IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120312

Docket: M106086

Registry:
Vancouver

Between:

Vicky Kaladjian

Plaintiff

And

Tijo Jose

Defendant

Before:
The Honourable Mr. Justice Davies

On
appeal from: Supreme Court of British Columbia, July 15, 2011 (Kaladjian v.
Jose, M106086)

Reasons for Judgment
In Chambers

INTRODUCTION

[1]            
This judgment concerns an appeal from a decision of Master Baker
dismissing the defendant’s application for the delivery of the plaintiff’s
Medical Service Plan (“MSP”) Claim History Report by the Ministry of Health.

[2]            
The defendant submits that in refusing to order the production of the
MSP report, Master Baker erred in his interpretation of Rule 7-1(18) of the
present Rules of Court (the “present Rules”).

[3]            
The defendant further submits that not only the decision now appealed
from, but also the decisions of Master Baker in Anderson v. Kauhane,
February 22, 2011, Vancouver Registry No. M103201 [Kauhane], and of
Master Bouck in Przybysz v. Crowe, 2011 BCSC 731 [Crowe], also refusing
the production of MSP reports were wrongly decided.

BACKGROUND

[4]            
The plaintiff seeks damages for injuries suffered in a motor vehicle
accident in December 2008, for which the defendant has admitted liability.

[5]            
The plaintiff’s claims include claims for general damages for pain and
suffering and loss of enjoyment of life, as well as past and future earnings
losses, loss of homemaking capacity and cost of future care and management
fees.

[6]            
Significantly for the purposes of this appeal, the plaintiff also claims
to have suffered damages arising from the “exacerbation of injuries suffered in
a 2002 motor vehicle accident.”

[7]            
Also important is the fact that the defendant included in his defence
what I understand to be a standard pro forma plea alleging pre-existing
injury in motor vehicle cases, stating:

Any alleged injury, loss, damage
or expense was not caused by the collision, but is attributable to previous
and/or subsequent accidents, injuries or conditions involving or affecting the
plaintiff or congenital defects and/or pre-existing injuries or conditions and
the defendant says further that the alleged collision did not aggravate any
pre-existing injury or condition.

[8]            
Six months before filing the application for the plaintiff’s MSP records,
a paralegal with the defendant’s solicitors wrote to counsel for the plaintiff
concerning production of documentation related to the plaintiff’s claims.

[9]            
Included was a request for the plaintiff’s MSP records from January 1,
2003, to the present date as well as a “Pharmanet” printout from January 1,
2002, to the present date.

[10]        
Plaintiff’s counsel produced the clinical records of the plaintiff’s
treating physician from November 28, 2002 to February 18, 2011, but refused to
produce the MSP report “because it cannot be used by any party of record to
prove or disprove a material fact”.

[11]        
The defendant then brought an application under Rule 7-1(18) for the
production of the plaintiff’s MSP records. He did so before examining the
plaintiff for discovery.

[12]        
In an affidavit sworn in support of the defendant’s application, the same
paralegal deposed that the clinical records that had been provided by the
plaintiff indicated that:

On October 17, 2005, the
plaintiff was referred to Dr. Travlos. The clinical records do not contain any
records which show whether the plaintiff attended any assessment with Dr.
Travlos.

[13]        
She also deposed that:

I am advised by Michele Kim
[counsel for the defendant], and verily believe, that we require a copy of the
plaintiff’s MSP printout in order to properly evaluate and defend the
plaintiff’s claims in this action and to prepare for the examination for
discovery of the plaintiff.

THE MASTER’S RULING

[14]        
On July 15, 2011, after hearing the defendant’s application for the
production of the plaintiff’s MSP records, Master Baker delivered oral reasons
for judgment.

[15]        
In doing so, he determined that the affidavit evidence filed by the
defendant was misleading in stating that the treating physician’s clinical
records had only been provided from February 3, 2005 to October 9, 2009, rather
than from November 28, 2002 to February 18, 2011, as was the case.

[16]        
Master Baker was also critical of the suggestion that there were no
records to suggest that the plaintiff had attended upon a Dr. Travlos. At
paragraph 8, he stated:

The fact of that process is
evidenced by the clinical records.

[17]        
After considering the defective affidavit material and the submissions
of counsel, Master Baker stated at paras. 9 to 13 of his oral reasons that:

[9]        I do understand that this is not
about Dr Travlos’ records, but it is also, as every application is, it is about
the accuracy and correctness of the evidence upon which the court is asked to
make a decision. There are inaccuracies here and they do bear on the question.
I have concerns about that, as there should be a duty imposed on any party
coming to the court to be clear and accurate.

[10]      But secondly, behind ail that is,
as I say, the fact that the clinical records of Dr. Lakher from November of
2002, a date reasonably proximate to the earlier accident have been produced.
There is no suggestion that she has another general practitioner. Ms. Kim
points out, well, maybe she saw some other doctors, but that is speculation,
and where we know of a consultation with another doctor, I have been given
incorrect evidence on that I refer back to Dr. Travlos.

[11]      Were matters left where I started,
that it was pled that there was exacerbation of the 2002 injuries, were there
no other evidence where clinical records are lacking or whether there was
evidence satisfactory to me that there had been perhaps a variety of treating
physicians — I digress for a second, earlier this morning we had a case in
which there were I think some 26 different physicians named — an MSP record
might make all the sense and be absolutely justified. But on this particular
case on these facts, it is my view it is not.

[12]      And, yes, counsel have referred to
the relatively minor cost and intrusion, but so did Master Bouck in her
decision. That is the very conclusion she came to in a slightly different
context, which is post-accident MSP records in paragraph 46 of her decision in Przybysz
v. Crowe, 2011 BCSC 731. She said that:

Furthermore, the plaintiff has disclosed
post-accident medical records. Requiring production of the plaintiff’s MSP
record since the accident is not supported by the evidence or the pleadings in
any manner whatsoever.

[13]      And follows up on that point with
a conclusion that:

In this particular case, it is proportional
and reasonable that issues of a pre-existing injury be explored at an
examination for discovery before the cost (however minimal) is incurred in
production of a potentially unnecessary or irrelevant set of documents.

[14]      With a
slight modification, I adopt those remarks and apply them to the case before me
where the full and complete un-redacted clinical records of the, in my
understanding, only treating GP have been produced. Production of the MSP
records is not justified. So that is my order.

THE STANDARD OF REVIEW

[18]        
The defendant submits that notwithstanding that this appeal is from a
purely interlocutory order, because it is concerned with the correct
interpretation of Rule 7-1(18) and also brings into question interpretation
placed on the disclosure Rules in issue in Crowe and Kauhane that
a “correctness” rather than the usual “clearly wrong” standard of review of a
Master’s decision should apply to this appeal.

[19]        
In similar circumstances, in Cliff v. Dahl, 2010 BCSC 1998, N.
Smith J. considered the applicable standard of review to be applied in
some circumstances relating to a point of law arising in interlocutory
proceedings.

[20]        
In doing so, he reviewed the oft-stated test in Abermin v. Granges
Exploration Ltd., (1990) 45 B.C.L.R. (2d) 188, that establishes that the
“clearly wrong” standard will generally apply to purely interlocutory matters
that are not vital to the final issue in the case.

[21]        
He also reviewed the decision in Coast Hotels Limited v. Royal
Doulton Canada Limited, 2000 BCSC 525, in which Hood J. concluded that in
some cases document production issues could be subject to a higher standard of
review allowing a re-hearing by a judge on appeal and the substitution of the
judge’s discretion for that of the Master.

[22]        
After doing so, N. Smith J. stated at paras. 19 to 21:

[19]      On the question of the test, I will follow the
approach taken by Mr. Justice Williams in Joubarne v. Sandes, 2009 BCSC
1413 where he says at para. 14:

[14]      Nevertheless, even though I will treat the
decision as interlocutory in character, this Court is not necessarily obliged
to defer to the master’s conclusion. If the decision is one of straightforward
discretion, then, certainly, substantial deference is required. However, if the
decision of the master involves a question of law, the standard of review must
be correctness even though the matter involves an interlocutory issue such as
the production of documents.

[20]      He then also quotes from the decision of Mr.
Justice Fraser in Northland Properties Ltd. v. Equitable Trust Co., 71
B.C.L.R. (2d) 124 (S.C.) which reads in part:

…A decision involving an exercise of discretion always
involves consideration of the facts and rarely has implications for the general
law. The "clearly wrong" standard recognizes this and is based on
practical considerations having to do with the proper allocation of court time.
A decision on a point of law, by contrast, has implications for other cases and
other litigants. To adopt the "clearly wrong" standard on an appeal
from a decision on a point of law would mean that an incorrect (but not clearly
wrong) interpretation by a Master of a point of law would stand and presumably
be binding on other Masters but would remain vulnerable to a different
interpretation by a judge, in a later case.

[21]      I take those
authorities when applied to this case to mean that had the Master applied the
wrong test of whether these documents were producible or not, that would be a
question of law which I could and should review on the standard of correctness.

[23]        
I have reached the same conclusion on this appeal and will apply the
correctness standard to the issues concerning interpretation of Rule 7-1(18).

POSITIONS OF THE PARTIES

[24]        
The defendant submits that Rule 7-1(18) should be interpreted and
applied in the same way in relation to the production of MSP records as Rule
26(11) of the former Rules of Court (the “former Rules”). In doing so,
the defendant relies primarily upon the decision of Edwards J. in Creed v.
Dorio, [1998] B.C.J. No .2479 [Creed], and decisions that followed
it.

[25]        
In Creed, Edwards J. considered on appeal the decision of
a Master who had refused the production of MSP records on the basis that:

It is my
understanding that in this case employment records have been provided to
counsel for the Defendant, as have 7 years W.C.B. records which all, I
understand, predate the accident and, additionally, there are post motor
vehicle accident clinicals which include references to pre-existing conditions.
I am satisfied that in the absence of a basis to indicate that the plaintiff
has not provided accurately her medical history as it relates to her claim for
damages, a result of the injuries she sustained, or allegedly sustained, in the
motor vehicle accident, there is no basis for me to order that there should be
an M.S.P. printout provided.

[26]        
In overturning the Master’s ruling, Edwards J stated:

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 Financière du Pacifique v. Peruvian Guano Co. (1882). 11 Q.B.D 55 (Eng.
Q.B.) 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 (B.C. C.A.) at 84. Without the
production of the MSP 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.

[27]        
Although that determination was not specifically made in relation to
Rule 26(11), counsel for the defendant submits that the reasoning is
directly applicable to the approach that should now be taken under present Rule
7-1(18), which he submits is substantively the same as former Rule 26(11).

[28]        
To similar effect the defendant relies upon the decision of Groves J. in
Lee v. Schenoni, 2008 BCSC 1881, and his observations at paras. 5 and 6
that:

[5] In this case and in regards to medical MSP printouts
generally, it is not, in my view, an obtrusive level of inquiry for the
plaintiff to suffer by requiring them to produce their Medical Services Plan
records and, for that matter, their PharmaNet records. These records are
somewhat generic. I disagree with the suggestion in some of the cases cited at
the masters level that somehow the production of a Medical Services Plan record
is an obtrusive inquiry. Under our Rules of Court, parties to litigation
are allowed to explore through medical records and through discovery of
documents all reasonable inquiries in regards to positions they set out in
their pleadings. These defendants have chosen to plead a pre-existing medical
condition and they should be entitled to make reasonable inquiries which are
unobtrusive and do not require onerous acts on behalf of the plaintiff.

[6] I am going to direct that
there be disclosure of two years of pre-accident MSP records. So that would be,
for ease sake, from the 1st of July, 2003, to the 2nd of July, 2005. I am also
going to direct that the PharmaNet records for that same two-year period also
be produced. The Ministry of Health will have 45 days to produce the MSP
records and the College of Pharmacists will have 45 days to produce the
PharmaNet records.

[29]        
The defendant also relies upon the decision of Williams J. in Nicolic
v. Olson, 2011 BCSC 125, concerning the nature and extent of document
discovery to which a party was entitled under the former Rules that allowed a
defendant to investigate and test the claims advanced by plaintiffs.

[30]        
In reliance on those authorities, the defendant submits that Rule 7-1(18)
should be interpreted to require production by the Ministry of Health of a
plaintiff’s MSP records whenever the pleadings put such records in issue. The
defendant further submits that the pleadings are solely determinative of issues
of relevance and that there is no need for a defendant to adduce any evidence
to support entitlement to an order for production of MSP records directly from
the Ministry to a defendant’s solicitor as was sought in this case.

[31]        
In making those submissions, the defendant further submits that Master
Bouck’s decision in Crowe, upon which Master Baker relied in this case
in refusing production of the plaintiff’s MSP records, was wrongly decided and
should be overruled.

[32]        
In response to all of those submissions, counsel for the plaintiff
submits that cases concerning the production of MSP records decided under the
former Rules now are of very limited precedential value and that Master Baker
did not err in this case, either in his interpretation of Rule 7-1(18) or in
his application of that interpretation to the evidence before him.

[33]        
The plaintiff further submits that Crowe was correctly decided
and that applications for the production of MSP records under Rule 7-1(18) should
be supported by evidence rather than reliance upon the pleadings alone in order
to preclude automatic and intrusive “fishing expeditions” by defendants based
upon the pro forma pleading of prior existing conditions.

ANALYSIS AND DISCUSSION

[34]        
I accept that, as drafted, former Rule 26(11) and present Rule 7-1(18)
contain virtually the same wording in authorizing the court to order production
by third parties to the parties to the litigation of relevant documents in the
third party’s possession and control.

[35]        
“Documents” also has the same definition under the former Rules and
present Rules.

[36]        
There is, however, a significant difference between the document
production regimes established under former Rule 26 and present Rule 7-1.

[37]        
Under former Rule 26(1), a party was required to list:

…documents which are or have
been in the party’s possession or control relating to any matter in question in
the action,

[38]        
Under Rule 7-1(1)(a), a party is now (at least initially) obligated to
list only:

(i) all documents that are or have been in the party’s
possession or control and that could, if available, be used by any party of
record at trial to prove or disprove a material fact, and

(ii) all other documents to which
the party intends to refer at trial,

[39]        
That change has altered the test in British Columbia for determining
whether any document or class of documents must now (at least at first
instance) be disclosed.

[40]        
As stated by Edwards J. in Creed, the former broad test of
relevance for disclosure purposes, emanated from the decision in Cie Financière
du Pacifique v. Peruvian Guano Ltd (1882), 11 Q.B.D. 55 (Eng. Q.B.)
[Peruvian Guano], which required disclosure of documents that “may
fairly lead to a line of inquiry which may “either directly or indirectly enable
the party…to advance his own case or damage the case of his adversary”

[41]        
Rule 7-1(1) changed that test for documentary relevance at first
instance by requiring listing only of documents that could be used at trial to
prove or disprove a material fact and documents the disclosing party intends to
rely upon at trial.

[42]        
I say that the test of documentary relevance is changed “at first
instance” because Rule 7-1 also provides processes by which broader disclosure
can be demanded of a party under Rules 7-1(11) through (14) under which the
court can decide whether, and if so, to what extent, broader disclosure should
be made.

[43]        
In Crowe, Master Bouck discussed those processes in the
context of the stated objectives of the present Rules. At para. 23 she stated:

[23] All of these Rules are to be interpreted in
accordance with the objective of the SCCR:

1-3(1) The object of these Supreme Court Civil Rules is to
secure the just, speedy and inexpensive determination of every proceeding on
its merits.

(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.

[44]        
In specific reference to Rules 7-1(11) and (12), Master Bouck then went
on to say at paras. 27 to 29:

[27] … Those Rules contemplate a broader scope of
document disclosure than what is required under Rule 7-1(1)(a). Indeed,
the two tier process of disclosure (if that label is apt), reflects the SSCR’s
objective of proportionality. In order to meet that objective, the party at
the first instance must put some thought into what documents falls within the
definition of Rule 7-1(1)(a)(i) but is not obliged to make an exhaustive
list of documents which in turn assists in the “train of inquiry” promoted in Compagnie
Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at pp.
62-63(Q.A.).

[28] Only after a demand is made under Rule 7-1(11)
for documents that relate to any or all matters in question in the action
and the demand for productions is resisted can a court order production under Rule
7-1(14). It should be noted that in this case, the demand (and indeed order
sought) is for production of additional documents, not simply a listing of such
documents: see Rules 7-1(1) (d), (e) and (f).

[29] The court retains the
discretion under Rule 7-1(14) to order that the party not produce the
requested list or documents. Again, the court must look to the objectives of
the SCCR in exercising this discretion.

[45]        
I agree with those observations which are, in my view, equally
applicable to the interpretation and application of Rule 7-1(18).

[46]        
The introduction of the concept of proportionality into the present
Rules together with the need for a party to satisfy the court that additional
document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform
the interpretation of Rule 7-1(18). It also satisfies me that cases decided
under the former Rule 26(11) are of limited assistance in interpreting and
applying Rule 7-1(18) in motor vehicle cases.

[47]        
It would, in my view, be arbitrary and inconsistent with the objects of
the present Rules if the production of the records of a party to litigation in
the possession of third parties were to be subject to a pleadings-only Peruvian
Guano based test of relevance when more narrow tests govern the production
of a party’s own documents.

[48]        
I note, for example, that in this case the defendant brought his
application under Rule 7-1(18), notwithstanding that his counsel knew that the
plaintiff’s counsel had the plaintiff’s MSP records in his possession and was
refusing to produce them, by asserting that MSP records could not be used “to
prove or disprove a material fact.”

[49]        
If the defendant had made demand for production under Rule 7-1(10) and
applied for production under Rule 7-1(14), rather than under Rule 7-1(18),
Master Baker would have been required to decide that substantive issue.

[50]        
Also, if the defendant had made his demand for production of the MSP
records as “additional documents” under Rule 7‑1(11) and applied for
production under Rule 7-1(14), he would have been faced with the requirement to
establish entitlement to the additional documents sought. In these
circumstances, he would have also been faced with the decision of Master Bouck
in Crowe as well as that of N. Smith J. in More Marine Ltd. v.
Shearwater Marine Ltd., 2011 BCSC 166, [More Marine], which suggest
that it will be necessary to provide some evidence in support of such an
application.

[51]        
However, on his application under Rule 7-1(18) for the production of the
same documents, the defendant asserts not only that the materiality test of
Rule 7‑1(1) does not apply under Rule 7-1(18), but also that in all
cases where pre-existing conditions are alleged by defendants, they will be
entitled to the production of a plaintiff’s MSP records directly for defence
counsel.

[52]        
I have concluded that determination of whether documentation is
discoverable is not dependent upon defence counsel’s choice of the manner of
demand or application.

[53]        
I find that Rule 7-1(18) should be substantively and procedurally
interpreted and applied in a way that is consistent with the interpretation and
application of Rules 7-1(10) to (14) with necessary modification to ensure
protection of the independent interests of third parties whose records are
sought.

[54]        
In reaching that conclusion, I have considered and rejected four
specific submissions by the defendant as to why defendants should be entitled
to production of plaintiffs’ MSP records when prior existing conditions have
been pleaded by a defendant.

[55]        
I summarize those four submissions as follows:

1)    Because the
pleadings determine relevance for discovery purposes the pleadings should also
be determinative of document discovery issues. Accordingly, evidence is not
necessary on an application for the production of third party records.

2)    In many cases
evidence of pre-existing injuries will not be available to a defendant.
Accordingly, production of the MSP records of a plaintiff is necessary to
evaluate a plaintiff’s claims and prepare for discovery.

3)    Due to the
nature of MSP records, production of them will be an efficient and cost
effective means of assessing the plaintiff’s pre-accident condition and any
intrusion into a plaintiff’s privacy interests in MSP records will be minimal
and warranted because only the name of medical care providers will be disclosed.

4)    If plaintiffs
are dishonest or do not comply with their disclosure obligations under Rule 7-1(1),
defendants will be unable to obtain necessary evidence with which to seek
production of a plaintiff’s MSP records. Accordingly, plaintiffs’ MSP Records
should always be available to assess a plaintiff’s credibility and compliance
with disclosure obligations.

[56]        
I will now address my reasons for the rejection of each of these submissions.

1)       Evidence is not
necessary because pleadings determine relevance

[57]        
The difficulty with this submission is that it conflates issues
concerning the scope of examination for discovery with the scope of document
disclosure obligations under the present Rules. Unlike under the former
Rules, the scope of document discovery and oral discovery is not now the same.

[58]        
In Kendall v. Sun Life Assurance company of Canada, 2010 BCSC
1556 [Kendall], Griffin J. considered the scope of examination for
discovery under the present Rules when compared to that under the former Rules.
She found that it remains unchanged and is very broad.

[59]        
In More Marine, N. Smith J. considered Kendall when
determining the scope of document discovery under the present Rule 7-1 when
compared to that under the former Rules, and more specifically the elimination
of the Peruvian Guano test.

[60]        
At paras. 6 to 13 he stated:

[6] While Rule 7-2 (18) is the same as its predecessor, the
new Rules create a distinction that did not previously exist between
oral examination for discovery and discovery of documents. The former rule 26 (1)
required a party to list all documents “relating to every matter in question in
the action.” Although disclosure in those terms may still be ordered by the
court under Rule 7-1 (14), the initial disclosure obligation is set out
more narrowly in Rule 7-1(1):

(1) Unless all parties of record consent or the court
otherwise orders, each party of record to an action must, within 35 days after
the end of the pleading period,

(a) prepare a list of documents in Form 22 that lists

(i) all documents that are or have been in the party’s
possession or control and that could, if available, be used by any party of
record at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer
at trial, and

(b) serve the list on all parties of record.

[7] Under the former rules, the duty to disclose documents
and the duty to answer questions on oral examination were therefore controlled
by the same test for relevance. Under the new Rules, different tests
apply, with the duty to answer questions on discovery being apparently broader
than the duty to disclose documents.

[8] Although that may appear to be an anomaly, there are at
least two good reasons for the difference. One reason is that if the court
is to be persuaded that the broader document discovery made possible by rule
7-1(14) is appropriate in a particular case, some evidence of the existence and
potential relevance of those additional documents will be required. The
examination for discovery is the most likely source of such evidence.

[9] The second reason relates to the introduction of
proportionality as a governing concept in the new Rules. Rule 1-3
(2) states:

(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.

[10] The former rule governing discovery of documents was
interpreted according to the long-established test in Compagnie Financière du Pacifique v. Peruvian Guano Company (1882), 11
Q.B.D. 55 at 63 (C.A.):

It seems to me that every document relates to the matters in
question in the action, which not only would be evidence upon any issue, but
also which, it is reasonable to suppose, contains information which may
— not which must — either directly or indirectly enable the party …
either to advance his own case or to damage the case of his adversary. I have
put in the words "either directly or indirectly," because, as it
seems to me, a document can properly be said to contain information which may
enable the party … either to advance his own case or to damage the case of
his adversary, if it is a document which may fairly lead him to a train of
inquiry, which may have either of these two consequences…

[11] The new Rules recognize that application of a 19^th
century test to the vast quantity of paper and electronic documents produced
and stored by 21^st century technology had made document discovery an
unduly onerous and costly task in many cases. Some reasonable limitations had
become necessary and Rule 7-1 (1) is intended to provide them.

[12] The new Rules also impose limitations on oral
examination for discovery, but do so through a different mechanism. Rule 7-2
(2) now limits an examination for discovery to seven hours or to any longer
period to which the person being examined consents. Although the test for
relevance of a particular question or group of questions remains very broad,
examining parties who ask too many questions about marginally relevant matters,
who spend too much time pursuing unproductive trains of inquiry or who elicit
too much evidence that will not be admissible at trial risk leaving themselves
with insufficient time for obtaining more important evidence and admissions.

[13] As Griffin J. said in Kendall, the time limit
imposes a “self-policing incentive” on the party conducting the examination: at
para. 14. At the same time, the existence of the time limit creates a greater
obligation on counsel for the party being examined to avoid unduly objecting or
interfering in a way that wastes the time available. This interplay was
described in Kendall at para. 18:

A largely “hands off” approach to examinations for
discovery, except in the clearest of circumstances, is in accord with the
object of the Rules of Court, particularly the newly stated object of
proportionality, effective July 1, 2010. Allowing wide-ranging cross-examination
on examination for discovery is far more cost-effective than a practice that
encourages objections, which will undoubtedly result in subsequent chambers
applications to require judges or masters to rule on the objections. It is far
more efficient for counsel for the examinee to raise objections to the
admissibility of evidence at trial, rather than on examination for discovery.

[Emphasis added.]

[61]        
After considering the authorities and submissions of counsel, I have concluded
that the pleadings continue to govern the determination of issues of relevance
in relation to the scope of examination for discovery under the present Rules and
will usually also govern issues concerning the initial disclosure obligations
of a party under Rule 7-1(1), if challenged by a party under Rule 7-1(10).

[62]        
I have also concluded that the narrowing of the discovery obligations of
parties and most particularly the removal of the Peruvian Guano “train
of inquiry” test of relevance will generally require a defendant to provide
some evidence to support an application for additional documents, whether
demand is made under Rule 7-1(11) or Rule 7-1(18).

[63]        
A requirement for evidentiary support recognizes the difference between
the scope of examination for discovery and the scope of document discovery
under the present Rules and will allow considerations of proportionality
to be addressed in specific cases.

[64]        
A requirement for evidentiary support in requests for additional
documents and third party records also prevents against unwarranted “fishing
expeditions” based solely upon pro forma pleadings.

[65]        
Decisions to the contrary under the former Rule 26(11) based upon a Peruvian
Guano analysis and test of relevance may offer some assistance in the
assessment of relevance for disclosure purposes under Rule 7-1(18), but they
must now be read in accordance with all of the provisions of Rule 7-1, including
Rule 7-1(14) and the objective of proportionality.

2)       Lack of available evidence without MSP records

[66]        
The defendant’s submission that in many cases evidence of pre-existing
injuries will not be available to a defendant so that production of a
plaintiff’s MSP records is necessary to enable a defendant to “evaluate a
plaintiff’s claims and prepare for examination for discovery” also fails to
recognize that the “train of inquiry” test of relevance from Peruvian Guano no
longer applies to document discovery under Rule 7-1(1).

[67]        
Further, defendants have at their disposal other means by which to
obtain information about the state of a plaintiff’s health prior to discovery.

[68]        
Foremost amongst those tools is the obligation of plaintiffs to produce
documents that could be used by either party to prove or disprove a material
fact. If indeed there is a relevant pre-existing condition as pleaded, a
plaintiff’s relevant medical records will likely have been produced on the
plaintiff’s initial list of documents under Rule 7-1(1).

[69]        
The extent to which there has been compliance with that obligation can
be pursued at examination for discovery, and if evidence is obtained that can
support an application for production of MSP records, such an application can then
be made.

[70]        
The all too common pro forma pleading of a pre-existing condition
by defendants is not sufficient without more to require disclosure of MSP
records which may prove to be wholly irrelevant to the injuries allegedly
suffered by the plaintiff.

3)       Efficiency and minimal invasion of privacy

[71]        
The defendant has also submitted that due to the nature of plaintiffs’
MSP records, production of them will be an efficient and cost effective means
of assessing the plaintiff’s pre-accident condition and that any intrusion into
plaintiffs’ privacy interests in their MSP records will be minimal because only
the names of medical care providers will be disclosed.

[72]        
While I appreciate that the production of the MSP records of a plaintiff
would be an efficient and cost effective means by which defendants could assess
a plaintiff’s pre-accident condition, I do not accept that either efficiency or
cost effectiveness are bases upon which to override not only protected privacy
interests but also the disclosure regime established by the present Rules.

[73]        
The contents of a plaintiff’s MSP records remain private unless it is
established to the satisfaction of the court that an invasion of that privacy
is necessary.

[74]        
In my view, the defendant’s submissions advocating the invasion of
privacy interests by defendants “as of right” by reason only of a defence plea
of a pre-existing condition, fails a proportionality analysis. Even when the
information sought is as limited as that contained in MSP records, privacy
rights should not be abridged without cogent reasons to do so.

[75]        
Every individual’s health and the medical treatment of it is a personal
and private matter that should not be lightly interfered with. In today’s world
of medical specialization, disclosure of even the name of a medical
professional consulted by an individual for reasons wholly unrelated to a
defence plea of a prior existing condition is an unwarranted and unnecessary
invasion of privacy. Privacy interests do not take second place to notions of
expediency.

[76]        
Further, the defendant’s expediency submission again conflates the scope
of document production under the present Rules with the scope of examination
for discovery.

[77]        
It is, in first instance, up to counsel for a plaintiff to determine
whether the medical records of their client must be disclosed under Rule
7-1(1).

[78]        
Involvement in an automobile accident does not amount to an implied
waiver of privacy rights.

4)       Dishonesty or
non-compliance by plaintiffs in disclosing relevant documents

[79]        
The defendant has submitted that if a plaintiff is dishonest or
does not comply with his or her disclosure obligations under Rule 7-1(1), a
defendant will be unable to obtain necessary evidence with which to seek production
of the plaintiff’s MSP records. The defendant thus submits that MSP records
should always be available to assess credibility       and compliance with
disclosure obligations.

[80]        
Like the defendant’s submissions on efficiency and minimal invasion of
privacy, this submission does not recognize the differences between the scope
of document discovery and that of examination for discovery under the present
Rules.

[81]        
These “dishonesty and non-compliance” submissions are also disturbing in
that they assert that as a class, plaintiffs, their counsel or both, will not
comply with their disclosure obligations.

[82]        
There is neither legal nor evidentiary support for that assumption or for
the suggestion that the present Rules should be interpreted to counter
anticipated non-compliance.

[83]        
If there is a pleading by the defendant of a pre-existing condition as
in this case, that pleading triggers the need for counsel for a plaintiff to
consider whether that plaintiff must disclose some or all of their medical records
under Rule 7-1(1).

[84]        
Medical records that meet the test of being able to be used by a party
to prove or disprove the material fact of the existence of a pre-existing
condition relevant to the injuries suffered by the plaintiff will be subject to
the plaintiff’s initial disclosure obligation under Rule 7-1(1). Medical
records that cannot be so used to prove or disprove such a material fact will
not.

[85]        
Counsel for plaintiffs, acting responsibly as officers of the court,
will be in the best position to assess those questions of material relevance at
first instance.

[86]        
The question of whether medical records material to an alleged
pre-existing condition are in the possession or control of a plaintiff can also
appropriately be pursued by defendants on examination for discovery.

DISPOSITION OF THIS APPEAL

[87]        
I have addressed many of the issues raised on this appeal by reference
to those circumstances in which allegations of pre-existing conditions are pleaded
only by a defendant. I have done so because the defendant argued this appeal
not only on the basis that Master Baker incorrectly interpreted Rule 7-1(18) in
this case, but also on this basis that Kauhane and Crowe were
wrongly decided.

[88]        
In relation to those submissions I have, for all of the foregoing
reasons, concluded that if only the defendant has pleaded a pre-existing
condition, Master Baker’s and Master Bouck’s decisions in Kauhane and Crowe
requiring evidence to support a defendant’s application for the production of
MSP records were not wrongly decided.

[89]        
I am, however, also mindful that in this case, by their respective
pleadings, not only the defendant but also the plaintiff have put the
plaintiff’s pre-existing condition in issue.

[90]        
That removes the possibility that the defendant is engaged in a “fishing
expedition” in seeking the plaintiff’s MSP records.

[91]        
Not only the fact of a pre-existing condition but also the date and
circumstances of its origin are no longer speculative, and the plaintiff is
obligated to provide materially relevant medical records in her possession and
control concerning that pre-existing condition from and after the date of that
collision in November 2002.

[92]        
What remains in issue, however, is whether the defendant established
entitlement to the production of the plaintiff’s MSP records for the purposes
alleged in the affidavit filed in support of his application.

[93]        
Those purposes were to enable defendant’s counsel “to properly evaluate
and defend the plaintiff’s claims in this action and to prepare for examination
for discovery of the plaintiff.”

[94]        
For reasons which I have discussed at length, those are not purposes
that now entitle the defendant to the production of the plaintiff’s MSP records
in this case. They are based upon the Peruvian Guano “train of inquiry”
test that no longer applies to a plaintiff’s document discovery obligations
under Rule 7-1(1), and the evidence before Master Baker established to his
satisfaction that the plaintiff had produced the clinical records of her only
treating doctor for the relevant period.

[95]        
Further, as I have previously noted, the plaintiff’s MSP records were in
the possession and control of plaintiff’s counsel, so that bringing the
application for their production under Rule 7‑1(18) was, at best,
misguided.

[96]        
If what was challenged by the defendant was whether the plaintiff’s MSP
records “could be used to prove or dispute a material fact” under Rule 7-1(1),
the application for production ought to have been brought under Rules 7-1(10)
and 7-1(14). I make no comment on whether that application could succeed.

[97]        
If what was challenged by the defendant was whether the plaintiff’s MSP
records were “additional documents” that should be disclosed, the demand for
production ought to have been made under Rule 7-1(11), and the application for
production should have been made under Rule 7-1(14) where questions of whether
the court should alter the test of relevance for document disclosure purposes
and if so to what extent, could be addressed. That inquiry would include
principles of proportionality.

[98]        
In all of those circumstances I am satisfied that Master Baker was not
wrong in the exercise of his discretion to refuse to order production of the
plaintiff’s MSP records under Rule 7-1(18) in this case.

[99]        
The appeal is accordingly dismissed.

COSTS

[100]    
The plaintiff will have her costs of this application on Scale B in any
event of the cause.

“Davies
J.”