IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151210

Docket: S121202

Registry:
Vancouver

Between:

Patrick Hickey

Plaintiff

And

The Roman Catholic
Archdiocese of Vancouver, The Roman Catholic Archbishop of Vancouver, The Most
Reverend Michael Miller and the Roman Catholic Church Christ the Redeemer

Defendants

Before:
Master Taylor

Reasons for Judgment

[1]           
The genesis of this case is a slip and fall incident that happened while
the plaintiff was assisting in distributing Holy Ashes to the congregation
during Mass at the Roman Catholic Church, Christ the Redeemer on February 17,
2010.

[2]           
The plaintiff alleges a fracture of the left proximal humerus (a break
of the upper arm near the shoulder); limited movement in the arm and shoulder;
bruising and swelling; stress and anxiety; and sleep difficulties.

[3]           
This action was commenced by notice of civil claim filed February 17,
2012.

[4]           
The plaintiff’s claim became somewhat more complicated by the fact that
on March 1, 2010, the plaintiff was a passenger in a motor vehicle which was
involved in an accident. Mr. Hickey was seated in the front passenger seat when
the vehicle he was in was impacted on the driver’s side of the vehicle in a
T-bone-type of collision. It is suggested that the motor vehicle accident
possibly aggravated his condition from the earlier fall.

[5]           
By notice of application the defendants seek the following orders:

1.     The
plaintiff shall, within fourteen (14) days of the date of the Order, or by any
other date or time the Court deems appropriate, serve on counsel for the
applicant a further amended list of documents which includes the plaintiffs
updated clinical records;

2.     The
plaintiff shall, within fourteen (14) days of the date of the Order, or by any
other date or time the Court deems appropriate, produce to counsel for the
applicant copies of the following records, or alternatively deliver executed
authorizations for the release of the following documents to the applicant:

a. Updated clinical records from
CBI Sport Injury Clinic and Rehabilitation Centre from June 2,2010 to present;

b. Medical Services Plan printout
from February 17,2008 to present;

c. PharmaNet printout from February
17,2008 to present;

d. A copy of the ICBC file with
respect to the plaintiff’s claim arising from a motor vehicle accident in March
2010; and

e. Any other
medical treatment provider records the plaintiff has seen in respect to the
injuries plead in this action from the earliest date to present;

3.     The plaintiff shall be required to attend a further
examination for discovery and respond to the unanswered
questions from his examination for discovery on November 4, 2013 pertaining to
his prior and subsequent motor vehicle accidents and claims arising therefrom,
without consulting with counsel as to the form and content of his responses;

4.     The costs of
this application be payable by the plaintiff to the applicant in any event of the
cause.

[6]           
During the course of submissions it became
apparent that the issue of who is to pay for the various requested medical and
clinical records is of importance to the plaintiff in particular. Generally
speaking, the plaintiff takes the position that if certain reports and records
are requested by the defendants, then it should be the defendants’ obligation
to pay for the reports and records obtained and provided to them. Given that
this issue arose during the course of argument, I requested that counsel
provide me with written submissions on the issues before the court, both those
in the notice of application and those that arose by way of argument.

[7]           
Bound up with all of the foregoing is also the
issue as to which documents the defendants are entitled pursuant to Rule 7-1 of
the Supreme Court Civil Rules, B.C. Reg. 168/2009.

[8]           
My early observation is that this case, with all
of the argument and cross-argument, has already exceeded any proportionality
contemplated by Rule 1-3(2).

Who is required to pay for medical reports and clinical records?

[9]           
My initial observation is that more often than
not, it has been the defendant who brings an application to obtain records from
third party record-holders by providing those record-holders with notice as
well as notice to the plaintiff. In such an instance, it is the defendant who
agrees to pay the third party record-holder their fee associated with the
production of the sought-after records.

[10]       
In the instant case, the defendants seek the
records from the plaintiff, or, in the alternative, seek an order that the
plaintiff provide an authorization for the production of the sought-after
records. Thus, if the plaintiff is required to obtain the records, the
plaintiff must pay for the cost of obtaining the records. In this case the
plaintiff objects to this procedure because he maintains the defendants have
refused to reimburse the plaintiff for the costs of obtaining the records at
this stage in the proceedings. As well, the plaintiff feels he is entitled to a
type of Halliday order in the sense that his counsel ought to be able to
review the records for privilege or privacy prior to providing the records to
the defendants.

[11]       
The genesis for the application by the
defendants is a letter dated September 22, 2015, from plaintiff’s counsel to
the defendants’ counsel which I reproduce in full as follows:

In furtherance to our letter to you of June
30, 2015, please note the following:

1.      Updated clinical records from CBI from May 20, 2010 to
present – these records have been requested. Enclosed please find the invoice
for same;

2.      Medical Services Plan printout from February 17, 2008 to
present – we are not agreeable to producing these records;

3.      PharmaNet printout from February 17, 2008 to present – we
are not agreeable to producing these records;

4.      Physiotherapy records from February 17, 2010 to present – we
are advised that our client has only attended for physiotherapy at CBI. Please
see #1;

5.      Registered massage therapy records from February 17, 2010 –
we are advised that our client has not sought massage therapy; and

6.      Chiropractor records from February 17, 2010 to present — we
are advised that our client has sought treatment from Dr. Gordon Taylor.
Enclosed please find the invoice for same.

We trust you will find the above in order. 

Enclosed please find the Plaintiffs First
Supplemental List of Documents, dated September 22, 2015.

With respect, your firm’s refusal to
reimburse our firm for documents that you have requested is an ongoing issue. I
had the same discussion with Ms. Hamilton on December 13, 2013.

I will reiterate
what I advised Ms. Hamilton: 1. you can either reimburse my office for the
records, which I will then forward; 2. do not reimburse my office and we will
not procure them; or 3. seek an order for the records, in which case you will
have to pay the production cost and I will seek special costs against your
client for an unnecessary application.

[12]       
It is my intention to deal with each of the paragraphs
in the Notice of Application in the order in which they appear, and then make
some comments at the end regarding payment for obtaining the records. It
is also to be noted that at the time of the application no trial date had yet
been set for the hearing of this matter.

A further amended list of documents which includes the plaintiff’s updated clinical
records

[13]       
The plaintiff provided a first amended list of documents dated September
22, 2015, which was three days prior to the date of the defendants’ notice of application.
Very little was added to the amended list of documents from the original. It is
noted in passing that the documents over which privilege is claimed in the
amended list of documents are not properly described as neither the dates of
the reports or a description of the document is set out pursuant to subrule (7)
of Rule 7-1. As well, the date of the listing of the document is not recorded.

[14]       
Notwithstanding, the parties to an action have various duties imposed on
them pursuant to Rule 7-1. Firstly, the party who serves a list of documents has
an on-going obligation to promptly amend the list of documents if as set out in
(9)(b):

(b) there comes into the party’s
possession or control a document that could be used by any party of record at
trial to prove or disprove a material fact or any other document to which the
party intends to refer at trial,

[15]       
At the same time, as per Rule 7-1(10):

(10)      If a party who has received a list of documents
believes that the list omits documents or a class of documents that should have
been disclosed under subrule (1) (a) or (9), the party may, by written demand,
require the party who prepared the list to

(a) amend the
list of documents,

(b) serve on
the demanding party the amended list of documents, and

(c) make the originals of the newly
listed documents available for inspection and copying in accordance with
subrules (15) and (16).

[16]       
And at Rule 7-1(11):

(11)      If a party who has received a list of documents
believes that the list should include documents or classes of documents that

(a) are within
the listing party’s possession, power or control,

(b) relate to
any or all matters in question in the action, and

(c) are
additional to the documents or classes of documents required under subrule (1)
(a) or (9),

the party, by written demand that identifies the additional
documents or classes of documents with reasonable specificity and that
indicates the reason why such additional documents or classes of documents
should be disclosed, may require the listing party to

(d) amend the
list of documents,

(e) serve on
the demanding party the amended list of documents, and

(f) make the originals of the newly
listed documents available for inspection and copying in accordance with
subrules (15) and (16).

[17]       
In either case, subrule (12) of Rule 7-1 requires that the party who has
received a demand under either subrule (10) or (11) do certain things within 35
days of receipt of the demand.

[18]       
Subrule (13) allows the demanding party to apply for an order to require
the listing party to comply with the demand.

[19]       
I observe that the subrules are precise in their requirements. I further
observe that in my view, relatively strict adherence to the subrules regarding
demands should be maintained in order to bring a successful application. Such
is not the case here.

[20]       
In my view the words “pursuant to Rule 7-1(10), we request an amended
list of documents from the plaintiff” do not meet the requirements of the
subrule. Furthermore, the request for copies of certain records or documents
not listed in the list of documents does not accord with the provisions of the
Rule.

Updated clinical records from CBI Sport Injury Clinic and Rehabilitation
Centre from June 2, 2010 to present

[21]       
This request suggests that the defendants have knowledge that there are
updated clinical records from CBI in the plaintiff’s possession, power or
control as set out in subrule (11) of Rule 7-1, however, in a letter dated July
21, 2015, counsel for the defendants wrote as follows:

…Pursuant to Rule 7-1(10), we have demanded an amended list
of documents to list additional documents which would prove or disprove a
material fact.

We also hereby advise that, as an alternative, we rely on
Rule 7-1(11) to seek additional documents, within your client’s possession,
power, or control, that relate to the matters in question in this action.

Since you are not agreeable to the authorizations sent under
cover of our letter of June 2, 2015, we reiterate our request for copies of the
following clinical records:

1.         updated
clinical records from CBI Sports Injury Clinic and Rehabilitation Centre from
May 20, 2010 to present;

2.         Medical Services Plan printout from February 17,
2008 to present;

3.         PharmaNet printout from February 17, 2008 to
present;

4.         Physiotherapy records from February 17, 2010 to
present;

5.         Registered
Massage Therapy records from February 17, 2010 to present;

6.         Chiropractor records from February 17, 2010 to
present;

7.         Any other medical treatment
provider records the plaintiff has seen in respect to the injuries plead in
this action.

[22]       
The first step for a party believing there are further documents in the
plaintiff’s possession, power or control, is to request an amended list of
documents. In the event the list of documents is felt to be incomplete, then,
by written demand, the requesting party is to set out the additional documents
or classes of documents with reasonable specificity and indicate the reason why
such additional documents or classes of documents should be disclosed. This is
to be coupled with the requirement to amend the list of documents and to serve
it on the demanding party and to make the newly listed documents available for
inspection and copying.

[23]       
As indicated in para [11] supra, plaintiff’s counsel responded to the
request for clinical records from CBI by indicating they had been requested and
enclosed an invoice for $100.00 from CBI for the production of the clinical
records from May 20, 2010 to present. Apparently, the plaintiff believes he
should be entitled to reimbursement of this invoice before he provides the
requested documents. I am unable to find a provision in the Rules that requires
any more than reimbursement for copying of requested documents in advance as
set out in subrule (16) of Rule 7-1. Thus, it would be my observation that if
the documents exist, they would be in the plaintiff’s power to obtain them and then
provide an amended list of documents wherein those documents are listed. After
that, the requesting party is either free to inspect the documents or, on
prepayment for copying of the documents, request that copies be forwarded to
them. While the request for these documents in my view does not adhere to the
requirements of the subrules, the plaintiff has indicated that the documents
have been ordered pursuant to a request for them. Accordingly, it is for the
plaintiff at this juncture to obtain the documents, provide an amended list of
documents, and forward that amended list of documents to the defendants.

Medical Services Plan printout from February 17, 2008 to present; and PharmaNet
printout from February 17, 2008 to present

[24]       
These requests have no basis in fact for being made other than that of a
classic fishing expedition. The only suggestion by the defendants is that the
MSP and PharmaNet profile may relate to a matter at issue in the action. Without
a foundation for making a demand for the MSP printout or the PharmaNet
printout, the application for both is dismissed. See: Kaladjian v. Jose,
2012 BCSC 357.

A copy of the ICBC file with respect to the plaintiff’s claim arising from
a motor vehicle accident in March 2010

[25]       
In my view, this request is improper and unclear in its intent. Does the
defendant/applicant seek the file from the Insurance Corporation of British
Columbia with all the adjuster’s notes and communications with counsel?  Or
does the applicant seek medical legal reports prepared for one of the parties
to the litigation?

[26]       
In support of this application, the defendant cites Dholliwar v. Yu, 2015
BCSC 670, where the defendant sought the production of settlement documents
from two accidents in close proximity to a third accident. The case of Dholliwar
is, in my view, distinguishable from the case at bar. No evidence has been
provided that the plaintiff’s claim for injuries suffered in the motor vehicle
accident have been settled. And, in my view, Dholliwar is not authority
for the obtaining of the whole of an insurers file. Rather, it is limited to
the issue of privilege claimed over settlement documents – nothing more. Accordingly,
the application that the plaintiff provide the whole of the ICBC file
pertaining to his injuries sustained in the motor vehicle accident of March
2010 is dismissed.

Any other medical treatment provider records the plaintiff
has seen in respect to the injuries plead in this action from the earliest date
to present

[27]       
This portion of the application appears to be a general
request for production of records which may or not exist. It is speculative at
best and not based on any evidence of their existence, especially since no
other records have been listed in a list of documents. Simply put, it does not
accord with any subrule of Rule 7-1. Accordingly, it is dismissed.

[28]       
The plaintiff shall be required to attend a
further examination for discovery and respond to the unanswered questions from
his examination for discovery on November 4, 2013, pertaining to his prior and
subsequent motor vehicle accidents and claims arising therefrom, without
consulting with counsel as to the form and content of his responses.

[29]       
In Kendall v. Sun Life Assurance Company
of Canada, 2010 BCSC 1556, Griffin J. set out the legal principles
as they relate to examinations for discovery. Beginning at paragraph 6 she
said:

[6]        Rule 7-2(18)(a) of the Supreme Court Civil Rules,
B.C. Reg. 168/2009 [Rules of Court] sets out the scope of examination as
follows:

(18)            Unless the court
otherwise orders, a person being examined for discovery

(a)        must answer any
question within his or her knowledge or means of knowledge regarding any
matter, not privileged, relating to a matter in question in the action,

[7]        Despite a variety of substantive changes to the Rules
of Court enacted effective July 1, 2010, the scope of examination for
discovery has remained unchanged and is very broad.

[8]        The scope of discovery “relating to a matter in
question in the action” is defined by the pleadings generally, having in mind
that pleadings and particulars may be amended: Cominco Ltd. v. Westinghouse
Canada Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco] at
paras. 8-9.

[9]        Furthermore, just because an area of examination
for discovery may expose a great deal of material is not a reason to limit an
otherwise proper area: Cominco at paras. 18-19.

[10]      Because of the nature of cross-examination and the
generally wide scope of examinations for discovery, it will not always be
clearly apparent that a single question will produce relevant evidence.
 Nevertheless, unless it is very clear that the answers may not be
relevant to the issues, the better course is to allow the questions: Cominco
at paras. 9, 63.  In this regard, it has to be kept in mind that
what might be a permissible question on discovery, without objection, is not a
concession that the question, and evidence it adduces, is admissible at trial.

[11]      The legal authorities emphasize the proposition
that an examination for discovery is a cross-examination, and counsel for the
examinee must not unduly interfere or interrupt the examination.

[12]      Counsel for the party being examined should not
interfere on the cross-examination on examination for discovery unless it is
“clearly necessary to resolve ambiguity in the question or to prevent
injustice”:  Day v. Hume, 2009 BCSC 587 [Day] at
para. 20.  Any such intervention “should not be in a form that
suggests to a witness what a desirable answer might be” (Day at
para. 20).  However, objections on the grounds of privilege are
warranted as the scope of discovery does not extend to privileged matters: Rule
7-2(18)(a).

[13]      While the scope of examination for discovery has
not changed with the new Rules of Court brought into force on July 1,
2010, the length of examination for discovery is now limited to seven hours or
any greater period to which the person to be examined consents: Rule 7-2(2).

[14]      The newly imposed time limit on discovery makes it
all the more important that the courts enforce the principle that counsel for
the examined party must not unduly interfere or intervene during the
examination for discovery.  The time limit imposes a self-policing incentive
on the examining counsel to be focused and to not waste time on questions that
will not advance the purpose of investigating the case or obtaining admissions
for use at trial.  

[15]      While the time limit on examination for discovery
creates an incentive on the examining party to be efficient, it unfortunately
also creates a risk that counsel for the examinee will be inefficient by unduly
objecting and interfering on the discovery, for the purpose of wasting the
limited time available.  If that party is economically stronger than the
examining party, it also can strategically increase the costs of litigation
this way, by burdening the financially disadvantaged party with having to bring
a court application to obtain a proper discovery.

[16]      The proper conduct of an examination for discovery
within the spirit of the Rules thus relies on the professionalism of
counsel for the party being examined.  

[17]      As held by the Ontario Superior Court in Iroquois
Falls Power Corp. v. Jacobs Canada Inc. (2006), 83 O.R. (3d) 438 at
para. 4:

Improper interference by counsel in the other party’s
discovery undermines the purposes of discovery, prolongs it, fosters
professional mistrust and generally offends the overall purpose of the Rules….

[18]      A largely “hands off”
approach to examinations for discovery, except in the clearest of
circumstances, is in accord with the object of the Rules of Court,
particularly the newly stated object of proportionality, effective July 1,
2010.  Allowing wide-ranging cross-examination on examination for
discovery is far more cost-effective than a practice that encourages
objections, which will undoubtedly result in subsequent chambers applications
to require judges or masters to rule on the objections.  It is far more
efficient for counsel for the examinee to raise objections to the admissibility
of evidence at trial, rather than on examination for discovery. 

[30]       
Subsequent to Kendall, Willcock J. (as he then was) in Nwachukwu
v. Ferreira, 2011 BCSC 1755, said this at paras 32 – 33:

[32]      The scope of examination for discovery has recently
been canvassed by this court in Kendall v. Sun Life Assurance Company of
Canada, 2010 BCSC 1556; More Marine Ltd. v. Shearwater Marine Ltd.,
2011 BCSC 166; and Day v. Hume, 2009 BCSC 587. In those cases, the court
reiterated the following principles:  the language of Rule 7-2(18) is
identical to the former Rule 27(22) and the scope of examination for discovery
has remained unchanged and is very broad. Rigid limitations rigidly applied can
destroy the right to a proper examination for discovery. Useful or effective
cross-examination would be impossible if counsel could only ask such questions
as plainly revealed their purpose. An examination for discovery is in the
nature of cross-examination. Counsel for the party being examined should not
interfere except where it is clearly necessary to resolve ambiguity in a
question or to prevent injustice.

[33]      The time limit
established by Rule 7-2(2) creates a greater obligation on counsel for the
party being examined to avoid unduly objecting or interfering in a way that
wastes the time available. A largely hands-off approach to examinations for
discovery, except in the clearest of circumstances, is in accord with the
object of the Rules of Court, particularly the newly stated object of
proportionality. Allowing wide-ranging cross-examination on examination for
discovery is far more cost effective than a practice that encourages objections
which will undoubtedly result in subsequent chambers applications to require
judges or masters to rule on the objections. It is far more efficient for
counsel for the examinee to raise objections to the admissibility of evidence
at trial rather than on examination for discovery. Where intervention is
appropriate, the proper conduct of counsel is to state the objection to the
form of a question and the reasons for the objection, but it is not appropriate
to make comments, suggestions or criticism.

[31]       
The defendants submit the plaintiff’s objections to questions asked at
the examination for discovery pertain to essentially two matters:

(a) Whether the plaintiff had been in any motor vehicle
accidents in the 10 years prior to the incident; and

(b) the result of the
plaintiff’s claim for damages arising from the motor vehicle accident on March
1, 2010, and whether the plaintiff received compensation for damages arising
from the motor vehicle accident on March 1, 2010.

[32]       
The defendants submit the objections to the questions are founded on the
issue of relevance for both and that the first series of questions is also
overbroad.

[33]       
In my view, none of the questions asked of the plaintiff in relation to
these matters were objectionable. They are legitimate questions that have as a
basis the possibility that the plaintiff may have a history of pre-existing injuries,
while the latter is directed to the issue of possible double compensation. Accordingly,
the order sought is allowed.

[34]       
I note that no submissions were made on the length of the original
examination of the plaintiff, nor were submissions made as to the possible
length of the continued examination of the plaintiff.

[35]       
On reflection, it would seem that a further hour of examination of the
plaintiff would be sufficient to allow the defendants to obtain the necessary
information regarding these issues. Accordingly, that will be part of the
order.

Who pays for the reports and clinical records for which the plaintiff has
an obligation to produce?

[36]       
Opposition to this application appears to be founded on the practice
where in some instances, defendants have agreed to reimburse plaintiffs for the
costs of obtaining documents requested by defendants. However, it is not a
rule, it is a practice only that depends on the parties, the issues and the
urgency with which the documents are sought. It is not a rule upon which the
plaintiff can rely for reimbursement before the plaintiff provides the required
documents.

[37]       
In my view, Rule 7-1 is a code which all parties seeking or producing
documents must observe, but if, in practice, one party wishes to reimburse the
opposite party for the cost of obtaining the documents requested, they may do
so, but it is not a requirement that they do so. Obviously, if the
reimbursement does not occur, the plaintiff will make a claim for all of the
costs of obtaining the necessary documents as disbursements when presenting the
plaintiff’s Bill of Costs.

[38]       
I have determined that each party to this application has had some
success. Accordingly, each party will bear its own costs of the application.

“Master Taylor”