IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160412

Docket: S145650

Registry:
Vancouver

Between:

Jesse Margison by
his committee A.B.

Plaintiff

And

Her Majesty the
Queen in right of the Province of British Columbia,

Defendants

And

Leonard Cardinal

Third
Party

Before:
The Honourable Mr. Justice Affleck

Reasons for Judgment

[1]            
The plaintiff suffered serious injuries when he was assaulted by the
third party, a fellow inmate at the North Fraser Pretrial Centre. He alleges
the Province failed to take reasonable care to prevent the assault.

[2]            
The action has entailed complex and protracted document discovery by the
defendant Province. The plaintiff now applies for further document discovery
focused on the “duty to warn” which it submits was imposed upon the Province as
a matter of law. The duty was to warn the plaintiff of the risk to him of
physical harm. I note that duty is not specifically alleged in the amended
notice of civil claim and the precise content of the duty has not been fully
articulated at this stage of the action.

[3]            
The plaintiff has been provided with many documents by the defendant
which are relevant to the duty to warn. The plaintiff also examined for
discovery the Warden of the North Fraser Pretrial Centre on two occasions in
2015. Questions were asked about the circumstances of the giving of the warning
but the plaintiff now seeks disclosure of further documents about this issue
which he asserts are critical to his case. The plaintiff himself is not capable
of informing his counsel of any of the facts in this matter.

[4]            
The order the plaintiff seeks is for the following documents to be
disclosed:

a.     The
logbooks showing both Mr. Margison and Mr. MacKinnons’ departures and returns
from their respective living units on the day they received the duty to warn.

b.     The meta
data showing each and every time any member of staff accessed Mr. Margison’s
Client Logs during his 2012 incarceration.

c.     The names
of each staff member who accessed Mr. Margison’s Client Logs, how long they
accessed the logs, what they did and how long each accessed session/visits
were.

d.     The
logbook showing both Mr. Cardinal and Mr. MacKinnon’s departures and returns
from their respective living units on the day they received the duty to warn.

e.     The meta
data showing each and every time any member of staff accessed Mr. Cardinal’s
Client Logs from his intake until the end of 2012.

f.      The
complete medical/clinical/nursing records for Mr. Margison for his entire
2010-2012 incarcerations.

g.     The
logbook sign-in sheets showing the name(s) of the police officers who attended
to serve the duty to warn, the date and times of arrival and the times of
departure.

h.     All
documents, paper or otherwise, which record where the police officer(s) went
during their visit to the institution.

i.       All
notes, emails and other documentation showing which staff members were
contacted by the police about the duty to warn, the timing of the visit, who
made the arrangements for the police visit, what rooms or cells were booked for
the visit if any and who were involved in the visit.

j.      
All sign-in sheets, schedules and logs showing all scheduled uses of the
audiovisual rooms on the date the duty to warn was served.

[Plaintiff’s
Application Record, Tab 1, Para. 2(a-j)]

[5]            
The Province advises that the documents referred to in paragraph 2(a) no
longer exist. The Province submits that even if they were available they are
not necessary for the plaintiff’s purposes in regard to the duty to warn
because he has been provided with a transcript of a meeting among himself, Constable
Grewal and Sergeant Hurst of the RCMP which took place on May 28, 2012, when
the warning was given.

[6]            
I accept the assurance of the Province that the logbooks requested by
the plaintiff no longer exist. I also recognize that the transcript of the
meeting is useful to the plaintiff. Whether it is entirely satisfactory to the
plaintiff I am not able to say. Nevertheless, I am not in a position to make an
order for the disclosure of the logbooks referred to in paragraph 2(a) of part
one of the notice of application.

[7]            
The meta data referred to in paragraph 2(b) were described in argument
by Mr. King for the Province as the digital footprint left behind when a member
of the staff of the North Fraser Pretrial Centre searched data. Mr. King
submits the cost of retrieving the meta data would be “significant”, without
specifying what that word means in this context. If the plaintiff insists on
receiving that data the Province submits the plaintiff should pay for its
recovery.

[8]            
On the record before me I am not persuaded the Province must provide the
meta data. The focus of the plaintiff’s present application is the events
surrounding the “duty to warn”. In my view paragraph 2(b) of the notice of
application is overbroad. The plaintiff may wish to refine his request so that
it focuses on the narrow question of the duty to warn. If he does so, and
continues to assert that the meta data is critical to his case, I will hear the
parties again on that issue. I will note that I have been referred by the Province
to a “client log” showing numerous pages of detailed information about contacts
between the staff of the North Fraser Pretrial Centre and the plaintiff and
with other inmates and it may be that the defendant has taken all reasonable
steps to make disclosure of documents showing the times when staff of the
institution had access to the plaintiff’s client logs. If I am mistaken in that
regard and the plaintiff wishes to pursue this matter further I am prepared to
hear a further application. That application is adjourned generally.

[9]            
Subparagraph 2(c) of the notice of application is not a request for
documents. As the Province suggests it reads like an interrogatory. If the
plaintiff wishes to pursue the information requested he must find another means
to obtain it.

[10]        
Subparagraph 2(d) of the notice of application has been abandoned.

[11]        
In my view subparagraph 2(e) suffers from the same overbreadth as subparagraph
2(b). Again the plaintiff must confine his request so that it focuses on the
issue of the “duty to warn” if he wishes to pursue this matter further. The
application in 2(e) is adjourned generally.

[12]        
The Province has agreed to provide the documents requested in paragraph
2(f).

[13]        
In my view the documents referred to in paragraph 2(g) would not assist
the plaintiff. He has the transcript of the occasion on which the duty to warn
was performed. The transcript shows the date and time of that event. If the
plaintiff needs to know the time of departure of the police officers who
attended to serve the duty to warn, that can be achieved on an examination for
discovery or through an interrogatory.

[14]        
Subparagraph 2(h) in essence asks for records showing the various
locations the police officers who gave the “duty to warn” to the plaintiff went
in the institution on the date when they purported to perform that duty. I can
only guess how that information could assist the plaintiff in prosecuting his
case or resisting any pleaded defence. Evidence is needed if those records are
to be ordered disclosed by the Province. I have the same comment about request in
2(i).

[15]        
The requests for documents found in 2(g),(h) and (i) are adjourned.

[16]        
The request for documents in subparagraph 2(j) has merit. There is
uncertainty on the evidence about the location in the North Fraser Pretrial
Centre that the duty to warn was given to the plaintiff. Was it given while the
plaintiff was in an audiovisual room? Was it given in a soundproof room? As I
understand the plaintiff’s position it is that documents relevant to those
questions may be important to the plaintiff when his complaint is that he was
at risk from other inmates who may have overheard the conversation among the
plaintiff, Sergeant Hurst and Constable Grewal. The Province must disclose the
records requested in 2(j).

[17]        
The costs of this application will be in the cause.

“Affleck
J.”