IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151015

Docket: M135353

Registry:
Vancouver

Between:

Michelle Elizabeth
Gamble,

Bailey Owen
Gamble,

an Infant by his
Litigation Guardian Scott Kenneth Gamble,

Zachary Charles
Gambel,

an Infant by his
Litigation Guardian Scott Kenneth Gamble, and

Athena Elizabeth
Gamble,

an Infant by her
Litigation Guardian Scott Kenneth Gamble

Plaintiffs

And

Gordon Robert
Brown

Defendant

Before:
Master Taylor

Reasons for Judgment

[1]            
This is an application by the defendant for an order that the plaintiff,
Michelle Gamble, sign an authorization addressed to Todd Wytrychowski and Horne
Wytrychowski of Airdrie, Alberta, the former solicitors of the plaintiff. The
defendant’s proposed authorization is in the following words:

production of any part of your
file in respect of my motor vehicle accident which took place in Alberta on
March 19, 2009 which refers to defines, describes or comments upon the nature
and extent of my injuries arising from that accident and the effects of that
accident on my physical and mental health and, in particular, any mediation
brief, settlement letter, file memo, communication or similar document in that
regard

[2]            
Alternatively, the defendant seeks an order that the plaintiff amend her
list of documents by listing, in part 1, 2 or 3 of the said list, any and all
documents in the possession or control of Todd Wytrychowski or Horne
Wytrychowski in respect of the nature and extent of the plaintiff’s injuries
and symptoms from her accident in Alberta on March 19, 2009, and in particular
any mediation briefs, settlement letters, memos, communications or similar
documents in that regard.

[3]            
This matter arises out of a claim for damages for injuries and loss
suffered by the plaintiff as a result of a motor vehicle accident which occurred
on September 1, 2011 in Surrey, British Columbia (the “2011 accident”). The
defendant has admitted liability. The matter is presently set for a 10-day jury
trial commencing November 16, 2015.

[4]            
In the 2011 accident, the plaintiff sustained injuries to her head, jaw,
neck, shoulders, chest, back, left arm, left elbow, left wrist, left hand, left
hip, left leg and left heel. As well, the plaintiff claims she experienced
temporomandibular joint disorder, post-traumatic stress, headaches, sleep
disturbance, fatigue, confusion, memory disturbance, difficulties
concentrating, anxiety, depression, panic attacks, dizziness and gastrointestinal.

[5]            
The plaintiff was involved in a motor vehicle accident in Alberta on
March, 19 2009 (the “2009 accident”) in which she sustained soft tissue
injuries to her neck and back, and a concussion.

[6]            
As a result of the 2011 accident, the plaintiff has required extensive
physiotherapy treatment, massage therapy treatment, hand therapy treatment, and
has engaged in an active rehabilitation program and counselling and has
required medication.

[7]            
The plaintiff has attended a physiotherapy clinic, The Canadian Back
Institute, her family physician, a specialist in internal medicine, two
psychologists and a psychiatrist, amongst other health care professionals. The
psychiatrist, Dr. Bergen, stated in a consultation report dated December 20,
2011:

This patient makes criterion for
major affective disorder depression, which I believe has resulted secondary to
the MVA as well she has symptoms that would fill criterion for PTSD

[8]            
In a consultation report dated April 8, 2014, Dr. Bergen reported:

This patient developed PTSD with
the background hum of having been a trauma victim in her childhood which would
predispose her to the development of PTSD in adult traumas, is making good
progress in her journey.

[9]            
The plaintiff alleges that she suffered an extreme setback in her
emotional state in November 2014.

[10]        
While residing in Alberta, the plaintiff operated a daycare facility out
of her home. Between 2008 and 2010, her gross income was between $37,000.00 and
$42,000.00. In 2011, before moving to British Columbia, the plaintiff’s gross
income was $24,500.00 which she earned from her daycare business.

[11]        
The plaintiff alleges that upon her return to British Columbia, her
intention was to open a daycare facility to be operated out of her home. In
fact, the 2011 accident occurred just one week prior to the intended opening of
the plaintiff’s daycare in Surrey, British Columbia. As a result of the 2011
accident, and the injuries the plaintiff received, the plaintiff maintains she
cannot return to her work as a daycare operator and, accordingly, is making a
claim for income loss and loss of income earning capacity. The defendant
maintains the claims for these heads of damages are substantial.

[12]        
In the course of her examination for discovery on October 16, 2014, the
plaintiff was asked about the injuries she sustained in the 2009 accident. The
plaintiff acknowledged soft tissue injuries including an injury to her left arm
from hitting the driver’s door and an injury to her left elbow. She also
advised that she hit the left side of her head on the window of the vehicle. She
claims she suffered low back and neck pain. Other symptoms from the 2009 accident
included vomiting, forgetfulness, repeating herself, and headaches. The
plaintiff maintains that as of September 2011, all of her symptoms from the
2009 accident had resolved.

[13]        
Counsel for the defendant has made a request of the plaintiff, through
her counsel, to produce documents in respect of the 2009 accident, especially
since that matter has since settled.

[14]        
Plaintiff’s counsel maintains that any settlement letters or mediation
briefs prepared by the plaintiff’s Alberta lawyer regarding the plaintiff’s 2009
motor vehicle accident are privileged. Notwithstanding, the plaintiff has sworn
an affidavit that her Alberta lawyer, Todd Wytrychowski, has provided written
confirmation setting out the terms of settlement from the 2009 accident and
confirming that the settlement did not include damages for loss of opportunity
or past or future income loss. At the same time, the plaintiff says that by
referencing written confirmation from her previous solicitor, she does not
waive solicitor-client privilege.

[15]        
Plaintiff’s counsel offered to provide the written confirmation from Mr. Wytrychowski
together with supporting documentation and offered to provide them to defence
counsel on certain terms and conditions:

a)     we will
not provide you with any mediation briefs, settlement letters, memos, communication
or similar documents with respect to the March 19, 2009 motor vehicle accident;

b)     we confirm
that Mrs. Gamble is not waiving solicitor-client privilege by producing these
documents, and strictly asserts same; and

c)    
any settlement particulars for the March 19, 2009 motor vehicle accident
will not be introduced at trial, unless the trial proceeds by judge alone.

[16]        
Defence counsel responded: “We cannot agree to any production offer that
withholds any documentation about what was sought by your client in the
settlement discussions, nor can we agree to any offer that limits our right to
a jury trial.”

[17]        
Two days later, plaintiff’s counsel sent defence counsel the
communication from Todd Wytrychowski confirming the settlement terms of the
2009 accident for his review and at the same time reiterated that the
documentation was being provided on the same terms and conditions as outline in
earlier correspondence, and as set out above in paragraph 15. Defence counsel
was also placed on an undertaking that if he still did not agree to the terms
and conditions, then he could not make use of the documents except for the
purposes of review until a judge or master has made a determination regarding
the defendant’s application. Needless to say, defence counsel did not accept
the conditions or the undertaking.

[18]        
Plaintiff’s counsel has provided other medical-legal reports to the
defendant including the clinical records of Dr. Fozia Alvi, the plaintiff’s
general practitioner in Alberta with respect to the 2009 accident and Dr. Keith
Hoyte, a neurologist, who provided a consultation report dated March 22, 2011,
which predates the second accident by six months. Dr. Hoyte’s consultation
says:

In the past, she had a CT of the
brain and an MR both of which apparently were normal…I do not see any sign of a
treatable neurologic disorder, and I have reassured her.

[19]        
Dr. Alvi’s notation in the plaintiff’s clinical record on June 2, 2011
reads “pt is doing well.”

[20]        
The plaintiff was examined at a defence medical examination by Dr. Julia
Ting, a Registered Psychologist on December 4, 2014. In her report for the
defendant, Dr. Ting says:

It is my clinical opinion that Ms. Gamble satisfied enough
required criteria set forth by the DSM-5 that it is reasonable to make a diagnosis
of PTSD. Her psychological symptoms were documented as early as January 4, 2012
in Dr. McIvor’s clinical notes and continue to the time of this assessment,
albeit seemingly in a noticeably declining level of severity.

Based on my psychological assessment, on a balance of
probabilities, the motor vehicle accident on September 1, 2011 contributed to
Ms. Gamble’s current diagnosis of PTSD and MDD.

Ms. Gamble’s depressive symptoms
are more likely than not secondary to her symptoms of PTSD. Ms. Gamble does not
have a documented history of depressive symptoms prior to the subject MVA
albeit she does endorse experiencing some psychological sequelae after the 2009
MVA.

[21]        
The plaintiff maintains that the documentation sought is protected by
settlement privilege and that no overriding principle arises in this case
requiring an exception to be made.

[22]        
The defendant maintains that the search for the negotiated terms of
settlement from the plaintiff’s earlier motor vehicle accident, plus any claims
for loss of opportunity and the like, is necessary to prevent the plaintiff
from any chance of double recovery. Thus, the issue becomes whether or not, in
the case at bar, the defendant has made out a case for breach of settlement
privilege.

[23]        
In Dholliwar v. Yu, 2015 BCSC 670, Master Scarth set out cases
with principles which are applicable to this application at para. 10:

a.    The
public interest in the settlement of disputes generally requires “without
prejudice” documents or communications created for, or communicated in the
course of, settlement negotiations to be privileged: Middelkamp v. Fraser
Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (C.A.).

b.    A final
settlement agreement is covered under the Middelkamp blanket protection
for settlement communications: B.C. Children’s Hospital v. Air Products
Canada Ltd., 2003 BCCA 177, confirming a general policy of non-production
of all documentation relating to settlement negotiations.

c.     To
establish an exception to settlement privilege, the applicant must show that a
competing public interest outweighs the public interest in encouraging
settlement. An exception should only be found where the documents sought are
both relevant, and necessary in the circumstances of the case to achieve either
the agreement of the parties to the settlement, or another compelling or
overriding interest of justice. Relevance alone is not sufficient to override
the settlement privilege. See Middelkamp; Dos Santos v. Sun Life
Assurance Co. of Canada, 2005 BCCA 4, para. 21.

d.    An exception to settlement
privilege may be necessary to prevent injustice through excessive compensation
to the plaintiff: Dos Santos, para. 29, citing Pete.

[24]        
The defendant maintains that the documents sought are relevant and cites
Biehl v. Strang, 2010 BCSC 1391, and Kaladjian v. Jose, 2012 BCSC
357, as authorities for that proposition, and in particular Kaladjian,
where the party seeking the documents must provide sufficient evidentiary
support, beyond the pleadings, to justify production of the documents in the
possession of third parties.

[25]        
In dealing with the issue as to whether or not settlement documents
should be produced, at paras. 17-21, Master Scarth considered the decision of
Shaw J. in Ashcroft v. Dhaliwal, 2007 BCSC 533,where Shaw J. stated the
issues to be:

[5]  …whether the present
defendants are liable for Mrs. Ashcroft’s cumulative injuries, including those
received in the second accident. If so, then a subsidiary issue arises: what
should be done in regard to the money Mrs. Ashcroft has been paid in settlement
of the second accident. Should it be deducted from the damages assessed in the
present proceeding?

[18]      Shaw J. concluded that the present defendants were
liable for the plaintiff’s cumulative injuries, those injuries being
indivisible. He went on to state:

[48]      My ruling on the law
raises the question of double recovery because Mrs. Ashcroft has already
received a settlement for the second accident. Here, in my opinion, the common
law rule against double recovery comes into play.

[49]   The principle against double
recovery is stated in Ratych v. Bloomer, [1990] S.C.R. 940, 69 D.L.R.
(4th) 25 per McLachlin J. (as she then was) at 962:

It is a fundamental principle of
tort law that an injured person should be compensated for the full amount of
the loss, but no more…The plaintiff is to be given damages for the full measure
of his loss as best that can be calculated. But he is not entitled to turn an
injury into a windfall.

[19]      Accordingly, Shaw J. held that, to avoid double
recovery, there must be a deduction from the full measure of damages of any
extra benefit received by Ms. Ashcroft, and judgment given for the net
amount only.

[20]      The Court of Appeal upheld the process followed by
Shaw J. in deducting the settlement amounts from the damages against the
defendants.

[21]      In light of Ashcroft,
there is no doubt that information on the settlements will have to be
produced if and when the trial judge concludes that the injuries are
indivisible, as the trial judge will then be asked to determine the amount for
which these defendants are liable. The question remains as to whether it is
necessary that they be produced now, in advance of such a finding.  

[26]        
Master Scarth went on in Dholliwar to consider when it would be
appropriate to order the sought-after documents be produced commencing at para.
22:

[22]      In Dos Santos, 2005 BCCA 4, the Court of
Appeal cited the decision in Pete as an example of when a competing
public interest – that of preventing injustice in the form of excessive
compensation to the plaintiff – displaces the blanket privilege set out in Middelkamp:
see Dos Santos, paras. 27 and 29. In Pete, the plaintiff was
involved in two motor vehicle accidents, the first in 1994 and the second in
1998. The defendants in the action related to the second accident requested
copies of the settlement documents related to the action on the first accident,
including a release or an agreement. The plaintiff took the position that the
documents were not relevant and, in any event, were privileged. Master Bishop ordered
that the documents be produced, finding that they were relevant applying the Peruvian
Guano test (Compagnie Financiere du Pacifique v. Peruvian Guano Co.
(1882), 11 Q.B.D. 55 (C.A.)), and that there was a,

…real possibility that without the
disclosure of the settlement documents and the information requested, the
plaintiff could be compensated again for injuries for which she has already
received compensation” (para. 30) [cited in Dos Santos, at
para. 29]

[23]      The decision in Pete was followed in Murray
v. Hough & Smith, 2002 BCSC 339 where, by way of interrogatories, the
defendants asked for details of a settlement reached in another action. Master
Horn stated:

[17]      In this case too, it
seems to me, the terms of the settlement may show whether or not the plaintiff
has been compensated for injury or loss which is also encompassed by the
remaining actions. The plaintiff says that the injuries she suffered in the
nightclub are quite different from the injuries she suffered in the motor
vehicle collisions and that there was no amount paid to her for the loss of
income. That may be so, but the defendants are entitled to investigate whether
it is so.

[24]      On the issue of
settlement privilege, Master Horn considered himself bound by the Pete decision,
but, applying Middelkamp, only to the extent that it holds that the
terms of the settlement must be disclosed in order to prevent double recovery.

[27]        
In Dholliwar, Master Scarth eventually ordered the production of
the documents sought in spite of the litigation privilege, taking comfort in Dos
Santos at paragraph 34 when the Court of Appeal stated that “significant
weight should be given to the just disposition of pending litigation in
determining whether the documents sought come within an exception to settlement
privilege.”

[28]        
In Dholliwar, the court had to deal with three motor vehicle
accidents in which the plaintiff had been involved within a few months of each
other. The plaintiff had been involved in two previous accidents on June 2,
2011 and July 25, 2011. The third accident which was the subject of the
application occurred on August 16, 2011.

[29]        
In the case at bar, the first accident occurred on March 19, 2009. The
subject accident occurred on September 1, 2011. By account of some of her
physicians, and at least one expert report prepared for the defendant, the
plaintiff was doing well and not suffering any effects from the 2009 accident
well before the occurrence of the 2011 accident.

[30]        
As well, the plaintiff has offered the defendant a letter from her
previous solicitor confirming the terms of the settlement she received for the
injuries she sustained in the 2009 accident, together with medical-legal
documents from the previous accident.

[31]        
In this case, I am of the view that the defendant/applicant has not
shown that the public interest in preventing double compensation has taken
precedence over the public interest in encouraging settlement such that I
should order the production of the mediation brief, settlement letter, file
memo, communication or similar document prepared by the plaintiff’s previous
solicitor.

[32]        
The final question becomes whether or not the plaintiff should place any
terms on the production and disclosure of the documents she has provided to the
defendant. In my view that is a matter for the trial judge to determine at the
outset of the trial and in the absence of the jury, aside from the issue of the
plaintiff maintaining her solicitor-client privilege with Mr. Wytrychowski,
which should be preserved in any event.

[33]        
In conclusion, I determine that the defendant has not satisfied me that
I should order breach of the settlement privilege attached to the documents
prepared by the plaintiff’s previous counsel for the plaintiff in the 2009
Alberta case. Accordingly, the defendant’s application is dismissed with costs
to the plaintiff.

“Master
Taylor”