IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131101

Docket: M110684

Registry:
Vancouver

Between:

Ekamdeep Kaur Gill

Plaintiff

And

Balrup Bovy Singh
Gill

Defendant

Before:
The Honourable Madam Justice Adair
(appearing by teleconference)

On
appeal from: Supreme Court of British Columbia, Master Muir,
August 16, 2013 (Gill v. Gill, Vancouver Registry No. M110684)

Oral Reasons for
Judgment

[1]            
THE
COURT: This is an appeal by the defendant from a Master’s order
pronounced August 16, 2013.

[2]            
During a busy day in chambers, the Master was asked to deal with a
number of items in an omnibus application brought by the defendant.  Some items
went by consent, but many were opposed.  The entered order contains 15
paragraphs.  However, the appeal is with respect to paragraph 1 only, which
provides:

the Defendant’s application to
use the Examination for Discovery transcript of the Plaintiff in Supreme Court
Action No. S096330, Vancouver Registry (Gill v Insurance Corporation of
British Columbia) in the subject action, is dismissed;

[3]            
For the reasons that follow, I have concluded that the appeal must be
allowed.

Background

[4]            
This action (the “Tort Action”) was filed on February 9, 2011, and
concerns a motor vehicle accident on April 5, 2009.  The plaintiff, Ms. Gill,
was a passenger in a vehicle driven by her husband, the defendant, Mr. Gill.  Ms.
Gill claims that, as a result of the accident, she has suffered damages and
injuries, including headaches, hearing loss, ringing in the ears, injury to the
jaw, injuries to the cervical, thoracic, and lumbar regions of the spine, and
also depression, sleep disruption, and fatigue.  In addition to non-pecuniary
damages, she seeks compensation for loss of past and future income, loss of
earning capacity, special damages, and costs of future care.

[5]            
Liability in the Tort Action is denied.  The action is scheduled for a
19-day jury trial beginning November 25, 2013.

[6]            
On August 28, 2009, Ms. Gill commenced an action against ICBC in
relation to the same accident, claiming benefits under Part 7 of the Insurance
(Vehicle) Act.  I will refer to this as the “Part 7 Action.”  Liability
in that action is also denied.

[7]            
Ms. Gill is represented by the same counsel in both actions.  The
defendants in each action are represented by different counsel.  However, in
the Tort Action, Mr. Gill (the insured) is defended by counsel appointed by ICBC
(the defendant in the Part 7 Action).

[8]            
On discovery of documents, Ms. Gill has disclosed the same documents in
both the Tort Action and the Part 7 Action.

[9]            
Ms. Gill was examined for discovery in this action (the Tort Action) on
June 12, 2012.  In the August Order (specifically paragraph 6), an order went
by consent concerning additional examination for discovery in the Tort Action,
although there are limits.

[10]        
Ms. Gill was examined for discovery in the Part 7 Action on November 24,
2011.  Counsel for Mr. Gill does not have a copy of this discovery transcript. 
In the application heard August 16, 2013, Mr. Gill applied for an order
permitting him to make use in this action of the discovery transcript in the Part
7 Action.

[11]        
In dismissing the application in respect of the discovery transcript,
the Master said:

[12]      The parties referred me to various cases including Juman
v. Doucette and Scuzzy Creek Hydro & Power v. Tercon.  They were
considered by Master McCallum in Sader v. Perreault, and at para. 6, he
says:

The Supreme Court’s statements following the discussion of Scuzzy
set out the test:

As stated, the onus is on the applicant [in this case the
defendant] to demonstrate a superior public interest in disclosure, and the
court will be mindful that an undertaking should only be set aside in
exceptional circumstances.

[13]      The cases where the undertaking has been set aside
are cases where although the actions may not involve the same parties and may
not even involve the same event, there is some identity of interests and issues
between the cases.

[14]      The plaintiff objects to the production of the Part
7 transcript as she is concerned that the use of the Part 7 transcript may
prejudice the plaintiff at her trial, although it would be up to the discretion
of the trial judge as to whether that would be admitted or not. She
nevertheless submits that they are totally different issues.  The issue in the
Part 7 case being the plaintiff suing the insurer to obtain her benefits under
Part 7, and here, of course, the tort claim.

[15]      The plaintiff has
advised me that all of the documents that have been produced in the Part 7
action have been produced in this action, and that, as I have mentioned, they
have already consented to an additional examination for discovery.  In the
circumstances, I am not satisfied that there has been any compelling reason
shown or, as the cases say, a compelling public interest in the disclosure.  I
am satisfied that the issues are sufficiently different and discrete that there
may be some prejudice if it is disclosed.  In the circumstances, I decline to
do so.

Discussion

[12]        
The order under appeal is an interlocutory order.  In Abermin
Corp. v. Granges Exploration Ltd., 1990 CanLII 1352 (B.C.S.C.), the
often-quoted authority on standard of review on an appeal from a Master, the
court stated that an appeal from a Master’s order in a purely interlocutory
matter should not be entertained unless the order was clearly wrong.

[13]        
However, in Joubarne v. Sandes, 2009 BCSC 1413 (a case
that also involved an appeal from an order dismissing an application regarding
the use of a discovery transcript), Mr. Justice Williams elaborated on the
identification of the appropriate standard of review, at paragraphs 14 to 16. 
He observed that even though a decision is interlocutory in character, the
reviewing court is not necessarily obliged to defer to the Master’s
conclusion.  If the decision is one of straightforward discretion, then
certainly substantial deference is required.  However, if the decision of the Master
involves a question of law, the standard of review must be correctness, even
though the decision is on an interlocutory issue.  He concluded that since the Master
made his decision based upon an interpretation of the law, as set out in the
decision of the Supreme Court of Canada in Juman v. Doucette,
2008 SCC 8, it follows that the reviewing court, sitting on appeal, should
exercise conventional appellate jurisdiction in which the legal issues may be
considered and decided on their merits.

[14]        
On behalf of the defendant, Mr. Ritchey submits that the Master’s
conclusion is one that has general application.  It may have application to
other cases and other litigants and, as such, the appropriate standard of
review is correctness.  However, Mr. Ritchey submits in the alternative that
even if the clearly wrong standard applies, the defendant’s appeal must be
allowed.

[15]        
On behalf of the plaintiff, Ms. Simon submits that, in this case, the Master
applied the correct legal test and simply exercised her permitted discretion
upon consideration of the facts before her.  Therefore, the “clearly wrong”
standard of review applies.

[16]        
I have concluded that the approach taken by Mr. Justice Williams in Joubarne
is the correct approach in this case.  The Master’s decision was based on an
interpretation of the law as set out in Juman, and this court
sitting on appeal should exercise conventional appellate jurisdiction in which
the legal issues may be considered and decided on their merits.

[17]        
In Juman, Mr. Justice Binnie stated (at para. 25) that the
public interest in getting at the truth in a civil action outweighs the
examinee’s privacy interest, but the latter is nevertheless entitled to some
measure of protection.  He observed (also at para. 25) that “the general idea,
metaphorically speaking, is that whatever is disclosed in the discovery room
stays in the discovery room unless eventually revealed in the courtroom or
disclosed by judicial order.”  A party who has been compelled to testify for
purposes of a civil action should be afforded some measure of protection for
that testimony.

[18]        
The onus in each case will be on the applicant to demonstrate a superior
public interest in disclosure and the court will be mindful that an undertaking
should only be set aside in exceptional circumstances:  see Juman,
at paragraph 35.  While the undertaking is imposed in recognition of the
examinee’s privacy interest and the public interest in the efficient conduct of
civil litigation, those values are not absolute: see Juman, at
paragraph 30.  They may, in turn, be trumped by a more compelling public
interest.  Thus, an application to modify or relieve against an implied
undertaking requires an applicant to demonstrate to the court, on a balance of
probabilities, the existence of a public interest of greater weight than the
values the implied undertaking is designed to protect, namely privacy and the
efficient conduct of the litigation:  see Juman, at paragraph 32. 
The court is, of course, entitled to take into account possible prejudice to
the examinee in considering whether to relieve against the implied
undertaking:  see Juman, at paragraphs 33 and 34.

[19]        
As Mr. Justice Binnie noted in Juman, at paragraph 35:

The case law provides some
guidance to the exercise of the court’s discretion.  For example, where
discovery material in one action is sought to be used in another action with
the same or similar parties and the same or similar issues, the prejudice to
the examinee is virtually non-existent and leave will generally be granted.

[20]        
Ms. Simon is correct that the underlying causes of action in the Tort
Action and the Part 7 Action are different.  In that sense, the issues are
different.  She also points out, correctly, that the two actions cannot be
consolidated for trial or heard together by virtue of s. 83(4) of the Insurance
(Vehicle) Act, and Part 7 benefits are not to be referred to at the
trial of the Tort Action.  Moreover, a determination with respect to
entitlement to Part 7 benefits does not bind the court in the Tort Action.

[21]        
However, there are, without any doubt, overlapping factual issues in the
two actions, including:

(a)      was
Ms. Gill injured in the accident and, if so, what injuries did she sustain as a
result;

(b)      was
Ms. Gill unable to work as a result of the injuries sustained in the accident;
and

(c)      has
Ms. Gill incurred expenses in relation to medical and rehabilitative treatment
as a result of injuries sustained in the accident.

[22]        
Although the causes of action are different, key factual issues will be
the same in both actions.  Ms. Gill must establish injury, causation and loss
arising out of the same event, namely, the accident on April 5, 2009.  If, in
stating that "the issues are sufficiently different and discrete,"
the Master was referring to factual issues in each action, then, in my
opinion, the Master was clearly wrong, because many factual issues in the two
actions are obviously very closely related, if not identical.

[23]        
Ms. Gill, as the plaintiff in both actions, can be compelled to testify
in both the Tort Action and the Part 7 Action about the same factual issues, so
there is no privacy issue that needs to be protected.

[24]        
On the other hand, there is a compelling public interest in getting at
the truth.  As Mr. Justice Hood observed in Scuzzy Creek Hydro &
Power Inc. v. Tercon Contractors Ltd. (1998), 62 B.C.L.R. (3d) 366
(S.C.), 1998 CanLII 5684, at paragraph 22:

[I]t is the possibility of there
being inconsistent statements which triggers the special reason for the
production of the discovery transcript.  The test over the years . . . has
never been higher than “lets see what the witness had to say under oath before
with regard to these or related matters”.  What [the witness] has said may be
relevant to the evidence [the witness] gives in the second action.

[25]        
Accordingly, here, the defendant has demonstrated the existence of a
public interest of greater weight than the values (privacy, and the efficient
conduct of litigation) the implied undertaking is designed to protect.

[26]        
On behalf of Ms. Gill, Ms. Simon submits that the prejudice to Ms. Gill
is connected to the fact that the Tort Action is to be tried before a jury and
the issue of insurance, the nature of the role of the insurer and insurance
benefits are not to be brought to the attention of the jury.  Ms. Simon submits
that this fact weighs heavily in the balancing of interests.  It appears to
have been an important factor for the Master.

[27]        
However, in my view, the prejudice being described exists whether or not
the defendant is permitted to use the discovery transcript from the Part 7
Action.  It is not created (or heightened) by the defendant being permitted to
use the discovery transcript from the Part 7 Action.  Even if no discovery had
been done in the Part 7 Action, care would still have to be taken to avoid
mentioning insurance, insurance benefits, and so on in front of the jury:  see De
Araujo v. Read, 2004 BCCA 267, at paragraph 83.

[28]        
Ms. Simon argues that Joubarne is distinguishable because
the order was for production of a transcript from a matter that had been
settled, while here both the Tort Action and the Part 7 Action are ongoing. 
However, I am not persuaded that this is a meaningful distinction.  There is
perhaps a concern, since both of Ms. Gill’s actions are ongoing, that there is
a possibility of impeachment that could affect the outcome in two actions
rather than one, and that was not the case in Joubarne.  However,
if the evidence is consistent – and I will say generally consistent – on both
occasions, the examinee has little or nothing to fear.  The compelling public
interest at stake here is the search for the truth in relation to the accident
and the injuries Ms. Gill claims to have suffered in the accident.

[29]        
Ms. Simon is quite correct that the defendant in each action can ask on
discovery about the facts, and in that sense there is no compelling reason for
lifting the implied undertaking, because the defendant already has the means to
collect relevant information.  The defendant in the Tort Action does not need
to rely on the discovery transcript in the Part 7 Action to find out what Ms. Gill
has to say about the nature of her injuries, for example.  He can canvass all
of those issues on discovery in the Tort Action.  However, in my view, that
misses the point made by Mr. Justice Hood in Scuzzy Creek and by
Mr. Justice Binnie in Juman (at paragraphs 35 and 41).  There is
a compelling public interest in getting to the truth.

[30]        
Ms. Simon also argues that lifting the implied undertaking would or could
give ICBC an advantage (especially in Fast Track actions where discovery is
limited to two hours) over other litigants by, in effect, doubling the
discovery time.  The suggestion is that ICBC could and would manipulate the
procedural steps in a way that is fundamentally unfair.  However, the scenario
put forth is hypothetical and does not arise on the facts before me.  If this
scenario develops in the future, it can be addressed at that time.

[31]        
In summary, the defendant’s appeal is allowed and the defendant’s
application to use the discovery transcript from the Part 7 Action in this
action is granted.

[32]        
That concludes my ruling.

[33]        
Is there anything further that we need to deal with this morning?

[34]        
MR. RITCHEY:  My Lady, just costs of the appeal.  I don’t seek costs
with respect to the original application, it was much broader, but with respect
to the appeal, I seek costs.

[35]        
MS. MACDONALD:  My Lady, we would ask that costs would be in the
cause of the Tort Action.

[36]        
THE COURT:  All right.  I think the appropriate order is that the
defendant should have costs of the appeal in the cause.

“Adair
J.”