IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Ruzic v. Insurance Corporation of |
| 2010 BCSC 580 |
Date: 20100428
Docket:
S73002
Registry: New Westminster
Between:
Dragon
Ruzic
Plaintiff
And
Insurance
Corporation of British Columbia
Defendant
Before: The Honourable Mr. Justice Crawford
On appeal from the Supreme Court of British Columbia,
Docket S73002, New Westminster Registry,
dated February 15, 2008
Reasons for Judgment
Counsel for Plaintiff: | M.G. |
Counsel for Defendant: | J.M. |
Place and Date of Hearing: | New January |
Place and Date of Judgment: | New April |
Introduction
[1]
This is an appeal by the plaintiff from an order
of a master made February 15, 2008, dismissing the plaintiffs application
that the defendant produce a list of the motor vehicles owned by some 360
inhabitants of four multi-residential buildings in Vancouver, and the drivers
licence photos of those named persons. The plaintiff also sought to adduce new
evidence at the hearing but I am satisfied that the historical material was
properly considered at an earlier stage.
Background
[2]
Mr. Ruzic claims damages for injuries he incurred
when operating a motorcycle in the secure underground parking of his residence
at 560 Cardero Street, Vancouver, BC. The accident occurred on April 10, 2000.
[3]
The secured parkade serves four multi-tenant
residential buildings.
[4]
The plaintiff alleges he was struck by an
unidentified driver of an unidentified motor vehicle and has sustained a severe
brain injury. The initial police investigation showed no involvement of any
other motor vehicle.
[5]
The progress of this action has been very slow:
(a) Writ of
Summons – April 9, 2002;
(b) Statement
of Defence – June 7, 2004;
(c) New
counsel appointed – June 10, 2004;
(d) Trial
date set for December 12, 2005;
(e) Examination
for discovery of plaintiff – April 21, 2005;
(f) Disclosure
by plaintiff of videotape of parking lot and adjournment of trial – November
25, 2005;
(g) May 10,
2006 – Master Bolton ordered a third party list names of residents in four
multi-tenant buildings as of April 10, 2000 and a list of owners, tenants,
sub-tenants, or leaseholders with reserve parking and their assigned stall
number;
(h) July 2007
– plaintiffs motion to have the defendant provide a list of all vehicles
registered to residents of the multi-tenant buildings together with photo
identification of all residents. The motion came on for hearing before the master
January 30, 2008 and he gave written reasons February 15, 2008.
This appeal has taken two more years to get
to hearing.
The
Rulings of the Master
[6]
The defendant made a cross-motion seeking
dismissal of the plaintiffs claim for want of prosecution before the master. The
master found that there had been inordinate delay and that the delay was
inexcusable but the defendant, a sophisticated and capable litigant has
suffered little in the way of prejudice. He held that a fair trial of the
issues was still possible and he dismissed the defendants application.
[7]
The plaintiffs application was pursuant to Rule
26(10) which reads:
The court may
order the production of a document for inspection and copying by any party or
by the court at a time and place and in the manner it thinks just.
[8]
The master noted with disclosure by the Strata
Corporation the plaintiff had a list of the individual or corporate owners
within the strata complex and a list of individuals or corporations to whom a
parking stall had been assigned. The plaintiff sought an order the defendant
provide a list of vehicles registered to individuals or corporations on the
list as of April 10, 2000, together with photo identification. The learned
master found the defendant, pursuant to its statutory obligations, would have
the vehicle registrations of persons in the multi-residential buildings and the
drivers licence information would have digital images, but the cost of
producing such information could be significant.
[9]
The master considered the third party interests affected
important, for what was sought was information acquired by the defendant as the
operator of the statutory scheme of licensing and vehicle registration. ICBC
was only a defendant due to the allegation of fault on the part of an
unidentified motorist. The records kept by ICBC as the operator of the
statutory scheme of licensing and vehicle registration were not related
directly to the litigation and ordinarily that information would not be
relevant.
[10]
The defendant indicated the computer searches
might well require additional computer programming in order to conduct the
searches and a substantial cost which plaintiffs counsel said he was prepared
to pay.
[11]
The master noted the failure to investigate the
matter by other (ordinary and inexpensive) means apparently had reduced the
plaintiff to saying that a time-consuming and expensive and invasive form of
disclosure was the only possible means of discovering the identity of the
unidentified driver and therefore he was obliged to weigh the plaintiffs interest
in full disclosure against competing interests of the third parties.
[12]
The court noted the police investigators found
no evidence of other vehicle involvement and attributed the plaintiffs motorcycle
accident to speed, debris on the parkade surface, and a cast on the plaintiffs
right hand. The master noted there was no evidence connecting the vehicle or
the driver in the videos to the accident. I note the picture of the person
exiting the elevator with a box in hand indicates someone with a phlegmatic countenance
and not someone who might have been recently involved in a car and motorcycle
accident.
[13]
The court weighed the probative value of
disclosure against the significant invasion of third party privacy interests
and considered the decisions of Dorgan J. in Park v. Mullin, 2005 BCSC
1813 [Park], and Myers J. in Desgagne v. Yuen et al.,
2006 BCSC 955 [Desgagne]. In both cases, the plaintiffs personal
computer hard drive was a potential source of information. Both decisions
recognized privacy rights of third parties and denied the disclosure sought.
[14]
After weighing the competing interests the learned
master exercised his discretion in dismissing the plaintiffs application.
The
Plaintiffs Submissions
(a) The plaintiff argued the decision was vital to the
plaintiffs case and therefore not an interlocutory matter where the test was
whether the order was clearly wrong, but a review by way of re-hearing without
deference;
(b) The decision of the learned master was clearly wrong in
that the vehicle seen in the video is the only one proximate in time as is the
gentleman seen in the video. Indeed, the argument notes the vehicle and the
gentleman appear to be on the third level of the parkade some four minutes
subsequent to the last image of the plaintiff on his motorcycle. It was
submitted the evidence sought might prove the identity of a potential witness
or perhaps a defendant, a matter probative in the plaintiffs case;
(c) That the learned master applied the incorrect test for
relevance, arguing the master stated the applicant must establish relevance
when the Rule requires the applicant need only establish there might be
relevant evidence for the party to advance his own case: see Brett L.J. in
Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano
(1882), 11 Q.B.D. 55 at 63 [Peruvian Guano];
(d) That the court was in error to say a party must exhaust
conventional sources relying on Belitchev v. Grigorov, [1998] B.C.J. No.
1967 (S.C.);
(e) Lastly, it was submitted the master was in error in the exercise
of his discretion, pointing to Doyle v. British Columbia, 2001 BCSC 262
[Doyle], a case where foster home records were sought to ascertain the
names of potential witnesses.
[15]
The defendant submitted the standard of review
was for an interlocutory decision. The defendant submitted no legal error had
been committed and cited Dorgan J. in Park as to the relevance,
probative value, and privacy issues that were properly addressed by the learned
master.
Discussion
[16]
The Rule requires a party disclose any document
in its possession that relates to any matter in question in the action.
[17]
I note the application was initially brought
before the Court in 2005 and has staggered to its present stage.
[18]
Generally the production of documents is an interlocutory
matter: Shantz v. British Columbias Childrens Hospital, 2005 BCSC
1747; Stephen v. McGillivray, 2007 BCSC 1086. Unless it is a matter
vital to the final outcome of the action: Ho v. Ming Pao Newspapers, [1997]
B.C.J. No. 2539 (S.C.); Vernon & District Credit Union v. Cue Datawest
Ltd., [1999] B.C.J. No. 364 (S.C.).
[19]
Is it a matter vital to the final outcome? It is
close to the line. I am of the opinion it is an interlocutory matter, but even
had the matter been vital to the final outcome I would come to the same
conclusion and uphold the masters decision.
[20]
The video is proximate in time to the alleged
accident but there is nothing there to indicate the gentleman shown has been in
or even seen an accident. The picture shown in evidence showed a gentleman with
a phlegmatic countenance. It would be a very different case if the evidence of
the plaintiff was that he had been struck by a motor vehicle which left the
scene, but a description of the motor vehicle and part of the licence plate
number gave rise to the claim for disclosure.
[21]
The masters reasons do not show a misreading of
the test in Peruvian Guano. Nor did the master say that a party must
exhaust conventional sources of information, though he did say those
conventional sources were still available to the plaintiff. Other cases have
allowed access to information as to identify of witnesses as in child abuse
cases: Doyle, but that is not to say that the master is obliged to rule
in similar fashion on a different case. The question is as to the appropriate
exercise of the masters discretion.
[22]
The master carefully reviewed the issues of
relevance, privacy of third parties, difficulties in extracting information,
tardiness, full disclosure, and in particular focussed on the lack of evidence
relating the plaintiffs claim to another motor vehicle. He found that the
competing privacy interests of third parties outweighed the plaintiffs
interest in full disclosure where the documents and information had little
probative value.
[23]
I add these comments. As a result of the 2006
disclosure order, the plaintiff has a list of the residents in the buildings at
the relevant time and those with parking privileges, some 360 persons in all.
Now it asks the defendant to provide a list of all vehicles registered with
those names, and photo identification of those persons, presumably from the
photos provided for drivers licence purposes. But the defendant has limited
search powers particularly with respect to the photos which require the drivers
licence number, which is not available here.
[24]
Ordinarily one would have thought the
identification of the potential car and its driver would have been obtained by
standing in the underground parking and watching the cars going in and out and
seeing if there was a car like the one in the pictures or a driver like the
gentleman in the video. Alternatively pictures could have been put on an
advertisement and the potential witness asked to come forward. None of this
seems to have been done. The video was in the plaintiffs hands before 2005. The
list of occupants has been in hand since 2006. These basic tasks can still be
done though the passage of almost eight years reduces the prospect of success.
[25]
I have carefully reviewed the affidavits,
materials and written argument. On either standard of review, I agree with the
master. Accordingly the plaintiffs appeal from the order of the master made February
15, 2008 is dismissed.
The
Honourable Mr. Justice Crawford