IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100712

Docket: M082229

Registry:
Vancouver

Between:

Raven Sarah
Desjardins, an infant by

Litigation
Guardian, Grace Ouelette Tutin

Plaintiff

And:

Casey Lawrence
Huser, Deceased
Maria Anne Oulette aka Maria Anne Boudreau
and Brian Alexander

Defendants

And:

Insurance
Corporation of British Columbia

Third
Party

Before:
The Honourable Mr. Justice Joyce

Reasons for Judgment

INTRODUCTION AND NATURE OF THE APPLICATION

[1]            
The plaintiff claims damages arising from a motor vehicle accident that
occurred on September 4, 1994, when she was two years old. She alleges that she
sustained a brain injury resulting in permanent cognitive deficits. She also alleges
that she suffered multiple permanent orthopaedic and soft tissues injuries that
have resulted in permanent emotional and psychological problems.

[2]            
The plaintiff claims damages for pain, suffering, and loss of enjoyment
of life; loss or impairment of opportunity to form a permanent interdependency
relationship that might be expected to produce financial benefit; permanent
physical disability; loss of earnings; loss of income earning capacity and
opportunity to earn income; and loss of housekeeping capacity.

[3]            
The third party delivered three notices of motion by which it sought
various interlocutory orders. By the time the applications came on for hearing,
the following issues remained to be determined:

1.       an
application that the plaintiff submit to an educational assessment by Dr. Gary
Nix, who has a Ph.D. in Special Education;

2.       an
application that the plaintiff submit to a neuropsychological assessment by Dr. Michael
Joschko, who has a Ph.D. in psychology;

3.       an
application that the plaintiff reimburse the third party certain cancellation
fees charged by Dr. Joschko in respect of proposed assessments that were
arranged by the third party but not attended by the plaintiff;

4.       an
application that the plaintiff sign authorizations for the release of raw test
data from the Virginia Mason Medical Centre in relation to an assessment done
at that institution;

5.       an
application that the plaintiff sign authorizations for the release of records
of Sandbox Occupational Therapy; and

6.       an
application that the Ministry of Children and Family Development provide a copy
of all records in its possession relating to the plaintiff with the exception
of certain specified information as set out in the third party’s notice of
motion.

[4]            
Because of the imminent dates for the assessments by Dr. Nix and Dr. Joschko,
I gave my decision, immediately following the hearing of the application,
requiring the plaintiff to attend for those assessments and indicated that I
would provide written reasons.

[5]            
I reserved my decision with respect to the balance of the application.

[6]            
The following are my reasons for granting the relief concerning the
examinations and my decision with regard to the balance of the application.

THE EXAMINATIONS

[7]            
Rule 30 of the Rules of Court in force at the time this application was
heard provide for independent examinations where the physical or mental
condition of a person is in issue. The material parts of Rule 30 read as
follows:

30(1)    Where the physical or mental condition of a person
is in issue in a proceeding, the court may order that the person submit to
examination by a medical practitioner or other qualified person, and if the
court makes an order, it may make

(a)        an
order respecting any expenses connected with the examination, and

(b)        an
order that the result of the examination be put in writing and that copies be
made available to interested parties

(2)        The court may order a further
examination under this rule.

[8]            
It is common ground that the physical and mental condition of the
plaintiff is in issue in this proceeding. She claims numerous continuing
physical complaints, cognitive deficits as a result of the brain injury and
ongoing psychological difficulties that are said to impact her ability to
function, to learn and to maintain employment.

[9]            
The plaintiff’s objection to the examinations was on the basis that the
third party has already had an assessment of the plaintiff by a vocational
expert. Counsel for the plaintiff submitted that the proposed assessments by Dr. Nix
and Dr. Joschko were further assessments relating to the same issue and
should not be permitted. Counsel for the plaintiff relied on the following
passage from Trahan v. West Coast Amusements Ltd., [2000] B.C.J. No. 847
at para. 48:

48 The authorities
establish that additional medical examinations are in the discretion of the
court: Baart v. Kumar, et al [1982] B.C.D. Civ. 3611-05 (B.C.C.A.) and LaLonde
v. Desrosiers, et al, (28 February, 1983) Vancouver Registry No. CA821533
(B.C.C.A.). That discretion is to be exercised judicially, considering the
evidence adduced. A second examination to permit the defendant a second opinion
on the same subject matter will not be allowed. A second examination may be
appropriate where there is some question which could not have been dealt with
on the first examination: Lesser v. Radiak et al [1956] O.W.N. 479; West
v. Cotton, [1992] B.C.J. No. 139, (24 January, 1992) Vancouver
Registry No. B882384; Hothi v. Grewal, [1993] B.C.J. No. 3027,
(8 February, 1993) Vancouver Registry No. B929757; Hamada v. Semple,
[1983] B.C.J. No. 1307, (11 October, 1983) Vancouver Registry No. B820642.

[10]        
The essential purpose behind Rule 30 is to put the parties on a basis of
equality. The plaintiff is not limited in the number of areas of expertise in
which it may present expert evidence. The defendant should not necessarily be
denied an examination within a particular area of expertise, even if the
plaintiff has not chosen to obtain an opinion within that field (Guglielmucci
v. Makowichuk, [1996] 6 W.W.R. 357).

[11]        
In this case, the defendant obtained an assessment by a vocational
expert in March 2009. That assessment is broadly concerned with the same
general issue as the two additional assessments – the plaintiff’s general
functioning. However, I am satisfied that the focus of the assessments is not
the same and that they are not duplications of the vocational assessment, even
though there may be some degree of overlap. The educational assessment will be
directed at the plaintiff’s ability to learn and the sort of learning
environment that may best provide her with the greatest opportunity for
educational advancement. The neuropsychological assessment will, I expect, focus
on the causes of the plaintiff’s psychological problems, their extent and the
treatments or regimes, if any, that might be offered the plaintiff.

[12]        
In my view, this is a complex case that will pose difficulties in
sorting out the various possible causes of the plaintiff’s current mental condition.
She apparently sustained a serious injury when she was very young, but there
may well be other factors that have impacted her life so far that will have to
be considered.

[13]        
In the circumstances of this particular case, I am satisfied that it is
appropriate to exercise my discretion by granting the orders.

[14]        
I must say that I was also influenced to a degree in making my decision
on this part of the application by the fact that, at an earlier time but after
the vocational assessment had been made, counsel for the plaintiff appears to
have accepted the need for multiple assessments, although he resiled from that
position when this application was brought.

[15]        
Until the third party brought its application, the opposition by counsel
for the plaintiff appears to have been as to their timing, not whether they
were appropriate. Counsel for the plaintiff maintained that the plaintiff
should be examined for discovery before the examinations took place, a position
from which counsel resiled at the hearing. I point to the following extracts
from the communications from counsel for the plaintiff to counsel for the third
party:

Letter of November 13, 2009

Further to your letter of November 4, 2009 please be advised
that we agree in principle to an IME by Dr. Nix, however, we are concerned
that the lengthy testing for the two days immediately prior to the Examination
for Discovery may prove too much for Ms. Desjardins. Accordingly, we would
ask that you schedule the IME appointment with Dr. Nix such that Ms. Desjardins
will have a day of rest between the testing and the discovery.

Letter of January 13, 2010

We write further to the recent telephone conversations
between our assistances with respect to the various IME appointments you are
wanting to schedule for Ms. Desjardins.

We confirm that although we are agreeable
to the IME’s you are wanting to schedule with Drs. Nix and Joschko we are not,
however, agreeable to any IME dates before examinations for discovery
have been conducted.

CANCELLATION FEES

[16]        
On November 16, 2009, counsel for the third party advised counsel for
the plaintiff that she had arranged an assessment with Dr. Joschko on
February 4 and 5, 2010, at the plaintiff’s residence or school. This was done
without the prior agreement of plaintiff’s counsel. On January 13, 2010,
plaintiff’s counsel advised that the plaintiff would not attend the assessment.

[17]        
On January 15, 2010, counsel for the third party advised plaintiff’s
counsel that she had arranged an assessment with Dr. Joschko at a hotel in
Vancouver on April 9 and 10, 2010. Again, this was done without prior agreement
or order. On or about February 10, 2010, counsel for the third party delivered
a notice of motion seeking to compel attendance at the examination. Counsel for
the third party indicated that the application would be set for hearing prior
to March 5, 2010 “in order to avoid incurring any cancellation fees from Dr. Joschko”.

[18]        
On February 19, 2010, counsel for the plaintiff advised counsel for the
third party that:

Ms. Desjardins will attend with Dr. Joschko as you
propose subject to your agreement that:

1.         We are provided with all
raw test data when it is available, and

2.         Dr. Joschko
produces a report as soon as practicable, and

3.         We are provided with that report when it is
complete.

[19]        
On February 23, 2010, counsel for the third party advised counsel for
the plaintiff that she agreed to the first term but not the other two. She
proposed an alternative arrangement. The third party followed up on February 26
and March 1, asking for a response to her proposal. On March 3, 2010, counsel
for the plaintiff responded by advising that his client would attend for the
assessment subject only to his being provided with a copy of Dr. Joschko’s
raw test data immediately following the IME. On March 4, 2010, counsel for the
third party advised that the condition of attendance was accepted. Further, on
March 25, 2010, counsel for the third party advised that the third party would
pay reasonable conduct money for the plaintiff to attend for the assessment.

[20]        
These arrangements came unglued as a result of a misunderstanding
concerning the examination for discovery of the plaintiff. Counsel for the
plaintiff made arrangements with someone at the office of counsel for the third
party that the plaintiff’s discovery would take place in Vancouver, the day
before the IME. When counsel for the third party learned of that arrangement,
she indicated she was not prepared to proceed with the discovery at that time. This
prompted counsel for the plaintiff to advise counsel for the third party, on
March 30, 2010, that the plaintiff would not attend the IME. Counsel for the
third party offered to travel to the plaintiff’s home in northern British
Columbia when she conducted the discovery in order to reduce the costs and
hardship on the plaintiff but that was not satisfactory and the plaintiff did
not attend the IME.

[21]        
Dr. Joschko submitted an invoice for cancellation of the two
scheduled assessment periods totalling $4,215.00, purportedly based on his
cancellation policy, which had been provided to the plaintiff, that provides as
follows:

·       
Cancellation between 15 to 30 days prior to the scheduled
assessment – 1 hour per scheduled day (i.e. $300.00 a day)

·       
Cancellation 4 to 14 days prior to the scheduled assessment – 2
hours per scheduled day (i.e. $600.00 a day)

·       
Cancellation less than 4 days prior to the scheduled assessment –
4 hours per scheduled day (i.e. $1200.00 a day)

[22]        
Dr. Joschko charged $300.00 per day for each of February 4 and 5
(15 to 30 days notice) and $1,200.00 per day for each of April 9 and 10 (less
than 4 days notice). He passed on the cancellation fee of $315.00 that he was
charged by the hotel where the April assessment was to take place. Dr. Joschko
also charged for things not referred to in his cancellation policy, including
preparing forms and a letter ($150.00) and reviewing documents ($750.00).

[23]        
It would appear, based on Dr. Joschko’s invoice, that he was not
informed that the April 9-10 assessment was cancelled until after April 4 or 5.

[24]        
In my view, the third party took the risk in booking the first
assessment dates that the plaintiff would agree to attend. Absent an order or
agreement, I am not prepared to order that the plaintiff is responsible for the
charges for the first cancellation.

[25]        
With regard to the second assessment date, it appears to me that counsel
for the plaintiff agreed to that assessment and subsequently tried to impose an
additional condition relating to the date of discovery. In my view, the
plaintiff should be responsible for the cancellation fee but the cancellation
fee should be based on notice between 4 to 14 days in advance, since counsel
for the third party could have given that amount of notice. The cancellation
fee for the April dates should have been $600.00 per day or $1,200.00. The
other charges are not covered by the cancellation policy and I am not satisfied
they are the result of the second cancellation.

[26]        
I therefore order that the plaintiff is liable to pay costs to the third
party in the amount of $1,200.00 in any event of the cause but not forthwith.

AUTHORIZATIONS FOR THIRD PARTY RECORDS

[27]        
The third party seeks an order that the plaintiff’s guardian execute
authorizations for records that are in the possession of third parties who are
outside of British Columbia because this court cannot make an order compelling
such a party to produce records.

[28]        
The plaintiff does not suggest that the documents are not relevant or
that they are privileged. Her counsel simply takes the position that this court
has no jurisdiction to order a party to sign an authorization. The plaintiff relies
on Allen-Trensholme v. Simmie, [2006] B.C.J. No. 720 (B.C.C.A.)
("Allen-Trensholme”). That was an appeal from the decision of Master
Bolton, who held that a master has the authority to order that the plaintiff
sign authorizations for the release to the defendant of documents held by
parties outside British Columbia. Master Bolton considered the earlier decision
of Master Powers (as he then was) in Wolansky v. Harlan (1992), 67
B.C.L.R. (2d) 211 (“Wolansky”), which held that a master does not have
jurisdiction to require parties to sign extra-provincial authorizations but
suggested that a judge of this court might be able to make such orders by the
exercise of inherent jurisdiction. Master Bolton also considered the decision
in Benekritis v. Taylor (4 May 2005), Vancouver M023575 (B.C.S.C.) (“Benekritis”),
also an appeal from a master, where Williamson J. held that the master did not
have the jurisdiction to make orders compelling the plaintiff to sign
authorizations with respect to out-of-jurisdiction persons.

[29]        
Master Bolton concluded that Wolansky was in conflict with the
decision of the Court of Appeal in Fiege, v. Ruptiz, [2001] B.C.J. No. 1579
(“Fiege”), which upheld the decision of a judge in chambers who ordered
the plaintiff to sign extra-provincial authorizations for the delivery of
documents by U.S. tax authorities.

[30]        
Davies J., who heard the appeal in Allen-Trensholme, held that
the decision of the master was entirely at odds with Benekritis. Davies
J. observed that Fiege, did not address the issue of the jurisdiction of
a master (because that issue was not before the court). Davies J. decided to
follow Benekritis and set aside the master’s order.

[31]        
The plaintiff also relies on Peel Financial Holdings Ltd. v. Western
Delta Lands Partnership, 2003 BCCA 180 (“Peel”). In Peel, a
judge of the Supreme Court made an order joining two persons as parties to a
proceeding and compelling parties to consent to an order in Court of Appeal
proceedings. The first two grounds of appeal were: (1) that a Supreme Court
judge has no power to compel consent to be given and (2) that a Supreme Court
judge has no jurisdiction to make orders with respect to matters that are the
subject of proceedings in the Court of Appeal. Finch C.J.B.C., for the Court,
held that the appeal should be allowed on both grounds. With regard to the
power to order a party to consent to an order, he said at para. 17:

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.

[32]        
In Stead v. Brown, 2010 BCSC 312 (“Stead”), Hinkson J. (as
he then was) had to consider whether a party could be compelled to execute
authorizations for the release of hospital and doctors’ records. The applicant
in that case relied on Lewis v. Frye, 2007 BCSC 89 (“Lewis”), in
which Hood J. concluded that a party could be compelled to sign such
authorizations. Hinkson J. considered that he was not bound to follow Lewis
because Hood J. had not considered Peel. He held that the plaintiff
could not be ordered to execute authorizations for the release of records in the
possession of third parties.

[33]        
The third party argues that Stead is distinguishable or,
alternatively, wrongly decided and that I should follow Lewis rather
than Stead. Counsel for the third party submits that Hinkson J. was in
error in refusing to follow Lewis because Peel, the decision he
relied upon, was distinguishable in that it dealt with the requirement to sign
a consent order. In light of the comments of the Chief Justice quoted at
paragraph 31, I consider this to be a distinction without a difference.

[34]        
While Fiege might at first glance appear to support the third
party’s position, it appears the issue of the court’s jurisdiction or power to
make the order was not argued in that case.

[35]        
I conclude that the plaintiff cannot be compelled to execute the
authorizations that the third party seeks.

[36]        
In further written submissions provided by the parties with regard to
this issue, the plaintiff submits that if the plaintiff cannot be compelled to
sign an authorization, an order could be made under (former) Rule 26(1.1) to
compel the plaintiff to obtain the records and provide copies to the third
party and seeks liberty to amend its notice of motion nunc pro tunc to
include a claim under that rule. Rule 26(1.1) provides:

(1.1)     The court may order that a party deliver to any
other party a list of the documents that relate to a matter in question in the
action and that, although not in the possession or control of the party against
whom the order is made, are within that party’s power.

[Emphasis added.]

[37]        
Rule 26(1.1), by itself, appears to require the party only to list the
documents it its power, not to produce them. Interestingly, both subrule 26(7),
which provides for the inspection of listed documents, and subrule 26(9), which
provides that copies of listed documents may be requested, refer only to
documents in a party’s possession or control. However, subrule 26(10) appears
more general and provides that the court may order the production of a
document for inspection and copying.

[38]        
While the discovery processes under the new rules is significantly
different, Rule 7-1(14) enables a court to make an order that a party serve an
amended list of documents that contains all documents in a party’s “possession,
power or control, relating to any or all matters in issue in the action”. Rule
7-1(16) enables a party to obtain copies of all listed documents.

[39]        
In my view, however, it would not be fair or appropriate for this court
to amend the notice of motion as sought by the third party and make an order
without giving the plaintiff the opportunity to argue the matter. There is no
urgency to this aspect of discovery. The trial is months away. The third party
may bring a fresh application under Rule 7-1(14) if it wishes.

MINISTRY RECORDS

[40]        
The plaintiff does not dispute that there is information in the Ministry
records that is relevant to the matters in issue in this action. The
plaintiff’s position is that the records include sensitive information concerning
abuse suffered by the plaintiff at the hands of a family member and that there
are privacy interests that ought to be protected.

[41]        
The third party acknowledges that the records are sensitive and that
there is information that may be protected by privilege, for example names of
confidential informants or information that was received on a confidential
basis and that this information may be protected from disclosure. The third
party has vetted with the Ministry officials terms that will satisfy the Ministry
that its obligations to maintain confidentiality will be preserved but objects
to the conditions that the plaintiff seeks to impose on production. Those
conditions would have the materials go to a single psychiatrist or psychologist
retained by the third party and would limit the review of the documents by that
psychiatrist or psychologist and the solicitor for the third party but no other
persons, including any staff members of the third party’s solicitor or staff
members of the psychiatrist or psychologist.

[42]        
In further written submissions, the plaintiff appears to have taken a somewhat
less drastic position with regard to persons who might view the records.

[43]        
The plaintiff refers to A.M. v. Ryan, [1997] 1 S.C.R. 157. That
case was concerned with disclosure, in civil action in which the plaintiff sued
her former psychiatrist for damages, of the clinical notes and records of the
plaintiff’s psychiatrist who had treated her as a result of the abuse by the
first psychiatrist. The plaintiff claimed privilege over the documents. The
Supreme Court of Canada dismissed an appeal from the British Columbia Court of
Appeal from an order that provided for disclosure of the records subject to
four conditions:

1.       That
inspection be confined to the defendant’s solicitors and expert witnesses and
that the defendant himself not see them.

2.       That
any person who saw the documents should not disclose their contents to anyone
not entitled to see them;

3.       That the documents be used
only for the purposes of the litigation.

4.       That only one copy of the notes
was to be made by the defendant’s solicitors to be passed on as necessary to
the defendant’s expert witnesses.

[44]        
In my view, it is far less clear in this case than it was in A.M. v.
Ryan, which, if any, of the documents in the possession of the Ministry are
subject to a common law privilege that can be claimed by the plaintiff. In A.M.
v. Ryan, the court observed that privilege was not necessarily absolute. At
para. 18, McLachlin J. said:

18 … While the
traditional common law categories conceived privilege as an absolute,
all-or-nothing proposition, more recent jurisprudence recognizes the
appropriateness in many situations of partial privilege. The degree of
protection conferred by the privilege may be absolute or partial, depending on
what is required to strike the proper balance between the interest in
protecting the communication from disclosure and the interest in proper
disposition of the litigation. Partial privilege may signify that only some of
the documents in a given class must be produced. Documents should be considered
individually or by sub-groups on a "case-by-case" basis.

[45]        
I understand that some of the records may be comprised of information
provided to the Ministry directly by the plaintiff, over which a claim of
privilege may arise but I do not have a full description of the documents and
have not been asked to review them to determine privilege. That they contain
information that is sensitive and that could be embarrassing to the plaintiff
if disclosed widely seems to be agreed.

[46]        
In my view, a proper balancing of the requirements of the Ministry with
regard to confidential records, the privacy interests of and any privilege held
by the plaintiff and the right of the third party to the discovery of relevant
documents can be achieved by the following order:

1.         Within 21 days of receipt of a copy of this order,
Her Majesty the Queen in Right of the Province of British Columbia as
represented by the Ministry for Children and Family Development (“Ministry”)
shall prepare and deliver to counsel for the third party one complete copy of
all records in its possession, control and power, pertaining to Raven
Desjardins.

2.         In providing the above records the Ministry is not
obliged to disclose the following information:

(a)        the
name of any person who has provided information pursuant to s.14 of the Child,
Family and Community Service Act or any information tending to
disclose the identity of such person;

(b)        information
conveyed to the Ministry by third parties in confidence on the basis that it
would not be disclosed;

(c)        information
with respect to which a claim of solicitor/client privilege is advanced or
information subject to a claim of public interest immunity;

(d)        any
records created after the date of this order, except for records created as a
result of this order;

(e)        information
respecting a person who is not the subject of this particular proceeding where
disclosure would be an unreasonable invasion of that person’s personal privacy;

(f)         information
respecting any criminal proceedings or past criminal records created under the Young
Offenders Act or Youth Criminal Justice Act, unless specifically
authorized by a Youth Justice Court Act;

(g)        videotapes of interviews
with a child other than the plaintiff;

but if the Ministry does edit or
redact the records ordered produced herein, it shall provide to counsel for the
third party a comprehensive and complete description of the records deleted,
edited, or redacted together with the reason or justification for such deletion,
edit or redaction.

3.         Counsel for the third party must not disclose the
contents of the records disclosed by the Ministry to any persons other than
with members of the firm of lawyers representing the third party, any adjuster
who is instructing counsel for the third party and any experts retained by the
third party and members of their staff.

4.         Counsel for the third party must not make copies
of the records disclosed by the Ministry, except that she may provide one copy
to any expert whom she retains in connection with this action.

5.         Information disclosed by the Ministry will be used
only for the purposes of these proceedings unless the court orders otherwise
and will not be disclosed to any person to whom a right of inspection has not
been given by this order.

6.         Either the third party
or the plaintiff may apply to vary the terms of this order.

COSTS

[47]        
Counsel may make arrangements to speak to the matter of costs if
necessary.

“B.M. Joyce J.”