IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140415

Docket: M122794

Registry:
Vancouver

Between:

Roberto Angelo
Pavan

Plaintiff

And

Remo Guolo and
Canusa Limos Ltd.

Defendants

Before:
Master MacNaughton

Reasons for Judgment

[1]            
Roberto Pavan suffered injuries in a September 22, 2010 accident when
the car he was driving collided with a limousine driven by the defendant Remo
Guolo and owned by Canusa Limos Ltd. There were five passengers in the
limousine at the time of the accident, all of whom also suffered injuries and
have commenced separate actions. Liability and quantum are issues in this
action.

[2]            
Mr. Pavan applies for production of:

i.       a
copy of Mr. Guolo’s clinical records from Dr. Juergen Rauh, his family doctor,
from September 22, 2008 to the date of the accident;

ii.      a
copy of Mr. Guolo’s Pharmanet records from September 22, 2008 to the date of
the accident;

iii.     a copy of
an Independent Adjuster’s Report dated July 15, 2011 and an attached statement
of Pablo Arias dated July 13, 2011; and

iv.   
a copy of the complete CWMS adjusters’ notes from September 22, 2010 to
October 28, 2010.

[3]            
The defendants object to producing all of the records. The basis for
objecting to production of the first two is that the requests are too broad,
invade the Mr. Guolo’s privacy and will not go to prove or disprove a material
fact in the action. The basis for objecting to the third is because the report
and its attachment are subject to litigation privilege. The basis for objecting
to the fourth is that the redacted CWMS notes already produced reflect all
those entries which might go to prove or disprove a material fact in the
action.

Production of the defendant’s medical and Pharmanet records

[4]            
Mr. Guolo is eighty years old. He works as a part-time limousine driver
and wears glasses which is reflected on his licence.  After questions on his
examination for discovery, he produced clinical records from Dr. Donald
Matheson, his ophthalmologist, from October 7, 2003 to March 8, 2011.

[5]            
There are certain references in Dr. Matheson’s notes which, according to
Mr. Pavan, raise questions about Mr. Guolo’s health and medications at the time
of the accident. Dr. Matheson’s June 20, 2005 notes refer to “AODM” (adult
onset diabetes mellitus) and to the fact that Mr. Guolo was on medication for
that condition. His December 3, 2007 handwritten notes refer to what, according
to Mr. Pavan’s counsel, was Mr. Guolo’s involvement in a third motor vehicle accident.
However, on review, I accept that the notation is a reference to three broken
ribs suffered in one accident. Dr. Matheson’s notes then go on to refer to a
number of Mr. Guolo’s medications only two of which are legible, warfarin and
ASA (aspirin).

[6]            
Dr. Matheson’s handwritten notes from September 19, 2008 reference the
defendant taking warfarin but are otherwise illegible. In a letter of the same
date, written by Dr. Matheson to Dr. Rauh, he refers to Mr. Guolo being on oral
medication for diabetes and atrial fibrillation. The letter refers to the
defendant reporting occasional double vision when driving. Dr. Matheson says:

On examination corrected vision is 20/20 level in both eyes
but a small base-out prism in either eye eliminates a tendency for diplopia due
to an esophoria which is intermittent for both distance and reading. There is no
evidence of diabetic retinopathy. Intraocular pressures are normal in both
eyes.

I have updated his glasses
prescription to include the prism and I think this will allow a more
comfortable vision.

[7]            
The notice of civil claim, which Mr. Pavan frankly acknowledged was pro-forma,
alleges that Mr. Guolo negligently drove the limousine when his ability to do
so was impaired by drugs or fatigue. However, as Justice Davies said in Kaladjian
v. Jose, 2012 BCSC 357, at paras. 62-64 a pro forma pleading is not
generally sufficient to give rise to the broad disclosure obligation previously
incorporated in the Rule:

[62]
…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.

[8]            
In this case, Mr. Guolo has produced his ophthalmologist’s records for
almost seven years pre-accident and more than a year post-accident. There are
three references to medications on which Mr. Pavan relies in support of its
application. One of those references raises concern about Mr. Pavan’s vision
and it was addressed by an eyeglass prescription change more than two years
before the accident. If Mr. Guolo or his ophthalmologist had any ongoing
concerns about his vision, it is not reflected in the material before me.

[9]            
With respect to the medication issue, I conclude that Mr. Pavan has established
a sufficient basis on which to require Mr. Guolo to produce Dr. Rauh’s clinical
notes and Mr. Guolo’s Pharmanet records.  Mr. Pavan is entitled to explore whether
any of the medications referred to in Dr. Matheson’s notes, or any other
prescribed medication, may have affected Mr. Guolo’s driving ability. Although Mr.
Pavan seeks that the records be produced to his counsel, I order that the
records be produced first to defendant’s counsel so that they may be redacted
for any private health information that could not prove or disprove a material
fact in the action.

Production of the Independent Adjuster’s Report and attached statement

[10]        
The parties agreed on the applicable test for determining whether
adjuster’s reports obtained by ICBC in motor vehicle accident cases are
protected from production on the basis of litigation privilege. Documents need not
be produced if, as described by the Court of Appeal in Hamalainen (Committee
of) v. Sippola, [1991] B.C.J. No. 3614 (C.A.):

a)  litigation was in reasonable prospect at the time the
document was produced; and

b)  litigation was the dominant
purpose for the production of the document.

[11]        
The Court of Appeal accepted that there are two stages in the conduct of
a claims file by ICBC; an investigation stage and a litigation stage. The Court
also confirmed that it is the judge or master who determines the dominant
purpose for which a document is created and they are not bound by, or obliged
to accept, the adjusters’ opinions on those central issues.

[12]        
In Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180,
Justice Gray reviewed and summarized a number of authorities dealing with
claims for litigation privilege, including Hamalainen, and said:

[96]
Litigation Privilege must be established document by document. To invoke
the privilege, counsel must establish two facts for each document over which
the privilege is claimed:

1. that litigation was ongoing or
was reasonably contemplated at the time the document was created; and

2. that the dominant purpose of
creating the document was to prepare for that litigation.

(Dos Santos (Committee of) v. Sun Life Assurance Co. of
Canada (2005), 40 B.C.L.R. (4th) 245, 2005 BCCA 4 at paras. 43-44.)

[97]
The first requirement will not usually be difficult to meet. Litigation
can be said to be reasonably contemplated when a reasonable person, with the
same knowledge of the situation as one or both of the parties, would find it
unlikely that the dispute will be resolved without it. (Hamalainen v.
Sippola, supra.)

[98] To establish “dominant purpose”,
the party asserting the privilege will have to present evidence of the
circumstances surrounding the creation of the communication or document in
question, including evidence with respect to when it was created, who created
it, who authorized it, and what use was or could be made of it. Care must be
taken to limit the extent of the information that is revealed in the process of
establishing “dominant purpose” to avoid accidental or implied waiver of the
privilege that is being claimed.

[13]        
In this case, the disagreement is not primarily about whether there was
a reasonable prospect that litigation was contemplated when the independent
adjuster’s report was created but about whether the defendants have met the
burden of establishing that the dominant purpose of its creation was
litigation.

[14]        
As a result, I must assess the evidence presented by the defendant with
respect to the circumstances surrounding the creation of the report and
consider what use it might be put to. I do so in the overall factual context of
this case.

[15]        
Angela Connolly, the currently assigned ICBC claims examiner, filed an
affidavit setting out the circumstances under which she commissioned the
independent adjuster’s report. She also provides background chronological
information about ICBC’s handling of the two initial ICBC claims filed with
respect to the accident.

[16]        
Mr. Pavan and the defendants disputed fault for the accident. ICBC
assigned two different adjusters. Pablo Arias, a pedestrian, witnessed the
September 22, 2010 accident. The defendant has produced an unsigned copy of a
telephone statement made by Mr. Arias on October 19, 2010 and which indicates
that he saw the limousine enter the intersection on a red light. His name and
contact information were also provided to Mr. Pavan.

[17]        
On October 22, 2010, the adjuster assigned to conduct of the defendants’
claim, accepted liability for the accident  for internal purposes only and “only
in relation to the assessment of a chargeable claim payment on that policy”.
Ms. Connolly explains that chargeable claim payments are amounts which are
considered when assessing an appropriate insurance premium.

[18]        
In early October, Mr. Pavan’s counsel’s assistant contacted ICBC seeking
information about the assigned adjuster. On October 28, 2010, ICBC was advised
by Mr. Pavan’s solicitor that they had been retained. On October 29, 2010, Mr.
Pavan’s collision deductible was returned to him.

[19]        
On December 16, 2010, a lawyer advised ICBC that he had been retained to
represent one of the passengers in the limousine and, by April 13, 2011, ICBC
knew that all five passengers had retained counsel.

[20]        
Mr. Pavan commenced his action in May 2012 and by June 25, 2012, all
five passengers had commenced actions.

[21]        
On June 11, 2011, many months before the actions were commenced but
after ICBC knew counsel were involved for all possible plaintiffs, Ms. Connolly
was assigned conduct of the ICBC claims with respect to the five limousine
passengers. She says that it was clear to her that there was a significant
financial exposure for the injuries claimed by them and that litigation was
probable.  In his submissions, counsel for the defendants said that in
determining that litigation was probable, Ms. Connolly took into account that
the five passengers had suffered significant injuries and, because they were American,
would have higher medical costs. Ms. Connolly did not provide that evidence in
her affidavit.  Shortly after she was assigned, and on or about June 24, 2011,
Ms. Connolly sought approval from her manager to hire an independent adjuster
to interview witnesses and, once she obtained the authority, hired Mr. Lee to
obtain statements from witnesses. She says she did so for the purpose of
defending the claims.

[22]        
 On July 15, 2011, Ms. Connolly received a single report form Mr. Lee
which contained a signed statement taken from Mr. Arias on July 5, 2011.

[23]        
I accept that litigation was contemplated when the independent adjuster was
retained by Ms. Connolly.

[24]        
Ms. Connolly says in her affidavit that the sole purpose for retaining
the adjuster, and obtaining Mr. Arias’ statement, was to instruct counsel in
the course of litigation to defend the anticipated litigation claims.

[25]        
Counsel submitted that from ICBC’s perspective, investigation of the
circumstances of the accident was complete when ICBC made its internal
determination with respect to liability and returned the collision deductible
to Mr. Pavan. By that time, it had interviewed Mr. Arias, apparently the only
non-party witness to the accident, and had an unsigned statement from him,
which said that the defendant had entered the intersection on a red light.

[26]        
In addition he submitted that it is difficult to conceive of any
“investigative” or “adjusting” purpose for obtaining a formal statement from
Mr. Arias.

[27]        
I cannot accept Mr. Guolo’s position based on the evidence before me. As
the cases make clear, the burden is on the party seeking to protect a document
from disclosure to establish litigation privilege. In Keefer, supra, Justice
Gray said the party asserting the privilege must present evidence of the
circumstances surrounding the creation of document, including evidence with
respect to when it was created, by who, who authorized it, and what use was or
could be made of it.

[28]        
Ms. Connolly’s affidavit provides information about when the report was
created and by whom. She says that her manager authorized it but there is no
evidence as to the basis on which she sought the authorization or evidence from
the unnamed manager as to why he or she approved it. Although counsel asks me
to conclude that there could be no other “adjusting” purpose for the
independent adjuster’s report, the evidentiary basis for that submission is
lacking. In this case, apart from Ms. Connolly’s bald assertions, there is no
evidence from the adjusters earlier assigned to the file to establish that once
the internal decision with respect to liability for chargeable claim purposes
had been made, there was no further investigation of the accident. In addition,
that internal decision was not conveyed to Mr. Pavan and the defendant is
vigorously defending liability in this action. In all these circumstances, the
defendants have not met the burden of establishing that the dominant purpose
for the creation of the independent adjuster’s report was litigation.  It is
not protected by litigation privilege and should be produced.

The CWMS Notes

[29]        
Mr. Pavan is seeking unredacted copies of the CWMS notes from the date
of the accident to October 28, 2010, the date on which Mr. Pavan’s counsel
advised ICBC that he had been retained. In this case, the defendant has
produced redacted copies of the notes from the date of the accident up until
October 28.

[30]        
Mr. Pavan has relied on a number of cases in which this court has
ordered such production subject only to redactions where “reserves” are
mentioned. See, for example: Gilbert v. Nelson, 2012 BCSC 317, para. 38;
Bako v. Gray, supra, para. 25; and Celli v. White, 2010
BCSC 313, para. 18.

[31]        
 Counsel for the defendant, in his submissions, advised that the
redactions made to the CWMS notes reflected counsel’s attempt to produce only
those CWMS notes which might prove or disprove a material fact. Attached to Ms.
Della Santi’s affidavit is a letter from defendants’ counsel to counsel for Mr.
Pavan in which he says:

…I have reviewed the ICBC file
carefully. I am of the view that none of the CWMS notes could be used by any party…to
prove or disprove a material fact as required by Rule 7-1(1). However, on the
broadest interpretation of that Rule, we are willing to produce certain CWMS
entries.

[32]        
In Mr. Pavan’s submissions, he suggested that the CWMS notes be provided
to me for my review. I have reviewed the CWMS notes and have concluded that the
redactions made by the defendant are of entries which could relate to any
material fact in the action and thus, are not required to be produced.

Summary

[33]        
In summary, I have ordered Mr. Guolo to produce Dr. Rauh’s clinical
records and his Pharmanet records for the two years preceding the accident.
They are to be produced first to defendants counsel and then forwarded to plaintiff’s
counsel redacted only with respect to health matters which could not be
material in the action. I have concluded that the Independent Adjuster’s report
is not protected from production by litigation privilege and should be
produced. Finally, the redacted CWMS notes disclose those portions of the CWMS
file which could go to prove or disprove a material fact in the action. No
further production of the notes is required.

“Master MacNaughton”