IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130729

Docket: 48157

Registry:
Vernon

Between:

Shirley
Anne Smith

Plaintiff

And

Daniel
D. Rautenberg

Defendant

Before:
Master R.W. McDiarmid

Reasons for Judgment

[1]            
By notice of application filed June 3, 2013, the defendant seeks the
following order:

1.         Dr. Ann Pirolli of #204 – 3001
Tutt Street, Kelowna, BC, V1Y 2H4 make and deliver to the solicitor for the
Defendant a certified copy of all records, including all raw test data
including but not limited to test protocols; testing notes; behavioural
observations; scoring sheets; computerized scoring or interpretation reports
and normative profile sheets for all neuropsychological testing in her
possession, custody or control relating to the Plaintiff, Shirley Anne Smith
(the “Records”);

[2]            
In addition, there were some other orders sought consequential upon the
order sought in paragraph 1, as well the usual term that the defendant pay
reasonable and proper costs, and that the defendant, as applicant, be awarded
costs of the application.

[3]            
Dr. Ann Pirolli is a neuropsychologist. She did a neuropsychological
assessment of the plaintiff in the latter part of 2011, following which she
prepared an expert report dated December 12, 2011. That report was served on
counsel for the defendant under cover of a letter from plaintiff’s counsel
dated October 30, 2012. On November 13, 2012, defendant’s counsel demanded
production of “a complete copy of Dr. Pirolli’s file.”

[4]            
The plaintiff claims damages for injuries arising from a motor vehicle
accident which occurred on or about July 26, 2009. In her notice of civil
claim, she alleges that she sustained:

a)    vertical
linear undisplaced right temporal fracture;

b)    concussion
and head injury;

c)     right
shoulder injury;

d)    right
hip injury;

e)    soft
tissue injury and pain;

f)     
headaches;

g)    sleep
disturbances; and

h)    chronic pain and
stiffness.

[5]            
According to the affidavit sworn by defendant’s counsel’s legal
assistant, there is an issue as to whether the plaintiff has suffered a brain
injury in this case.

[6]            
According to the report prepared Dr. Pirolli, Dr. Pirolli is a
registered psychologist in British Columbia with a PhD in clinical
neuropsychology obtained from the University of Victoria in 1996. In the
opening paragraph of the report she writes:

The conclusions contained in this
report are based on the interview and tests I have conducted, and my
professional training, clinical experience, and knowledge of the professional
literature.

[7]            
Following a recitation of “Basic Assumptions,” she writes:

Conclusions/Recommendations: Based on my detailed
examination of Ms. Smith, including interviews, test results, and relevant
documentation review, I offer the following:

1.         On
July 26, 2009, Ms. Smith fell from a moving motorcycle resulting in several
injuries including a fractured skull. It was reported that she was wearing a
“beanie” style helmet, which unfortunately does not provide adequate protection
for the head. When the ambulance personnel arrived, her GCS was 15 and she was
reporting headache pain and dizziness. It was indicated she had had some
alcohol and the degree this confounded her symptoms at that time is unknown.
She describes poor recall for the time of the accident and for a substantial
portion of time following it (although the latter may be related in part to Ms.
Smith’s reporting style). She describes feeling in a daze following the
accident and experiencing problems with her vision, concentration, and balance.
She also had ringing in her ears, headaches, nausea, memory disturbance, and
dizziness;

2.         At the
time of my meeting with Ms. Smith for the current assessment, she reported the
following ongoing symptoms: unrelenting headaches; poor frustration tolerance;
sleep disturbance and daytime fatigue; balance problems; difficulty with word
recognition and pronunciation; reduced concentration; reduced ability to do
calculations; changes to her vision; ringing in her ears; depression; and
specific fears. Her work supervisor and daughter also noted the following: poor
memory and follow through on tasks; distractibility; reduced decision-making
and problem-solving skills; fatigue; emotional lability; depression; decreased
frustration tolerance; headaches; decreased word finding; losing her train of
thought; lack of direction in life; decreased sleep; headaches; and concerns
regarding possible suicidal ideation;

3.         Ms.
Smith put forth adequate or better effort throughout the testing day although
extreme fatigue, pain, and emotional reactivity likely interfered with her
ability to perform optimally on tests. Test results from the current assessment
indicated Ms. Smith’s auditory attention and simple visual attention were
adequate, but she demonstrated impairments and variable performance in other
areas including: complex visual attention and working memory; visual
constructive abilities; complex auditory memory; visual memory; verbal abstract
thinking; problem solving; perceptual reasoning; verbal fluency; and general
intellectual measures. Furthermore, Ms. Smith endorsed changes in her executive
functioning with increased problems following the accident in terms of
disinhibition, executive thinking skills, and apathy;

4.         Psychological
testing during this assessment revealed an individual who has poor insight into
the degree of impact her psychological difficulties are having on her current
functioning. She tends to think in more concrete terms, with a focus on somatic
symptoms rather than psychological ones. She appears to have symptoms of
depression and anxiety. She expressed significant distress and frustration with
respect to her ongoing headache pain and cognitive difficulties;

5.         Taking
all of this information together, it is my opinion that Ms. Smith, more likely
than not, suffered at least a mild traumatic brain injury at the time of her
accident. It is also my opinion that Ms. Smith has gone on to develop an
Adjustment Disorder (with both depressive and anxious symptoms) in response to
the sequelae of the accident. She has ongoing pain, sleep disturbance, and
significant fatigue. It is difficult to discern from the current assessment to
what degree Ms. Smith’s brain injury is continuing to directly impact her
cognitive presentation. Certainly, her mood disorder, pain, and sleep
disturbance are likely contributing to the cognitive difficulties in her
day-to-day life. Whether her current medications are also contributing to some
of her symptoms could best be commented on by her physician or a psychiatrist;

6.         Ms.
Smith denies having any psychological difficulties in the time prior to the
accident. There is a note of increased stress in her family physician’s records
in the days preceding the accident. She indicated this was a situational issue
and not related to feeling depressed. She reported a previous episode of
postpartum depression. She has been in an abusive relationship previously. She
reported no significant persisting psychological difficulties in her past,
however. I have no information to suggest she had any psychiatric difficulties
in her history. Thus, it is my opinion her current psychological difficulties
are a direct result of the accident and its sequelae;

7.         I do
not have any information to suggest she was having cognitive difficulties in
her work place prior to the accident. I must caution that I do not have Ms.
Smith’s academic records and if these were to reveal significant academic or
intellectual difficulties, some of my conclusions could be altered. Assuming no
significant academic or intellectual difficulties prior to the accident, it is
my opinion that Ms. Smith’s ongoing cognitive difficulties are related directly
to the motorcycle accident and its sequelae;

8.         In
order to gain a better understanding of the degree of Ms. Smith’s brain injury
and the possible ongoing direct effects of such, her difficulties with mood,
pain, and sleep disturbance will need to be treated first. Once these areas
improve significantly, a neuropsychological re-assessment is recommended if Ms.
Smith is continuing to present with cognitive difficulties;

9.         In
order to assist Ms. Smith, I recommend the involvement of an occupational
therapist for the development of cognitive strategies for both at home and at
work. The occupational therapist could also conduct a safety assessment given
Ms. Smith’s description of difficulties with balance on matters of motorcycles.
I also recommend the involvement of a psychologist in order to develop some
concrete emotional coping strategies, as well as strategies for the management
of pain and sleep disturbance. Ms. Smith will likely require 20 to 25 therapy
sessions with the psychologist at the current rate of $175/session;

10.       Regardless of the cause of Ms.
Smith’s current cognitive difficulties (as demonstrated on testing and as noted
by her and her collaterals) she would have significant difficulty doing her
work. Her supervisor has even commented that he did not think she would be able
to maintain employment if she had to work for someone else. Her difficulties
with mood and cognition are also significantly impacting the quality of her
life. As noted above, if her mood, pain, and fatigue all significantly improve
but cognitive difficulties remain, a neuropsychological re-assessment would
help determine ongoing difficulties and prognosis. If her pain, mood, and sleep
disturbance do not improve, she is likely to have ongoing functional cognitive
problems for the foreseeable future. As with anyone with mood and pain issues,
Ms. Smith is at risk for increasing suicidal ideation and behaviour, as well as
substance misuse.

[8]            
Appendix B to the report documents over 20 tests, particularizes the
ability being assessed by some of the tests and gives a result under the
heading “Classification” for each of the tests (except the last mood tests). Specific
components of some of the tests are set out.

[9]            
A description of the tests in Appendix B are what I would characterize
as quite technical. They are the sorts of tests which seem to me would require
considerable expertise to both administer and interpret. Clinical
psychologists, and in particular clinical neuropsychologists, would probably have
the expertise to know whether the administered tests did in fact assess the
ability which they purport to assess, and would be able to interpret the data
to determine whether or not the interpretation placed on the assessment results
by Dr. Pirolli was the proper interpretation. It seems unlikely that the test
results could be intelligibly interpreted by persons who did not possess significant
expertise in psychology and/or neuropsychology, just from the description of
the tests.

[10]        
The plaintiff does not object to production of the documentation, but in
its response sets out under the heading “Part 4: FACTUAL BASIS” the following:

2.         The
Plaintiff provided Dr. Pirolli’s file in regards to her assessment of the
Plaintiff to the Defendant.

3.         Within
Dr. Pirolli’s file provided to the Defendant is a letter from Dr. Pirolli
setting out that in accordance with the College of Psychologists of BC she is
unable to provide the raw test data to persons other than another registered
psychologist or psychological service provided in another jurisdiction.

4.         The Plaintiff and Dr. Pirolli
are in agreement to provide the raw test data directly to a registered
psychologist of the Defendant’s choosing for their review and use in accordance
with the Davis v. Milne decision.

[11]        
The defendant’s position is that the test results are documents which
form part of Dr. Pirolli’s file relating to the plaintiff, are relevant. The
defendant’s counsel submits that he may wish to use the results himself to
cross-examine Dr. Pirolli. He further submits that he may seek interpretation
of the results from a retired psychologist. His position is that placing the
restriction sought is contrary to jurisprudence on disclosure of non-party
documents. He submits that the documents ought to be disclosed without
restriction on the use to which the plaintiff and her counsel can put them,
apart from the litigation privilege which attaches to documents disclosed in
the course of litigation.

[12]        
The plaintiff, in seeking to place the restriction on the documents that
they are to be provided directly to a registered psychologist, relies on two
Masters’ decisions: Davies v. Milne, [1999] B.C.J. No. 555, a decision
of Master Horn dated February 19, 1999, and Scott v. Erickson, 2009 BCSC
489, a decision of Master McCallum dated April 9, 2009. Scott relies on Davies.

[13]        
In Davies, there was evidence from a registered psychologist
summarized by the Master in para. 7 of his decision:

[7] Her application was further supported by an
affidavit of Dr. R. Vernon Wilkinson, a registered psychologist licenced to
practice in the Province of British Columbia who has practiced as a
neuro-psychologist since 1987. She says this:

2. When a neuro-psychologist assesses a patient it involves
the administration of neuro-psychological testing. This testing produces raw
psychological test data.

3. The only person qualified to interpret this raw test data
is a neuro-psychologist. The raw psychological test data is open to
misinterpretation by any other person, including a licenced psychiatrist.

4. It is crucial for our profession to insure raw test data
is not disclosed to anyone other than a neuro-psychologist. This is so in order
to maintain the integrity and validity of the tests administered.

5. The College of Psychologists of British Columbia places
an ethical restriction upon neuro-psychologists to insure that raw test data is
not disclosed to anyone other than a neuro-psychologist. If a
neuro-psychologist discloses the raw test data to any other person, he or she
risks being disciplined by the College.

[14]        
With that evidence before him, the Master came to the following
decision:

[14] Dr. Russell has, in my view, done all that she
should to make known her concerns and her obligations. Unfortunately, her
obligations to her own profession are, she believes, in conflict with her
obligations to this court. If her client desires, as she does, to present Dr.
Russell’s evidence to the court either viva voce or by way of a written
statement under Rule 40A, then it seems to me that the client waives any
confidentiality which might attach to the raw test data. But that does not
release Dr. Russell from all of her professional obligations.

[15] A number of authorities were cited to me but none
of them were directly on point. There is no question here of any invasion of
privacy or betrayal of confidentiality. It is not the interests of the patient
which need to be preserved here but the interests of Dr. Russell.

[16] In making the order that I did, I attempted to
take account of Dr. Russell’s professional obligations. What I am not willing
to do, and I doubt that I have the jurisdiction to do, is to order that the raw
test data be produced only to a person who, in the opinion of Dr. Russell, is
competent to understand the data. That would require the third party to engage
such a person as a prerequisite to obtaining sight of documents that it is
entitled to see.

[17] The order which I
made requires production to the solicitors for the third party, but I attempted
to make sure that the data will not be disclosed to anyone not subject to this
court’s jurisdiction nor to any other person not qualified to interpret the
data.

[15]        
The Master concluded, in circumstances similar to that in the case at
bar, that the raw test data is prima facie relevant.

[16]        
The Master ordered that the raw test data documents be delivered to
plaintiff’s counsel, who was to them immediately provide then to (in that case)
counsel for the Insurance Corporation of British Columbia as third party. He
ordered that the raw test data was not to be copied or disclosed or discussed
other than with members of the firm of the solicitors representing the third
party and any adjuster who was instructing counsel for the third party.

[17]        
On application by the psychologist, he ordered that the raw test data
may be disclosed to and discussed with any other person who, in the opinion of
the psychologist, is competent to use the data, or, if there is a dispute as to
whether any such person is competent, the data may be disclosed to the College
of Psychologists of British Columbia, who shall determine whether such person
is competent.

[18]        
Plaintiff’s counsel submits that I should make a similar order. In
support of the plaintiff’s position, the plaintiff cites the decision of the
British Columbia Court of Appeal in Traynor v. Degroot, 2001 BCCA 556,
where the issue of production of data from the assessments of a
neuropsychologist was considered. The matter came before the Court of Appeal on
appeal from a decision of Melnick J., who had dismissed an appeal from a
Master.

[19]        
At paras. 6-8 of the decision, Madam Justice Southin writes:

[6] The critical Rules are 26(10) and 26(11):

(10)      The court may order the
production of a document for inspection and copying by any party or by the
court at a time and place and in the manner it thinks just.

(11)      Where a document is in the
possession or control of a person who is not a party, the court, on notice to
the person and all other parties, may order production and inspection of the
document or preparation of a certified copy that may be used instead of the
original. An order under Rule 41(16) in respect of an order under this subrule
may be made if that order is endorsed with an acknowledgment by the person in
possession or control of the document that the person has no objection to the terms
of the proposed order.

[7] Leave to appeal was given by Madam Justice
Proudfoot on 6th April, 2001. For reasons not clear to me, the appellant did
not pursue this appeal as diligently as she might have done. Her factum was not
filed until 8th August. This appeal was set for hearing for the 12th September
on an expedited footing. Had this appeal been brought on much earlier, this
Court might have afforded the parties more time for oral argument. That extra
time might have led to a more thorough analysis of the issues by counsel.

[8] Without that analysis,
I am not confident that this judgment addresses all the considerations relevant
to the making of orders under the two subrules and should therefore not be
taken as binding within the principles of stare decisis.

[20]        
The current applicable Supreme Court Civil Rule is Rule 7-1(17)
and (18) reads:

Order to produce document

(17) The court may order the production of a document for
inspection and copying by any party or by the court at a time and place and in
the manner it considers appropriate.

Documents not in possession of party

(18) If a document is in the possession or control of a
person who is not a party of record, the court, on an application under Rule
8-1 brought on notice to the person and the parties of record, may make an
order for one or both of the following:

(a) production, inspection and copying of the document;

(b) preparation of a certified copy that may be used instead
of the original.

[21]        
Southin J.A., in paras. 15-16, writes as follows:

[15] The affidavit in response is that of a legal
assistant, Ms. Mary Dianne Rogers, who deposes, among other things:

8. The Plaintiff’s expert reports were served within the
time limits of the Rules of Court and include the following:

22. In response to paragraph 12 of the Affidavit of Gorman,
I did not advise that we were no longer in possession of Dr. Schmidt’s raw test
data. We have never been in possession of it. I mistakenly suggested we
consider having the experts exchange their data. I misunderstood that Dr.
Jones, was a neuropsychologist. In the past, we have agreed to experts
exchanging such data. However, in my experience, such test data was only
provided directly by one neuropsychologist to the other neuropsychologist as a
swap after each has done his own tests and formed his own opinions so as not to
bias or contaminate his test process and to avoid one expert having an unfair
advantage. When I realized Dr. Jones was a neurologist, I realized my
suggestion had made no sense and revoked it.

25. I am informed by Dr. Schmidt and verily believe he has
disclosed the facts and assumptions upon which his opinions are based, and that
these are found in his report. Dr. Schmidt advised that he has his file, which
includes his notes and working papers and various individual tests where he has
annotated and scored. Dr. Schmidt advises me and I verily believe that this
file is not necessary for another neuropsychologist to form an opinion
concerning the Plaintiff and that it is normal practice for a psychologist to
conduct their own assessment of an individual such as Eileen Traynor. All the
facts and assumptions that another psychologist would need are contained in his
report. Dr. Schmidt informed me and I verily believe that he is ethically bound
to provide this data only to another qualified psychologist. However, by
providing these notes to another psychologist prior to the psychologist
providing an opinion, it would provide an unfair opportunity for that
psychologist who would have Dr. Schmidt’s working papers before preparing his
own tests. Dr. Schmidt informed me and I verily believe that in the past, he
has agreed to exchange his working papers for the papers of another psychologist,
by providing that information directly to the other psychologist after he has
prepared his own opinion.

[16] Now, I would be more
concerned with the substance of paragraph 25 if it had come from Dr. Schmidt by
way of his own affidavit, upon which he could have been cross-examined. When an
expert in one field in possession of documents says, in effect, (if that is
what Dr. Schmidt told Ms. Rogers) that someone from a different discipline is
not competent to understand his work, the Court should be slow to overrule his
judgment.

[22]        
In the appeal from the order which ordered the neuropsychologist to
provide true copies of all raw test data, Southin J.A. writes:

[23] In this Court, the parties maintained the
arguments which they put forward before the Master. Neither counsel concerned
himself with whether Dr. Schmidt had any rights. No argument was addressed to
us that Dr. Schmidt should never have been ordered to produce the documents to
counsel for the appellant in the first place and now that the documents are in
the possession of counsel for the appellant, I suppose it is too late for it to
be argued that the documents are not within the appellant’s possession or
power.

[24] To me, the first question ought to have been
whether these documents were in the possession or power of the appellant, as
the learned master appears to have thought, to which therefore Rule 26(10)
applies, or whether they are documents which fall within Rule 26(11), as
documents of Dr. Schmidt.

[25] Unfortunately, no argument was addressed to us on
this point, which I consider to be important, for the considerations which
apply to compelling production of documents from a party to litigation are not
the same as the considerations for compelling the production of documents from
persons who are not parties to litigation.

[26] It is, of course, possible that a document
belonging to X which is not in the possession or power of a particular litigant
may be withheld from production by its possessor on the ground that that
litigant has a privilege in it. But X may have personal grounds of objection
which entitle him to argue that to require him to produce his documents before
trial is an abuse of himself. The courts must not run roughshod over those who
are not parties to the proceedings and, in my view, an expert witness should
not necessarily be treated as if he were the puppet or servant of a party who
has consulted him. It is an interesting question, which so far as I know this
Court has not yet addressed, whether the papers of an expert witness relating
to the litigation in issue for the preparation of which he is being paid are
the property of the party instructing him or remain his own and, if the
property in the papers remains in the expert, whether the instructing party can
demand, if not the original documents, copies thereof.

[27] I have come to the conclusion that, in all the
circumstances, including the long delay in this appeal which meant that it
could not be fully argued, the only sensible thing for the Court to do is to
dismiss it, leaving the serious issues of principle which it raises to be
definitively addressed on some other occasion.

[28] Those with authority
over the Supreme Court Rules might wish to consider putting into Rule 40A a
clear provision stating what class or classes of the documents of an expert,
notice of a report of whom has been given to the other side, must be produced
before trial.

[23]        
In Gulamani v. Chandra, 2009 BCSC 1393, Madam Justice
Arnold-Bailey considered an application brought by the plaintiff for copies of
raw data resulting from tests conducted on the plaintiff, by inter alia,
a doctor retained by the defendant for the purpose of a medical examination.
Arnold-Bailey J. canvassed relevant authority, including Traynor. In her
analysis and findings, she writes:

[24] 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. Even things as small as question marks or exclamation
marks added to raw test data could fall into this category and would
potentially need to be redacted: Traynor, at para. 21.

[25] However, the 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. I agree with the
conclusion reached by the learned master in McLeod as one that follows
these basic principles and extends them to circumstances outside the scope of a
Rule 30 order. General principles are indeed just that — general principles —
and not principles that are only to be applied in making a Rule 30 order or
only to be applied when such an order is made. As Master Caldwell opined in McLeod,
the timing of the request for disclosure and whether a court order triggered
the examination are factors which do not override the application of Rule 1(5)
and the court’s role to "secure the just, speedy and inexpensive
determination of every proceeding on its merits". I share this view.

[26] I do not disagree
with the submission by counsel for the Chandra defendants, in line with S.
& K. Processors and Vancouver Community College, that an
expert’s working papers remain privileged until that expert takes the witness
stand. As I understand the jurisprudence, however, 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. In the case at bar, the plaintiff is not asking for
the type of documents that were at issue in those cases, and those cases
reaffirm that the factual material the plaintiff seeks is indeed subject to
production.

[24]        
In reaching her conclusion that test results, including scoring
documents prepared by the examiner, ought to be produced without restriction
apart from litigation privilege, it is apparent that she considered the issue
of non-party rights raised by Southin J.A. Her concluding reasons with respect
to this issue are as follows:

[35] As an aside, I would add that Master Scarth did
not definitively find that Rules 26 and 27 were "improper" avenues
under which to bring the plaintiff’s application, but rather, as I appreciate
the transcripts, Master Scarth was simply not persuaded by the materials before
her that those rules were the proper course. Sutherland, however, is an
example where an application for examining notes was made under Rule 26(11),
and the court in that case specifically acknowledged that the issue raised by
Southin J.A. (as to the consideration of non-party rights) in Traynor
did not arise in the circumstances since the non-party respondents did not, as
in this case, appear in response to the notice of motion.

[36] In conclusion on this
issue, I therefore order that the defendants and Doctors Hawkins, Hepburn,
Weeks, Magrega, and Munro deliver to the solicitor for the plaintiff copies of
their examining notes or any other recording generated by or on behalf of said
doctors that records any history given to them by the plaintiff on the
examination and any notes that record the doctor’s observations or findings on
physical examination together with copies of any tests, questionnaires, or
other documents completed by or on behalf of the plaintiff, including scoring
documents prepared by the examiner, except any documents containing the
doctors’ opinions or advice, within 14 days of the pronouncement of this order.

[25]        
The plaintiff’s main objection is the assertion that Dr. Pirolli is
unable, because of the ethical requirements placed on her by her professional
association, to provide the raw test data to persons other than another
registered psychologist or psychological service provided in another
jurisdiction.

[26]        
Dr. Pirolli swore an affidavit. Paragraph 4 of that affidavit is as
follows:

4.         By
letter dated May 3, 2013, I provided Michael Yawney with a copy of my expert
file in relation to my assessment of Ms. Smith. In my letter I specifically
advised that the raw test data was not included, as I was advised by the
College of Psychologists of BC, test material cannot be released, except to
another psychologist or psychological service provider in another jurisdiction,
because:

a)         The College of Psychologists of
BC is of the view that the raw test data can be easily misinterpreted and needs
to be discussed with a person who is competent to use or analyze raw test data;

b)         Releasing the information will
compromise the integrity of the tests;

c)         The requested materials are
considered confidential commercial information of the test developers;

d)         The requested materials are
exempt from disclosure under PIPEDA or provincial legislation; and

e)         Releasing the materials will
breach contractual obligations with the test publishers.

[27]        
Dr. Pirolli attaches to her affidavit Practice Advisory #4 issued by the
College of Psychologists of British Columbia which is entitled “Release of
Psychology Records”. The advisory is divided into sections A, B and C. A is the
definition section, B is entitled “BACKGROUND”, and C is entitled “THE CODE OF
CONDUCT”. Under the BACKGROUND section, the advisory attempts to digest some
legal principles. In that section, paragraphs 2 and 3 read as follows:

2.         Release of any records to another registrant or
other recognized psychological provider. As per Section 11.24 of the Code of
Conduct, psychology records in their entirety (including test material in the
client’s file) may be copied and disclosed to another registrant or other
recognized provider of psychology services with the consent of the client or
their legal representative.

3.         Release of any practice records in the context of
litigation.
It is expected that in the context of litigation, a registrant would receive a
request for release of practice records in one of two ways:

a)         a lawyer(s) will send a consent
form(s) signed by the client(s) authorizing the registrant to release the
complete file, or specific section of the file, or

b)         a Notice of Motion will be
served on the registrant for an Order of the court that the entire practice
record or sections of the file be disclosed.

[28]        
In THE CODE OF CONDUCT, the first section is entitled “Release of
Practice Records to the Client”. It contains under subparagraph 1.2 the
following:

1.2       Test
Materials: In all circumstances in which a client [or their legal guardian]
requests to obtain test material prior to the release of the material the
registrant must, in addition to 1.1.1, 1.1.2, 1.1.3, 1.1.4 and 1.1.7 above:

1.2.1.   Explain that the test material
requested cannot be released, except to another registrant or psychological
service provider in another jurisdiction, because (1) releasing the information
will compromise the integrity of the tests, (2) the requested materials are
considered confidential commercial information of the test developers, (3) the
requested materials are exempt from disclosure under PIPEDA or
provincial legislation, and (4) releasing the materials will breach contractual
obligations with the test publishers.

[29]        
This case is not a circumstance where the client or legal guardian
requests to obtain test material.

[30]        
Paragraph 3 is entitled “Release of any records in the context of
litigation”. It sets out the following:

…where a Notice of Motion or Court Order has been made to
access the client’s practice records, the registrant must, in addition to
the requirements set out in 1.1 and 1.2 above, as applicable.

3.3.      Attach
a written statement to the records including, as applicable, the following as
the understanding under which the practice records are released:

3.3.1    That psychological practice
records are of a highly confidential nature.

3.3.2    That all practice records be
returned or confirmed as destroyed at the conclusion of the legal proceedings
and any appeals thereof.

3.3.3    That the College Psychologists of
British Columbia is of the view that raw test data can be easily misinterpreted
and needs to be discussed with [a] person who is competent to use or analyze the
raw test data.

3.3.4    That the contractual obligations
of the test purchaser require attempts to be made to protect the integrity of
test material.

3.3.5    That the practice records or test
material will not be further copied except as strictly necessary for the
purpose of the legal or other formal proceedings.

3.3.6    That access to test material and
the testimony regarding material be restricted to the most limited audience
possible.

3.3.7    That material or any portion of
such materials that are disclosed in pleadings, testimony, or other documents,
be sealed and/or removed from the court record in order to safeguard the
integrity of the test material.

[The underlining is in the copy
of the document exhibited to Dr. Pirolli’s affidavit]

[31]        
As a pre-requisite to granting the court order sought, the court must be
satisfied that the test result documents are relevant and that they are not
subject to solicitor/client privilege. The documents are relevant. As set out
in paragraph 6 above, they are referred to in the neuropsychological assessment
report prepared by Dr. Pirolli in Appendix B to that report. The test result
documents are relevant. The conclusions and recommendations of Dr. Pirolli are,
in part, based on them. The plaintiff did not argue otherwise.

[32]        
As the report has been served, no issue of solicitor/client privilege
attaches.

[33]        
Counsel for the applicant defendant correctly submits that there is
nothing in the Code of Conduct to substantiate the apparent position of the
College Psychologists of BC that test material cannot be released except to
another psychologist or psychological service provider in another jurisdiction.
He is correct. That is not what the Code of Conduct states.

[34]        
In making my decision, I agree with what was written by Southin J.A.,
namely that when an expert in one field in possession of documents says that
someone from a different discipline is not competent to understand his work,
that the court is to be slow to overrule his judgment. That is a very different
thing from saying that the documentation could not be produced to counsel for
the party seeking production. If that party choses to have the documents
interpreted by someone not competent to understand them, lack of competence
will be readily available to a trial judge and will work against the party who
conducts litigation in that way.

[35]        
I also respectfully agree that courts must not run rough shod over those
who are not parties to the proceedings. That is why the Rules require delivery
of notices of applications to non-parties from whom documents are sought.

[36]        
The evidence before Master Horn in Davies was that there was an
ethical restriction placed on the neuropsychologist to prevent disclosure. The
actual evidence that was presented in that case is not before me.

[37]        
I had evidence before me of the current Code of Conduct. So long as Dr.
Pirolli complies with the Code of Conduct, and in particular that portion of
the Code of Conduct set out in subparagraph 1.2, reproduced above in para. 28,
her ethical requirements are met.

[38]        
The other concerns raised by the plaintiff are dealt with by the litigation
privilege which attaches to the documents.

[39]        
I order that:

1)    Dr. Ann Pirolli
make and deliver to counsel for the plaintiff a certified copy of all records,
including all raw test data, including but not limited to test protocols,
testing notes, behavioural observations, scoring sheets, computerized scoring
or interpretation reports, and normative profile sheets for all
neuropsychological testing in her possession, custody, or control relating to
the plaintiff, Shirley Anne Smith (the “record”);

2)    Those records
are to be made and delivered to counsel for the plaintiff as soon as reasonably
practicable, but in any event on or before the close of business on Friday,
August 23, 2013;

3)    Forthwith upon
receipt of the records, but in any event before the close of business on
Friday, August 30, 2013, counsel for the plaintiff is to provide a copy of the
records to counsel for the defendant;

4)    Paragraph 3 of
the order sought by the defendant, for inspection of the originals of the
records, is adjourned with liberty to reset the matter before me on seven days’
notice;

5)    The defendant is
to pay all reasonable and proper costs incidental to the production,
inspection, and preparation of the records upon receipt of the records;

6)   
The defendant is awarded costs of this application in the cause.

“Master R.W.
McDiarmid”

MASTER
McDIARMID