IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130403

Docket: M084076

Registry:
Vancouver

Between:

Steven
Wiebe

Plaintiff

And

Colton
James Douglas

Defendant

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
By notice of application filed October 24, 2012, the defendant sought
orders for disclosure, together with costs in any event of the cause. The
orders sought in the notice of application, Part 1, paragraphs 1, 3, 4 and 5
were resolved between the plaintiff and the defendant. The order sought in Part
1, paragraph 2 of the notice of application is as follows:

2.         BC Ambulance Service
shall make available for examination, on a mutually agreeable date and time,
the employees identified on the Patient Care Report, as employee #76561 with
the initials LE and employee #49322, initials DR, being the driver and
ambulance attendant who attended the scene of the subject accident.

[2]            
The Emergency and Health Services Commission operating as the B.C.
Ambulance Service (“BCAS”) and Darrell Regts (the “application respondents”)
filed a response. Darrell Regts was the ambulance employee with initials “DR”
referenced in the orders sought in the notice of application. The application
respondents opposed the granting of the orders set out in paragraph 2 of Part 1
of the notice of application. Lynn Edgar was the employee with the initials
“LE”.

Factual Background

[3]            
The relevant facts set out by the defendant in its notice of application
are found at Part 2, paragraphs 1 and 6 through 9 inclusive, as follows:

1.         The
Plaintiff was involved in a motor vehicle accident on June 18, 2006, for which
he is claiming personal injury, including traumatic brain injury and
psychiatric injury, and seeking general damages for pain, suffering, permanent
disability or permanent partial disability, emotional upset, loss of enjoyment
of life and loss of earnings, past and prospective.

…

7.         The
observations of the ambulance attendants and the notations made within the
Patient Care Report, at the time of the subject accident, are required to
assess the extent and causation of the injuries alleged by the Plaintiff.

8.         BC
Ambulance had requested an authorization be provided by the Plaintiff in order
to respond to written questions provided, which was provided to [Plaintiff’s]
counsel and an executed authorization has yet to be provided.

9.         Responses to the written
questions previously provided to the BC Ambulance Service have yet [to] be
provided.

[4]            
The factual basis for the response is set out in Part 4, paragraphs 1
through 8 inclusive of the application response filed November 15, 2012 as
follows:

1.         Two paramedics employed by the Application
Respondent BCAS provided services to the Plaintiff after a motor vehicle
accident in Armstrong, BC in June 2006. The Plaintiff had been a passenger in a
car that rolled over. He had a head injury. The ambulance took the Plaintiff to
the hospital in Vernon.

2.         This action was started in 2008. The solicitors
for the parties have each delivered expert reports concerning the effects of
the head injury. The experts were concerned with whether the Plaintiff was
unconscious after the accident including the time that he was in the care of
the ambulance attendants.

3.         The paramedics had completed a written Crew Report
(a Patient Care Report in modern terms). The Defendant has a copy of the Crew
Report.

4.         In March 2012 the Defendant’s solicitor failed to
persuade the BCAS to make the two ambulance attendants available for an
interview. The BCAS suggested that the Defendant provide the Plaintiff’s
Written Authorization and present a concise list of questions to be answered in
writing.

5.         The Defendant, after what appeared to the BCAS to
have been months of inactivity, sent the BCAS notice of this Application by fax
transmission on October 25, 2012. The Defendant has not served the paramedics
or asked the BCAS for the names.

6.         The Defendant is proceeding according to the
stated needs of his solicitors and representatives to prepare for the trial in
this matter. The Application is peremptory and not as urgent for the BCAS.

7.         The written authorization required by the BCAS was
not presented until November 13, 2012. The Defendant blames the Plaintiff for
not signing it sooner. The Application Respondents will have provided the
Defendant’s solicitor with the written answers of paramedic, Darrell Regts, the
attendant, on November 15, 2012.

8.         The other paramedic
Lynn Edgar, the driver, left the employment of the EHSC October 18, 2012. She
has not refused to provide written answers. She has not authorized (up to
November 15, 2012) the Legal Services Branch (“LSB”) of the Ministry of Justice
and Attorney General to act for her or make representations about her plans and
wishes. She may provide written answers as an employee of BCAS would. The BCAS
will ask her.

[5]            
At the initial hearing on November 20, 2012, I was referred to evidence
in support of the facts set out in the notice of application and application
response. I reviewed the P. Verishine #6 affidavit sworn October 23, 2012, and filed
October 24, 2012 on behalf of the defendant. I reviewed the first affidavit of
James Bryce sworn and filed November 15, 2012 on behalf of the application
respondents.

[6]            
P. Verishine deposes she is a paralegal working under the direction of
counsel for the defendant. In her affidavit, she sets out the claims made by
the plaintiff, the fact that the trial of the matter was set to commence
January 28, 2013 for 15 days, and then sets out correspondence between counsel
for the defendant and BCAS. Paragraphs 4, 5, 6 and 7 of her affidavit are as
follows:

4.         By letter dated March 28, 2012, it was requested
of B.C. Ambulance that counsel for the Defendant interview the ambulance
attendants who attended the Accident. Attached to this my affidavit as Exhibit
“A” is a true copy of that correspondence.

5.         By letter dated March 28, 2012, BC Ambulance
advised that their employees would not attend an interview unless required by
law and invited defence counsel to provide written questions. Attached to this
my affidavit as Exhibit “B” is a true copy of that correspondence.

6.         By letter dated April 24, 2012, written questions
were provided to BC Ambulance. Attached to this my affidavit as Exhibits “C”
and “D” are true copies of that correspondence and the written questions
provided.

7.         By letter dated May
10, 2012, BC Ambulance advised that they would require an Authorization from
the Plaintiff to respond to the written questions. Attached to this my
affidavit as Exhibit “E” is a true copy of that correspondence.

[7]            
Exhibit B referenced in paragraph 7 of the P. Verishine affidavit is a
letter from James Bryce to John Hemmerling, where Mr. Bryce writes as follows:

It is the policy of the BC Ambulance Service (BCAS) that
paramedics do not attend in-person or telephone interviews unless required by
law. If the patient’s written, informed consent has been provided, BCAS will
allow paramedics to provide written answers to written questions that meet our
guidelines.

Please find enclosed a copy of
our Application for the Release of Patient Care Records form, and a copy
of our written question guidelines. Should you wish to submit questions, please
complete the form in its entirety. In Part 2, please check “other” and indicate
“written questions to paramedics.” The completed form and questions can be sent
to my attention at this address.

[8]            
Exhibit D consists of five pages under the heading “Questions to Ambulance
Attendant” followed by 46 questions, some of which included sub-paragraphs in
the questions, together with five pages under the heading “Questions to Ambulance
Driver” containing 46 questions similar to the questions asked of the ambulance
attendant with some changes to ensure that the ambulance attendant and driver
confirmed their numbers on the ambulance crew report, which was in the
possession of the defendant.

[9]            
Exhibit C confirms that the questions to the attendant and to the driver
were sent under cover of letter dated April 24, 2012. On May 10, 2012, Mr.
Bryce wrote to Mr. Hemmerling confirming that BCAS requires written patient
consent and enclosed a copy of the BCAS application for the release of patient
care record form. By early November 2012, it appeared that the plaintiff had executed
a consent form and that plaintiff’s counsel had sent it to defendant’s counsel.
The consent issue appears to have been sorted out by November 13, 2012, when
the consent was faxed from counsel for the defendant to Mr. Dahlman, counsel
for the application respondents.

[10]        
The affidavit of James Bryce sets out in detail the procedures to be
followed by persons seeking information from BCAS. Mr. Bryce deposes as
follows:

3.         BCAS employees are present at many incidents that
result in legal proceedings, including car accidents. They are called upon
frequently to be witnesses in civil and criminal proceedings. BCAS Headquarters
receives over 400 requests for patient care information every month. Each of
these releases has the potential to turn into a request for an interview of the
paramedic who documented the patient care information or provided the services.
Police agencies, the Workers Compensation Board, the Insurance Corporation of
British Columbia, the Coroners Service, law firms, and other individuals frequently
request interviews of paramedics.

4.         BCAS adopted a policy in 2005 of requiring those
who wish to interview paramedics to submit their questions in writing to BCAS
Headquarters, to which the paramedic responds in writing. This policy has had
the effect of reducing the number of demands made on paramedics to submit to
interviews. This policy also has the effect of reducing the chance that a
paramedic might release patient information without that patient’s
authorization. It has also reduced the demands made on paramedics’ time,
because this task can be accomplished during breaks between ambulance calls.

5.         In adopting the written question and answer
policy, BCAS was aware of Rule 7-5 (former Rule 28) which provides for
pre-trial examination of non-party witnesses and the award of costs to
indemnify BCAS. I am also aware that the award of costs does not indemnify BCAS
for all of the costs associated with this process, including the institutional
costs of having to replace paramedics who are taken off the road to participate
in examinations and the cost of overtime.

6.         If a paramedic is
called to participate in an interview by a lawyer, that time is spent off the road
and not responding to emergency calls. The primary purpose of BCAS is the
provision of emergency health care on an on-demand basis, which can be
undermined by unchecked requests for interviews. BCAS is required by its
collective agreement with paramedics to pay paramedics’ travel costs and wages
associated with their time responding to interviews. If a paramedic responds to
a phone call from a lawyer during his or her time off from work, BCAS must pay
the paramedic for a 4-hour call-out, even if the phone call takes only 15
minutes.

[11]        
In his affidavit, Mr. Bryce deposes that it can take anywhere from a day
or two to four weeks to receive a response from paramedics given their work
schedules. It deposes that Mr. Bryce, as part of the risk management team for
BCAS, intends to facilitate the legal process in motor vehicle accident cases,
while at the same time ensuring that BCAS’ resources are devoted in accordance
with its mandate, being the provision of emergency health services. He deposes:

8.         … It is not my
intention to obstruct the legal process by invoking the written question and
answer format policy, but rather to strike a balance between BCAS’ interest and
those of civil litigants.

[12]        
He goes on to set out some extracts to provide information both about
what was observed by the attendant, Darrell Regts, and the driver, Lynn Edgar,
and attaches some relevant documents.

[13]        
At paragraphs 19 to 23, he deposes as follows:

19.       I reviewed the Answers of the Attendant 2012-11-05.
The Defendant’s solicitor sent the written authorization to LSB by fax on
November 13, 2012. I will send those answers to the Defendant’s solicitor and
the Plaintiff’s solicitor today.

20.       On 2012-11-13 I was informed by an email message
from the Driver that she has recently left the BCAS. She was last stationed at
the BCAS station in Armstrong. I checked with BCAS management and been informed
that her last shift worked was on July 30, 2012 and that she resigned orally on
October 18, 2012.

21.       I did not accept service of the Application for the
Driver Lynn Edgar. I have not sent her the Notice of Application or told her
that an Application has been filed and served on me. I do not know if she is
aware of the application.

22.       I will be calling her in the next few days.

23.       I have not released
Lynn Edgar’s personal information to the parties.

[14]        
Darrell Regts’ responses were not exhibited to an affidavit, but I did
review them with the consent of both parties. They had been received by
defendant’s counsel.

[15]        
Following submissions, I gave brief oral reasons as follows:

[1] THE COURT:  I am mindful of the policy and I know the
reason for it and it is set out well by Mr. Bryce in his affidavit, which I
have scanned and I understand it. It seems to me this is a serious case, and I
am not in any way being critical of the witness, Darrell Regts, who, in trying
to answer questions for an accident that happened six-and-a-half years ago, was
not able to recall. At the same time, it does seem to me that I am bound, to
some extent, and I recognize there are differences here, but I am bound to some
extent by Justice Griffin. Justice Griffin, as a lawyer, was extremely
experienced in these kinds of cases, I believe, and certainly as a trial judge
she has experience. The unresponsiveness and the vagueness of the responses,
does seem to me to require some further opportunity to examine the witness.

[2] What I am going to order then with respect to Darrell
Regts, is that he be examined as a witness for one hour at Vernon or any other
location he may designate during his work hours, subject to change if there is
an emergency requiring his presence. The applicant will pay any attendant
costs. I would not think there would be too many. We think he lives in either
Vernon or Armstrong, do we?   All right.

[3] So that is with respect to Regts.

…

[27] THE COURT:  Then with
respect to Ms. Edgar, Lynn Edgar, the only order is that B.C. Ambulance Service
provide the email address for Lynn Edgar, and I think it should be part of the
order that that provision of that email address is specifically subject to
litigation privilege.

[16]        
The balance of the application, dealing with Lynn Edgar providing a
responsive statement, was adjourned until November 29, 2012 at 9:30 a.m.

[17]        
No appeal was taken from my order.

[18]        
On November 29, 2012, there were technical difficulties which prevented
both parties from addressing the court at the same time. All parties were
attending by telephone. Counsel agreed that the email address for Lynn Edgar
had been provided, that Lynn Edgar had received and responded to the questions
posed to her by the defendant, defendant’s counsel had not yet received that
response, although Ms. Edgar had sent it to the application respondent’s
counsel, and the responses were in the process of being forwarded promptly to
defendant’s counsel. Accordingly, the matter was adjourned generally with
liberty to reapply.

[19]        
The parties appeared back before me on December 20, 2012.

[20]        
At that hearing, I was provided with a copy of the affidavit of P.
Verishine #7 which confirmed that Lynn Edgar had answered written questions in
a responsive way, hampered by the fact that she did not remember a lot. This
was not surprising given that the motor vehicle accident occurred over six
years ago.

[21]        
In submissions on December 20, 2012, counsel for the defendant
reiterated that part of the application seeking to have Lynn Edgar made
available for examination. In his submissions, he stated that he had hoped to
jog her memory by asking questions and presenting photographic evidence to Ms.
Edgar. I considered the application, considered the proportionality provisions
of the Supreme Court Civil Rules [Civil Rules], the fact that I
had made an order for examination of Darrell Regts, who was the attendant and
probably better able to give responsive evidence, considered the fact that Lynn
Edgar had provided a responsive statement in writing, and dismissed the
defendant’s application to have Lynn Edgar made available for an examination.

[22]        
Counsel for BCAS advised that he was not foreseeing attending at the
examination of Mr. Regts (which had not yet occurred, but which was anticipated
to occur in early 2013). He submitted that pursuant to Rule 7-5(1)(b) of the Civil
Rules I should award BCAS costs of the application at scale C, or
alternatively fix those costs. He argued that the matter was of considerable
importance to the defendant. He argued that BCAS was necessarily required to
deal with these matters quite often given that their employees were often,
indeed almost invariably, early on the scene of any serious motor vehicle
accidents.

[23]        
Counsel for the defendant submitted that the defendant had been largely
successful, that an order for the examination of Darrell Regts had been made,
that the defendant was not asking for costs, but that costs should not be
awarded against him.

[24]        
I raised the issue of whether the defendant’s insurer, the Insurance
Corporation of British Columbia (“ICBC”), a publicly owned entity, and the
witnesses’ employer, also a publicly owned entity, had any protocols in dealing
with each other in respect of these matters.

[25]        
The matter was adjourned with directions for written argument.

[26]        
The plaintiff was given an opportunity to participate in the argument in
the event that the outcome would affect him. The plaintiff, through counsel,
advised that the plaintiff’s case against the defendant had settled, and from
the plaintiff’s perspective was concluded.

[27]        
The application respondents argued that the Emergency and Health
Services Act, in para. 14(2)(d), authorizes the Lieutenant Governor in
Council to prescribe fees for the service of documents on behalf of the
commission. The application respondents advised that there was no other
provision in that Act that relates to costs. They provided me with an extract
from the Emergency and Health Services Regulation 471/74 that refers to fees
for services. Those fees relate to ambulance service, and are inapplicable to
the claim made here for reimbursement for costs.

[28]        
The application respondents referred to s. 69 and s. 74.1 of the Insurance
(Vehicle) Regulation, B.C. Reg. 447/83. These make ICBC, as the insurer of the
defendant, responsible for costs awarded against the defendant.

[29]        
In the written argument submitted on behalf of the application respondents,
I was referred to some legal principles applicable to awarding costs to or
against the Crown.

[30]        
In response to the application respondents’ submission, counsel for the
defendant submits:

[5] The law in relation to costs has a number of principles
which touch on what we submit should be the ultimate result of this
determination:

·       
14-1(9) states in part, “… costs [of] a proceeding must be
awarded to the successful party unless the court otherwise orders”

·       
Witnesses who apply for orders [or we would submit defend the
making of orders] effectively excusing them from having to attend for
examination under Rule 7-5 face the same cost risks as all other people who
apply to court for relief. Virk v. Brar (2010), 195 ACWS (3d) 52.

·       
A departure from the rule that costs are dependent on success is
usually a departure which deprives a successful party of a costs order, not a
departure which would result in an unsuccessful party recovering costs. Gruyaert
v. Davey Estate (2007), 63 BCLR (4^th) 133.

[6] The Defendant submits that it had more than mixed success
in getting its examination of Mr. Regts and in obtaining written responses from
Ms. Edgar, neither of which it had when the application was first heard.

[7] The Defendant submits while the policy of the BCAS to
require its employees to be provided with written question and thereafter only
provide answers is a bona fide and reasonable general policy to follow, in some
circumstances the BCAS can and should realize that witness interviews may be
ordered and put their employees forward voluntarily. While the BCAS is, of
course, clearly within its right to tell its employees that they are not
required to attend for such examinations without Court Order, when Court Orders
are made, the party obtaining that Court Order should not be penalized by
having to pay the BCAS’s costs in appearing at these hearing.

[8] The Defendant was able to
find no case on point with respect to the issue raised by this Court on cost
awards in cases where two government agencies are arguing opposite sides of an
interlocutory issue. As such, we believe that the general principles on costs
should be applied and if so, costs of the application sought under Rule 7-5
should not be awarded to any party.

[31]        
The Master’s order in Virk v. Brar, 2010 BCSC 1363 was similar to
the order I made here:

[35] Once the order is
entered, the Atwals will be entitled to their reasonable solicitor’s costs for
preparation for, and attendance at their Rule 28 examinations.

[32]        
It is my view that the principles applicable to the case here do not
involve principles which may be applicable to the Crown. It was the defendant
(albeit through his insurer, but in the defendant’s name) who applied for the
orders sought. The Crown is not a party to this litigation.

[33]        
After reviewing the provisions cited to me in argument applicable to
ICBC, I am of the view that the principles in this case cannot turn on whether
or not the defendant is insured, is insured by ICBC, or is self-insured. The
basis for the awarding of costs sought by the application respondents does not
depend on whether a party is insured and does not depend on who the insurer
might be.

[34]        
The authority to award costs is founded in this case on two provisions
of the Civil Rules, and in particular Rule 7-5 and Rule 14-1.

[35]        
Rule 7-5(1)(b) gives the court authority to order that a person be
examined on oath on matters in question in the action, and gives the court
authority, either before or after the examination, to order that the examining
party pay reasonable lawyers’ costs of the person relating to the application
and the examination.

[36]        
Rule 14-1 of the Civil Rules deals with costs. Rule 14-1(9)-(12)
reads:

Costs to follow event

(9) Subject to subrule (12), costs of a proceeding must be
awarded to the successful party unless the court otherwise orders.

Costs in cases within small claims jurisdiction

(10) A plaintiff who recovers a sum within the jurisdiction
of the Provincial Court under the Small Claims Act is not entitled to
costs, other than disbursements, unless the court finds that there was
sufficient reason for bringing the proceeding in the Supreme Court and so
orders.

Costs where party represented by an employee

(11) A party is not disentitled to costs merely because the
party’s lawyer is an employee of the party.

Costs of applications

(12) Unless the court hearing an application otherwise
orders,

(a) if the application is granted, the party who brought the
application is entitled to costs of the application if that party is awarded
costs at trial or at the hearing of the petition, but the party opposing the
application, if any, is not entitled to costs even though that party is awarded
costs at trial or at the hearing of the petition, and

(b) if the application is refused, the party who brought the
application is not entitled to costs of the application even though that party
is awarded costs at trial or at the hearing of the petition, but the party
opposing the application, if any, is entitled to costs if that party is awarded
costs at trial or at the hearing of the petition.

[37]        
Subrule (15) gives the court discretion to award costs that relate to
some particular application, step or matter in or related to the proceeding.

[38]        
This application, brought by the defendant, was largely successful. It
was successful because, in this case, there was sufficient non-responsiveness
in the answers provided by Mr. Regts to permit the defendant to obtain the
order I made on November 20, 2012.

[39]        
The circumstances here were somewhat unusual. I have no doubt but that
Mr. Regts was doing his best to answer, but he was facing questions posed to
him in 2012 dealing with an incident that occurred six years earlier.

[40]        
In the vast majority of circumstances where an employee of BCAS is provided
with such a questionnaire, I would anticipate that would occur relatively
shortly after the incident, the questionnaire would be filled in a responsive
way, and the party seeking to then examine an employee as a witness would
likely not meet the hurdle of the witness having provided an unresponsive
statement.

[41]        
The person to be examined was Darrell Regts. He personally incurred no
lawyers’ costs. His employer provided lawyers to represent him. That in and of
itself does not affect this matter: Rule.14-1(11). I ordered that the defendant
pay any “attendant costs” which would cover such things as conduct money from
Mr. Regts’ place of residence to the examination and costs for consulting a
lawyer, but not costs of unsuccessfully opposing an application.

[42]        
Here, the defendant was largely successful. He obtained an order for
examination of Mr. Regts. He obtained contact information and subsequently a
statement from Ms. Edgar, although he did not obtain an order for examination
of Ms. Edgar. I agree with the defendants’ submission that he had more than
mixed success.

[43]        
Accordingly, the application respondents’ application for costs is
dismissed.

[44]        
The application respondents and the defendant shall each bear their own
costs of the application.

“Master
R.W. McDiarmid”

MASTER McDIARMID