IN THE SUPREME COURT OF
BRITISH COLUMBIA

Date: 20121030

Docket: 12‑1342

Registry:
Victoria

Between:

Renee Angell
Wright

Plaintiff

And:

Charleen Marie Dee
Thomas,
now known as Charleen Marie Dee Doran

Defendant

Before:
Master Bouck

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: In this personal injury action, the defendant seeks
leave to make use of at trial various medical‑legal reports prepared in
relation to an earlier action brought by the plaintiff. That action was
resolved at a trial in 2007 before a judge and jury. Mr. Farquhar was
defence counsel in the earlier action, but the plaintiff was represented by
another lawyer.

[2]            
Some of the documents listed in the notice of application are medical
reports relied on at trial by the plaintiff in the earlier action. Other
reports, as I understand, were prepared on behalf of the defendant in that
action.

[3]            
In general terms, this application concerns the application of the
implied undertaking rule. Given that the plaintiff does not consent, the
defendant requires leave of the court to make use of the documents in this
action.

[4]            
The leading case addressing the implied undertaking rule is the Supreme
Court of Canada decision in Juman v. Doucette, 2008 SCC 8. The
decision is lengthy and will not be discussed in detail in these reasons. To
paraphrase the language of Binnie J., the implied undertaking rule is
intended to protect the privacy rights of litigants who are compelled to make
disclosure during the pre‑trial process. The rule ensures that the
information obtained is not used for what are described as collateral purposes
without the disclosing party’s consent or leave of the court.

[5]            
One example of a collateral purpose might be the use of oral discovery
transcripts in a criminal proceeding.

[6]            
In this court, Williams J. most recently described the test to be
met on the type of application before me as this:

Where a court order is sought to
relieve against the implied undertaking, the applicant will have the onus of
satisfying the court on a balance of probabilities that the interest to be
advanced through the sought-after disclosure is greater than the values that
underpin the rationale for the implied undertaking. Central to the analysis
will be a careful consideration of any prejudice that will be caused to the party
who initially provided the material at issue. Of course, it goes without saying
that the material must be relevant to the issues in the action in which the
disclosure is sought.

 British Columbia v. Tekavec, 2012 BCSC
1348, at para. 13.

[7]            
Thus, I must first determine whether the material sought to be disclosed
or used by the defendant is relevant to this proceeding. If relevancy is
established, the question of prejudice will then be addressed.

[8]            
The defendant applicant relies chiefly on Chonn v. DFSC Canada Corp.,
2009 BCSC 1474. Chonn was also a personal injury action,
similar to the case at bar. The various medical reports and records sought to
be released from the implied undertaking related to the plaintiff’s involvement
in an earlier claim. In the result, the defendants were granted leave to list
those documents. By listing the documents, the defendants were deemed to have
their use in the proceeding.

[9]            
In Chonn, the plaintiff conceded the relevancy of the documents
used in the earlier action. As stated in Chonn, once that concession is
made, it is clear that in most instances a court would exercise its discretion
in favour of granting leave to disclose those documents.

[10]        
The court went on to cite paragraph 35 of the Juman decision,
which provides as follows:

The case law provides some
guidance to the exercise of the court’s discretion. For example, where
discovery material in one action is sought to be used in another action with
the same or similar parties and the same or similar issues, the prejudice to
the examinee is virtually non-existent and leave will generally be granted.

[11]        
A review of the authorities reveals that leave of the court is most commonly
sought with respect to the use of examination for discovery transcripts from
purportedly related actions. The obvious purpose of using evidence disclosed in
the transcripts is to test the deponent’s credibility. The public interest in
getting to the truth in a law suit generally outweighs any privacy concerns.

[12]        
Here the defendant seeks leave to have use of not just any documents,
but rather expert evidence obtained by the respective parties in a previous
action. In at least two instances, the court has granted leave to disclose and
use medical information obtained in a separate action involving the same
plaintiff.

[13]        
In Jomha v. Hicks Estate, 2008 ABQB 597, the plaintiff had
commenced separate actions arising from his involvement in two motor vehicle
accidents occurring five years apart. The defendant applicant in the first
action sought leave to use a schedule of all records produced by the parties in
the second action, a circumstance similar to the case at bar. The court ruled
that:

. . . the documents
sought are relevant and material having regard to the similarity of the
injuries and losses alleged in the two proceedings and the allegation in the
statement of defence in the present action that the Plaintiff’s injuries and
losses were wholly or in part the result of the accident that gave rise to the
Second Action.

 Paragraph 16.

[14]        
Nevertheless the court further ordered that the schedule was itself
subject to the implied undertaking rule in the second action.

[15]        
In this jurisdiction, Williams J. allowed the defendant in a
personal injury action to make use of a medical‑legal report and clinical
records obtained by the plaintiff in an earlier and by then settled wrongful
dismissal action. The report and records were those of the plaintiff’s treating
psychiatrist. The plaintiff alleged in her personal injury action to have
suffered from, among other things, anxiety and depression as a result of the
defendant’s negligence: Joubarne v. Sandes, 2009 BCSC 1413.

[16]        
Whether the implied undertaking rule even applies in this case might be
in doubt. In Cochrane v. Heir, 2011 BCSC 477, the court ruled that a
plaintiff must provide records obtained in a previous personal injury action as
part of disclosure obligations under Rule 7‑1. Furthermore, one might
query whether evidence disclosed at a public trial and now part of a public
record is subject to the implied undertaking rule. The underlying purpose of
the implied undertaking rule is to protect the privacy of an individual who is
compelled to disclose certain information in the pre‑trial process.

[17]        
In the case at bar, I understand that some of the reports were used at
trial and thus any breach of privacy has already happened. However, this last
point was not argued, so I must still determine whether the documents at issue
involving the same plaintiff also concerned the same or similar issues to the
case at bar.

[18]        
Perhaps more to the point, I must determine whether the reports from the
earlier action have a real probative value to the issues in this proceeding:
see Biehl v. Strang, 2010 BCSC 1391.

[19]        
The physical injuries suffered by the plaintiff in the earlier action
and the case at bar are in no way similar. In the earlier action, the
plaintiff’s complaints related to a wrist injury. In this action the plaintiff
alleges that she suffered an injury to her left leg and ankle.

[20]        
Nevertheless, the defendant submits that there is a common thread
between the plaintiff’s complaints and the medical evidence in both actions. Essentially,
that common thread is the suggestion, if not opinion, that the plaintiff’s
subjective complaints are not supported by objective findings. The various
medical professionals describe this circumstance as: conversion disorder or
post-traumatic stress reaction (Dr. Rocheleau); conversion reaction or
malingering (Dr. Kemble); chronic illness behaviour related to complex
regional pain syndrome (Dr. Gropper); chronic pain disorder, but not
complex regional pain syndrome (Dr. Gershman); or amplified pain behaviour
(Dr. Perry).

[21]        
In the present action, the clinicians also make mention of possible
conversion disorder.

[22]        
The alleged probative value of the reports in the earlier action is to
show that the plaintiff has a history of, or perhaps a susceptibility to, these
non‑organic conditions.

[23]        
In my view, in the absence of some medical evidence in support, the
court should not make the leap and decide that all of the above‑described
conditions fall within the same diagnostic category. In fact, the only similar
or same diagnosis is the conversion disorder. Presumably the existence of this
condition historically forms the factual basis for one of the defences to this
action, otherwise the defendant would not be pursuing the application.

[24]        
The defendant’s pleadings were not before me. It might have been helpful
to have that pleading as an exhibit to an affidavit. One option for the court
would be to dismiss the application with liberty to reapply upon providing such
evidence. Obviously a further application will result in additional cost to one
or both parties. To avoid such cost, I have instead reviewed the electronic
record of this pleading, which is a matter of public record. The presumption of
the plea of pre‑existing condition was confirmed.

[25]        
Thus, in my view, the defendant has met the threshold test of relevancy
with respect to the following reports: Dr. Rocheleau dated October 24,
2005; Dr. Rocheleau dated December 21, 2005; and Dr. Kemble
dated November 28, 2005.

[26]        
The other reports may be determined to be relevant at a later date if
the medical opinions obtained in this matter make reference to the conditions
discussed in those reports. However, I am unable to say that those reports
address "same or similar issues to the case at bar".

[27]        
I now turn to the question of prejudice. First, there is no evidence
from the plaintiff that she is prejudiced by the use of this information. The
contents of the affidavit of Katheryn MacDonald can be given no weight, as any
statements regarding possible prejudice are based on double hearsay. Other
parts of the affidavit are akin to argument.

[28]        
In any event, the implied undertaking rule is not intended to prevent
attacks on the plaintiff’s credibility. Indeed, in many of the cases before me,
leave is granted to permit a challenge to a party’s credibility using the
evidence given at a previous examination for discovery. Prejudice to the
plaintiff has not been established.

[29]        
Nevertheless, in my view, the order sought by the defendant with respect
to the use of the reports at trial is too broad. Rather, the order will go that
the defendant is given leave to list the three reports in her list of documents.

[30]        
There remain questions concerning the admissibility of these reports at
trial, whether based on form or content. Those questions will be determined by
the trial judge. For the purposes of this application, the defendant will have
use of the reports in the proceeding by listing the same.

[31]        
Costs of the application will be in the cause.

               “C.P.
Bouck”             

Master
C. P. Bouck