IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Hyvarinen v. Burdett, |
| 2012 BCSC 1034 |
Date: 20120712
Docket: M104981
Registry:
Vancouver
Between:
Jason Hyvarinen
Plaintiff
And
Christine
Burdett, Canam Structures Ltd. and Chris Leks
Defendants
Before:
Master MacNaughton
Reasons for Judgment
Counsel for the plaintiff: | John Whyte |
Counsel for the defendants Christine Burdett and Canam | Concetta |
Place and Date of Hearing: | Vancouver, B.C. June 19 and 27, 2012 |
Place and Date of Judgment: | Vancouver, B.C. July 12, 2012 |
The Application
[1]
The defendants apply for production, by various third party document
holders, of further medical, employment, hospital, and WorkSafeBC records with
respect to the plaintiff. The defendants also seek work-related information
from the plaintiff.
[2]
During argument, I was advised that the parties had reached agreement
with respect to production of many of the records sought in the defendants
application. The documents with respect to which there continued to be issues
are, as referenced in that application:
a) Paragraph 5, as it relates to production of Dr.
Haafs clinical records from January 1, 2002 to December 30, 2004;
b) Paragraph 7, as it relates to production of
unredacted records from Dr. James Bovard;
c) Paragraph 9, as it relates to production of Dr.
John-Luke Edwards clinical records;
d) Paragraph 15(a), as it relates to production of
the names of the individuals and entities for whom the plaintiff worked from
January 1, 2002 to the present, including the proper names and contact
information of such individuals and entities;
e) Paragraphs 16(b) and (c), as they relate to
production of unredacted WorkSafeBC and Lions Gate Hospital records; and
f) Costs.
The Background
[3]
This action arises from an October 15, 2008 motor vehicle accident in
which the plaintiff alleges that he suffered injuries to his neck, left
shoulder blade and shoulder, upper, mid, and lower back, and a concussion. He
claims damages for those injuries and for pain and numbness in his hands and
his left leg and foot, and for headaches. His notice of civil claim asserts
that his injuries have caused him pain, suffering, loss of enjoyment of life,
permanent physical disability, and a loss of past and future earnings.
[4]
The defendants have admitted liability for the accident so the only
issue for the November 19, 2012 seven-day trial is the quantum of the
plaintiffs resulting damages. The defendants have pleaded that the plaintiffs
injuries were pre-existing and not caused or exacerbated by the MVA.
[5]
The plaintiff has primarily worked in physically demanding jobs. In
October 2008, at the time of the MVA, he was a construction carpenter and
subcontractor.
[6]
The plaintiff has already produced a number of medical records, some of
them in redacted form; his MSP printouts from July 17, 2002 to January 24, 2012;
and his income tax records back to the 2003 tax year. The medical records
produced so far pre-date the MVA by four or more years. He was examined for
discovery for a full day on February 8, 2012. He had not then returned to his
pre-accident employment or to any other employment. As a result, his loss of
income and loss of capacity claims are potentially significant.
[7]
The plaintiff has a complicated medical history which was detailed at
his examination for discovery. Briefly, it included: a concussion in
approximately 2000 which affected his short-term memory and from which he took
six years to recover; a MVA in approximately 1998 which resulted in a concussion
and physical injuries to his arms and neck with symptoms that continued for
approximately ten years; a motorcycle accident in 1998 or 1999 in which he
injured his tailbone; a head-on forklift collision in the late 1980s which
resulted in a WorkSafeBC claim and time of work; bilateral severe arm pain in
about 1997; a high voltage electrical shock in approximately 2001 and a
resulting right-hand sprain; a 2004 workplace injury which blew out his right
knee with symptoms continuing for an unknown period and, in or about 2004, a torn
right Achilles tendon after which it took about six years before he could run
again.
[8]
The plaintiff filed WorkSafeBC claims in 2000 for an injury to his left
knee, in 2003 for an injury to his right Achilles tendon, and two in 2004 for
injuries to his mid-back and right knee respectively. I accept that his
work-related injuries are not surprising given the physicality of his employment
history.
[9]
In addition to his history of physical problems, for some time, perhaps
from childhood, the plaintiff has suffered from depression. He has been
described as having had a transient job history, job sustainability issues, and
periods of unemployment. He has received government-funded disability benefits.
Analysis and Reasons
[10]
The defendants submit that the documents they seek can be used by them
to prove or disprove a material fact, in particular, whether and/or the extent
to which, the plaintiffs medical conditions, his related restrictions and
limitations, and loss of earnings, are attributable to the MVA or his
pre-existing injuries and conditions. Alternatively, the defendants submit that
they are entitled to the disclosure on the broader basis of discovery, contemplated
in Rule 7-1(11), as documents that relate to any or all matters in question in
the action.
[11]
The plaintiff opposes production of the records in dispute on the
primary basis that the requests are too broad, invade the plaintiffs privacy,
and that the documents sought have no connection to the issues in this action.
[12]
The issue for me to decide is whether, on the materials, the defendants
have established that the plaintiff had any pre-existing condition(s) from which
he was experiencing ongoing effects at the time of the MVA. If he did, the
defendants may be entitled to the records they seek either on the basis of s.
7-1(1) or (11). If not, the defendants do not have the right to private
information about the plaintiff which is unnecessary to the proper disposition
of this MVA litigation.
[13]
As explained in Przybysz v. Crowe, 2011 BCSC 731, at para. 45 and
Gorse v. Straker, 2010 BCSC 119, at para. 53, material facts are those
which the plaintiff must establish in order to succeed, and any fact that the
defendant must prove in order to make out his defence, including facts which although
not themselves in issue, are relevant in the sense that they prove or render
probable the past, present or future existence (or nonexistence) of any fact in
issue.
[14]
The defendants must demonstrate a connection between the documents they
seek and the facts that are alleged. The connection must be more than a mere
possibility.
[15]
In this case, the issues are what injuries the plaintiff suffered in the
MVA and what damages, income loss, or loss of capacity, he suffered as a
consequence of those injuries. Here, the plaintiff has already produced records,
both medical and occupational, which predate the accident by four or five years.
The plaintiff freely admits that the disclosure cut-off date chosen by him is somewhat
arbitrary, but says that the January 1, 2002 date the defendants now seek as
the cut off is just as arbitrary.
[16]
The plaintiff submits that the evidence shows that he worked regularly,
in a physically demanding occupation, throughout the year before the MVA. He
argues that, if, as the defendants submit, the effects of previous injuries
prevented him from working after the MVA, then, presumably, those same effects
would have prevented him from working before the MVA.
Paragraphs 7 and 16(b) and (c) of the Application
[17]
I deal first with the request for unredacted copies of the Lions Gate
Hospital and WorkSafeBC records requested in paragraphs 16(b) and (c) of the defendants
application and with the request in paragraph 7 of the application for Dr.
Bovards unredacted records.
[18]
While I accept that when a document is produced by a party, it should
generally be produced in its entirety, the exception is where a party is able to
establish a good reason for a document not to be produced. In North American
Trust Co. v. Mercer International Inc. (2000) 71 B.C.L.R. (3d) 73 (BCSC),
Justice Lowry, then of this court, reiterated the general principle but said:
…But where what is clearly not
relevant is by its nature such that there is good reason why it should not be
disclosed, a litigant may be excused from having to make a disclosure that will
in no way serve to resolve the issues. In controlling its process, the court
will not permit one party to take unfair advantage or to create undue
embarrassment by requiring another to disclose part of a document that could
cause considerable harm but serve no legitimate purposes in resolving the
issues. (para. 13)
[19]
In this case, there are two reasons why the general rule about redacted
documents should not apply. The first is because the documents sought in
unredacted form are not, although generally listed as such, single documents. Rather,
they are a series of records compiled over time from a number of interactions
with the plaintiff. These records should not be approached globally as if they
were a single document. Each entry requires a separate analysis as to whether
it may prove or disprove a material fact or relate to a matter in a question in
this action.
[20]
Second, and importantly in this case, the court must be careful not to
unnecessarily infringe on the plaintiffs privacy interests. Recently, in Kaladjian
v. Jose, 2012 BCSC 357, Justice Davies reiterated the importance of a
plaintiffs privacy interests in a personal injury action. He said:
Every individuals health and the
medical treatment of it is a personal and private matter that should not be
lightly interfered with. In todays world of medical specialization, disclosure
of even the name of a medical professional consulted by an individual for
reasons wholly unrelated to a defence plea of a prior existing condition is an
unwarranted and unnecessary invasion of privacy. (para. 75)
[21]
In this case, and as explained in the plaintiffs counsels February 8,
2012 letter, the redactions from the Lions Gate records relate to injuries the
plaintiff sustained to areas which were not injured in the MVA. The last such
record was for an electrical shock in July 2002, more than six years prior to
the MVA. The plaintiff explained at his examination for discovery that he had
suffered some memory loss following the electrical shock but it does not appear
to have been a problem before the MVA and the plaintiff is not claiming loss of
memory in this action.
[22]
Otherwise, the redacted Lions Gate records relate to lacerations,
bruises and abrasions, burns, infections, and to 1999 facial and neck injuries.
The evidence does not establish a link between these injuries and any of the
injuries the plaintiff says he suffered in the MVA. There is also no basis in
the evidence to conclude that these injuries continued to cause the plaintiff
difficulties at the time of the MVA.
[23]
The Lions Gate Hospital records need not be produced in unredacted form.
[24]
With respect to the redactions from the WorkSafeBC records, they relate
to a series of workplace injuries, the last of which was in July 2004 and, with
the exception of the mid-back injury discussed below, do not relate to injuries
the plaintiff says he suffered in this MVA.
[25]
The plaintiff suffered an April 2004 injury to his mid-back. However, on
the evidence about the work the plaintiff was engaged in immediately preceding
the MVA, the plaintiff was not having ongoing back difficulties and there does
not appear to be a connection to his post-accident difficulties. In October
2008, he was employed as a subcontractor working on a hotel renovation. On a
piece work basis, he removed solid wood hotel room doors weighing approximately
100 pounds and measuring three feet wide and six feet eight inches tall. He
moved the doors to the centre of the hotel room for painting. Once painted, he reinstalled
them, ensuring that they were not scratched. If the plaintiff had lingering
back problems, it is unlikely that he would have been able to perform this
work. He denies any such problems.
[26]
Further, if the plaintiff had lingering back problems, I would have
expected to see some record of complaints in his family doctors clinical
records which, according to the plaintiff, were produced for almost five years
preceding the MVA. These records were not part of the evidence on this
application. Presumably they would have been if they referenced ongoing back
difficulties.
[27]
The defendants also submit that one of the injuries the plaintiff
suffered, as referenced in the WorkSafeBC records, involved a torn Achilles
tendon. At his examination for discovery, the plaintiff said it had affected
his ability to run for six years. That timeframe means that the plaintiffs Achilles
tendon was still an issue on the date of the MVA.
[28]
The plaintiff submits that there is no evidentiary basis to conclude
that his Achilles tendon was impacting his ability to work at the date of the
MVA. I agree. Even if his Achilles tendon continued to affect his ability to
run, there is no basis to conclude that it affected his ability to work. He
testified on discovery that it was not affecting his ability to walk and, as
set out above, he was physically capable of performing demanding work.
[29]
The WorkSafeBC records need not be produced in unredacted form.
[30]
The redactions that were made to Dr. Bovards records apparently relate
to the same Achilles tendon injury and, for the reasons set out above with
respect to the WorkSafeBC records, these records need not be produced in
unredacted form.
Paragraph 5 of the Notice of Application
[31]
For similar reasons, the defendants have not persuaded me, on the
evidentiary record, that there is any basis to require the plaintiff to produce
Dr. Bovards records back to January 1, 2002.
[32]
That date would be almost seven years before the MVA and would represent
a significant invasion of the plaintiffs privacy.
[33]
I have concluded that the defendants have not provided an evidentiary
basis to support this request and the records will not prove or disprove a
material fact and are not relevant to an issue in this action.
Paragraph 9 of the Notice of Application
[34]
With respect to the defendants request for further records from Dr.
Edwards, the plaintiff says that Dr. Edwards is not treating him for
psychological issues arising from the MVA and that the defendants have failed
to establish a link between the MVA and the treatment.
[35]
As produced thus far, Dr. Edwards records consist of one page listing
various session dates and a few descriptive words explaining the focus of those
sessions.
[36]
It is clear however, based on the plaintiffs discovery evidence, that his
depression is, at least in part, affecting his ability to return to work.
[37]
The records attached as exhibits to Ms. Birds affidavit include a
number of documents which deal with the extent of the plaintiffs pre-existing
psychological condition. Briefly, they include:
a) His
February 7, 2007 application for designation as a Person with a Disability in
order to obtain provincial benefits. In it, the plaintiff said that he was
suffering from severe depression, was unable to maintain a job and had lost
nine jobs in a period of six months;
b) His May 1,
2007 application for Canada Pension Plan disability benefits in which the
plaintiff indicated that his last day of work was November 15, 2006 and that he
had stopped being hired as a sub-contractor doing commercial and residential
renovations;
c) A report
filed by Dr. Haff, presumably in support of the plaintiffs claim for CPP
disability benefits. In it, he describes the plaintiff as having a transient
job history and depression for the majority of the last ten years; and
d) A February 8, 2008, admission
assessment for a mental health program in which the plaintiff was described as
unemployed and on long term disability having had limited success in sustaining
employment.
[38]
I agree with the plaintiffs submission that, in the one page record Dr.
Edwards has already produced, the focus of the sessions does not appear to
directly relate to the MVA. The possible exception is the January 17, 2011 session
dealing, in part, with the plaintiffs physical pain. However, some or all of
the plaintiffs psychological difficulties appear to be inter-connected. The
plaintiff makes this point himself in his examination for discovery when he says
that the accident pushed him over the edge to a major depression and that
there were a lot of other things leading up to it. These other things include
relationship difficulties with his mother which were the apparent focus of some
of his sessions with Dr. Edwards.
[39]
I conclude that the defendants have made out the necessary connection
and that Dr. Edwards records, to the extent they exist, should be produced as
requested in the defendants application as they may go to prove or disprove a
material fact. In light of the plaintiffs history, the defendants are entitled
to explore in some detail, his current psychological difficulties and what
factors, in addition to the MVA, may be impacting him. Although this is
intrusive into the plaintiffs privacy, by the nature of his discovery
evidence, he has put that in issue.
Paragraph 15(a) of the Notice of Application
[40]
The plaintiff says that the request in paragraph 15(a) of the
defendants application is not a request for records but, in effect, an
interrogatory or a request for further examination for discovery of the
plaintiff with respect to his work history.
[41]
I agree that the defendants request is not for documentary disclosure,
documents from a third party, or to follow up on a request made at the
examination for discovery. It is a request for further discovery of the
plaintiff and these questions should have been asked at the discovery.
[42]
I conclude that such an order is not appropriate or necessary. I note
that in his June 11, 2012 responsive affidavit, the plaintiff provided the
defendants with his employer names and T4 information dating back to 2002. With
the exception of 2002, his income tax records already formed part of his List
of Documents.
Conclusion
[43]
For the reasons set out, the defendants are not entitled to the
additional records and information sought in paragraphs 5, 7, 15(a), and 16 (b)
and (c) of their application and those requests are denied.
[44]
The defendants application in paragraph 9 is allowed and Dr. Edwards is
to produce, within 7 days of receipt of this entered order, one certified copy
of his complete clinical records relating to the plaintiff including, but not
limited to, handwritten and transcribed notes, consultation reports, lab and
test results, from the date of his initial treatment of the plaintiff to the
present, to be accompanied by a covering letter.
Costs
[45]
The parties have had mixed success on this application. If, on review of
these reasons, the parties wish to make costs submissions, they may do so.
Master MacNaughton