IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Bains v. Hookstra, |
| 2012 BCSC 1707 |
Date: 20121115
Docket: M113298
Registry:
Vancouver
Between:
Sarnjeet Singh
Bains
Plaintiff
And
Alida Winifred
Hookstra
Defendant
Before:
Master Muir
Reasons for Judgment
Counsel for the Plaintiff: | J. Small |
Counsel for the Defendant: | E. Hong |
Place and Date of Hearing: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
[1]
This is an application by the defendant for production of various
medical, MSP, PharmaNet and WCB records.
[2]
The action arises
from a motor vehicle accident that occurred on July 9, 2009, when the plaintiff
was rear-ended by the defendant.
[3]
The plaintiff
consents to the production of his MSP, PharmaNet and WCB records from July 9,
2009 to present, but resists production of any records prior to the accident.
[4]
The defendant
pleads that the plaintiffs injuries are due to prior or subsequent accidents,
but does so in a very pro-forma way.
[5]
The defendant
brings evidence in an affidavit of a legal assistant, Christa Pereira, sworn
September 26, 2012, as follows:
3. I am informed and do verily believe that:
(a) on or
about December 3, 2008, the plaintiff was the driver of a vehicle in a single-vehicle
accident causing over $4,000.00 in damage to the vehicle he was driving; and
(b) on or about March 8, 2009, the
plaintiff was the at-fault driver in a motor vehicle accident causing
$10,966.00 in damage to the vehicle he was driving.
[6]
An obvious problem with that evidence is that Ms. Pereira does not
identify the source of her information. She does attach as an exhibit a copy of
what she describes as the plaintiffs claims history with ICBC. The problem
with the exhibit is, first, there is no evidence other than the bald statement
that it is the plaintiffs claims history — there is no explanation as to how
this evidence was compiled or by whom, and second, that some of it is encoded
with no explanation. Although it appears to show the plaintiff having accidents
on the dates attested to by Ms. Pereira, the evidence is not clear who the
loss was paid to and there is no evidence that the plaintiff suffered any
injuries from those alleged accidents.
[7]
She further deposes, again with no informant identified, that these two
accidents occurred during the course of the plaintiffs employment.
[8]
There is a further exhibit attached, apparently from the plaintiffs
employer recording time sheet information for the plaintiff. That exhibit shows
that following the alleged accident in 2008, the plaintiff did not take any
time off work. It does show, however, that following the alleged accident on
March 8, 2009 the plaintiff took three weeks of banked time off. None of this
time is recorded as sick time. There is no evidence that this time being taken
after the alleged accident is anything other than coincidence.
[9]
The evidence based on information and belief proffered by the defendant
is deficient. Supreme Court Civil Rule 22-2(13) requires the source of
the information and belief to be stated. Without setting out the source of her
information, the evidence is inadmissible. There is no way that the plaintiff
can challenge the evidence nor can the Court assess or weigh that evidence.
[10]
Further, the defendant conducted an examination for discovery of the
plaintiff on April 10, 2012. In that discovery the plaintiff was asked:
305 Q Have you had any prior accidents,
injuries or illnesses involving the parts of your body injured in this
accident?
A My whole life?
306 Q Well, lets restrict it to the two
years prior.
A No.
307 Q Okay. No illnesses or anything like
that?
A Regarding my back,
no.
308 Q Well, any of the, any of the injuries
that you are experiencing, or symptoms you are experiencing?
A No. Like I had
colds and stuff. No, I didnt have any injuries two years prior to this
accident.
309 Q Okay. No previous headaches, anything
like that?
A No.
310 Q Okay. Have you made any previous WCB
claims, again restricting it to the two years prior to the accident?
A No.
311 Q Any previous visits to any
therapists, like chiropractors, physiotherapists, massage, acupuncture?
A No, no.
[11]
There is some suggestion from the discovery evidence of the plaintiff
that his memory of his medical treatment is a bit spotty. His evidence with
respect to injuries in the two years prior to the accident here, however, is
unequivocal.
[12]
If he was asked any direct questions about the time he took off work in
March 2009, it is not apparent from the material before me. Discovery is the
obvious route to inquire into issues of this nature.
[13]
As Mr. Justice Davies noted in Kaladjian v. Jose, 2012 BCSC
357:
[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.
…
[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.
…
[67] Further, defendants have at their disposal other
means by which to obtain information about the state of a plaintiffs 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 plaintiffs relevant medical records will likely have been
produced on the plaintiffs 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.
[14]
The applicant must demonstrate a connection between the documents sought
and the issues beyond a mere possibility: Przybysz v. Crowe, 2011 BCSC
731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53,
and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138,
at para. 51, there must be some air of reality between the documents
and the issues in the action ….
[15]
The plaintiff has clearly denied that he was suffering from any
pre-existing injury at the time of the accident in question or for two years
prior. He has further denied that he made any WCB claim during that two-year
period.
[16]
The evidence put forward by the defendant does no more than raise the
mere possibility of a prior existing condition. In the circumstances of the
plaintiffs denial, that evidence is insufficient to warrant an order for the
production of the documents sought.
[17]
The defendants application is therefore dismissed, other than as
consented to by the plaintiff, as follows:
a)
Production of MSP print-out from July 9, 2009;
b)
Production of PharmaNet print-out from July 9, 2009; and
c)
Production of WCB records from July 9, 2009.
"Master
Muir"