IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160329

Docket: M137547

Registry:
New Westminster

Between:

Harroop Kaur
Sharda

Plaintiff

And

Jennifer Lyn Moran

Defendant

Before:
The Honourable Master Caldwell

Reasons for Judgment

[1]            
The plaintiff was involved in a motor vehicle accident in October of
2009; liability has been denied and a tentative trial date has been arranged
between counsel for October or November of 2018 once such dates become
available. There is a separate action involving a second accident which
occurred in November of 2012 which has been set to be heard at the same time as
the trial in this action.

[2]            
This action is subject to Rule 15-1 Fast Track as a result of the
defence placing the matter into that rule.

[3]            
The defendant applies for disclosure of various unredacted or unedited
medical records and MSP details commencing two years prior to the accident.

[4]            
The plaintiff agrees to some of the production and orders regarding
those documents were made at the commencement of counsel’s submissions and will
not be repeated here. Other disclosure is opposed.

[5]            
Counsel made brief submissions, referred me to the affidavit material
without any significant particularity and asked that I review the redacted and
unredacted documents and determine what should be produced.

[6]            
Following submissions I reserved to review the evidence. In addition to
reviewing the affidavits, I reviewed my notes and listened to the recording of
counsel’s submissions — twice.

[7]            
Counsel for the defendant in his submissions acknowledged that he could
point me to no evidence in support of the relevance of his request for pre-MVA
medical disclosure. When asked specifically about such evidentiary basis for
the request he simply replied that the defence wants to see the documents
because they may be relevant. He further made reference to the fact that his
friend had brought all of the documents in a binder and that I could review
them for relevance.

[8]            
Hoping to find support in the affidavit material, I turned to it. What I
found was an affidavit of a paralegal which did little other than attach a
series of correspondence and various expert reports. The body of the affidavit
contains 24 paragraphs, 17 of which simply assert the attachment of an exhibit
with little if any reference to its import to the application. The exhibits run
to a further 65 pages of unfocussed material. Paragraph 14 of the affidavit
does indicate that the plaintiff attended an Independent Medical Examination
with Dr. Grypma and para. 15 tells me that Dr. Grypma “states that he needs to
see unredacted pre-accident medical records”. Reference to that report shows
that he said:

The pre-motor vehicle accident
records were redacted. The diagnostic codes for the MSP records were also
redacted. I need to see the pre-accident medical records.

[9]            
No reference is made to MSP records nor is there any indication as to
why the unredacted records are needed — apparently even if they are completely
irrelevant and properly redacted. Such bare assertion cannot operate as a
skeleton key to open all doors to all medical disclosure, relevant or not,
simply because it is recited by an expert with no further explanation.

[10]        
I then turned to the submissions and materials of the plaintiff, filed
in opposition to this application.

[11]        
The submissions consisted of reference to an affidavit of the plaintiff
wherein she refers to various medical attendances and records and asserts that
they relate to “matters of a personal and sensitive nature” and that she does
not wish to produce them. I asked plaintiff’s counsel if there was any evidence
from him or other counsel indicating that they had reviewed such material and
had determined, as is the duty and responsibility of counsel, that the
materials referred to by the plaintiff were not simply personal and sensitive
but were also irrelevant to the litigation. I was not directed to any such
evidence.

[12]        
I then turned to the second affidavit filed by plaintiff’s counsel in
opposition to this application. It was an affidavit of counsel’s legal
assistant and consisted of 51 paragraphs all but 8 of which simply refer to
attached exhibits comprised of correspondence between counsel. The exhibits run
to 75 pages but absolutely no direction is given as to what I am to take from
such correspondence or how it is relevant to the application or its opposition.
If the suggestion is that I, or any judge or master involved in such
application, should simply read all of the correspondence between counsel in
order to attempt to glean some form of argument to support a particular
position, that is a suggestion which I reject. It is counsel’s duty to provide
proper evidence and argument in support of their position and to adequately
direct the court to it; it is not sufficient to simply say “here is the haystack,
you find the needle.”

[13]        
The closest I could come to finding that any proper form of review of
documents had been made by the plaintiff’s “legal team” appeared at paras. 13,
14, 46 and 47 of the legal assistant’s affidavit wherein she swears that she reviewed
certain documents; there is no indication that counsel has ever done so.

[14]        
The legal assistant swore a second affidavit but for the most part it
falls victim to the same faults and defects as does the first and further
relates conversations with the plaintiff wherein she indicated that material
was sensitive and personal and should not be disclosed. Again there appears
that no critical, legal oversight or review of such assertion was ever
undertaken.

[15]        
I have come to the conclusion that this application is fatally flawed in
that the central issues to such an application are simply not adequately
addressed or supported by the evidence presented or the submissions of counsel
for either party. The application is dismissed without prejudice to the
defendant’s right to reapply on the basis of proper and better evidence — to
which the plaintiff may provide proper responsive material. If such application
is brought it need not be brought before me; this application was brought,
heard and dismissed and any subsequent application must stand on its own accord
and material and be determined on its own merit as a stand-alone application.

[16]        
Each party will bear their own costs for this application.

“Master Caldwell”