IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Polianskaia v. Melanson, |
| 2011 BCSC 1742 |
Date: 20111216
Docket: 11-3680
Registry:
Victoria
Between:
Christina
Vladimirovna Polianskaia
Plaintiff
And:
Rheal Joseph
Melanson and Janet Ruby Melanson
Defendants
Before:
Master Bouck
Reasons for Judgment
Counsel for the Plaintiff: | D. McLeod |
Counsel for the Defendant: | D. Windsor-Doyle |
Place and Date of Hearing: | Victoria, B.C. November 29, 2011 |
Place and Date of Judgment: | Victoria, B.C. December 16, 2011 |
The Application
[1]
The plaintiff applicant seeks an order that:
1-1. The Victoria
Police Department, (hereafter referred to as the "Police") shall,
within 7 days of an Order made in these proceedings being served upon
the Police, provide to the Plaintiff by delivery to the Plaintiffs lawyer at 103 – 832 Fisgard Street, Victoria, B.C. V8W 1S1
one copy of all records including copies
of Informations or Indictments, Violation Tickets, Offence Notices, Traffic
Tickets, investigative reports and
notes, reports to Crown Counsel, statements, tape recordings, video recordings,
copies of Officers notes and photographs in the form in which they were
originally made (that is if originally made in digital form, then to be
produced in digital form and if originally made as film, then to be produced as
film) pertaining to investigations made by
the Police in respect of investigations concerning the motor vehicle crash that
occurred on May 11. 2011 at the intersection of Hillside Avenue and Bridge
Street, Victoria. BC, and more particularly, police file 2011-16399; and
1-2. The Insurance Corporation of British Columbia
produce one copy of any and all statements. written or oral, given by the
Plaintiff or by Elvira Polianskaia or Vladimir Polianski to any adjuster in connection with the motor vehicle crash that
occurred on May 11. 2011 at the intersection of Hillside Avenue and
Bridge Street. Victoria, BC;
1-3. THAT at such
time as the Police and the parties’ lawyers agree on, the Police shall produce
the originals of all documents covered by this Order in their
possession, custody, or control, for inspection by those lawyers and on written
request by any party or their lawyer for records shall provide one copy of any such record to the requesting lawyer for which
a copy has not already been provided;
1-4. THAT within 14 days after the Plaintiffs lawyer
receives the copies of the records ordered produced herein he shall provide a
copy of all such documents to the Defendant or Defendant’s lawyer;
1-5. THAT after
production the lawyers for the Plaintiff shall pay the Police the reasonable
costs of producing the records herein ordered produced, at the rate of
30¢ per single-sided page, plus applicable tax, plus the cost of mailing or of
a courier incurred to deliver the documents ordered produced.
1-6. Costs as are
appropriate in the circumstances.
[2]
A joint response has been filed on behalf of both the defendants and the
non-party document holder, ICBC. All of the relief sought by the plaintiff is
opposed. The objections are essentially two-fold:
1. the documents sought from ICBC
have already been produced or are protected by privilege or do not exist; and
2. the defendants are prepared to
consent to a desk order allowing for production of the police files, thus
obviating any need for this aspect of the application.
[3]
The Victoria Police Department (the VPD) did not file a response nor
appear at this hearing to raise any objections to the relief sought.
[4]
As a preliminary matter, plaintiffs counsel sought an order or ruling
that the defendants lacked standing to make submissions on the issue of
production of the VPD file. I declined to make that order for reasons set out
below. These reasons also address the balance of the substantive relief sought
in the notice of application.
The Facts
[5]
The relevant factual background has been summarized in the plaintiffs
notice of application. For the sake of efficiency, those facts are restated verbatim:
2-1. On May 11, 2011 the Plaintiff was a passenger in a
car owned by her father and driven by her mother,
who was at that time driving north on Bridge Street, approaching the
intersection of Bridge Street with Hillside Avenue. The Defendant, Rheal
Joseph Melanson, was driving a vehicle owned by his wife and himself, east on Hillside Avenue. The
Defendant’s direction of travel was controlled by a stop sign. He failed to
yield the right of way to the Plaintiffs vehicle, causing a crash in the
intersection, and causing injury to the Plaintiff as set out in the
Statement of Claim.
2-2. Freedom of Information requests of the Victoria
City Police were made by the Plaintiff and her mother, and resulted in two
different sets of documents being produced.
2-3. Produced to the Plaintiff were, among other things,
five photographs showing the Defendant’s car with licence plate 906 BGN.
2-4. Produced to the Plaintiffs mother were twelve
photographs, seven more than supplied to the Plaintiff,
showing that the Defendant’s vehicle had two licence plates on it, 906 BGN and
867 SDS.
2-5. In both sets of Freedom of Information requests
what was not included and was removed
·
were contact information for the independent witness
·
statements from the parties and the independent witness
·
photographs other than the twelve produced to the Plaintiffs
mother and the five produced to the Plaintiff
·
Officers notes, reports of the investigation, traffic tickets or
Informations, and much of the investigative report.
2-6. The Plaintiffs parents
have provided Affidavits saying that they gave statements to ICBC and to the
Police; those statements have not been provided by the police nor by ICBC
although demanded. ICBC has replied saying
that there are no written statements, although the Plaintiffs mother has
provided an Affidavit saying she signed one, an ICBC has claimed privilege over
the Plaintiffs parents statements.
[6]
Anticipating this application, the defence prepared a form of consent
order authorizing release of the VPD records. Plaintiffs counsel took
exception to some of the orders terms and declined to endorse various versions
of that draft order.
[7]
The defendants insisted that the consent order met the objectives of the
non‑party document disclosure. Defence counsel was instructed to seek
costs against Mr. McLeod personally if this application proceeded. Notice of
these instructions was given to Mr. McLeod in a letter issued November 7, 2011.
[8]
The plaintiff did obtain portions of the ICBC adjusters file through an
FOI request. The adjusters notes refer to meetings with the plaintiffs mother
and father. The notes following the reference to these meetings are redacted.
[9]
In response to the request for further disclosure, defence counsel
advised Mr. McLeod by letter that:
·
the redacted adjusters notes are privileged as asserted in the
defendants List of Documents; and
·
in any event, neither defence counsel nor the client is in
possession of written statements from the plaintiffs mother; and
·
ICBC is not in possession of any information from an event data
recorder.
[10]
Defence counsel reiterated her instructions that costs would be sought
against Mr. McLeod personally if this aspect of the application proceeded.
[11]
The defendants and non-party ICBC rely on an affidavit from defence
counsels legal assistant. That affidavit essentially appends the correspondence
exchanged between counsel discussed above.
[12]
Interestingly, in their joint response, both the defendants and ICBC
take no position with respect to production of the police file. However, the
specific objection raised with respect to this application is found in the body
of the response.
DISCUSSION
a. The VPD Records and the Defendants Standing on the
application
[13]
As counsel, Mr. McLeod has brought the standing issue before the court
on at least two previous occasions.
[14]
The plaintiff says that I am bound by the decision of the court in Gurtins
v. Panton Goyert, 2009 BCSC 679. In brief oral reasons for judgment, the
court states, in part:
I agree with Mr. McLeods submission that the plaintiff has
really no standing in the application by the defendant for production of
records from a non-party, similar to Rule 28 dealing with the calling of a
non-party witness.
Para.
1.
[15]
The facts surrounding the application in Gurtins are known to
Mr. McLeod but not addressed in any detail by the court. The reasons
disclose that the application concerned production of RCMP records
[16]
In Gurtins, the court adopted by analogy the analysis found in Black
v. Gust, [2008] B.C.J. No. 1348 (S.C.). This latter case involved an
application under [former] Rule 28 (now Rule 7-5 of the Supreme Court Civil
Rules (SCCR)).
[17]
The court in Black v. Gust acknowledges that all parties of
record must receive notice of a Rule 28 application. However, no other parties
should have standing to argue the actual merits of the application. This ruling
is based on the principle that there is no property in a witness. As such,
another party could not have any reason to object to the proposed examination:
para. 11.
[18]
In addition to the standing question, the court in Gurtins found
that there were two other impediments from hearing defence counsel: no
response had been filed; or the response was filed beyond the time limits then
required.
[19]
The court did go on to place restrictions on the use of the RCMP
documents.
[20]
It does not appear that Gurtins has been followed in any reported
decisions although that may simply be happenstance.
[21]
The same issue of standing was more fully canvassed in Aschenbrenner
v. Yahemach (unreported, December 16, 2008, Victoria Registry 08-3608).
Again, the application before the court was for the production of police
records. After discussing the question of standing under Rule 26 (11) of the Rules
of Court, the learned Master states:
… I am loathe to say that the defendant in this case has no
standing , but I say that in almost every case for production of non-party
records such as this which are clearly not personal, there is little that the
other party of record can say. Having come to that conclusion, I think it is
fair to allow the defendant in this case to make submissions, if he wishes, on
the issue of whether these records are relevant and whether they ought to be
disclosed.
Para.
19.
[22]
In Achchenbrenner, the defendant sought to exclude from
production those police records which might relate to parallel criminal
proceedings involving some of the parties. In the end, it would appear that the
Master ordered production of the police file in its entirety.
[23]
Here, the defendants do not take issue with the relevancy of the VPD
records nor raise any privacy concerns. The defendants position is that the
application is simply not necessary and only adds to the costs of the
litigation. The defendants, not the VPD, might be impacted by this additional
cost. This particular objection is not discussed in the decisions relied on by
the applicant.
[24]
The question of necessity goes to both the substantive relief sought and
the question of costs. In the era of proportionality, surely the question of
necessity should be a consideration for the court: Rule 1-3 of the SCCR.
For example, if the defendants were able to show on a balance of probabilities
that the complete police file had already been produced, the court might well
decline to make a seemingly redundant order.
[25]
The question of necessity would not arise in a Rule 7-5 application
given the threshold evidentiary requirements under Rule 7-5(3).
[26]
Thus, I concluded that the defendants had standing to argue the merits
of the application for production of the VPD file.
[27]
Nonetheless, the defendants did not satisfy me that the application was
unnecessary. Through FOI channels, the VPD have released different sets of
photographs. The defendants say that there is a reasonable explanation for this
discrepancy but there is no explanation offered by the VPD itself. That lack of
explanation from the document holder certainly opens the door to this
application.
[28]
There is no authority provided which suggests that a party must accept
the form of order prepared by another party. The defendants draft order
purports to follow the requirements of the VPD in that this non-party will be
able to vet the records for questions of privilege, communications with Crown
Counsel, internal investigations and the like. There is no evidence of any
parallel criminal or quasi-criminal proceedings in this case. Indeed, there is
no evidence from the VPD or the defendants themselves as to why this form of
order must be preferred over the more expansive form of order sought by the
plaintiff.
[29]
In any event, the lack of objection by VPD over the plaintiffs proposed
form of order is probably determinative of the issue.
[30]
The order for production of the VPD documents will go in the terms sought
in the notice of application.
[31]
Thus, even if I am wrong on the question of standing, the plaintiff has
achieved the desired result.
b. The oral and written
statements in the possession of ICBC
[32]
This second aspect of the plaintiffs application is more
straightforward.
[33]
There is no evidence before the court which suggests that ICBC might
have a statement from the plaintiff herself. The evidence addresses only the
possible existence of statements made to ICBC by each of the plaintiffs
parents.
[34]
The plaintiffs mother deposes to having signed a written statement
prepared by a representative of ICBC. Through defence counsels correspondence,
the existence of such a statement is denied. The correspondence is not sworn
evidence of either indirect or direct knowledge of the existence of this
statement. In those circumstances, the court has no reliable evidence to weigh
against the contrary evidence of the plaintiffs mother. In the absence of such
evidence, the order will go that ICBC is to produce to the plaintiff any
written statement in its possession or control signed by Elvira Polianskaia.
[35]
The application for production of oral statements is dismissed. The
oral statements are said to be contained in the ICBC adjusters notes.
Indeed, what is really being sought by the plaintiff are the unredacted
adjusters notes. The defendants have asserted a claim for privilege over those
notes. The plaintiff should not be entitled to obtain privileged documents
through the use of Rule 7-1(18). The application was neither framed nor argued as
to whether privilege is properly asserted. The proper procedure is for the
plaintiff to seek production of the privileged documents under Rule 7-1(17).
COSTS
[36]
The defendants seek an order that Mr. McLeod pay the costs of this
application personally. The basis for any such award is found in Rule 14-1(33)
which provides that:
14-1(33) If the court considers that a party’s lawyer has
caused costs to be incurred without reasonable cause, or has caused costs to be
wasted through delay, neglect or some other fault, the court may do any one or
more of the following:
(a) disallow any fees and
disbursements between the lawyer and the lawyer’s client or, if those fees or
disbursements have been paid, order that the lawyer repay some or all of them
to the client;
(b) order that the lawyer
indemnify his or her client for all or part of any costs that the client has
been ordered to pay to another party;
(c) order that the lawyer be
personally liable for all or part of any costs that his or her client has been
ordered to pay to another party;
(d) make any other order that the court considers will
further the object of these Supreme Court Civil Rules.
[37]
Particularly given the result on this application, I am unable to find
that any of Mr. McLeods actions or inactions objectively caused costs to
be incurred without reasonable cause.
[38]
Given the mixed result, the parties will bear their own costs. There
will be no order as to costs with respect to ICBCs involvement in the
application.
C.
P. Bouck
Master
C. P. Bouck