IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130812

Docket: M091011

Registry:
Vancouver

Between:

Ying Li

Plaintiff

And

Cari Lee Oneil

Defendant

And

Insurance
Corporation of British Columbia

Third
Party

Before:
Master Muir

Reasons for Judgment

[1]            
The third party, Insurance Corporation of British Columbia (ICBC),
applies for the following orders:

a)   
All documents in the plaintiff’s possession or control relating to any
and all compensation earned by the plaintiff from her employment with Edward
Jones in 2012 and 2013, including but not limited to compensation in the form
of contest cash, diversification trip(s), FA mileage, insurance commissions,
guarantee pay, profit sharing excess bonus(es), regular commissions, and
trimester bonus(es); and

b)   
The plaintiff shall submit to a further examination for discovery to be
conducted by counsel for the third party on a date to be agreed upon between
the parties.

[2]            
The balance of the relief sought in the notice of application is
adjourned generally.

[3]            
The plaintiff did not take any real issue with the first order sought as
to her employment documents other than suggesting that some of the documents
might not exist. In the circumstances the order sought in para. 1(a) above is
granted.

[4]            
The plaintiff strenuously opposes the application for further discovery.

[5]            
The action arises out of a motor vehicle accident on March 7, 2007. The
plaintiff alleges various injuries and advances a loss of earning capacity
claim.

[6]            
The trial was originally scheduled for five days commencing February 13,
2012, but was adjourned. It has yet to be rescheduled.

[7]            
The plaintiff was examined for discovery on August 12, 2011 by previous
counsel for ICBC. The discovery commenced at 10:00 a.m. and went until 11:35
a.m. There were nine requests left on the record for the plaintiff to inform
herself and provide evidence or to produce documents.

[8]            
The transcript ends as follows:

MR. GIBSON:  Counsel, if we could get it in due course
an itemized list of special damages and an updated MSP printout. I will put it
in a letter. We will figure it out.

MR. BAUER:  Yes, you know, the record request is no
problem, just send the authorizations. We would consider the other things.

REQUEST NO. 9: Provide an itemized list of
special damages and an updated MSP printout

(PROCEEDINGS ADJOURNED AT
11:35 A.M.)

[9]            
Mr. Gibson did not specify on the record that the discovery was
adjourned, although Mr. Gibson has advised that it was always his intention to
conduct a continuation of the discovery once the relevant medical and wage loss
documentation was produced.

[10]        
Despite the fact that the transcript indicates that the proceeding was
adjourned, counsel for the plaintiff says as counsel for ICBC was silent as to
whether he had completed his discovery, the plaintiff was entitled to assume
the discovery was concluded. He relies on Humphrey v. McDonald, 2011
BCSC 1288 for that proposition, but in my view that case is clearly
distinguishable as counsel there conceded that the original discovery had been
concluded and was seeking a second examination.

[11]        
The application before me, despite being framed as an application for a
further discovery, was in reality an application that the examination of the
plaintiff continue, both in accordance with R. 7-2(22) and generally, based on
production of new material such as the list of special damages, medical records
and employment records. In support, he relies on the decisions in Cowan v.
Davies, 2008 BCSC 1239, and Dhami v. Bath, 2012 BCSC 2077.

[12]        
The plaintiff disagrees and says this is an application for a second
examination for discovery and as such he relies on the conclusions of Master
Chamberlist (as he then was) in Sutherland v. Lucas, 1996 CanLII 3393:

[21] Once the examination for
discovery of a party has been concluded there is then a heavy onus on the
applicant to justify a further examination for discovery, as only one
examination is contemplated. Such a request must show that the examinee has
failed to give the examiner the discovery to which he is entitled to. This is
what Finch J., as he then was, is alluding to in Westcoast Transmission
Company Limited v. Interprovincial Steel and Pipe Corporation Ltd., et al.
In my view, if he cannot meet this test then he must either demonstrate that
the complexion of the case has materially changed either as a result of passage
of time, new heads of damages being advanced or intervening events having
occurred since the last discovery which would materially alter either the
prosecution of the case or the defence of it. Alternatively, a party could
produce evidence to show that full and frank disclosure was not made at the
first discovery.

[22] In this case, what is
alleged is that the opinions of treating physicians and consultants have
changed since the discovery of the infant in January 1996.

[23]
With respect, I do not see this as a change in the complexion of the case that
would warrant a further examination for discovery of this 16 year old party. If
the complexion of the case is changed then it is merely a change in the
perception of the consulting and treating experts as to what the future will
hold for this plaintiff. There is no new complaint by the plaintiff which has
not been examined on and there has been no material change due to the passage
of time. Nor has there been an intervening event demonstrated which may have
aggravated the injuries for which compensation is sought in this law suit.

[13]        
The defendant says that even if the first examination for discovery was
concluded and this were considered as an application for a second examination
for discovery, it should be allowed given the passage of time due to the
adjournment of the trial, the production of new documents and the addition of a
new defendant. In this regard, he relies on Dalrymple v. Briscoe, 1996
CanLII 8459, Kay v. Pettigrew, 2005 BCSC 1418, and Hogg v. Hansen,
2007 BCSC 958.

[14]        
With respect to the obligation to respond to questions left on the
record, the rules provide that the examination can be adjourned and continued,
even if responses are provided by letter:

Person must inform self

(22) In order to comply with subrule (18) or (19), a person
being examined for discovery may be required to inform himself or herself and
the examination may be adjourned for that purpose.

Response may be provided by
letter

(23) If a person is required to inform himself or herself
under subrule (22) in order to respond to one or more questions posed on the
examination for discovery, the examining party may request the person to
provide the responses by letter.

If letter provided

(24) If the examining party receives a letter under subrule
(23),

(a) the questions set out in the letter and the answers given
in response to those questions are deemed for all purposes to be questions
asked and answers given under oath in the examination for discovery, and

(b) the examining party may,
subject to subrule (2), continue the examination for discovery.

[15]        
I am of the view that the examination for discovery was adjourned as
contemplated by these rules. Thus, the defendant is entitled to continue its
examination for discovery regarding questions left on the record and I am of
the view that logically extends to questions based on documents requested at
the discovery and subsequently produced.

[16]        
As the examination for discovery was not concluded, the heavy onus
required to justify a further discovery referred to in Sutherland v. Lucas
is not engaged. Given the extensive document production since the examination
for discovery was conducted, I am also of the view that the defendant is
entitled to continue its examination for discovery based on the new material,
whether or not it was produced in accordance with a request left on the record.

[17]        
If this was an application for a second examination for discovery I
would come to a similar conclusion.

[18]        
On a review of the listing of documents produced by the plaintiff since
her examination for discovery as set out in the defendant’s notice of application,
it is clear that many are documents that could prove or disprove a material
fact and that they were in existence prior to her examination for discovery and
as such required to be produced under rules 7-1(1) and 7-1(9).

[19]        
The defendant submits that is sufficient to constitute a failure to make
full and frank disclosure as contemplated in Sutherland v. Lucas and is such
as to warrant a second discovery.

[20]        
I agree. In my view it does not behoove a party to fail to make complete
document disclosure prior to an examination for discovery and then to take the
position that the examination cannot be continued when proper disclosure is
made.

[21]        
Thus, in the circumstances of this case I am satisfied that the
defendant did not conclude its discovery and thus the heavy onus referred to in
Sutherland v. Lucas does not apply. The defendant is entitled to
continue its examination for discovery on the new matters, but is not entitled
to examine on matters covered on the first day of examination for discovery.

[22]        
Even if this were an application for a second examination for discovery,
in the circumstances of the failure to produce documents that could prove or
disprove a material fact prior to the discovery I would order a second
examination to proceed, again, limited to matters not covered on the first
examination for discovery.

“Master Muir”