IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140530

Docket: 12-3397

Registry:
Victoria

Between:

Sandra Stewart

Plaintiff

And:

Teresa Alexandra
Robinson

Defendant

Before:
Master Bouck

Reasons for Judgment

Introduction

[1]            
These reasons address whether an order ought to be made following a non-mandatory
case planning conference (the “CPC”).

[2]            
The plaintiff submits that the conference was entirely unnecessary. The
only order to be made is awarding her costs related to the CPC payable
forthwith. The defendant suggests that a case plan order ought to be made in
her proposed form with no order as to costs.

[3]            
In the most general of terms, the issues to be decided are whether the
CPC was in fact unnecessary and, if so, what if any costs order ought to
follow.

Facts

[4]            
Given the process involved, none of the facts set out below are taken
from affidavit evidence. Rather, both counsel referenced certain facts and
documents in their respective submissions. No objection was taken in proceeding
in this manner and, indeed, no affidavit evidence could be presented: Rule 5-3
(2)(a).

[5]            
This is a personal injury claim resulting from a September 14, 2011
motor vehicle accident (the “Accident”). The plaintiff was the driver of a
vehicle struck from behind by the defendant’s vehicle. Ms. Stewart’s vehicle
was “written off” by her insurer. Liability for the Accident and any resulting
losses has been denied by the defendant.

[6]            
The action was commenced on October 5, 2012, with the defendant’s
response filed on January 9, 2013. The matter will proceed to trial on
April 27, 2015, and is expected to last up to 20 days. A notice requiring
trial by jury has been filed by the defence.

[7]            
The plaintiff was examined by defence counsel for over five hours in
January 2014. A continuation of that examination is scheduled to take
place in July of this year. There appears to be some disagreement over the
parameters of the continued examination but that was not the subject of any
case plan proposal. The defendant will also be examined for discovery in July.

[8]            
This is not Ms. Stewart’s first personal injury action. Ms. Stewart also
pursued a claim for damages involving a 2007 motor vehicle accident. That claim
was resolved in 2009 without the necessity of a trial.

[9]            
In this action, the plaintiff claims that the Accident caused the
following injuries and symptoms: soft tissue damage to the neck, shoulder,
upper back; TMJ malfunction and headaches; a mild traumatic brain injury; tinnitus,
dizziness and loss of balance; and late onset fibromyalgia. The notice of civil
claim was amended in August 2014 to include this last complaint.

[10]        
Ms. Stewart is in her early fifties and is, or was, a long term
administrative assistant with the City of Campbell River. She was also employed
as a transcriber for the local RCMP. According to her counsel, Ms. Stewart has
been a very active person for most of her life, participating in triathlons and
marathons and the like.

[11]        
Following the Accident, Ms. Stewart was off work for ten months. A two-month
graduated return to work program was unsuccessful. In August 2013,
Ms. Stewart left the workforce on her physician’s advice and has never
returned.

[12]        
In addition to the denying liability for the Accident’s occurrence, the
defendant says that the plaintiff’s complaints are related to pre-existing
conditions. Those pre-existing conditions would include the consequences of the
2007 motor vehicle accident.

[13]        
The plaintiff has disclosed extensive pre-accident medical records. In
some instances, the records date as far back as 2005. Plaintiff’s counsel
describes the volume of disclosure as “tremendous”. Defence counsel does not seriously
challenge that description.

[14]        
To date, the plaintiff has agreed to attend three separate defence
medical examinations. The defendant’s insurer has assigned an occupational
therapist to work with the plaintiff.

[15]        
Against this background, the defence set down a case planning conference.
Plaintiff’s counsel has consistently maintained that such a conference should
not proceed. From Mr. Sweeney’s perspective, the parties were capably managing
the litigation. As well, the case plan order sought by the defendant is
prohibited at law.

[16]        
As required by the Rule 5-1 (5) (a), the plaintiff was the first of the
parties to file a case plan proposal. In doing so, the plaintiff was not
conceding that a CPC was necessary.

[17]        
On March 17, 2014, defence counsel wrote to Mr. Sweeney outlining the
objectives of the conference from his client’s perspective:

I refer to the above matter in which the case planning
conference is scheduled for May 20, 2014.

I refer to your case plan proposal, which is said to be in
form 20, dated 3 March 2014 which I received on 12 March 2014 under cover
of your letter dated 10 March 2014.

Rule 11 -1 (2) of the supreme court civil rules states: “(2)
Unless the court otherwise orders, if a case planning conference has been held
in an action, expert opinion evidence must not be tendered to the court at
trial unless provided for in the case plan order applicable to the action.”

After the case planning conference I will be asking the court
to make an order listing the areas of expertise of all of the experts each
party intends to use at trial.

I kindly request that your case plan proposal be in the
appropriate form and disclose in a summary manner your proposal with respect to
the listed steps, including expert witnesses. The form you have provided
indicates you should list the area of expertise and date each report is to be
served. Your proposal does not do so.

At a case planning conference, an order may be made
respecting experts including, without limitation, orders respecting the number
of experts, the date of service and the issues on which an expert may be called
(see form 20 and rules 5-1(6) and 5-3(l)(k)).

A case plan order must be made after a case planning
conference and must be in the appropriate form, must set out any order made
under subrule (1) and may include any other matter referred to in the form. The
form of order requires a listing of the name of the party who intends to call
the expert and the area of expertise (see form 21 and rules 5-3(3) and 5-3(4)).

I respectfully request that you specifically include any and
all experts and their areas of expertise that you currently expect to call at
trial.

If you choose not to provide such details, please take this
correspondence as notice that:

1. I will be seeking an order as
set out above at the case planning conference, and it will be my position that
if you do not list the areas of expertise of your proposed experts in a case
plan proposal then the order should not contain any list of experts the
plaintiff may call;

2. I reserve my right to rely on
rule 11-1(2) at the trial of this action and oppose any request for a court
order to tender any expert opinion evidence not provided for in the case plan
order; and

3. I reserve my right to oppose any
application to amend the case plan order regarding experts at a later date.

Almost 5 hours of examination for discovery have already
taken place in this action. It is my view that you already have a plan in
relation to the experts you wish to retain, and I would not be surprised if you
had already retained many of them. I expect this to be explored at the case
management conference.

It is my respectful view that at
this time you should have a clear idea at this time of all of the experts you
may intend to call at trial.

[18]        
In reply, Mr. Sweeney alerted defence counsel to the recent decision of
Smith J. in Dhugha v. Ukardi, 2014 BCSC 387 (issued March 11, 2014).
Mr. Sweeney also advised that the plaintiff would seek costs should the
conference proceed. The defendant declined to adjourn the CPC and insisted that
the authorities relied on by the plaintiff could be distinguished.

[19]        
The case plan proposal of the defendant (filed on March 27, 2014),
seeks the following orders:

1.         Parties exchange further amended lists of
documents on or before 1 Nov 2014 and 6 Feb 2015

2.         Examinations for discovery to be completed by 1
Sep 2014

4.         The defendant proposes
that, in accordance with the rules and the forms, an order be made listing the
areas of expertise in which expert opinion evidence is allowed to be led. The
plaintiff’s case plan proposal is incomplete and an order should go that the
plaintiff is not entitled to lead expert evidence at trial. The defendant has
made an educated guess as to what evidence is required, and wishes to be at
liberty to lead evidence in the following areas of expertise: orthopaedic
surgeon, neurologist, psychiatrist, ear nose and throat specialist, dental
surgeon, internal medicine / pharmacological specialist, occupational
therapist, vocational assessor and an economist or accountant and any other
specialist required to respond to the plaintiffs expert evidence.

[20]        
In addition, the defence suggests that the trial was set for 20 days at
the request of plaintiff’s counsel but “Without a list of the proposed experts
further estimates are impossible.”

[21]        
Once it became apparent that the CPC would be proceeding, the plaintiff
filed an amended case plan proposal. The plaintiff’s proposal states that the
parties agree to the following:

1.         The
parties have exchanged Lists of Documents:

Plaintiff:

•       
Jan. 29/13

•       
Nov. 25/13

•       
Nov. 25/13 (amended)

•       
May 14/14

Defendant:

•       
Feb. 20/13

•       
July 9/13 (amended)

•       
Dec. 19/13

•       
Feb. 17/14

2.         The Plaintiff’s Examination For
Discovery was conducted on Jan. 21/14, Defence Counsel has scheduled a second
Examination for Discovery for July 3, 2014.

The Plaintiff will discover the Defendant on
July 23, 2014

4.         Expert witnesses to be exchanged as per Rule 11-6

5.         The parties will
exchange witness lists 28 days before Trial as per Rule 7-4

[22]        
In response, defence counsel observed that the amended proposal is not
in compliance with the SCCR and certain steps had not, in fact, been
agreed to by the parties. Mr. Deshon also confirmed with Mr. Sweeney that
the defence would “be seeking an order in the prescribed form dealing with all
of these matters, and the expert matters as set out in my previous
correspondence.”

[23]        
Upon arrival at the case planning conference, Mr. Deshon provided
Mr. Sweeney with a draft case plan order. For convenience, that order is
attached as “Schedule A” to these reasons.

[24]        
In terms of the proposals, there was certainly some discussion at the
conference concerning the length of examinations for discovery and the exchange
of lists of documents. However, the discussions and submissions were focussed on
the defence’s proposed order regarding experts and the plaintiff’s claim for
costs.

Discussion

[25]        
Rule 5-3 (3) requires the court to make a case plan order following a
CPC. In my view, that requirement presumes that the CPC served some purpose.

[26]        
As to be expected, the parties approach this matter from very different
perspectives.

[27]        
The plaintiff says that the parties have no need for judicial
involvement in planning the discovery aspects of the case. Lists of documents
have been generated from time to time and there can be no suggestion that the
defence is in the dark with respect to the plaintiff’s medical history.
Furthermore, the defence has had the opportunity to examine the plaintiff and
ask any relevant questions with respect to treatment, including who the
plaintiff has seen for that treatment.

[28]        
The plaintiff submits that the sole purpose of the case planning
conference was an attempt by the defence to ferret out information about the
plaintiff’s experts even though such a purpose is contrary to well-established law.
The plaintiff also cites Galvon v. Hopkins, 2011 BCSC 1835, and Amezcua
v. Norlander, 2012 BCSC 719 (Master).

[29]        
The defence argues that a correct interpretation and application of the SCCR
supports the case planning order sought. The defence’s argument relies to some
extent on a literal reading of the SCCR and the content of forms
required by those rules. For example, the defendant says that the editorial
content of form 20 (the case plan proposal) suggests that a party must identify
the areas of expertise of an expert witness in the document.

[30]        
The defence also submits that Dhugha can be distinguished on the
facts not only because the conference in that matter was conducted early in the
proceeding and thus before it was fair and practical for the plaintiff to
identify experts, but also because the reasons were really addressing the correct
application of Rule 11-1 (2). Furthermore, the defence notes that the
court in Dhugha made no mention of Rules 5-3 (6), 5-3 (1)(b), 5-3 (3),
5-3 (4) and 7-1 (9), all of which are said to support the order sought by the
defence in this proceeding.

[31]        
The defence says that a case plan order can be made identifying the
areas of expertise of the defendant’s experts and later amended to include the
corresponding information from the plaintiff. As well, the defence submits that
a case plan order is appropriate to provide deadlines for both delivery of
lists of documents and concluding examinations for discovery. The defence
argues that the case plan order ought to reflect the objectives of Rule 1-3 of
the SCCR and, in particular, the just, speedy and inexpensive
determination of a claim on its merits.

[32]        
The first question to be answered is whether any order identifying
experts or areas of expertise can even be made.

[33]        
Galvon has been followed in at least two other cases, both of
which involved the defence’s request to provide some information in a case plan
order concerning the plaintiff’s intended experts: Nowe v. Bowerman, 2012
BCSC 1723, and Blackwell v. Kwok, 2013 BCSC 246.

[34]        
Read together, the above authorities stand for these propositions:

1.  rules of civil procedure do not
trump substantive law, including the principle of litigation privilege;

2.  a party is not required to reveal,
in a case plan proposal or order or otherwise, the name of any expert or the
area of expertise of any intended expert before the 84-day deadline for the
service of expert reports; but

3.  the court may order that the
service requirements under Rule 11-6 (3) be abridged such that expert
reports are to be served earlier than the 84 days before trial. Such an order
will only be made in exceptional cases where a compelling reason for early
disclosure is demonstrated.

[35]        
While a party may volunteer details of their expert evidence in advance
of the 84-day deadline, a CPC is not required for that purpose. The information
can simply be provided in correspondence without the necessity of judicial
involvement. As the court determined in Dhugha, the omission of the name
of an expert or his or her area of expertise from a case plan order does not
preclude the admission of that expert evidence at trial.

[36]        
Thus, the order sought in the defendant’s case plan proposal with
respect to experts could not be made by the court. The order proposed by the
defence at the CPC with respect to experts is not necessary.

[37]        
That leads to the next question: was a CPC necessary for any other
purpose? In my view, it was not.

[38]        
An order requiring the parties to exchange further amended lists of
documents by certain dates is not necessary. Both counsel acknowledge the duty
to provide ongoing document disclosure as required by the SCCR. The
suggested deadlines micromanages a case that does not require such management.

[39]        
An order requiring delivery of a certain therapist’s records by a specified
date is also not required. The plaintiff has volunteered to provide those records.

[40]        
An order identifying the timing and length of examinations for discovery
is also unnecessary. The parties have agreed to examination dates. The length
of these examinations was not seriously in dispute at this conference and did
not require judicial management.

[41]        
In short, I find that no case plan order ought to or need be made at
this time.

[42]        
Except for proceedings under Rule 15-1, a CPC is not mandatory at any
point in a proceeding. Such a conference may be ordered by the court, but that
is not the case here. While litigants should have unrestricted access to the
courts, there ought to be some reasonable purpose for the CPC before the
resources of the parties and the court are engaged.

[43]        
To be clear, many cases require judicial management. The type of orders
sought with respect to discovery in this case might be appropriately part of a
case plan order in another case. The outcome of this particular conference
should not discourage other parties (or even these parties, down the road) from
pursuing a CPC.

[44]        
That leaves the question of costs. There are no specific provisions
under under Part 5 (Case Planning) of the SCCR addressing costs.

[45]        
The plaintiff relies on Rule 14-1 (14) which states:

14-1 (14)  If anything is done or omitted improperly or
unnecessarily, by or on behalf of a party, the court or a registrar may order

(a) that any costs arising from or
associated with any matter related to the act or omission not be allowed to the
party, or

(b) that the party pay the costs incurred by any other party
by reason of the act or omission.

[46]        
Having already concluded that the CPC was unnecessary, I award the
plaintiff costs related to counsel’s preparation and attendance and the
conference. Those costs are fixed at $750 all inclusive, not payable forthwith.

                   “C.P.
Bouck”                  

Master
C.P. Bouck

“Schedule
A”