IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151207

Docket: M132634

Registry:
Vancouver

Between:

William Easton

Plaintiff

And

Shih Chuan Chen

Defendant

Before:
Master Muir

Reasons for Judgment

introduction

[1]            
The present action stems from a motor vehicle accident on July 6,
2011 (the “accident”).

[2]            
In the application before the court, the defendant seeks production of
documents from earlier actions involving the plaintiff (the “prior actions”),
all stemming from earlier motor vehicle accidents which occurred on May 17,
2006, May 18, 2007, July 14, 2009 and March 27, 2010.

[3]            
The claims for the prior actions were settled before trial.

background facts

[4]            
Counsel for the defendant has already been provided with copies of most of
the material that is the subject of this application, presumably by the
Insurance Corporation of British Columbia (“ICBC”) when he was retained (the “prior
documents”). These prior documents are listed in Part 4 of the defendant’s
amended list of documents dated October 29, 2014 and privilege from
production is claimed over them. I take that to be the proper procedure in
the circumstances.

[5]            
The defendant also seeks to be released from the implied undertaking
regarding the prior documents and seeks production of all expert reports and
transcripts of all examinations for discovery from the prior actions.

[6]            
I should note that certain documents prepared by or submitted to ICBC in
the prior actions were produced by the defendant herein in Part 1 of his
amended list of documents. The plaintiff took issue with this and asserted it
was a breach of the implied undertaking of confidentiality and should not be
condoned.

[7]            
There is a distinction, however, as the documents in question were never
the subject of the implied undertaking of confidentiality as they were claims
documents submitted to or prepared by ICBC in the prior actions. They were not
produced by the plaintiff under the compulsion of the litigation and no implied
undertaking applies to them.

[8]            
The injuries claimed in the notice of civil claim in this action are the
same as some of the injuries claimed in the prior actions. All of these claims,
for example, allege that the plaintiff sustained injuries to his neck,
shoulders and back. The present claim alleges headaches, fatigue, and insomnia,
which are also claimed in relation to the 2006 and 2007 accidents.

[9]            
The defendant asserts that the injuries allegedly sustained in the
accident were in fact the result of the previous accidents or other
pre-existing conditions.

[10]        
The defendant points to evidence from the plaintiff’s examination for
discovery in this action in which the plaintiff admits that the 2011 accident
is included with the prior accidents as events that he relives, and that
contribute to his anxiety and depression. He says the symptoms, such as fatigue
and insomnia, started after the accidents in 2006 and 2007 but that they grew
worse after the 2011 accident. As well, the defendant points to evidence from
the plaintiff’s examination for discovery showing that the injuries allegedly
sustained in the 2011 accident echo those of the prior accidents.

[11]        
The plaintiff says that the evidence shows that the injuries from the
prior accidents had resolved prior to the accident in question and further that
the injuries claimed were sufficiently different to the present injuries that
they are not overlapping, but divisible. Thus, the plaintiff submits that the
documents sought are irrelevant and not producible.

[12]        
On my review of the evidence referred to, however, I conclude that
although the plaintiff did say he was comfortable by January 2011, he also
said that the pain “didn’t bug me as much” and that the symptoms were “manageable”.
He also said that he had neck and back pain at the time of the 2011 accident
and that his whole body would ache some days.

[13]        
The defendant says that the documents sought are required to determine
the nature and extent of the injuries suffered in the previous accidents, to determine
if the injuries alleged were caused or contributed to by the prior accidents,
to investigate any possible overlap in the claims being advanced and to avoid
potential double recovery for the injuries alleged.

[14]        
In addition, the defendant says the documents will show whether the
plaintiff has followed prior medical advice regarding treatment or exercise and
whether he returned to work when he was capable of doing so.

[15]        
The defendant has demanded that the plaintiff produce the prior
documents. Counsel for the defendant went so far as to provide copies of all of
the prior documents to the plaintiff and demanded that the plaintiff
incorporate them into an amended list of documents, or alternatively consent to
the use of the prior documents in this action. The plaintiff has not done so.

[16]        
The plaintiff has disclosed clinical records from his family doctor from
October 26, 2009, records from other treatment providers from July 22,
2008, income tax records from 2008, and disability records from January 2009.

analysis

[17]        
The application is made pursuant to Rule 7-1(1) of the B.C. Supreme
Court Civil Rules, documents which go to prove or disprove a material fact,
and Rule 7-1(11), which is the second tier of document production.

[18]        
Rule 7-1(11) allows for broader production than what is provided for
under Rule 7-1(1). Rule 7-1(11) encompasses documents relating to any or all
matters in question in the action and the test is closer to that under the
former rules, commonly known as the “Peruvian Guano” test: see Global Pacific
Concepts Inc. v. Strata Plan NW 141, 2011 BCSC 1752.

[19]        
The defendant submits that there should be no need to relieve against
the implied undertaking as the plaintiff has an obligation to list and produce
relevant documents in accordance with Rule 7-1(1) and that he is not relieved
from this obligation by the implied undertaking, which binds only the party who
receives production as a result of the litigation compulsion: see Wilson v.
McCoy, 2006 BCSC 1011, Cochrane v. Heir, 2011 BCSC 477 and British
Columbia v. Tekavec, 2012 BCSC 1348.

[20]        
The defendant asserts that the documents are relevant to material facts
and must be produced. As Master Baker noted in Burgess v. Buell Distribution
Corp., 2011 BCSC 1740 at para. 16:

[16]      But notwithstanding
this, I am satisfied that the defence has met the onus on it and that it
has established facts i.e. ongoing and repeated injuries, including injuries to
Mr. Burgess’ back, in sufficient proximity to the accident that the WBC
records could (without deciding the issue) disprove in whole or part the
alleged cause of Mr. Burgess’ post-accident injuries, symptoms, or damages.
They are likely, therefore, to be documents within the narrow confines of Rule
7-1(1). If I am wrong in that, I am satisfied that this is a case, in
any event, where the court’s discretion under Rule 7-1(14) should be applied
and that the records bear such obvious relation to Mr. Burgess’
accident-related injuries and damages that they should be produced.

[21]        
As to temporal proximity, in the Burgess decision, the accident
in question occurred in 2007 and the documents ordered produced were records
that went back to 2000. That is a slightly longer period than that in the
present case and I conclude here that there is sufficient temporal
proximity.

[22]        
The plaintiff argued that the request for prior examination for
discovery transcripts could only be seen as a fishing expedition in an attempt
to impeach the plaintiff’s credibility. I do not see that the evidence is
likely to be so limited. I would expect that the plaintiff was asked for
detail about the injuries suffered and the success or lack thereof of the
treatment undertaken. This is evidence which could be significant at trial in
determining whether the injuries were divisible or indivisible.

[23]        
The defendant also relies on Juman v. Doucette, 2008 SCC 8 at para. 35
and Joubarne v. Sandes, 2009 BCSC 1413 at paras. 20 – 26 in support
of his position that the implied undertaking should, in any event, be lifted in
cases such as this.

[24]        
In Joubarne, Mr. Justice Williams held:

[25]      In the present case, the discoveree is the
plaintiff. Furthermore, the claim in the employment litigation encompassed
issues including her employment history, fitness and performance in her
employment, as well as health issues that may have impacted on her performance.
In the present action, the plaintiff advances claims for loss of earnings and
loss of capacity. She alleges that the accident resulted in her developing a
driving anxiety and depression as well as loss of enjoyment of life and permanent
physical disability. There is, as well, a temporal proximity.

[26] In my view, it is reasonable
to conclude that the examination for discovery transcript in the earlier
proceeding is likely relevant to the issues in the personal injury action.
Furthermore, in the circumstances, there is no bar at law to preclude those
materials from production and the court has a discretion to relieve against the
implied undertaking and to order disclosure.

FINDINGS AND conclusion

[25]        
I agree with the submissions of the defendant. I am satisfied that
the prior documents, the discovery transcripts and the experts reports from the
prior actions could be used to prove or disprove material facts in this action
and on that basis alone I would order their production. I also
conclude that in any event a sufficient foundation has been laid for their
production under Rule 7-1(11). Further, I conclude that it is in the
interests of justice to relieve against the implied undertaking of
confidentiality. Thus, the documents are to be disclosed.

[26]        
The mediation documents sought raise another issue and that is
settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC
670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada,
2005 BCCA 4, for the proposition that the disclosure of these documents is
necessary in order to prove what the plaintiff received in compensation in the
prior accidents and to prevent injustice through potential double compensation.

[27]        
In Dholliwar, Master Scarth held:

[26]      It has yet to be established here that the injuries
arising from the third accident are indivisible from those in the first and
second. However, on the basis that indivisibility is at issue, and that there
is potential for over-compensation, it is appropriate to require disclosure of
the settlement documents at this time. I accept the submission of the
defendants that such disclosure is necessary, in that it may assist in the
settlement of the plaintiff’s claims arising from the third accident.
Disclosure at this time is consistent with the previous decisions of this Court
in Pete and Murray. I am satisfied that the defendants here
do not seek a purely tactical advantage, as the Court found in Phillips v.
Stratton, 2007 BCSC 1298 (CanLII),
but rather, they wish to have the information necessary to assess their
exposure, both for purposes of settlement and in the preparation of their case
for trial.

[27]      In Dos Santos at
para. 34, the Court 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.” In my view,
to find that the documents should be disclosed at this time is consistent with
this approach

[28]        
Similarly in this case, indivisibility is an issue and the defendants
argue there is a potential for double compensation. The only evidence available
showing what the plaintiff was compensated for in the prior actions will be
found in this documentation. As a result, I conclude that the mediation
documents should be disclosed.

[29]        
The plaintiff invites me to include, as a term of any order for
production of the documents sought, an order that documents in the hands of
ICBC that would have been privileged in the prior actions should also be disclosed.
They argue that solicitor/client privilege has been waived by disclosure to the
present defence counsel and that litigation privilege has ended as those
actions have resolved.

[30]        
There is, however, no application before me regarding such documents. There
is no evidence that a demand has been made in accordance with the rules or that
the defendant has refused to produce such documents after demand. In the
circumstances the invitation is declined.

[31]        
As to costs, as the defendant has admitted liability in this action, he
will have his costs of this application in any event of the cause, but not
payable forthwith.

“Master Muir”