COURT CASES on DOCUMENT DISCLOSURE / PRODUCTION
Under Section 7.1 of the British Columbia Supreme Court Civil Rules, the production of pre-trial documents is limited to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“. The Court also considers the notion of proportionality under Section 1-3(2) when deciding whether to order document production.
THE LAW of DOCUMENT DISCLOSURE under the NEW SUPREME COURT CIVIL RULES
In Edwards v. Ganzer, the Court summarized the law of document disclosure under the new Supreme Court Civil Rules, which became effective July 1, 2010.
[36] The defendant suggests that the law with respect to production of documents under Rule 7-1 of the SCCR requires greater clarification from the court.
[37] In this case, the defendant submits that production of a plaintiff’s MSP and Med Profile records is essentially a given once a demand has been made under Rule 7-1(11).
[38] With respect to the law decided under Rule 7-1, the parties cite the following authorities: Biehl v. Strang, 2010 BCSC 1391; Przybysz v. Crowe, 2011 BCSC 731; Global Pacific Concepts Inc. v. Owners of Strata Plan NW 141, 2011 BCSC 1752; Balderston v. Aspin, 2011 BCSC 730; Zecher v. Josh, 2011 BCSC 311.
[39] Biehl v. Strang is the seminal decision of Punnett J. addressing (mostly) the primary obligation of document disclosure under Rule 7-1(1) (a). The remaining decisions touch upon, if not directly address, the document disclosure obligations under both Rule 7-1(1)(a) and Rule 7-1(14) of the SCCR.
[40] In addition, Master Baker has recently discussed the application of Rule 7-1 in Burgess v. Buell Distribution Corp., 2011 BCSC 1740.
[41] I understand the principles outlined in these various decisions, together with the applicable Rules, to be as follows:
a. The initial production obligation under Rule 7-1 (1) (a) (i) is limited to what is required to prove or disprove a material fact: Biehl v. Strang at para. 14;
b. Rule 7-1(10) allows the opposing party to issue a written demand requiring the listing party to amend the original list and produce documents that should have been disclosed under Rule 7-1(1)(a)(i);
c. In addition, Rule 7-1(11) allows the opposing party to issue a written demand requiring the listing party to amend the list and produce documents which ought to be disclosed under a test “close to” that set out in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63, (the “Guano test”): Global Pacific at para. 9;
d. The distinction between the two types of disclosure provided for under Rule 7-1 is stated in Global Pacific as follows:
The question is whether a document can properly be said to contain information which may enable the party requiring the document either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, or if it may have either of those two consequences. Therefore, it is acknowledged that the initial disclosure under Rule 7-1(1) relates to a materiality requirement, but that a party can apply to the court, as the defendant did here, for broader disclosure pursuant to Rule 7-1(14).
(my emphasis.)
Para. 9
e. Both the demand by the requesting party and the response of the opposing party should be set out in writing addressing the terms and criteria used in Rule 7-1. Whether the demand and response provide sufficient particularity is a matter of the court’s discretion;
f. If an application is brought under Rule 7-1(13) for the listing or production of documents, the court may either order compliance with the demand, excuse full compliance, or order partial compliance: Rule 7-1(14);
g. The objectives of the SCCR, including proportionality, may be taken into account by the court when exercising its discretion under Rule 7-1(14). The proportionality rule can be applied to either expand or restrict the required production of documents: Global Pacific citing Whitcombe v. Avec Insurance Managers Inc., 2011 BCSC 204.
[42] Interestingly, a party may be excused from compliance with Rule 7-1(1) generally, but the court is not given the specific power to order compliance with a demand made for the listing and production of the so-called “materiality” documents. Rule 7-1(14) only specifically allows for an order requiring compliance with a broader disclosure demand under Rule 7-1(11): Global Pacific; Burgess v. Buell Distribution Corp. Whether this distinction is an oversight or intentional is difficult to say. It might well be the former, given that Rule 7-1(13) contemplates a compliance order by the court if a demand for the “material” documents is issued. The distinction is more fully canvassed in Burgess v. Buell Distribution Corp. at para. 15.
[43] In this particular case, the application for production of the documents falls within the parameters of Rules 7-1(11), (13) and (14).
[44] I find that the defendant applicant has set out his demand for production in sufficient particularity to allow consideration of an order under Rule 7-1(14).
COUNSELING RECORDS
In RCL v SCF, the Plaintiff had pre-existing emotional difficulties arising from childhood abuse. The Plaintiff had sought counseling from the Elizabeth Fry Society, and these counseling records were sought by the lawyer for ICBC. The Court denied the application, stating:
[1] This is an application for production of Elizabeth Fry records in a personal injury case. These records relate to the abuse the plaintiff suffered as a child and, presumably, include confidential details of that abuse as well as recommendations of a counsellor. The production is being opposed on the basis that the records are not relevant and that they are privileged. The application is being brought under our new Rule 7-1(1). The relevancy test in the Supreme Court Rules has now narrowed to one of direct relevance, to use the words of the section, “to prove or disprove a material fact”, and it is no longer a chain of inquiry test related to any matter in question. I am not satisfied that these records will assist in proving any material fact.
[2] The defendant already knows that the plaintiff was abused as a child; that this event caused him emotional pain; that he attempted suicide; that he sought help from the Elizabeth Fry Society; that he missed work prior to the motor vehicle accident; and that he suffers from borderline personality disorder and depression. I also note a record that his brother passed away shortly before this accident. The defendant has obtained volumes of clinical records. I do not see how the detail of the counselling at Elizabeth Fry or the details of the abuse are going to add anything to the information they already have. It is clearly a request based on a chain of inquiry that there might be something relevant in those records.
[3] Everyone agrees that the Wigmore criteria that is set out in the Slavutych v. Baker decision is the relevant test to determine if the records are privileged, and I am not going to repeat those four criteria, but criteria 1 to 3 were conceded to exist, and there was some debate in submissions about whether criteria 4 has been met, and that says that (as read in):
The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.
[4] I agree with Mr. Williams that the case of M. v. Martinson is directly on point. Paragraph 4 of the Wigmore criteria has been interpreted in the broad sense as one of a public policy issue. Would the public interest and the proper administration of justice outweigh in importance any public interest that may be protected by upholding the claim for privilege? As Master Joyce (as he then was) said at para. 18 (as read in):
I find there is great public interest in encouraging victims of abuse to seek counselling and to be assured of the confidentiality of that communication. The public interest is served if that confidentiality is fostered to the greatest possible degree.
[5] What of the interests of justice? Is the central issue in this case before me today in this lawsuit the same as might be contained in those records? I think not. There have already been several other sources outlining this plaintiff’s prior psychological problems. These records are at best peripherally related to the material issue. I am not convinced that in the interests of justice, I should breach that confidential relationship at all, not even to review those records myself and certainly not under this new narrow test for document production in our Rules of Court.
[6] So on that basis, I am denying the application.
BANK ACCOUNT STATEMENTS
In Tai v Lam, the lawyer for ICBC brought an application for the production of bank account statements, as the Plaintiff was advancing a diminished earning capacity claim, however such application was denied.
[2] The defence is seeking production of two categories of documents. Firstly, bank statements from February 25th, 2006, to today’s date. It is about four and a half years’ worth of bank statements. Secondly, business records as detailed in para. 2 of the application, specifically those documents which may corroborate deductions made for income tax purposes by the plaintiff as either a self-employed or contracting camera repairman.
[3] If I have it right, the defence wants this information to defend against Mr. Tai’s claim for loss of capacity, among other things, I guess, to defend against his claim that he is unable to undertake a different trade or activity than that which he has traditionally done, i.e., camera repair.
[4] At the application, late, in reply in fact, the first aspect of the application was modified, and Mr. Leoni has offered to take the bank statements on a Halliday basis essentially and that they be delivered to plaintiff’s counsel, redaction occur, and they be sent the redacted copies.
[5] I am not going to make the order sought. I agree entirely with Mr. Bolda’s view of this, which is that it is essentially one production too far, that the information and details sought goes beyond what is reasonable, even on a redacted basis. To ask that all the bank statements be produced is a broad, broad sweep.
[6] Sitting here listening, it struck me, it is as if a party who commences proceedings and says, “look, I have been injured and I have suffered financial losses” is inviting some kind of a Full Monty disclosure, that they are expected to produce all financial information they might ever have out there. Even if it is suggested or offered today that that be done on a redacted basis, it is still, in my respectful view, a requirement for production that is excessive.
[7] It certainly raises big issues about privacy and if one says, “well, redaction would fix that”, what does it take for counsel to sit down and patiently, carefully redact their client’s bank records for four and a half years? If that is not a question of confidentiality and privacy, it is a question of proportionality, which is just as concerning to me today as the other issues.
[8] The banking records. I am also persuaded by Mr. Bolda’s argument, and a common position taken today, that the judgment will be one of assessment, not calculation, that the trial judge will have multiple facets to consider and amongst them the gross income. And while it is for the defence to present and structure its case as it wishes, it seems to me that if it successfully attacks any of these claims for expenses it can only increase Mr. Tai’s income, and I cannot see the value in that perspective.
[9] I know that until recently the standard in this province was Peruvian Guano and locally Dufault v. Stevens, but that standard has changed. There has to be a greater nexus and justification for the production of the documents in a case, and I am satisfied that that standard has not been met here today, so that the application is dismissed.
MEDICAL SERVICES PLAN (MSP) STATEMENTS and PHARMACARE STATEMENTS
In Bains v. Hookstra, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim. The Plaintiff agreed to produce the MSP and Pharmanet printouts since the accident, however ICBC’S lawyer wanted the pre-accident printout as well, which was refused by counsel for the Plaintiff. ICBC’S lawyer brought an application for production of such documentation, claiming that there were pre-existing injuries, however this was refused by the Court.
[14] The applicant must demonstrate a connection between the documents sought and the issues beyond a “mere possibility”: Przybysz v. Crowe, 2011 BCSC 731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53, and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138, at para. 51, “there must be some ‘air of reality’ between the documents and the issues in the action ….”
[15] The plaintiff has clearly denied that he was suffering from any pre-existing injury at the time of the accident in question or for two years prior. He has further denied that he made any WCB claim during that two-year period.
[16] The evidence put forward by the defendant does no more than raise the mere possibility of a prior existing condition. In the circumstances of the plaintiff’s denial, that evidence is insufficient to warrant an order for the production of the documents sought.
In Kaladjian v. Jose, the Plaintiff was injured in a motor vehicle accident. ICBC’S lawyer sought production of the MSP printout, which the Plaintiff’s lawyer refused to produce, on the grounds that it was irrelevant. The Plaintiff had suffered from pre-existing conditions, and ICBC’S lawyer had argued that the Defendant was consequently entitled to the MSP printouts. The Master dismissed the application by the lawyer for ICBC, and this was upheld on appeal to the Supreme Court of British Columbia.
[37] Under former Rule 26(1), a party was required to list:
… documents which are or have been in the party’s possession or control relating to any matter in question in the action, …
[38] Under Rule 7-1(1)(a), a party is now (at least initially) obligated to list only:
(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and
(ii) all other documents to which the party intends to refer at trial, …
[39] That change has altered the test in British Columbia for determining whether any document or class of documents must now (at least at first instance) be disclosed.
[40] As stated by Edwards J. in Creed, the former broad test of relevance for disclosure purposes, emanated from the decision in Cie Financière du Pacifique v. Peruvian Guano Ltd (1882), 11 Q.B.D. 55 (Eng. Q.B.) [Peruvian Guano], which required disclosure of documents that “may fairly lead to a line of inquiry which may “either directly or indirectly enable the party…to advance his own case or damage the case of his adversary”
[41] Rule 7-1(1) changed that test for documentary relevance at first instance by requiring listing only of documents that could be used at trial to prove or disprove a material fact and documents the disclosing party intends to rely upon at trial.
[42] I say that the test of documentary relevance is changed “at first instance” because Rule 7-1 also provides processes by which broader disclosure can be demanded of a party under Rules 7-1(11) through (14) under which the court can decide whether, and if so, to what extent, broader disclosure should be made.
[46] The introduction of the concept of proportionality into the present Rules together with the need for a party to satisfy the court that additional document discovery beyond a party’s initial obligations under Rule 7-1(1) must inform the interpretation of Rule 7-1(18). It also satisfies me that cases decided under the former Rule 26(11) are of limited assistance in interpreting and applying Rule 7-1(18) in motor vehicle cases.
[47] It would, in my view, be arbitrary and inconsistent with the objects of the present Rules if the production of the records of a party to litigation in the possession of third parties were to be subject to a pleadings-only Peruvian Guano based test of relevance when more narrow tests govern the production of a party’s own documents.
[61] After considering the authorities and submissions of counsel, I have concluded that the pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the present Rules and will usually also govern issues concerning the initial disclosure obligations of a party under Rule 7-1(1), if challenged by a party under Rule 7-1(10).
[62] I have also concluded that the narrowing of the discovery obligations of parties and most particularly the removal of the Peruvian Guano “train of inquiry” test of relevance will generally require a defendant to provide some evidence to support an application for additional documents, whether demand is made under Rule 7-1(11) or Rule 7-1(18).
[63] A requirement for evidentiary support recognizes the difference between the scope of examination for discovery and the scope of document discovery under the present Rules and will allow considerations of proportionality to be addressed in specific cases.
[64] A requirement for evidentiary support in requests for additional documents and third party records also prevents against unwarranted “fishing expeditions” based solely upon pro forma pleadings.
In Edwards v. Ganzer, the Plaintiff was involved in a motor vehicle accident, and suffered injuries. ICBC’S lawyer requested that MSP and Pharmacare printouts be produced, however counsel for the Plaintiff refused. The Court, in ordering some of the records to be produced, discussed the issue of requests for records such as these.
[49] With respect to the production of MSP and Med Profile records generally, there has always been a requirement that the applicant provide some grounds justifying production: see Moukhine v. Collins, 2010 BCSC 621 at para. 22.
[50] For example, in Marsh v. Parker, 2000 BCSC 1605, production of a pre-accident MSP record was denied for these reasons:
[7] There is nothing in the affidavit of Ms. Greffard, a legal assistant to defendant’s counsel, or in the exhibits, which suggests that the plaintiff has suffered any previous injury or medical condition which might be relevant to the question of damages. My attention was not drawn to anything in the pleadings raising such issue. Counsel for the plaintiff says that I should nevertheless, make the orders sought because a plaintiff’s pre-accident state of health is always in issue in an action for damages for personal injury.
[8] Counsel for the plaintiff has referred me to Creed v. Dorio [1998] B.C.J. No. 2479 as authority for the proposition that a defendant is entitled to a plaintiff’s MSP printout for any time period during which the plaintiff’s health is in issue. I do not doubt that proposition but the question is, when is the plaintiff’s pre-accident state of health in issue? In Creed v. Dorio it was conceded that the plaintiff’s state of health during the period for which the printout was requested was a fact relevant to her claim. That is not conceded here.
[9] Of more persuasive, and, perhaps, binding authority is Dhaliwal v. Hurst (1982) 26 CPC 151 (BCCA). In that case the British Columbia Court of Appeal rejected the argument that when a claim for damages for personal injury is advanced, the pre-accident state of health of the claimant is always relevant. I take from that decision that there must be something either by way of evidence or by way of the pleadings which raises the plaintiff’s pre-injury state of health as an issue.
(my emphasis.)
Paras. 7-9
[51] Thus, in a personal injury action, a plaintiff’s MSP and Med Profile will not be ordered produced to the defence regardless of the facts of the case. At the very least, there must be some “air of reality” between the documents and the issues in the action: Moukhine v. Collins at para. 22.
[52] Correspondingly, decisions where the production of these kinds of records have been denied will likely have little or no precedential value to the plaintiff here as the facts are bound to differ from those in the case at bar.
[53] Neither of these propositions represents a change in the law since the introduction of the SCCR.
[54] What is new to this discussion is the role that proportionality plays in making an order under Rule 7-1(14). Although not specifically provided for in Rule 7-1, it is only logical that the court should take into account the objects stated in Rule 1‑3 (2) when exercising its discretion with respect to compliance with the broader disclosure demand: see Kim v. Lin, 2010 BCSC 1386 at para. 29. Indeed, those objectives have been considered by the court in the decisions already cited.
[55] In terms of relevancy, the plaintiff has already acknowledged the relevancy of the MSP and Med Profile records by disclosing these records on her initial list of documents. It would seem apparent that the plaintiff concedes that this document ought to be produced under the Guano test.
[56] While the plaintiff’s submissions suggest that privacy concerns come into play, there is no evidence from the plaintiff herself (either directly or on information and belief) which might justify a Halliday form of order: Gorse v. Straker, 2010 BCSC 119 at paras. 12, 13 and 36.
[57] Paraphrasing the test set out in Global Pacific, the issue to be determined is whether the MSP and/or Med Profile records sought can properly be said to contain information which may enable the defendant to advance his case or damage the case of the plaintiff, if it is a document which may fairly lead to a train of inquiry, or if it may have either of these consequences.
[58] Both the evidence and pleadings raised issues of mitigation (i.e. rehabilitation efforts; following professional advice on medication). In that respect, both the MSP and Med Profile record may enable the defence to prove that the plaintiff has failed to mitigate her damages. In addition, these records may serve the purpose described in Creed v. Dorio; that is, to test the credibility and reliability of the evidence presented by the plaintiff to date on her post-accident health.
[59] I have concluded that on the facts of this case, the plaintiff’s MSP record and the post-accident Med Profile ought to be listed and produced pursuant to the demand made under Rule 7-1(11).
[60] With respect to the Med Profile record, I am not persuaded that either the pleadings or the evidence presented on this application provide the requisite grounds to compel an inquiry into the plaintiff’s pre-accident medication history.
[61] Even if the defendant has met the threshold test for production, the court retains the discretion to limit such production of the records, either in part or on the whole.
[62] As the authorities decide, the proportionality test might be applied to either limit or expand document production.
[63] Ms. Edwards’ medical situation has become objectively more complex. The new diagnosis of fibromyalgia stands in contrast to Dr. Filbey’s prognosis and, indeed, the apparently common diagnosis by other medical professionals that Ms. Edwards was experiencing the repercussions of a soft tissue injury.
[64] Whether this new diagnosis impacts on the amount involved in the proceeding is impossible to determine. However, the first indication that the plaintiff might be missing work (and thus present a wage loss claim) came after the fibromyalgia diagnosis. It is not unreasonable to suppose that the new diagnosis will result in the plaintiff seeking more compensation than initially thought by the defendant.
[65] In the circumstances of this case, I find that proportionality test supports the production of the MSP records from December 17, 2009 to date, but the Med Profile only from April 18, 2008 to date. The plaintiff is ordered to list these documents and make the documents available for inspection and copying pursuant to Rules 7-1 (15) and (16).
[70] The all too common pro forma pleading of a pre-existing condition by defendants is not sufficient without more to require disclosure of MSP records which may prove to be wholly irrelevant to the injuries allegedly suffered by the plaintiff.
In the unreported case of Anderson v. Kauhane and Roome, the lawyer for ICBC made an application for the production of MSP and Pharmanet printouts, however the application was dismissed.
The question is: do the documents in dispute, ie, MSP and Pharmanet, come withing the terms of either Rule 7-1(1)(a), ie, documents that can be used by a party of record to prove or disprove a material fact or that will be referred to at trial or, if not, do they come under category 7-1(11), generally, in the vernacular, referred to as the Guano documents…There is no question that there is a higher duty on a party requesting documents under the second category…that in addition to requesting, they must explain and satisfy either the party being demanded or the court, if an order is sought, with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”, and again, there is no doubt that the new Rules have limited the obligation for production in the first instance to the first category that I have described and has reduced or lessened the obligation for production in general…
The question today is, would these documents prove a material fact if available? I think not….I am not satisfied that at this juncture they can or will prove a material fact…
