IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101022

Docket: 09-2513

Registry:
Victoria

Between:

N.B.

Plaintiff/Claimant

And

S.B.

Defendant/Respondent

Before:
Master Bouck

Reasons for Judgment

INTRODUCTION

[1]          
This is a family law proceeding brought before July1, 2010. To be
consistent with the Supreme Court Family Rules, these reasons will refer
to the plaintiff as the claimant and the defendant as the respondent.

[2]          
The respondent brings this application for production of certain
documents in the possession and control of third parties.

[3]          
It is alleged that all of the documents are relevant to the issue of
spousal support. The claimant has agreed to produce some documents but resists
the production of others on the basis that the documents are either irrelevant
to the ongoing issues between the parties or are protected by litigation
privilege. Specifically, the documents at issue are:

·        
the contents of a file held by the Insurance Corporation of
British Columbia (“ICBC”) relating to N.B.’s involvement in a motor vehicle
accident in 2009;

·        
any and all documents in the possession of the Royal Bank of
Canada (“RBC”) regarding any mortgage or loan of the claimant and, in
particular, any mortgage on 2428 Valleyview Place, RR2, Sooke, B.C. from
January 1, 2008 to present;

·        
documents in possession or control of either the claimant or an
unidentified mortgage broker with respect to the Valleyview mortgage.

[4]          
The claimant is agreeable to production of certain medical information which
includes reports and clinical records of physicians who examined the claimant
at the behest of ICBC. However, the claimant is only agreeable to provide such
information produced after January 1, 2009 rather than January 1, 2008, as
sought by the respondent.

[5]          
The order sought by the respondent is in what is commonly known as a Halliday
form. Thus, if the documents were ordered produced, the claimant’s counsel
would be given an opportunity to review those documents and assert any claim
for privilege or irrelevancy before providing an amended list of documents to
the respondent.

[6]          
Interestingly, none of the third parties have filed responses to the
application. In fact, I am told that at least one of the third parties has delivered
the requested documents to Mr. Legh’s office. Those documents have been
sent in turn to Ms. Reid’s office for her review.

BACKGROUND

[7]          
The parties’ affidavits set out the facts relevant to this application.
The salient facts are as follows.

[8]          
The parties were married in 1989 and separated in May 2008. They are the
parents of a 17 year old child who presently resides with the respondent.

[9]          
During the marriage, S.B. was the primary breadwinner, earning about
$90,000 per annum at the time of separation. At that same time, the claimant’s
annual reported income from his part-time employment was between $16,000 and
$17,000. It is alleged by the respondent that N.B. earned and continues to earn
additional income through the unlawful production and sale of marijuana.

[10]       
On May 12, 2008, the parties signed a separation agreement. Neither
party sought legal advice before signing the agreement. In the agreement, the
claimant waives any entitlement to spousal support. Property claims were also
settled in the agreement.

[11]       
The agreement further provides that N.B. could purchase the respondent’s
interest in the matrimonial home for a specified sum. N.B. obtained mortgage
financing in the sum of $336,000 from RBC for that purchase; it is the
documents related to that financing which are the subject matter of this
application.

[12]       
On June 9, 2009, the claimant commenced this action. It is alleged by N.B.
that the separation agreement is unfair and should be set aside. N.B. seeks,
among other relief, interim and permanent spousal support, and a redistribution
of family assets based on the proper and fair market value of those assets.

[13]       
In his Financial Statement filed on January 18, 2010, N.B. deposes his
income to be $500 per month. N.B. maintains that he is unable to earn more
income due to a medical condition called diverticulitis and other physical
impairments suffered as a result of a motor vehicle accident.

[14]       
N.B. was diagnosed with diverticulitis in February 2009. The motor
vehicle accident occurred in May of that year.

[15]       
With respect to that motor vehicle accident, N.B. has made a claim for
compensation with ICBC but has not retained counsel nor commenced any action.
He has received some monetary advances on the claim.

[16]       
On February 15, 2010, the parties attended a Judicial Case Conference.
The following order resulted from that conference:

1.         The
Defendant will pay to the Plaintiff interim spouse support in the amount of
$1,000.00 per month commencing March 1^st, 2010, and continuing on
the 1^st day of each and every month thereafter until further order
of the Court.

2.         The
Order in paragraph 1 above is without prejudice to the right of either party to
apply for a determination of spousal support, inclusive of entitlement and
quantum, including retroactive and ongoing interim spousal support.

3.         There
will be no child support payable by the Plaintiff on an interim basis pending
further order of the Court.

4.         The
defendant will provide post-dated cheques in semi-annual instalments with
respect to spousal support.

5.         The
Defendant will rollover to the Plaintiff the sum of $15,000.00 from her RRSP
into an RRSP in the name of the Plaintiff, pursuant to the spousal rollover
provisions of the Income Tax Act. This resolves all property issues
between the parties, subject to the provision by the Defendant of proof of
family Visa and credit card payments by the Defendant of $15,000.00 at the time
of separation and that the investment account (B2B Trust) with a net balance of
$5,886.17 approximately was not in existence at that time.

6.         The Canada Pension Plan credits
of the parties will be divided pursuant to the terms of the Canada Pension
legislation.

[17]       
Both parties describe in their affidavits the reasons behind consenting
to these orders. Such evidence was unnecessary as the order speaks for itself.
In order to protect the integrity of the Judicial Case Conference process and,
in particular, the confidential nature of that process, I have not considered
any of that evidence. In fact, I would entertain an application to strike portions
of the affidavits addressing such matters. However, no such application is
being made at this time.

[18]       
Pursuant to the order, S.B. has paid some of the support but now resiles
from any ongoing payments. An application is being brought by the claimant for
enforcement of the order.

[19]       
The respondent’s purpose in obtaining the sought after documents is to
assess the nature of N.B.’s illness and injuries and their effect on his
employment and income. S.B. further deposes that the documents will provide
more information on the respondent’s income earning abilities and his ability
to get funding from ICBC.

[20]       
As for the RBC documents, the respondent believes that such documents
will disclose N.B.’s income as reported to the bank. Similar information could
be in the possession of the mortgage broker, although S.B. does not know the
name of the broker. Accordingly, the application was amended to allow for
production of any such documents in the possession or control of the claimant.

[21]       
A demand for discovery of documents was issued under the former Rules
of Court in 2009.

[22]       
The claimant delivered his list of documents to the respondent on or
about September 27, 2010, the same day that this application was prepared. In
her letter enclosing the list of documents, Ms. Reid articulates the claimant’s
objections to production of the documents at issue in this application.

DISCUSSION

[23]       
The respondent relies on various Supreme Court Family Rules in
support of her application, including Rule 9-1 which governs the production of
documents. The Rules most relevant to this application are as follows:

Rule 9-1 — Discovery and
Inspection of Documents

List
of documents

(1)  Unless all parties consent or the court otherwise
orders, each party to a family law case must

 (a)  prepare a list of documents in Form F20 that
lists

 (i)
all documents that are or have been in the party’s possession or control and
that could, if available, be used by any party at trial to prove or disprove a
material fact, and

 (ii)  all other
documents to which the party intends to refer at trial, and

 (b)  serve the list of documents as follows:

 (i) 
a person who files a notice of family claim must serve his or her list of
documents on a party within 35 days after being served with that party’s
response to family claim or response to counterclaim;

 (ii) 
a person who files a response to family claim must serve his or her list of
documents on a party within 35 days after serving his or her response to family
claim on that party;

 (iii) 
a person who files a response to counterclaim must serve his or her list of
documents on a party within 35 days after serving his or her response to
counterclaim on that party unless that list of documents has already been
served on that party.

…

(7)  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) or (6), 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 (12) and (13).

(8)  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 family law case, and

 (c)  are
additional to the documents or classes of documents required under subrule (1)
or (6),

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 party who prepared the list 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 (12) and (13).

(9)  A party who receives a demand under subrule (7) or (8)
must, within 35 days after receipt, do one of the following:

 (a)  comply
with the demand in relation to all of the demanded documents;

 (b)  comply
with the demand in relation to those of the demanded documents that the party
is prepared to list, and indicate, in relation to the balance of the demanded
documents,

 (i)
why a supplementary list of documents that includes those documents is not
being prepared and served, and

 (ii)  why those documents are not
being made available;

 (c)  indicate, in relation to the demanded
documents,

 (i) 
why a supplementary list of documents that includes those documents is not
being prepared and served, and

 (ii)  why those
documents are not being made available.

(10)
If a party who receives a demand under subrule (7) or (8) does not, within 35
days after receipt, comply with the demand in relation to all of the demanded
documents, the demanding party may apply for an order requiring the listing
party to comply with the demand.

(11)  On an application under
subrule (10) or otherwise, the court may

 (a)  order
that a party be excused from compliance with subrule (1), (3), (12) or (13) or
with a demand under subrule (7) or (8), either generally or in respect of one
or more documents or classes of documents, or

 (b)  order a party to

 (i) 
amend the list of documents to list additional documents that are or have been
in the party’s possession, power or control relating to any or all matters in
question in the family law case,

 (ii)  serve the amended list of
documents on all parties, and

 (iii)
make the originals of the newly listed documents available for inspection and
copying in accordance with subrules (12) and (13).

…

(15)  If a document is in the possession or control of a
person who is not a party, the court, on an application under Part 10 brought
on notice to the person and the parties, may make an order for one or both of
the following:

 (a)  production, inspection and copying of the
document;

 (b)  preparation of a
certified copy that may be used instead of the original.

[24]       
According to the correspondence in evidence, a written demand for the
sought after documents was made by the respondent by a letter dated August 17,
2010.

[25]       
The claimant provided a response to the demand by way of the letter
dated September 27, 2010. Thus, although not strictly following the time lines
envisioned by the Supreme Court Family Rules, I am satisfied that the
parties have followed the proper procedure in advance of bringing this
application.

[26]       
The respondent appears to be asking for compliance with a demand as
contemplated by Rule 9-1(10), namely, that the claimant:

 (a)       prepare an
amended list including the requested documents;

 (b)       deliver
that list to the respondent; and

 (c)        make the requested documents
available for inspection.

[27]       
In providing the amended list, the claimant is entitled to assert
privilege: Rule 9-1(4).

[28]       
Rule 9-1(11) contemplates the application that is before me in relation
to documents in N.B.’s possession and control. However, Rule 9-1(15)
specifically addresses the production of documents in the possession and control
of a third party.

[29]       
The language used in Rule 9-1(15) mirrors that found in former Rule
26(11). In Dufault v. Stevens, [1978] B.C.J. No. 1219, the court
outlines the principles to be applied on such applications.

10   The intent of
Rule 26(11) is to provide any party to an action with the means of obtaining
the production and inspection of a document if the applicant is able to satisfy
the Judge that the document contains information which may relate to a matter
in issue and of obtaining a copy of the document to use in lieu of the original
in the event that a document does contain information which may relate to a
matter in issue. No party has priority to an order for production and
inspection over any other party nor any paramount right to an order for production
and inspection. A party applying for an order under Rule 26(11) must satisfy
the Court that the application is not in the nature of a "fishing
expedition": Rhoades v. Occidental Life Ins. Co. of California, supra. He
must show that a person who is not a party to the action has a
"document" or "documents" in his possession which relates
to a matter in issue. The comments of Brett, L.J., in Compagnie Financiere et
Commerciale du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at p. 63,
as to what constitutes a document relating to a matter in question, have been
quoted by this Court on several occasions:

 It seems to me that every
document relates to the matters in question in the action, which not only would
be evidence upon any issue, but also which, it is reasonable to suppose,
contains information which "may – not which must – either directly or
indirectly enable the party requiring the affidavit either to advance his own
case or to damage the case of his adversary. I have put in the words "either
directly or indirectly," because, as it seems to me, a document can
properly be said to contain information which may enable the party requiring
the affidavit either to advance his own case or to damage the case of his
adversary, if it is a document which may fairly lead him to a train of inquiry,
which may have either of these two consequences …

11   It
follows from this that an applicant need not show that a document is admissible
in evidence at the trial as the condition of his obtaining an order under this
Rule. If a party seeking the order is able to satisfy the Judge that the
document, or information in a document, may relate to a matter in issue, the
Judge should make the order unless there are compelling reasons why he should
not make it, e.g., the document is privileged or – "grounds exist for
refusing the application in the interest of persons, not parties to the action,
who might be embarrassed or affected adversely by an order for production"
– per McFarlane, J.A., in Rhoades v. Occidental Life Ins. Co. of California,
supra, at p. 630, including the custodian of the document.

12   It
seems to me, however, before a Judge refuses an application for production and
inspection on the grounds that it may embarrass or adversely affect a person
who is not a party to the action he should be satisfied that (1) the
probative value of the document, or the information in the document, would be
slight, and (2) the production and inspection of the document would cause so
much embarrassment to the non-party, or have such an adverse affect on him,
that it would be unjust to require him to produce it for the inspection of the
parties to the action.

13   In
determining whether he should make an order under this Rule, a Judge may
require that the document be produced for his inspection.

14   Subject
to these considerations, any party is entitled to an order for production and
inspection of a document which may relate to an issue in a trial
notwithstanding the fact that the document may contain some information which
is irrelevant or which may contain information which might be embarrassing to
one of the parties.

[30]       
Of course, the production of documents under the Supreme Court Family
Rules is no longer governed by the so-called Peruvian Guano test.
Rather, the documents to be produced are those that could, if available, be
used by any party at trial to prove or disprove a material fact.

[31]       
As recently stated by Punnet J. in Biehl v. Strang, 2010
BCSC 1391, “the requirement that [the] disclosure relates to a material fact limits
the breadth of what is relevant”: para 16.

[32]       
Biehl v. Strang also reaffirms the principle that discovery on
the issue of credibility is not permitted. Or, put another way, credibility is
not a material fact: see also Roberts v. Singh, 2006 BCSC 906.

[33]       
Thus, the question that the court must ask is whether the documents
sought relate to a material fact.

[34]       
The issues between the parties are defined by the pleadings. Those
issues include whether N.B. is entitled to spousal support and the validity of
the separation agreement.

[35]       
A material fact on the issue of spousal support would include the
claimant’s capacity or ability to earn income. The medical evidence voluntarily
disclosed by the claimant might prove or disprove this material fact.

[36]       
However, the claimant’s reporting of income to a third party does not,
in my view, go to a material fact at issue in the proceeding. Rather, such
reporting relates to the claimant’s truthfulness or credibility and, as the
authorities provide, is not the subject of discovery. Accordingly, the
application for production of records in the possession and control of the RBC
is dismissed.

[37]       
For the same reasons, the application for production of records from the
unknown mortgage broker (or from the claimant regarding his application to this
broker) is dismissed.

[38]       
Furthermore, to the extent that this information might possibly relate
to issues of property division, those issues were resolved by the terms of the
February 15, 2010 consent order.

[39]       
The production of the ICBC file is objected to on the basis of
litigation privilege as that concept is discussed in Blank v. Canada
(Minister of Justice), 2006 SCC 39.

[40]       
In Azuma Foods (Canada) Ltd. v. Versacold Canada Corporation,
2008 BCSC 643, the court outlines the nature, purpose and availability of
litigation privilege:

  Litigation
privilege is properly viewed as a "limited exception to the principle of
full disclosure and not as an equal partner of the broadly interpreted solicitor-client
privilege." (Blank at para. 60).

 The party asserting litigation privilege must establish its entitlement to
the protection on a balance of probabilities.

 The two-fold test
for litigation privilege was
restated recently by Gray J. in Keefer Laundry Ltd. v. Pellerin
Milnor Corp., 2006 BCSC 1180, 59 B.C.L.R. (4th) 264, at para. 96:

… [Privilege] must be established document by document. To
invoke the privilege, counsel must establish two facts for each document over
which privilege is claimed:

 1.  that
litigation was ongoing or was reasonably contemplated at the time the document
was created; and

 2.  that the dominant purpose
of creating the document was to prepare for that litigation.

Litigation privilege is not directed at or restricted to
communications between solicitor and client. It contemplates, as well, communications
between solicitors and third parties and documents created by clients or third
parties so long as the dominant purpose is the pursuit of contemplated
litigation. The purpose of the litigation
privilege is to create a "zone of privacy" with respect to pending or
apprehended litigation: Blank.

[41]       
The difficulty with applying that concept to this case is that such a
privilege can only be raised and addressed by the party in possession of the
documents. How can the claimant know the extent and nature of the
documents in the ICBC file? How can the claimant depose as to whether or not
certain documents were created for the dominant purpose of litigation?

[42]       
As noted at the outset of these reasons, it is curious that ICBC would
not resist production of its entire file (including perhaps documents prepared
in contemplation of litigation with the claimant). However, it has not taken
that position and apparently is willing to disclose its file to the claimant
under a Halliday form of order.

[43]       
I find, therefore, that the claimant’s assertion of litigation privilege
does not prevent the disclosure of the ICBC file to the parties.

[44]       
Nevertheless, the respondent must still demonstrate that the documents
sought to be produced relate to a material fact. S.B.’s evidence on that point
is as follows:

 “The
Plaintiff has a claim with ICBC….to which he should be entitled to wage loss
and other compensation due to an alleged accident on May 12, 2009. I am
requesting the file from ICBC to review the information they have collected
regarding the extent of the Plaintiff’s injuries and to obtain evidence of
income loss.”

[45]       
The respondent has been provided with copies of cheques issued by ICBC
as advances on N.B.’s wage loss claim. One of the cheque statements notes that
the payment is “based on average net wage of $302.28” per week which is an
amount consistent with N.B.’s reporting of pre-accident earnings. The Insurance
Claim Application form completed by N.B. has also been disclosed.

[46]       
It appears by Ms. Reid’s letter of September 27, 2010, that N.B. is
willing to provide the respondent with all of the documentation that has been
provided to ICBC with respect to his wage loss claim.

[47]       
The respondent does not identify what other specific documents might
assist in proving or disproving the claimant’s capacity to earn income. The
medical evidence regarding that issue is voluntarily disclosed. The court
should not be left to speculate on what other possibly relevant information
might be contained in the file. I conclude that the respondent is embarking on
a fishing expedition in her pursuit of the entire file. This aspect of the
respondent’s application is therefore dismissed.

[48]       
With respect to medical records, there is no basis demonstrated by the
pleadings or the evidence to require production of records prior to January 1,
2009: Moukhine v. Collins, 2010 BCSC 621.

SUMMARY

[49]       
In summary, an order is made on the following terms:

 1.         Within
fourteen (14) days of the date of this Order:

 (a) Dr. S.M. Gershman produce and
deliver to the solicitor for the plaintiff/claimant, NICHOLA J. W. REID, of
Nicky Reid & Co., #214 -284 Helmcken Road, Victoria, British Columbia, V9B
1T2, one certified copy of any and all documents and information relating to
the plaintiff/claimant dated January 1, 2009 to the present including, but not
limited to. any and all handwritten chart notes, reports, and diagnostic test
results in his possession or control relating to the plaintiff/claimant
together with a covering letter to the said solicitor for the plaintiff/claimant;

(b) CBI-OT
Services and Deanna Enns produce and deliver to the solicitor for the plaintiff/claimant,
NICHOLA J. W. REID, of Nicky Reid & Co. , #214 – 284 Helmcken Road,
Victoria, British Columbia, V9B 1T2, one certified copy of any and all
documents and information relating to the plaintiff/claimant dated January 1,
2009 to the present including, but not limited to any and all handwritten chart
notes, correspondence and reports in its and her possession or control relating
to the plaintiff/claimant together with a covering letter to the said solicitor
for the plaintiff/claimant;

(c) Dr. D.
Barry produce and deliver to the solicitor for the plaintiff/claimant,
NICHOLA J. W. REID, of Nicky Reid & Co., #214 -284 Helmcken Road, Victoria,
British Columbia, V9B 1T2, one certified copy of any and all documents and
information relating to the plaintiff/claimant dated January 1, 2009 to the
present including, but not limited to any and all handwritten chart notes, reports,
and diagnostic test results in his possession or control relating to the plaintiff/claimant
together with a covering letter to the said solicitor for the plaintiff/claimant;

(d) Dr. Lynne
C. MacKean produce and deliver to the solicitor for
the plaintiff/claimant, NICHOLA J. W. REID, of Nicky Reid & Co., #214 -284 Helmcken
Road, Victoria, British Columbia, V9B 1T2, one certified copy of any and all
documents and information relating to the plaintiff/claimant dated January 1,
2009 to the present including, but not limited to, any and all handwritten
chart notes, reports and diagnostic test results in her possession or control
relating to the plaintiff/claimant together with a covering letter to the said
solicitor for the plaintiff/claimant;

(e)       The costs
of producing and delivering these documents is to be paid by the
respondent/applicant forthwith upon provision of the third party’s invoice,
unless otherwise agreed by the parties to this proceeding.

2.         Within
seven (7) days of the receipt of the records the solicitor for the plaintiff/claimant
shall deliver copies of the said notes, records, documents and any invoice to
the solicitor for the defendant/respondent other than such record for which the
plaintiff/claimant makes a claim of privilege or for which a claim is made that
the documents do not relate to a matter in question in the proceeding.

3.         Within fourteen
(14) days of the receipt of the said records, the solicitor for the
plaintiff/claimant shall deliver to the solicitor for the defendant/respondent
an amended List of Documents listing any such notes, records and documents
including those withheld and the reasons therefore.

4.         The
said third parties shall upon reasonable notice and by agreement between the
solicitor for the plaintiff/claimant and the solicitor for the defendant/respondent,
produce for inspection the original notes, records and documents except those
documents or parts of documents being withheld on the basis of a claim of
privilege or irrelevancy as provided herein.

5.         The certified
copies of the records shall be used for all purposes in connection with this
action instead of originals.

6.         The
balance of the relief sought in the respondent’s notice of application is
dismissed.

7.         Costs of this application will be to the
plaintiff/claimant in the cause.

                 “C.
P. Bouck”              

Master
C. P. Bouck