IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100224

Docket:
M090060

Registry: Vancouver

Between:

Tracy Stead

Plaintiff

And

James Brown

Defendant

Before: The Honourable Mr. Justice Hinkson

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: These
proceedings arose as a result of a motor vehicle accident that occurred on May
3, 2007. The plaintiff has alleged a wide variety of injuries as a result of
the accident.

[2]            
Prior to the accident in question the plaintiff
was involved in three prior motor vehicle accidents, the most recent having
occurred in February of 2003. In addition, the plaintiff apparently injured her
shoulder when she fell down a flight of stairs on July 16, 2006.

[3]            
The defendant has brought an application to
require the plaintiff to execute consent forms for the production of the
records of some ten doctors, three hospitals, two groups of physiotherapists,
WorkSafeBC, the Ministry of Housing, and Service Canada, and for production of
a variety of records relating to various forms of employment for plaintiff.

[4]            
The defendant’s application was brought almost
immediately after the initial request for some of the records were made to
counsel for the plaintiff. He is prepared to obtain many of the records
requested and as a result the defendant is prepared to adjourn the application
as it pertains to many of the doctors’ records.

[5]            
Insofar as the WorkSafeBC records are concerned,
they have been obtained by counsel for the plaintiff and are being reviewed by
him for relevancy. The defendant is prepared to adjourn that part of the
application as well.

[6]            
Insofar as the employment records are concerned,
they relate to an employer named Golden Globe, a Tupperware business that the
defendant alleges the plaintiff operated, another home based business enterprise
conducted by the plaintiff, personal tax returns and income assistance benefit
records.

[7]            
The Golden Globe records have been obtained by
counsel for the plaintiff and are being reviewed by him for relevancy. The
defendant is prepared to adjourn that part of the application as well.

[8]            
The plaintiff denies ever being involved in a
Tupperware business and in the result the defendant is prepared to adjourn that
part of the application as well.

[9]            
The plaintiff asserts that she is unable to
reproduce any records from her home business due to problems relating to her
computer. I will order that if those difficulties can be overcome the plaintiff
produce such records.

[10]        
The plaintiff has agreed to produce her personal
income tax records but wishes to restrict their production to the years 2005 to
present. I order that she produce them commencing them in 2003 the year of her
last motor vehicle accident prior to that which gives rise to these
proceedings.

[11]        
As far as the balance of the records is
concerned, they are within the plaintiff’s ability to request. Some have been
requested but others have not based on assertions of privilege or non-relevance
grounds. One of the records that has been withheld is a medical report or
medical reports commissioned from Dr. William Regan, an orthopaedic
surgeon who has been treating the plaintiff’s shoulder.

[12]        
I was advised that the plaintiff asserts a
litigation privilege over these reports. It is unclear whether they were prepared
for this action or for the action that arose out of the plaintiff’s fall down
the stairs in July 2006.

[13]        
In Liszkay v. Brouwer and Company General
Insurance Adjusters Ltd., [1978] B.C.J. No. 1210, the plaintiff
had made a claim on his insurance policy for the loss of a finger. The
defendant company in its capacity as a firm of insurance adjusters and Allen M.
Purdy in his capacity as insurance adjuster and manager of the corporate defendant’s
Victoria office were instructed by the agents for the insurers to investigate
the discharge of a shotgun which caused injury to the plaintiff’s left hand and
eventual amputation of a finger for which the loss the plaintiff claimed
indemnity under his insurance policy.

[14]        
As a result of these instructions the defendants
conducted certain investigations and the defendant Purdy wrote a number of
reports to his principals in Holland.

[15]        
The plaintiff had commenced an action in Holland
to recover under the policy of insurance and by some procedure under the law of
the Netherlands the plaintiff’s Netherlands lawyers were given access to two
reports written by the defendants to their Amsterdam principals. As a result,
the plaintiff brought an action in British Columbia claiming damages for liable
contained in those two reports.

[16]        
In the BC action Mr. Justice Mackoff dealt
with an application on behalf of the plaintiff for an order directing the
defendants to list and produce documents including the reports. The defendants
claim privilege over the reports. Mackoff J. concluded that the privilege
asserted belonged only to the insurers as the defendants in the plaintiff’s
action on the policy of insurance and did not extend to the defendants in the
subsequent action by the plaintiff in his claim for damages for liable as
against the defendants in that action.

[17]        
On the evidence before me, I am unable to
determine whether the reports of Dr. Regan are privileged or not. I will
therefore make no order with respect to those reports until their genesis can
be determined.

[18]        
As far as the hospital and doctors’ records are
concerned, I consider that any such records are potentially relevant from 2003,
the year of her last motor vehicle accident prior to that which gives rise to
these proceedings. The question that remains with respect to the hospital and
doctors’ records is whether the plaintiff can be made to execute consent forms
for their production.

[19]        
The defendant seeks an order in the form
referred to as a Halliday order so named as a result of the
decision of the British Columbia Court of Appeal in Halliday versus
McCulloch, [1986] 1 B.C.L.R. (2d) 194, 14 C.P.C. (2d) 70 (C.A.).

[20]        
While Halliday orders are
routinely granted by this court the plaintiff asserts that that practice is
inappropriate and that the court has no jurisdiction to order a party to
consent to any action.

[21]        
In Peel Financial Holdings Ltd. v. Western
Delta Lands, 2003 BCCA 180, the British Columbia Court of Appeal
reviewed an order of this court requiring a party to endorse a consent order.
Chief Justice Finch for a unanimous court wrote at paragraph 15:

The second
ground of appeal is that the judge had no power to order a party to consent to
an order. A consent given pursuant to an order to do so would be no consent at
all: see Rafferty v. Power (1993), 15 C.P.C. (3d) 48 (B.C.S.C.).

[22]        
And at paragraph 17:

The Supreme
Court judge cited no authority for his power to compel a party to consent, and
no authority for such a power was provided to us. As I have said, a consent
given pursuant to an order is a contradiction in terms.

[23]        
In Lewis v. Frye, 2007 BCSC 89, Hood
J. wrote an extensive and considered decision with respect to whether or not a
party could be compelled to sign authorizations for the release of third party
records and concluded that a party could be so ordered.

[24]        
Under the authority of Spruce Hansard
Mills Ltd., [1954] 4 D.L.R. 590, I am bound to defer to his decision
unless:

a)     subsequent decisions have affected the validity of the
impugned judgment;

b)     it is demonstrated that some binding authority in case law or
some relevant statute was not considered; or

c)     the judgment was unconsidered nisi prius
judgment given in circumstances familiar to all trial judges where the exigencies
of the trial require an immediate decision without the opportunity to fully
consult authority.

[25]        
Regrettably the decision of the Court of Appeal
in Peel Financial Holdings Ltd. was not considered which Hood J.
and I am persuaded that the binding nature of that authority if considered
would have altered the conclusion reached by him had the authority been brought
to his attention.

[26]        
I conclude that the plaintiff in this case
cannot be ordered to execute authorizations for the release of records in the
of third parties. The mechanism that must be pursued in order to obtain the
hospital and doctors’ records is pursuant to Rule 26(11) of the Rules of
Court 221/90.

[27]        
I recognize the convenience and cost saving that
might otherwise be realized by the Halliday form of order and
question why a party would insist upon the requirement that application for
third party records be made under Rule 26(11) when the relevance of the records
requested is not in issue but I am bound by the decision in the Court of Appeal
in Peel Financial Holdings Ltd. and thus I must dismiss the
balance of the present application.

[28]        
I will, however, seize myself of any further
applications for production of records in this case in order to ensure that appropriate
orders as to costs can be made.

“Hinkson J.”