IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20140710

Docket: S112181

Registry:
Vancouver

Between:

Donalyn Gayle
Patterson

Plaintiff

And

Peter
John Bodman, Canadian Road Leasing Company/Compagnie de Location Canadian Road,
Canadian Road Holdings Company, Ford Credit Canada Limited/Credit Ford du
Canada Limitee, Cara Operations Limited/Enterprises Cara Limitee dba Kelsey’s
and Her Majesty the Queen in Right of the Province of British Columbia as
represented by the Ministry of Transportation and Infrastructure

Defendants

And

Insurance
Corporation of British Columbia and Cara Operations Limited/Enterprises Cara
Limitee dba Kelsey’s and Her Majesty the Queen in Right of the Province of
British Columbia as represented by the Ministry of Transportation and
Infrastructure

Third
Parties

And

Patricia
Nielsen

Further
Third Party

And

Peter
John Bodman

Further
Third Party

Before:  Master D. C.
Baker

Reasons for Judgment

ISSUE

[1]            
The plaintiff Ms. Patterson applies for an order setting aside my order
of March 26^th, 2014, as yet un-entered, granting the defendant
Canadian Road Leasing Company (“Canadian”) and the third party Insurance
Corporation of British Columbia (“ICBC”) leave to issue a further third party
notice against Patricia Nielsen.  I concluded that the parties needed an early
decision, and therefore set aside the third party notice with reasons to
follow.  These are those reasons.

BACKGROUND

[2]            
A motor vehicle accident occurred April 28, 2009 on the Patricia Bay
Highway in Saanich, B.C.  Ms. Patterson was driving one vehicle and Mr. Bodman
the other.  Ms. Nielsen was a passenger in Ms. Patterson’s vehicle.  Mr. Bodman
was intoxicated and was charged and eventually convicted for drunk driving. 
Ms. Patterson had also been drinking, was charged, but the charges were stayed.

[3]            
This claim was filed April 4, 2011 and Mr. Bodman and the corporate
defendants were served in August 2011.  Mr. Bodman was held in breach by ICBC
who issued third party proceedings October 18, 2011.  Cara Operations Limited
doing business as Kelsey’s was added as a third party by order September 18,
2012, on an allegation that Ms. Patterson had been over-served with alcohol at
Kelsey’s.

[4]            
ICBC and Canadian filed materials February 5, 2014 in support of their
application to join Ms. Nielsen.  The basis for their application is an
allegation that Ms. Nielsen is liable as a host; i.e. that she served or
provided to Ms. Patterson alcohol that caused or contributed to her
intoxication.

PARTIES’ POSITIONS AND ANALYSIS

The Plaintiff

[5]            
Mr. Brooke submits that the order joining Ms. Nielsen was based on
insufficient or, worse, fundamentally misleading information.  Two basic
questions arising in the original application are, of course, prejudice to any
party and the reasons for delay, if any, in making the application.  The court
was misled, argues Mr. Brooke in respect of the latter, which therefore
affected the former.

[6]            
Mr. Hungerford, for ICBC and Canadian, spoke to the application March 26^th. 
He asserted that the applicants had no knowledge of the degree of Ms.
Patterson’s intoxication other than evidence on discovery that Ms. Nielsen and
Ms. Patterson had “shared a bottle of wine” (paraphrasing) at dinner that
evening.  Mr. Hungerford stated to the court at least twice that while the
defence knew Ms. Patterson had been charged, they did not know her blood
alcohol level.  He further advised the court that it was only on receiving the
entire Saanich police department files (para. 14, below) that the defence knew
the blood alcohol level:

We then for the first time had both files and then we
realized when we got the files that it is relating to both of these parties,
and this is the first time we have a clear indication that Ms. Patterson has a
blood alcohol reading of .22[1]

At page 33 of the transcript, in
discussing the fact that Ms. Patterson had not apparently obtained the police
records, Mr. Hungerford said:

…and it was only through the due diligence – so, you know
defendants’ counsel could be, you know, criticized at times for not being
diligent.  Well, I was diligent and I finally did get it despite hurdles.

And as a result of getting it, I find out just how bad the
alcohol content was in her bloodstream, and so therefore we proceeded with
diligence.  So we shouldn’t be criticized or penalized for showing diligence
and making sure the court has the complete picture.

Finally, at page 35 he said

…the defendants and ICBC can’t be
faulted for what has happened.  As a matter of fact, it’s through their
diligence that what has happened is happening and we say that it is in the
interests of justice that the matter proceed, all of the actions at one time.

[7]            
Mr. Hungerford’s position and assurance to the court, repeatedly, then,
was that not until the defence had the full police file was it aware of
the level of Ms. Patterson’s intoxication.  The point was made again at page 54
of the transcript of proceedings:

And it wasn’t until we got the other file that it came out
that she was .22 and apparently there was some concern about this search and whatever,
some criminal evidence issue that it wasn’t proceeded with.

Ms. Patterson was falling down drunk, then it became a
different story and that’s when the third party notice position was taken. Up
to that point in time we didn’t – we wouldn’t have proceeded on this alone.

But the staying of the criminal
proceedings came out later.  Why?  We don’t know exactly why, but I do know
that her reading was .22 and that’s when I found out in October.  Before that
time we did not know.  I’ve searched our file carefully, Your Honour, and that
is – that is what – we started – we started to try to figure out why had the
police not proceeded.

[8]            
Mr. Brooke submits that all of this simply is not so, that the defence
has had in its possession documents confirming Ms. Patterson’s level of
intoxication at least since late September of 2009 when ICBC was sent the
toxicology results of Ms. Patterson’s admission to Royal Jubilee Hospital. 
Those records confirm an “ethanol level of 59 mmol/L”.  ICBC’s own CWMS notes
for the Patterson file reflect an adjuster’s observations respecting this, and
record, on September 2009:

HOSPITAL RECORDS – PATTERSON –
RECD FROM P/C TODAY. INVOICE OUT FOR PYMT. THEY REVEAL ETOH 59 MMOL/L WHICH IS
EQUIV TO .271[2],
WHICH IS BEYOND “SEVERE INTOXICATION”

The file further notes on
December 1, 2009 the observations of the ambulance crew of:

STRONG SMELL OF ALCOHOL ON DRIVER

and

BLOOD TEST AT THE HOSPITAL
ADVISE OF AN ETHANOL LEVEL OF 59 = .217

The entry proceeded to note “…the possibility that Patterson
contributed to the accident.  We wondered if the Passenger was also under the
influence…”

[9]            
One of the reasons, said Mr. Brooke, that Mr. Hungerford made his
assertions at the hearing, and why similar assurances were given in staff
affidavits, was that the review of the police records; i.e. some 457 pages
received on a compact disk, was done digitally[3]. 
In other words a simple search for the word “alcohol” was run and, coming up
negative, became the basis for assurances of due diligence and a lack of any
knowledge of the alcohol level.  In fact, Mr. Brooke argues, any serious review
of the files would have disclosed the information.

[10]        
Soon after taking conduct of the matter Mr. Hungerford’s office
delivered a list of documents dated February 20, 2012 which listed document
1.4, “Letter from Saanich Police Department to ICBC enclosing disc containing
redacted file materials and said disc”.  At pages 194 and 196 of 264 pages of
the police records are the lab results of Ms. Patterson’s blood confirming a
blood alcohol content of 225%mg and a certificate of analysis also confirming
that reading[4].

[11]        
The fundamental position of the plaintiff is, then, that the defence and
third party have known for literally years the level of Ms. Patterson’s
intoxication, that counsel knew or ought to have known it, and that if counsel
did not know it can only be through a complete lack of due diligence.

[12]        
The order, argues Mr. Brooke, premised on misleading information
respecting delay, must be set aside.

The Defendant Canadian and Third Party ICBC.

[13]        
Mr. Manolis argues several points:

a)     Mr.
Hungerford is successor counsel, having received the file in 2012 after
previous counsel was conflicted out;

b)     full
file contents, including those referencing blood alcohol level, were not sent
to Mr. Hungerford until February 2014;

c)     in any
event plaintiff or her counsel have had important and corroborative documents
respecting the blood alcohol level since Ms. Patterson was personally served
with the certificate of analysis[5];

d)     Ms.
Patterson’s own evidence (e.g. in discovery) contributed to Mr. Hungerford’s
misunderstanding;

e)     Mr.
Hungerford did not appreciate the significance of blood alcohol data given in millimole
measure (i.e. “mmol/L”);

f)     in any
event no prejudice arises to either the plaintiff or to Ms. Nielsen, based on
the court’s conclusions at the original hearing.

[14]        
Points (a) and (b), above, can be conflated for discussion.  Conduct of
the matter for ICBC was originally with Victoria counsel, but was transferred
to Mr. Hungerford in January 2012 when Mr. Turnham, the original counsel,
decided he was in conflict.  More importantly, when the file was transferred it
did not include the entire CWMS ICBC files notes[6]. 
This seems, in fact, to be the case: ICBC personnel explained to Mr.
Hungerford’s assistant that the ICBC file notes for both Ms. Nielsen and Ms.
Patterson were placed in one file until the file went to Head Office Claims in
early 2010, and then the notes were placed in Mr. Bodman’s file.  Moreover, Mr.
Hungerford did not have the complete Saanich police records, for both the
Patterson and the Bodman investigations, until October 2013.

[15]        
I can understand from that that it would be difficult to track the
paper, and it does seem reasonable for defence counsel to rely on ICBC staff,
and on ICBC staff’s experience in litigation.  Still, hospital and medical
records were in ICBC’s possession since September 2009, and police records
sufficient to confirm the blood alcohol records were in counsel’s possession
since at least early 2012.

[16]        
In fact, Mr. Manolis argues that the plaintiff had the certificate of
analysis in her possession shortly after the accident[7]. 
This, I am to infer, rebuts or reduces any concern respecting misinformation
from the defence or third party.  I do not accept that.  There is no suggestion
or evidence that Ms. Patterson’s counsel or Ms. Nielsen’s counsel participated
or acquiesced in the misinformation described above.

[17]        
Mr. Hungerford examined Ms. Patterson March 12, 2014 and specifically
asked her if she’d been charged as a result of the accident and she replied
twice (questions 619 and 620) that “I don’t think so.”  This, I gather,
supports the defence’s argument that it was misled to a degree.  Clearly the
evidence was wrong; Ms. Patterson was charged with impaired driving.  Mr.
Brooke, however, by e-mail March 17^th corrected the error and
confirmed that while she was charged criminally, she was not convicted.  Again,
I do not think this clears the issue up.  Whether or not she was charged, the
defence definitely had access to better evidence; i.e. a record of her blood
alcohol content long before the examination for discovery.

[18]        
The Further Amended Application Response on behalf of Canadian and ICBC,
filed June 11^th includes the following:

The central element of the
Plaintiff’s submission is the Leasing Defendants, ICBC and, in particular, Mr.
Hungerford knew by virtue of a reference in hospital records to “59 mmol/L”. It
is Mr. Hungerford’s evidence that, at the time he read that document, he
did not know the significance of what “59 mmol/L” meant or could mean as a
blood alcohol content reading.  Further, he did not understand until after
reading full copies of CWMS notes that were received by his office on or about
March 4, 2014, that “59 mmol/L” could be translated into or was the equivalent
of a BAC of 0.271 mg/100 mL of blood or 0.217 mg/100 mL.  Prior to reviewing
those notes, the only one BAC measure Mr. Hungerford was familiar with was the
measurement used by police services i.e. mg/100 mL of blood. [Emphasis added.]

[19]        
This is simply not true.  On receiving this Response plaintiff’s counsel
produced an affidavit by another of the firm’s counsel confirming that he and
Mr. Hungerford were opposing counsel in a motor vehicle accident case that went
to a three-day trial in January 2011.  In that case Mr. Hungerford retained and
offered an expert toxicologist (Mr. W.K. Jeffery) whose report, at page 3,
para. 4(3) referred to the plaintiff’s blood alcohol content in both millimole/L
measure and in milligram percentage measure.  It is the case, however, that all
of Mr. Jeffery’s ensuing comments and observations use only the milligram
percentage measure (i.e. the conventional police measure).

[20]        
In his decision in that case[8]
Mr. Justice Harris, at para. 6, listed a series of agreed facts, No. 35 of
which stated:

The plaintiff’s blood sample was
tested at the VGH Laboratory and showed 45 millimoles of alcohol.

[21]        
It is irrefutable that Mr. Hungerford did have experience with
the measurement of blood alcohol in millimole measure and that the statement in
the amended Response, above, is entirely incorrect.  It is one thing to be
incorrect and to mislead the court.  It is another thing to do so after the
focus has been brought so emphatically and obviously to that particular
information.  I am left with the inescapable conclusion that the casual
approach to disclosure that began with production of the ICBC files carried on
throughout, even to this most recent application.

[22]        
I can do no better than to quote Mr. Harris in his text Discovery
Practice in British Columbia[9]
who, in turn, quotes Lord Wright in Myers v. Elman[10]:

A client cannot be expected to
realise the whole scope of that obligation without the aid and advice of his
solicitor, who, therefore has a peculiar duty in these matters, as an officer
of the court, carefully to investigate the position and, as far as possible,
see that the order is complied with.  A client left to himself could not know
what is relevant, nor is he likely to realise that it is his obligation to
disclose every relevant document…The solicitor cannot simply allow the client
to make whatever affidavit of documents he thinks fit, nor can he escape the
responsibility of careful investigation or supervision.

It may be that these remarks addressed an earlier time, with
a different procedure for discovery (e.g. a required affidavit confirming the
list) but the facts of that case concern counsel having left the task to staff
much, I am afraid, as is evidently the case here.  Regardless of the particular
procedures for disclosure, there is no higher duty on civil counsel than to
ensure that full and proper disclosure has been made.

[23]        
I referred to counsel not having the complete police records (para. 14
above).  Mr. Hungerford acknowledges[11]
that it was not until his office printed out the entire 457 pages of records
received on disk in February 2012 and compared them with police records
received by court order October 2013, that he realized the records referred to
a blood alcohol analysis certificate for Ms. Patterson (i.e. from a sample
obtained at the hospital by warrant) of 225 mg%.  One is left, again, with the
conclusion that Mr. Brooke’s submission is correct; i.e. that the original
review by counsel or his staff of the information on the disk was digital; i.e.
a word search for “alcohol”, which did not disclose the information about blood
alcohol content.  “Casual” is the word I have used to describe this already,
but that is probably an understatement.

[24]        
I think that sometimes members of the bar conclude that, upon
appointment to the bench, a kind of judicial amnesia sets in whereby members of
the bench quickly forget how stressful and intense practice at the bar can be. 
I doubt that, but in any event I am reminded constantly in chambers of the
stress and workload of barristers, as I am in Legal Profession Act fee
reviews.  By this I mean to say that I fully realize that this matter is not
the only one on counsel’s desk, but that does not excuse the misinformation
presented to the court to date.  In one form or another, this litigation has
proceeded for four years, and I am told that the claims are substantial.  Those
factors, alone, would have dictated a much higher level of attention than has
been the case.

[25]        
Finally, Mr. Manolis argues that even if the court was materially misled
respecting the chronology of the defence and third party’s knowledge (real or
imputed) regarding level of intoxication, there is no prejudice to either Ms.
Nielsen or Ms. Patterson, owing to conclusions and observations by the court in
its March 26[12]
decision.  Those observations bear repeating:

[25]      In any event, I do not accept that prejudice arises
as a consequence of this application.  We have roughly seven months to trial. 
We all know that seven months can evaporate very quickly on a litigation
chronology, the deadlines inherent in that, including experts’ reports, but the
matter is set, I think, for 19 days.  I was told five days are available and in
fact have been added to that by consent and requisition.  There is no evidence
before me that that is going to — that the addition of Ms. Nielsen in these
circumstances and the facts that have been established or alleged in the
pleadings will so add to that trial estimate that there will not be sufficient
time.  I do not accept that that is the case.

[26]      The real question to me is – Is it likely to create
or to cause an adjournment and will Ms. Nielsen reasonably be able to prepare
for trial?  I suppose those are again connected.

[27]      I think, on reflection, that it is a reasonable
period of time for Ms. Nielsen to prepare and respond to the allegations, not
just in the abstract where seven months is seven months and she can get to it,
so to speak, but because she has been so obviously involved in these
proceedings; if not these proceedings literally before me, the events and the
consequences of the events of April 2009.  She had, after all, her own
proceedings in Victoria.  It is simply not credible or possible that — that at
various levels, for various reasons, and at various times she must have been
involved in an exhaustive review of the circumstances of the event and
preceding it.  I would be shocked and amazed if she could not give a version
and has not established in various ways, notes, et cetera, of what
preceded the accident.

[28]      The allegation of Ms. Patterson’s intoxication has
been absolutely clear.  That is not the point, but it is part of it.  The
police actually charged Ms. Patterson.  They proceeded with the charges against
Mr. Bodman to the point of his pleading to impaired driving causing bodily
harm.  For whatever reason, the charges against Ms. Patterson did not proceed.

[31]      The one prejudice that
really concerns me, I think, is the availability of counsel for Ms. Nielsen. 
Mr. O’Meara has advised the court, in a brief and succinct way, that he is
otherwise engaged — I think that was the phrase — otherwise engaged for
various dates of the trial.  I understand that, but given the opportunity for
anyone to engage alternative counsel, to make other arrangements, and I have no
idea what is possible respecting the other matters that engage Mr. O’Meara, and
I have no idea what limitations there are, or that I should consider, that
restrict Ms. Nielsen’s access to counsel for these dates, so I do not accept
that as sufficient prejudice to preclude the order.

[26]        
Mr. Manolis’ submissions, again, are that given these conclusions it
makes no difference how or why the court was misled respecting the chronology
of evidence.  Even had Mr. Hungerford realized in 2012 that Ms. Patterson had a
blood alcohol content of 225 mg%, goes the argument, the order adding Ms.
Nielsen would still have been given, as there was insufficient prejudice to
preclude it.

[27]        
With respect, I do not think that is the question that needs answering. 
It may even be correct, but the real question is: What is the proper result
when the court is so significantly misled on a material fact?  In my view the
only answer is that the order based, even in part, on that misinformation must
be set aside, it seems to me, ex debito justiciae.

[28]        
If the defence and third party ICBC wish to make the application again
they may, of course, do so.  In that event I will recuse myself from hearing
the application.  Counsel may speak to the matter of costs, if necessary,
including costs governed by Rule 14-1(33).

“D.
C. Baker, M.”