IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100903

Docket: M080408

Registry:
Vancouver

Between:

Alan Yu Lun Tai

Plaintiff

And:

Tak Yan Lam

Defendant

Before:
Master Baker

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application arising from a motor vehicle
accident which occurred on the 25^th of December, 2006, and
apparently there was a subsequent accident as well.  The trial is set for about
two weeks hence, a little less perhaps, the 13^th of September.

[2]            
The defence is seeking production of two categories of documents.  Firstly,
bank statements from February 25^th, 2006, to today’s date.  It is
about four and a half years’ worth of bank statements.  Secondly, business
records as detailed in para. 2 of the application, specifically those documents
which may corroborate deductions made for income tax purposes by the plaintiff
as either a self-employed or contracting camera repairman.

[3]            
If I have it right, the defence wants this information to defend against
Mr. Tai’s claim for loss of capacity, among other things, I guess, to defend
against his claim that he is unable to undertake a different trade or activity
than that which he has traditionally done, i.e., camera repair.

[4]            
At the application, late, in reply in fact, the first aspect of the
application was modified, and Mr. Leoni has offered to take the bank
statements on a Halliday basis essentially and that they be delivered to
plaintiff’s counsel, redaction occur, and they be sent the redacted copies.

[5]            
I am not going to make the order sought.  I agree entirely with Mr.
Bolda’s view of this, which is that it is essentially one production too far,
that the information and details sought goes beyond what is reasonable, even on
a redacted basis.  To ask that all the bank statements be produced is a broad,
broad sweep.

[6]            
Sitting here listening, it struck me, it is as if a party who commences
proceedings and says, “look, I have been injured and I have suffered financial
losses” is inviting some kind of a Full Monty disclosure, that they are
expected to produce all financial information they might ever have out there. 
Even if it is suggested or offered today that that be done on a redacted basis,
it is still, in my respectful view, a requirement for production that is
excessive.

[7]            
It certainly raises big issues about privacy and if one says, “well,
redaction would fix that”, what does it take for counsel to sit down and
patiently, carefully redact their client’s bank records for four and a half
years?  If that is not a question of confidentiality and privacy, it is a
question of proportionality, which is just as concerning to me today as the
other issues.

[8]            
The banking records.  I am also persuaded by Mr. Bolda’s argument, and a
common position taken today, that the judgment will be one of assessment, not
calculation, that the trial judge will have multiple facets to consider and
amongst them the gross income.  And while it is for the defence to present and
structure its case as it wishes, it seems to me that if it successfully attacks
any of these claims for expenses it can only increase Mr. Tai’s income, and I
cannot see the value in that perspective.

[9]            
I know that until recently the standard in this province was Peruvian
Guano and locally Dufault v. Stevens, but that standard
has changed.  There has to be a greater nexus and justification for the
production of the documents in a case, and I am satisfied that that standard
has not been met here today, so that the application is dismissed.

[10]        
Anything else?

[11]        
MR. BOLDA:  I will be content that costs remain in the cause in this
one, My Lord.

[12]        
MR. LEONI:  That’s fine, Your Honour.

[13]        
THE COURT:  Yes, that is fine.  Costs in the cause.

“Master Baker”