IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130607

Docket: M105965

Registry:
Vancouver

Between:

Kristjana (Jenna)
Eastman, an infant by
her Litigation Guardian Sean Eastman

Plaintiff

And:

Lindsey
Elizabeth Eastman, Maureen Cameron, Debra Lee Pattison,
Her Majesty The Queen in Right of the Province of British Columbia,
as represented by the Ministry of Transportation and
Infrastructure, Yellowhead Road & Bridge (Fort George) Ltd.

Defendants

And:

Lindsey Elizabeth
Eastman, Maureen Cameron,
and Debra Lee Pattison

Third
Parties

Before:
Master G. Taylor

Reasons for Judgment

[1]            
This matter relates to a motor vehicle accident which occurred on
January 29, 2006.  The trial is scheduled to commence on September 9, 2013 for
15 days.  Accordingly, the 84-day deadline for delivery of expert reports is
June 14, 2013.  This application was heard on May 8, 2013, after which I
indicated to counsel that written submission on this point would be
appreciated.  Given the little amount of time left before the 84-day deadline,
counsel agreed between themselves as to the schedule for their respective
written submissions and replies.

[2]            
The defendant and third party, Lindsey Elizabeth Eastman (the “Applicant”),
seeks an order for production of “any results or cognitive testing, aptitude
testing, IQ testing, tutoring, etc., that have not previously been produced,
including the raw data from all neuropsychological assessments conducted in
relation to the plaintiff to the date of the tests conducted by the Applicants’
expert, namely April 12, 2013”, pursuant to Rules 1-3, 7-1 and 13-1(9) of the Supreme
Court Civil Rules.

[3]            
The plaintiff opposes the application on the basis of solicitor’s brief
privilege.

Discussion and Analysis

[4]            
The Applicant says the rationale for this application is so that the neuropsychologist
hired by the Applicant can be “of the most assistance to the court”.

[5]            
Filed as an exhibit to the affidavit of an administrative assistant in
the office of the solicitors for the Applicant is a letter from Michael
Joschko, Ph.D., a registered psychologist who holds himself out as a consultant
in clinical psychology and clinical neuropsychology.  In the letter, dated
April 19, 2013, Dr. Joschko talks about minimizing ‘practice effects’.  According
to Dr. Joschko,

‘practice effects’ can influence an individual’s test
performance in two major ways.  The person taking the test a second time may
perform better due to remembering the test and test answers/procedures from a
previous testing session, or the individual’s test performance may decrease
(worsen) due to boredom and/or irritation at having to complete the same test. 
In either case the interpretation of an repeated tests is problematic. 
‘Practice effects’ are most pronounced when the time between two test
administrations is relatively short, or when the tests used contain something
particularly novel or an unexpected twist and where prior exposure ruins the
novelty of the test procedure.

A valid interpretation of neurocognitive test results
requires that the various factors that could affect the validity of the
obtained results be understood and taken in account — ‘practice effects’ are
particularly important in this regard.  If not properly integrated into the
interpretation of neurocognitive test results, ‘practice effects’ can easily
lead to false conclusions: (i) cognitive problems obscured by practice may be
underestimated, (ii) cognitive problems may be overestimated as a result of
poor test results produced when individuals are irritated or bored during a
repeated test, or (iii) improvements due to treatment or natural recovery may
be overestimated.

…it is my opinion that the
results of any previous neuropsychological tests administered to Ms. Eastman
need to be taken in account to fully understand the results of my own
assessment of Ms. Eastman, and in order for me to offer a neuropsychological
opinion that would be of the most assistance to the court.

[6]            
The Applicant relies heavily on the decision of Madam Justice
Arnold-Bailey in the case of Gulamani v. Chandra, 2009 BCSC 1393, where
the learned Justice reviews the decisions of Stainer v. Plaza, 2001 BCCA
133 [Stainer] and Traynor v. Degroot, 2001 BCCA 556 [Traynor]. 
According to Justice Arnold-Bailey, Stainer and Traynor clearly indicate
that any notes, annotations, recordings, or working papers that reveal an
examining doctor’s confidential opinion or advice to counsel will, generally,
be privileged.  But, she also maintains at paragraph [25] that the same cases
also illustrate that notes or recordings that capture the factual history given
by the plaintiff to an examining doctor, as well as raw test data and results,
are outside the scope of solicitor-client privilege and are subject to
production.

[7]            
Further, at paragraph 26, the learned Justice maintains there is a clear
distinction between an expert’s working papers, which contain opinions, or
which may be prepared for the sole purpose of advising counsel, and the facts
underlying those opinions or advice.

[8]            
At paragraph 29, Arnold-Bailey J. says that the passages from Stainer
from which she has already quoted, reaffirm that even the solicitor’s brief
privilege can be trumped when it comes to the bare facts, since it is well
settled that “there can be no property in a witness of fact”.

[9]            
The Applicant relies on a number of other cases including; Bates v.
Stubbs (1979), 101 D.L.R. (3d) 623 (BCCA); Nikolic v.Olson, 2011
BCSC 125; Mayer v. Mayer, 2012 BCCA 77; Arpeg Holdings Ltd. v.
Vancouver (City) (1981), 28 B.C.L.R. 273 (BCCA) and Morey v. Lemon;
Kelln v. Stevens, 2006 BCCA 278 [Morey].

[10]        
Bates v. Stubbs was a case where the defendant applied pursuant
to Rule 30(1) [now Rule 7-6(1)] for an order that the plaintiff attend for an
independent medical examination.  In allowing the appeal from a chambers judge,
Aikins J.A quoted the chambers judge who concisely summarized the positions
taken by counsel for the parties and the issue involved as follows at para. 2:

The plaintiff raises no objection to such examination and
requests a copy of the examining doctor’s report.  The defendant is quite
prepared to furnish this copy on the plaintiff agreeing to turn over copies of
all his medical reports.  The only point in issue between the parties is
whether the plaintiff is required to turn over all his medical reports or only
those upon which he proposes to rely at trial.

[11]        
This case, I believe, is easily distinguishable on its facts from the
case at bar.

[12]        
In Nikolic v. Olson, the issue before the court was
whether our court had jurisdiction to order a litigant to authorize a third
party resident in another province to produce his or her records (relating to
that litigant) to another litigant.

[13]        
Mayer v. Mayer, among other things, was about relevant documents
at the two paragraphs cited by the defendants and discussed general principles
related to document production.  Accordingly, it is of no assistance to the
case at bar.

[14]        
Arpeg Holdings Ltd. v. Vancouver (City) is a short seven
paragraph judgment by Nemetz C.J.B.C which involved an appeal from a chambers
judge who ordered the defendant city to produce a report to the plaintiff
prepared for the defendant by an agricultural consultant, but refused to order
the production of two other reports.

[15]        
The report ordered produced was prepared by the defendant’s expert after
the city obtained permission to enter the plaintiff’s land in order to perform
tests of its soil.  Three different reports were generated for the defendant
city and the plaintiff asked for all three reports to be produced.  The city
claimed privilege over all three reports.

[16]        
The chambers judge allowed the production of one of the three reports
and the plaintiff appealed in the hope of having the other two reports
produced.

[17]        
In dismissing the appeal on other grounds, the learned Chief Justice
discussed the guiding rule, which, at the time, was Rule 30(4) [now Rule
7-6(4)] which provided at para. 5:

(4) Where the Court considers it necessary or expedient for
the purpose of obtaining full information or evidence, it may order the
production, inspection, and preservation of any property and authorize samples
to be taken or observations to be made or experiments to be conducted on or
with the property.

[18]        
The learned Chief Justice went on to say that in his opinion, “the rule
clothes the judge with the discretionary power to abrogate the rule of
privilege in respect of an expert’s report.  Indeed, Justice Nemetz was correct
in his interpretation of that Rule, however, I am of the view that that Rule
does not apply in the case at bar.

[19]        
Morey v. Lemon was an appeal where the issue was whether as a
condition of an order for an independent medical examination of a plaintiff
under Rule 30(1)(b) of the Supreme Court Rules, the defendant should be
required to obtain and disclose to the plaintiff the medical opinion of the
examining physician.

[20]        
In allowing the appeals in Morey, the Court of Appeal overruled Inhoff
v Irwin, 2005 BCSC 280, and said this at para. 14:

…Rule 30(1) is worded in permissive
terms and it is intended to delegate discretion to the judge or master making
an IME order at first instance.  There may be special circumstances in any
particular case that would justify the exercise of discretion to order more
disclosure than contemplated by the Stainer order, but not as a term of general
application in the absence of special circumstances.  No such special
circumstances are evident in the cases at bar.

[21]        
Contrary to the Applicant’s position, the plaintiff maintains that there
is a distinction between test results from a test commissioned by the
plaintiff’s counsel and information given to an expert by the plaintiff during
an examination under the Rules.  The plaintiff further submits that the
issue of the test data of an expert retained by the plaintiff, which is the
issue in the case at bar, is different from the cases of Stainer and Gulamani,
which were cases that dealt with the plaintiffs being ordered to attend
defence medical examinations.

[22]        
The plaintiff says the information given by the plaintiff to the
defendant’s experts in Gulamani was not privileged since she provided
that information herself.  However, where the plaintiff provides factual data
and results to an expert retained by her counsel solely for the purpose of the litigation,
that information is protected by privilege until such time, if ever, that she
elects to rely on that expert at trial.

[23]        
At the heart of the plaintiff’s opposition to the application is the
concept of solicitor’s brief privilege as discussed by Chief Justice McEachern
in Hodgkinson v. Simms, [1988] B.C.J. No. 2535, where at p. 5, he said:

…While I favour full disclosure in proper circumstances, it
will be rare, if ever, that the need for disclosure will displace privilege.

 In my view it is highly
desirable to maintain the sanctity of the solicitor’s brief which has
historically been inviolate. The cases are replete with explanations for such a
privilege.

[24]        
The plaintiff relies on a number of cases to invoke solicitor’s brief
privilege to oppose the application, including Lanteigne v. Brkopac,
2011 BCSC 1303; Galvon v. Hopkins, 2011 BCSC 1835; Nowe v. Bowerman,
2012 BCSC 1723; and Blackwell v. Kwok, 2013 BCSC 246.

[25]        
In Lanteigne, the applicant defendant and third party
sought the notes and raw test data from the plaintiff’s doctor to whom the
plaintiff was referred by her counsel. They submitted that the doctor has made
observations or findings on examination of the plaintiff and to that extent the
doctor has become a potential witness as to matters of fact, and since there
can be no property in a witness, the doctor’s notes of the examination should
be producible by court order.

[26]        
The issue in Lanteigne was framed thus: can a defendant or third
party who has not obtained a doctor’s report by compulsion of a court order,
and prior to disclosure of any medical-legal reports by the plaintiff or in the
absence of any reports, obtain access to the non-treating doctor’s notes and
clinical findings, or are the said notes and clinical records privileged as
forming part of the brief of the plaintiff’s solicitor until the time when the
plaintiff chooses to rely on the non-treating doctor as a witness at trial and
the doctor’s notes must be disclosed.

[27]        
However, the defendant in Lanteigne was not seeking the testing
data because it could not be produced by the defendant’s own expert, but
because to do so would be costly, and, accordingly, sought the court’s
assistance by seeking an order that the records of the plaintiff’s
neuropsychologist be produced and thus save them the cost of proceeding with
the other alternatives.   Therefore, the court in Lanteigne found the
applicants had not shown any meritorious reason for abrogating the plaintiff’s
litigation privilege related to the information provided by the plaintiff’s
neuropsychologist.

[28]        
In Galvon, an appeal from a master, Madam Justice Kloegman upheld
the solicitor’s brief privilege when she allowed the appeal where the master
had ordered the disclosure of the plaintiff’s experts at the Case Planning
Conference.  In doing so, she said at para. 24:

[24]      By requiring the
plaintiff to disclose the very fact of her attendance before a medical expert,
and run the risk of an adverse inference if she did not call the expert at
trial, the master was also interfering with the plaintiff’s right to elect
which witnesses to call.  Such interference is not sanctioned, nor warranted…by
our Supreme Court Rules.

[29]        
In Nowe v. Bowerman, the issue before Dickson J. was whether on a
defence application at a case planning conference the court should compel the
plaintiff to disclose the areas of expertise of the plaintiff’s proposed
experts by a certain date well in advance of the 84-day deadline for delivery
of expert’s reports prior to trial.

[30]        
Madam Justice Dickson considered Galvon (supra) and made
the following points in dismissing the defence application:

[10]      The area of expertise of an intended expert witness
is a matter of trial strategy.  Trial strategy is a key component of a
solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and
makes decisions based upon a myriad of factors and considerations.  Intentions
may change as the process unfolds over time.

[11]      In my view, unless and
until the intention to rely upon a particular expert in a particular field is
declared by delivery of a report in accordance with the timelines established
by the Rules, in the absence of a compelling reason an early incursion into
this aspect of the solicitor’s brief will not be justified.

[31]        
Thus, while protecting the solicitor’s brief by privilege, Dickson J. expressed
the view that there may be a circumstance in a case which is so compelling that
the court could make an order to breach the solicitor’s brief privilege.  She
did not provide examples of what she thought might be a compelling reason to
make the incursion into the privilege however.

[32]        
In Blackwell v. Kwok, Justice Funt refused the defence request at
a case planning conference held in December 2012, to order the plaintiff to
advise the defendants as soon as the plaintiff obtains the expert report of a
psychiatrist or psychologist and decides to rely upon the expert for a trial
which was scheduled for the latter part of 2014.  The defendant’s rationale for
making the application was due to the difficulty in retaining experts in these
fields even within a year of trial let alone 42 days before trial in order to
obtain a rebuttal report.

[33]        
In arriving at his decision, Funt J. considered Hodgkinson v. Simms
(supra) as well as Nowe v. Bowerman (supra).  At para. 14
of his decision he said:

[14]      Not surprisingly, I
cannot state matters better than Chief Justice McEachern in Hodgkinson:
“While I favour full disclosure in proper circumstances, it will be rare, if
ever, that the need for disclosure will displace privilege.”

[34]        
There certainly was no compelling reason or proper circumstance in Lanteigne
to breach the plaintiff’s brief privilege, and I especially find in the case at
bar the rationale “to be of the most assistance to the court” is not a
compelling reason to breach the solicitor’s brief privilege.  Nor is there a
special circumstance as suggested in Morey v. Lemon.

[35]        
In my view, the cases cited by the plaintiff stand for the proposition
that solicitor’s brief privilege is inviolate unless or until the Applicant can
show special or compelling circumstances that would allow the court to breach
the sanctity of the privilege.  No circumstances were provided in this case.

[36]        
Accordingly, the application is dismissed with costs to the plaintiff in
any event of the cause but not forthwith.

“Master Taylor”