to commence
an action against the unknown wrongdoer, that is, the plaintiff must establish
that disclosure will facilitate rectification of the wrong;

(c)        the
defendant must be the only practicable source of the information;

(d)        there
is no immunity from disclosure;

(e)        the
plaintiff must establish a relationship with the defendant in which the
defendant is mixed up in the wrongdoing. Without connoting impropriety, this
requires some active involvement in the transactions underlying the intended
cause of action.

(f)         disclosure
by the defendant will not cause the defendant irreparable harm; and

(g)        the interests of justice favour
granting the relief.

[7]            
In the affidavit filed in support of this action counsel for Mr. Dhindsa
says at numbered items 6-8:

6.         I have
not filed a Notice of Civil Claim on behalf of my client and require production
of the Police File by the Surrey RCMP to ascertain the identity of the potential
defendant(s) and whether or not there is sufficient evidence to ground a claim
of negligence.

7.         If there
is sufficient evidence to found a negligence action, I require the Police File
to understand what the objective witness accounts of the Accident are so as to efficiently
and correctly plead my client’s case, represent my client at trial and represent
my client during settlement negotiations.

8.         I do not want to commence an
action without first obtaining the Police File in order to adhere to Rule 1-3
of the Civil Rules of Court.

[8]            
Assuming for the moment that the application for the bill of discovery brought
by way of a requisition satisfies Rule 2-1(2)(a) and Rule 17-1, the application
is nonetheless deficient in providing the circumstances indicated in Kenney under
sub-paragraphs (a) and (e). The affidavit indicates that Mr. Dhindsa was
injured in the motor vehicle accident, but does not give any details to suggest
the other driver was negligent. In fact, investigation of the circumstances is
listed as one of the reasons for wanting to have access to the police file.
Further, there is nothing to indicate that the Surrey RCMP are “mixed up in the
wrong doing,” or were actively involved in, “the transactions underlying the
intended cause of action.”

[9]            
The right to pre-action discovery may have merits beyond the strictures
of an action for a bill of discovery, however, that form of proceeding is not
applicable on the circumstances of this application.

“W.G.
Grist J.”