IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121002

Docket: M104488

Registry:
Vancouver

Between:

Mark Nowe

Plaintiff

And

Mitchell Bowerman
and Maxine Bowerman

Defendants

Before:
The Honourable Madam Justice Dickson

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT:  The plaintiff claims damages for injuries to his neck and
shoulder suffered in a motor vehicle accident on September 30, 2008.  The trial
is presently set for five days commencing October 7, 2013.

[2]            
It is obvious from the materials presented that the parties have been
working toward trial in what appears to be a well-organized manner.  Clinical
records have been produced.  In May of 2012 an examination for discovery was
conducted.

[3]            
On September 5, 2012 counsel appeared before me on a case planning conference. 
Most of the items for discussion were dealt with by consent.  Controversy
arose, however, with respect to one of the proposals made by the defence.

[4]            
In summary, defence counsel proposes that the parties be limited to one
expert each and, in any event, that plaintiff’s counsel advise the defence of
the areas of expertise of his proposed experts by December 17, 2012.  He also
included within his case plan proposal an item to the effect that the defence
intends to rely upon a Dr. Leach.

[5]            
In support of the proposed order, defence counsel emphasized the object
of the new Rules, which is, of course, the just, speedy and inexpensive
determination of every proceeding on its merits.  He says that this object will
be advanced by requiring early disclosure of the experts’ areas of expertise. 
In particular, he says that the prospect of settlement will increase once the
defence knows more particularly the nature of the case that it is facing
through such disclosure.  In addition, he says the playing field will be
leveled in a fair manner by allowing the defence to make appointments with its
experts of choice in order to obtain rebuttal evidence in the event that such
evidence is required.

[6]            
In defence counsel’s submission, this position is consistent with the
recent decision of Madam Justice Kloegman in Galvon v. Hopkins, 2011
BCSC 1835.  That was a case in which an order to produce the names of intended
expert witnesses that was made at a case planning conference by Master Bouck
was overturned on appeal.  Counsel submits that the order sought in this case
does not run afoul of the Galvon decision because there is no specific
request for the names of the proposed expert witnesses.  Rather, it is only
disclosure of the areas of expertise of the plaintiff’s experts that is being
sought.

[7]            
Counsel for the plaintiff resists the application on the basis that it
is, in his judgment, too early in the process to require him to commit to a certain
type or types of expert witnesses.  He says that forcing him to do so at this
juncture would run the risk that the defence might seek an adverse inference if
a change in plan takes place closer to the trial date and he decides to pursue
a different course.  He also says that such an order would sidestep the
timelines expressly provided by the existing Rules of Court, from
which there is no reason to deviate in this case.  In particular, he says this
is not the kind of case in which a long period is required in advance of an
appointment being made with a certain type of expert.

[8]            
In Galvon, Madam Justice Kloegman conducted a thorough review of
relevant cases with respect to solicitor-client privilege, in particular
litigation privilege, in the context of a case planning conference where a
similar, though not identical, order to that sought here was considered. 
Amongst others, she made the following relevant statements in this regard:

[12]      In British Columbia, there is ample authority to
suggest that litigation privilege or the solicitor’s brief rule, as I prefer to
call it, is alive and well.  In Hodgkinson v. Simms (1988), 33 B.C.L.R.
(2d) 129, the British Columbia Court of Appeal made it clear that it would be
rare, if ever, that the need for disclosure would displace privilege…

[16]      Justice Stewart in Singh
v. Brar, 2044 BCSC 1757 [Singh], made an interesting comment that is
applicable to the case before me.  In Singh, the defendant had applied
for an order that the plaintiff answer questions on discovery about her
attendance at medical examinations.  Stewart J. concluded that the defendant
was only seeking the order it requested as part of an attack aimed at getting
what the plaintiff, as litigant, not as patient, had been doing.  This is an
important distinction and I would suggest that a defendant has no right to know
what a plaintiff, as litigant, does in the preparation of her claim.  Firstly,
it is not relevant to the matters contained in the pleadings, and secondly, it
is an aspect of confidentiality that is worthy of protection.

[17]      Counsel for the defendant relies on a number of
Supreme Court Rules, 5-3, 7-2(18), 7-4, 7-5(2), 9-2, and 11-6, where a party’s
privilege appears to have been abrogated in the name of early disclosure and
settlement.  However, these rules clearly and expressly allow the court to make
the specific orders.  It has always been the case that common-law privilege can
be overridden by legislative intervention: see Blank v. Canada.

[18]      I do not see anything in Rule 5-3 governing case
planning conferences that clearly, expressly, and specifically allows the
presider to compel a party to provide another party with the details of any
potential expert witnesses before that party has even consulted with the expert
or made an election whether to call the witnesses’ evidence at trial…

[21]      I agree with counsel for the plaintiff’s submission
that Rule 5-3 cannot be read as to allow the case planning conference judge or
master to disregard the common-law principle of privilege…

[24]      By requiring the
plaintiff to disclose the very fact of her attendance before a medical expert,
and run the risk of an adverse inference if she did not call the expert at
trial, the master was also interfering with the plaintiff’s right to elect
which witnesses to call.  Such interference is not sanctioned, nor warranted, I
might add, by our Supreme Court Rules.

[9]            
In this case, I conclude that the plaintiff’s position is most
consistent with the principles articulated by Madam Justice Kloegman in Galvon.

[10]        
The area of expertise of an intended expert witness is a matter of trial
strategy.  Trial strategy is a key component of a solicitor’s brief.  It may
well evolve as plaintiff’s counsel builds a case and makes decisions based upon
a myriad of factors and considerations.  Intentions may change as the process
unfolds over time.

[11]        
In my view, unless and until the intention to rely upon a particular
expert in a particular field is declared by delivery of a report in accordance
with the timelines established by the Rules, in the absence of a
compelling reason an early incursion into this aspect of the solicitor’s brief will
not be justified.

[12]        
That being said, there may well be cases in which a departure from the
usual timelines can be justified.  For example, in complex cases such as those
involving brain injuries as a matter of fairness it may be necessary to provide
defence counsel with a longer period than would be available under the usual
regime in order to schedule appointments with certain kinds of experts.  In
this case, however, I am unable to identify such a compelling reason.  In these
circumstances, I decline to make the order sought.

"DICKSON J."