IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20121010

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., carrying on business as
Deeley Harley-Davidson Canada

Defendants

And:

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

Third
Parties

Before: The Honourable Mr. Justice
Grauer

Reasons for Judgment

In
Chambers

[1]            
The plaintiff was seriously injured in a single vehicle accident when he
lost control of the Harley-Davidson motorcycle he was operating.  His
motorcycle was equipped with a sidecar.  The central question in this
litigation is what caused that loss of control.  The plaintiff alleges that it
was caused by "wobble and/or weave instability…" as the result of
malfunction of the motorcycle products including the motorcycle itself, the
sidecar kit and the hydraulic steering damper manufactured by Harley-Davidson
Motor Company Group LLC (“Harley-Davidson” or “HDMC”).

[2]            
On this application, the plaintiff asserts that Harley-Davidson has been
grossly delinquent and obstructive in relation to its discovery obligations. 
He seeks an order striking out Harley-Davidson’s Response to Civil Claim and
entering judgment for the plaintiff on liability, with damages to be assessed. 
Alternatively, he seeks an order for production of a Further Amended List of
Documents, together with an affidavit verifying it, and, in any event, special
costs incurred as a result of the need to adjourn the trial.

[3]            
Relevant steps and developments in this litigation include the
following.

[4]            
The action was commenced on November 20, 2008, alleging, among
other things, that the accident occurred due to loss of control of the
motorcycle caused by "vibrating and shaking".  Harley-Davidson Inc.
was initially named as defendant, and an appearance was entered on July 10,
2009 by the same solicitor who now defends HDMC, added in April of 2010.

[5]            
The RCMP file, which came into the possession of HDMC counsel in
February of 2010, included references to eyewitness accounts of front wheel and
front end wobble in the plaintiff’s motorcycle just before the accident.

[6]            
On August 4, 2010, plaintiff’s counsel wrote to HDMC counsel
demanding production of classes of documents including those relating to
complaints or reports of steering mechanism problems including
"wobble".

[7]            
On September 21, 2010, this action was set for trial for 24 days
commencing March 5, 2012.

[8]            
Harley-Davidson’s list of documents was due by the end of September 2010,
and was delivered on February 25, 2011.

[9]            
Since then, there has ensued a lengthy battle of attrition over the
scope of Harley-Davidson’s document production and oral discovery that is
either (a) the result of Harley-Davidson’s deliberate corporate strategy to
avoid disclosure unless or until forced into it by the opposing party having
learned of the existence of documents by other means, or (b) due to a bona
fide difference between the parties on the relevance of the handling
characteristics of two-wheel motorcycles to an accident involving a motorcycle
with sidecar (a three-wheel motorcycle).

[10]        
Harley-Davidson has maintained throughout that documents in its
possession relating to the handling characteristics, including complaints or
reports of "wobble" or "weave" in the front end and
steering mechanism of its two-wheel motorcycles are irrelevant to this accident
because Mr. Burgess’ motorcycle had a sidecar, and handles in a completely
different manner.

[11]        
This issue first came before me as the newly-appointed case management
judge on October 4, 2011.  At that time, I pronounced an order permitting
the plaintiff to file a third amended notice of civil claim, which
Harley-Davidson did not oppose, and a "document protective order"
that the parties requested by consent.  In retrospect, the wisdom of such an
order was worthy of greater consideration than it received in the circumstances.

[12]        
In addition, I dealt with the plaintiff’s application for an order
requiring Harley-Davidson to amend its list of documents to include documents
or classes of documents listed in the notice of application.  In view of
Harley-Davidson’s response in the form of the affidavit of its representative
that it had, in essence, already produced all it had in its possession or
control relating to the classes of documents requested, I limited my order to a
requirement that Harley-Davidson advise plaintiff’s counsel of what documents
it had concerning engineering test procedures used to measure and quantify the
wobble mode stability of an FL platform motorcycle, together with its position
concerning why such documents are irrelevant and need not be produced.

[13]        
In compliance with that order, Harley-Davidson produced a letter from
its Manager of Vehicle Dynamics and Simulation, Dr. Brendelson, setting
out the basis for the company’s position that documents pertaining to the
stability of two-wheel motorcycles are not relevant to the stability of
sidecar-equipped motorcycles.  Harley-Davidson submits that "[u]ntil now,
the plaintiff has never returned to court to assert that Harley-Davidson
is required to produce documents relating to the handling characteristics of
two-wheel motorcycles" [emphasis added].  Strictly speaking, that would
appear to be correct.  I observe, however, that the plaintiff has been consistently
demanding production of such documents since August of 2011.

[14]        
The plaintiff responded to Dr. Brendelson’s assertion with expert
opinion evidence from Mr. Mark Ezra, to the effect that, sidecar or not,
the steering assembly is identical and the oscillation or wobble of that
steering mechanism will be identical.

[15]        
At the outset of this application, Harley-Davidson sought an order
permitting it to cross examine Mr. Ezra on his affidavits in the hope of
assisting it to establish its position, based on the evidence of its own
engineers, that a motorcycle with a sidecar such as that operated by the
plaintiff is a discrete three-wheeled vehicle that operates, steers, handles,
and brakes differently from two-wheeled motorcycles, and that "documents
pertaining to the stability of two-wheeled motorcycles are not relevant with
respect to the stability of a sidecar equipped motorcycle".

[16]        
I dismissed Harley-Davidson’s application in oral reasons for judgment
indexed as 2012 BCSC 402.  I noted in my reasons that this particular
divergence in views had confronted the Honourable Associate Chief Justice
Cullen when he heard an application by the plaintiff for an order requiring a
representative of Harley-Davidson to answer specific discovery questions (as
well as questions arising from them) relating to standards and testing of
handling characteristics for two-wheeled motorcycles.  Thus this same standoff
had interfered with oral discovery as well as discovery of documents.  Cullen A.C.J.
concluded that this was not a case where it could be said on the pleadings that
there was no relevance to the questions being posed.  In his judgment indexed
as 2011 BCSC 1831, His Lordship went on to say this:

[16]      In my view, on that
basis the order sought should go.  If I am wrong in that however, I am still
not satisfied having considered the evidence put before me that there is not
some relevance to the questions being posed.  There is a difference between the
views of the experts as to the possible cause of the accident and whether it
resides exclusively in the characteristics of the vehicle as a three-wheeled
vehicle or whether it has its source in the component parts of the two-wheeled
vehicle.  And that is a question essentially for the trial judge.

[17]        
In dismissing Harley-Davidson’s application, I observed that it is the
pleadings that determine relevance, not experts or in-house engineers, and that
given Cullen A.C.J.’s reasons, Harley-Davidson’s position came "at
least perilously close to constituting an abuse of process".

[18]        
That continues to be my view.  Harley-Davidson may ultimately be found
to be correct in its assertion that the characteristics of components of the
two-wheeled vehicle do not establish what happened to the three-wheeled vehicle
at issue in this lawsuit, but that will fall to be determined upon the
evidence.  In short, the evidence will determine whether Harley-Davidson’s
position is correct.  Harley-Davidson would have it the other way around, and
have its position determine what the evidence should be.  That is not how it
works.

[19]        
From the outset of this litigation, it has been alleged that
"vibration and shaking", to which has since been added "wobble
and/or weave instability", due to improper design and/or manufacture, was
the root cause of the accident.  Although the vehicle in question was equipped
with a sidecar, nowhere is alleged that the defect was limited to
sidecar-equipped motorcycles.  In the circumstances, I am satisfied that
documents of the sort that the plaintiff has been seeking for many months are
in fact relevant based on the pleadings, and must be produced.  They will
assist the parties in either proving or disproving the material fact of whether
"wobble and/or weave instability", including "vibration and
shaking" due to improper design and/or manufacture, caused the accident:
see Biehl v. Strang, 2010 BCSC 1391, and Sarvarian v. Sok,
2011 BCSC 585 at paras. 106-108.

[20]        
With respect to Harley-Davidson’s refusal to hand over documents to the
plaintiff until the plaintiff had entered into a document protection agreement
and a document protection order had been pronounced, I am satisfied that this
position did constitute an abuse of process in the circumstances of this case.  The
abuse was not in pursuing the protection, but in refusing to allow the plaintiff
access to its documents without immediately applying for an appropriate order. 
Harley-Davidson is not at liberty to impose, unilaterally, conditions on
document production that vary from its obligations under the Supreme Court
Civil Rules – see, for instance, Farmer v. Farmer, 2009 BCSC 1064
at para. 9.  As HDMC is represented by able and experienced counsel, and
employs a highly experienced team of in-house litigation counsel, I can fairly
conclude that it was aware of its obligations and nevertheless failed to comply
with them.  That the plaintiff in a state of frustration finally caved in to
Harley-Davidson’s demands does not excuse them.

[21]        
As it turns out, it is Harley-Davidson’s invariable corporate policy to
insist in any litigation in any court in any jurisdiction that a document
protection order be obtained and a document protection agreement entered into
by the opposing party, before it will deliver any documents.  This is, it says,
intended to protect proprietary information.

[22]        
The plaintiff submits that the policy is purely obstructive in nature,
designed to inhibit litigants from learning about documents disclosed in other
lawsuits.  During the relatively recent course of this litigation, the
plaintiff’s solicitors came to learn of other lawsuits in the United States
involving the loss of control of motorcycles manufactured by Harley-Davidson,
and have adduced a considerable amount of evidence to support the contention
that numerous categories of documents have been disclosed in those cases about the
existence of which Harley-Davidson has been silent in this case.  Harley-Davidson’s
protection orders have prevented them from obtaining copies of those documents
from the lawyers involved in those cases.

[23]        
It is not necessary for me to determine the motive behind
Harley-Davidson’s policy.  I do not know about the procedure in the courts in
the various states where the other cases are being litigated, but the fact is
that in this jurisdiction, counsel are burdened by an implied undertaking not
to use documents produced in any particular lawsuit for any purpose outside of
the scope of that litigation.  Consequently, the plaintiff in this case would
be barred from disclosing documents it obtained from Harley-Davidson to parties
in other lawsuits elsewhere, quite apart from any protection policy, agreement
or order.

[24]        
As I noted, there is no reason why a party in the position of
Harley-Davidson should not seek a confidentiality agreement, or a
confidentiality protection order, but it must do so in a timely manner,
promptly applying to court if it cannot obtain the agreement it seeks.  But the
default position is that set out in the Civil Rules, and I consider it unacceptable
for a party to use such a position to deprive the other party of his right to
the timely production of documents in accordance with the those rules.

[25]        
Reviewing and pondering the mountains of evidence adduced in this
interlocutory application, particularly on behalf of the plaintiff, has led to
considerable delay in producing these reasons.  I do not intend to inflict
further delay upon the parties by attempting to summarize it all in writing. 
Suffice it to say that I am satisfied of the following.

[26]        
As discussed above, Harley-Davidson has unfairly restricted its document
production on the basis of the purported irrelevance of information concerning
two-wheeled vehicles to a three-wheeled vehicle accident, when that is an issue
in the case.  Harley-Davidson persisted in that position notwithstanding the
reasons for judgment of Cullen A.C.J.

[27]        
Harley-Davidson provided information in support of its position
resisting further document production that was, to say the least, incomplete. 
I refer in particular to the information that counsel for Harley-Davidson
placed before me on October 4, 2011, to the effect that his client had
produced everything in his possession or control relating to certain areas of
inquiry.  That turned out not to be the case, as information adduced by the
plaintiff demonstrates.  Harley-Davidson justifies the position it took on the
basis that it was limiting its response to motorcycles equipped with sidecars,
although no such limitation was contained in the category of documents sought,
and by a technical definition of "wobble" that it admitted was
different from the normal colloquial use of that term.  On this basis,
complaints of "oscillation at highway speeds" were not considered
complaints of "wobble".  In the circumstances of this litigation, I
consider such a position to be unworthy if not downright disingenuous.

[28]        
Harley-Davidson has dragged its feet repeatedly: exceeding time limits
imposed by the civil rules; failing to respond to legitimate requests in a
timely fashion or at all; and disclosing documents piecemeal.  For instance, Harley-Davidson
produced documents pertaining to steering damper warranty claims from 2002,
without disclosing, until examination for discovery exposed the fact, that
there were many relevant warranty claims preceding 2002, as the same steering
damper had been in use since 1983.

[29]        
Harley-Davidson has further muddied the waters by obtaining and
delivering an affidavit from a witness to the accident in support of its
position on these applications, that the witness subsequently rather
indignantly recanted.  Counsel’s only response to this rather awkward
development was to point out that he had not relied on that affidavit in his
submissions.  This was, of course, after further investigation by plaintiff’s
counsel in response to the affidavit exposed its frailty, and was less than
reassuring.

[30]        
Notwithstanding these abuses on the part of Harley-Davidson in avoiding
its discovery obligations, I am not prepared to strike out its Response to
Civil Claim.  The overarching principle that governs an application for such a
remedy is set out in Homer Estate v. Eurocopter S.A., 2003 BCCA 229. 
There, Southin J.A. noted that striking a defence "is a Draconian
remedy only to be invoked in the most egregious of cases because it deprives
the litigants of a trial on the evidence".

[31]        
Even though Harley-Davidson appears to have been doing its best to hinder
a trial on the evidence in this case by resisting proper document production
and attempting to limit the scope of examination for discovery, I am not
prepared, yet, to deprive it of its own opportunity to obtain the just
determination of this claim on its merits.  This is, as noted by counsel for
Harley-Davidson, the first time that the issue of compliance has been tested in
court with respect to document production (Harley-Davidson having failed the
test in relation to scope of oral discovery).  In terms of proportionality, I
am satisfied that a lesser sanction is available in the form of a practicable
alternative remedy: see the discussion in Schwarzinger v. Bramwell, 2011
BCSC 304.

[32]        
I must also take into account, however, that largely due to these
delays, the plaintiff has lost his trial date and has been put to a great deal
of expense due not only to the adjournment, but also to the need to pursue
matters in the United States, to retain experts to assist it in establishing
relevance, and to a prolonged pursuit of appropriate document production.

[33]        
Finally, as the foregoing suggests, I consider Harley-Davidson’s conduct
in relation to discovery as outlined above to have been reprehensible and
worthy of rebuke.  In these circumstances, special costs are warranted: see Garcia
v. Crestbrook Forest Industries Ltd. (1994), 119 D.L.R. (4th) 740 at
745-747 (B.C.C.A.).

[34]        
Accordingly, I order Harley-Davidson to pay to the plaintiff his costs
of the applications heard March 5-8, 2012, and his costs thrown away as a
result of the adjournment, all as special costs payable forthwith in any event
of the cause.  Because the assessment of special costs in the context of
ongoing litigation may give rise to concerns about solicitor-client privilege,
I give the parties leave to refer to me any issues that arise in that regard.

[35]        
Harley-Davidson will also produce a further amended list of documents,
to be verified by affidavit, within 45 days.  That list of documents will
include all documents relating to the stability of Harley-Davidson motorcycles
of the appropriate model(s) and age, whether two-wheeled or three-wheeled,
including (but not limited to) those relating to wobble, weave or high-speed
instability, steering dampers, customer complaints, warranty claims, test
incident reports, and test rider logs.  I specifically exclude documents
referring to, or relating to, other lawsuits against Harley-Davidson involving
wobble or instability.

"GRAUER, J."