Often during the course of an ICBC injury claim, an adjuster or ICBC lawyer will refuse to produce a statement made by a Defendant with regard to how a motor vehicle accident occurred, citing it as a privileged document.

 

In Canning v. Mann, the Plaintiff was injured in a motor vehicle accident, and consequently commenced legal proceedings. The Defendant provided a statement to ICBC, detailing the circumstances of the accident, however ICBC’S lawyer refused to produce the statement to counsel for the Plaintiff, claiming it to be subject to litigation privilege.

 

The issue for the Court to decide was whether or not the statement in question was prepared for the dominant purpose of litigation.

 

The Court cited the British Columbia Court of Appeal case of Hamalainen for the two part test to consider, namely was litigation in reasonable prospect at the time that the document was produced, and if so, what was the dominant purpose for it’s production ?

 

The key question for the Court to consider was if the statement was prepared for use in order to obtain legal advice, or to conduct or aid in the conduct of litigation. If there was more than one identifiable purpose for the production of the statement, then it could not have been created for the dominant purpose of litigation.

 

In ordering ICBC’S lawyer to produce the statement to counsel for the Plaintiff, the Court commented,

 

[9] The claims centre notes appended to this affidavit discuss tort limits, vehicle damage, liability, and the plaintiff’s injuries, among other things. However, it is not at all clear, from a fair reading of these notes that ICBC created this document for the dominant purpose of litigation such that any future documents that they created, such as the statement that is the subject of this production application, must necessarily be for the dominant purpose of litigation.

 

[10] The defendant has not brought forward evidence that establishes that the statement was produced for the dominant purpose of litigation. The evidence it relies on suggests that there could have been multiple reasons why the claims documents were produced. It certainly does not clearly establish that litigation was the dominant consideration from the date this claims document was produced going forward.

 

[11] I order that the statement of the defendant dated February 19, 2016 be produced to the plaintiff on the basis that the defendant has not established the dominant purpose for its production was to obtain legal advice or aid in the conduct of litigation and it is, therefore, not subject to litigation privilege.

 

When the amendments to the British Columbia Supreme Court Civil Rules came into effect on July 1, 2010, there was a new rule that required parties to disclose the limit of the insurance coverage available to them. Such disclosure is intended to assist parties in assessing their prospects of recovery upon judgment, as well as to encourage settlement of claims where the limits of insurance coverage would play a factor when weighing settlement offers.

 

Rule 7-1(3) of the British Columbia Supreme Court Civil Rules states that, with respect to an insurance policy:

 

(3) A party must include in the party’s list of documents any insurance policy under which an insurer may be liable

 

(a) to satisfy the whole or any part of a judgment granted in the action, or

 

(b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.

 

In Sinnett v. Loewen, the Plaintiff was injured in a motor vehicle collision, and consequently sued for damages. Prior to Examinations for Discovery and the setting of a trial date, counsel for the Plaintiff and ICBC’S lawyer exchanged Lists of Documents, as required under the British Columbia Supreme Court Civil Rules.

 

Counsel for the Plaintiff was not content with the extent of production of the Defendant’s documentation respecting insurance coverage, necessitating an interlocutory application before a Master seeking unredacted versions of any insurance policies and insurance coverage that the Defendant may have. ICBC’S lawyer opposed the application, and sought a dismissal, with an award of special costs.

 

In citing the British Columbia Court of Appeal case of Meghji with respect to judicial consideration of Rule 7-1(3), Master Bouck commented :

 

[15] In its decision, the Court of Appeal takes a broad view of what information should produced pursuant to the above-cited rule. For example, such information is not limited to an actual document detailing a policy of insurance but rather encompasses information about “insurance coverage.”

 

[16] Furthermore, that Court found that all Supreme Court Civil Rules ought to be interpreted in such a fashion as to encourage the settlement of claims: para. 129. Thus, by disclosing their respective insurance coverages (including any UMP coverage available to the plaintiff), the parties in this case will be in a more informed position to reach a negotiated settlement.

 

[17] … there is an obligation on the defendant to list any such documents. If no such document appears on the defendant’s list, the plaintiff may choose to pursue the existence of the documents at an examination for discovery. If listed, the issue of a particular document’s relevancy and thus its admissibility into evidence can still be challenged by the defendant at trial: SCCR 7‑1(4).

 

[18] In the result, there will be an order that the defendant include in his list of documents any insurance policy or certificate of insurance or any other type of document that discloses insurance coverage under which an insurer may be liable to satisfy in whole or any part of a judgment granted in this action or to indemnify or reimburse the defendant for any money paid by the defendant in satisfaction of the whole or any part of such judgment.

 

In Norris v. Burgess, the Plaintiff was injured in a motor vehicle collision, and subsequently commenced an ICBC claim, followed by formal legal proceedings.

 

Prior to trial, ICBC’S lawyer made a formal offer, which was rejected by the Plaintiff. At trial, the jury awarded the Plaintiff much less than the amount of the formal offer. When such circumstances arise, the Court will commonly exercise its’ discretion to strip the Plaintiff of costs and/or award legal costs against the Plaintiff from the date of the formal offer onwards.

 

However, unique circumstances existed in the case at bar.

 

Prior to trial, the Court had ordered ICBC to list and produce surveillance evidence that they had of the Plaintiff in their possession, in order to prevent any surprise or ambush at trial. However, such evidence was not produced by ICBC until the fourth week of the trial.

 

The lack of production of such surveillance evidence, which was noted by ICBC’S lawyer as being harmful to the defence, had many deleterious effects on the presentation of the Plaintiff’s case, including the inability of Plaintiff’s counsel to reference the evidence in opening submissions to the jury; the inability of Plaintiff’s counsel to put the evidence to the Plaintiff in direct examination; the inability of the jury to see the complete picture of the Plaintiff’s injuries; and, the inability of the Plaintiff’s expert witnesses to provide full and comprehensive reports.

 

The Court was very critical of ICBC, finding such conduct to be worthy of punishment in the form of a “special costs” award against ICBC. “Special costs” can be awarded in cases where a party has exhibited particularly egregious and reprehensible conduct.

 

The Court was of the opinion that ICBC showed a “casual disregard” for the court order requiring a listing and production of the surveillance evidence, and ordered ICBC to pay $155,340.86 in “special costs”.

 

[66] ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.

 

[67] A simple “pilot check” by ICBC, possibly in the form of an email or call to Mr. Levy, a review of its paid surveillance video invoices, or a review of its file notes, would have revealed the existence of the 2015 Video. The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.

 

[68] Mr. Miller stated that an ICBC adjuster often handles a large number of files and that this may explain the late disclosure of the 2015 Video. If ICBC adjusters are overworked and therefore prone to make mistakes, then it was incumbent on ICBC, on being told by its counsel of the October 20, 2015 Court Order, to ensure that a mistake had not been made.

 

[69] The late disclosure affected the efficient administration of justice. It required plaintiff’s counsel to consider the plaintiff’s options, and likely discuss and receive instructions on a significant matter just as the plaintiff’s case was about to close, rather than be focused on the conduct of the plaintiff’s case.

 

[76] The reputation of the court was also affected. Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

 

[77] Finally, the video surveillance for all three years was central to the trial generally. Of course, the actual weight given to this evidence remains in the jury room, as it properly must.

 

[78] In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

In Sharda v. Moran, the Plaintiff was injured in a motor vehicle accident, and subsequently commenced legal proceedings. Liability was denied. The Plaintiff was also injured in a second motor vehicle accident, and both actions were consolidated for trial purposes.

 

Prior to trial, ICBC’S lawyer made an application for production of unredacted and unedited medical records.

 

ICBC’S lawyer acknowledged that he could not direct the Court to any evidence in support of his request, simply stating that the defence would like to see the records because they may be relevant.

 

The Court reviewed the affidavit material, which was an affidavit by a paralegal, however noted that the bulk of it was simply attachments in the form of correspondence and expert reports, which had “little if any reference to its import to the application”. The Court noted that no reference was made to MSP records, nor did any of the material in support of the application indicate why the unredacted records were needed.

 

The main argument by Plaintiff’s counsel in opposition to the application for production of the medical records was that they related to matters of a personal and sensitive nature. The Court was critical of Plaintiff’s counsel for not providing any evidence that counsel for the Plaintiff, or other counsel, had reviewed the records, as was their duty, to determine not only that the records were of a personal and sensitive nature, but that the records were also not relevant to the litigation.

 

[12] …… 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.”

 

[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.

In Leach v. Jesson, the Plaintiff was injured in a rear end motor vehicle accident, and subsequently sued for damages. Liability was admitted on behalf of the Defendant by ICBC’S lawyer.

 

Prior to trial, counsel for the Plaintiff brought an application for production of the Defendant’s hospital and ambulance records. Given that liability was already admitted, the application was somewhat of a unique one, also considering the fact that normally an application for production of hospital and ambulance records is brought by ICBC’S lawyer in relation to the Plaintiff.

 

Counsel for the Plaintiff was of the belief that the records would contain information from the Defendant herself as to how exactly the accident happened, the speeds involved, and a description of the force of the accident. The argument was made that this information would be relevant to the injuries sustained by the Plaintiff.

 

The Court was left with balancing the privacy issues of the Defendant, vis a vis the rights of the Plaintiff to have the best evidence available to advance his action.

 

Given that liability had already been admitted by ICBC’S lawyer, the Court could not see how the records that were sought actually related to a matter in question. As such, the application for production of the hospital and ambulance records was denied.

 

[10] In this application, I need to know why that information is relevant and whether it will properly advance the plaintiff/applicant’s case or damage the case of the defendant. I need to look at the issues of privacy and proportionality rules in looking at this disclosure.

 

[11] It is my opinion that the production of the defendant’s hospital records do not relate to a matter in question in this action, because liability for the accident has been admitted. Even if the argument is the injuries of the defendant are relevant to the significance of the impact and statements to third parties relate to how the accident occurred, here liability is admitted.

 

[14] The argument that the plaintiff should have the documents as of right fails the proportionality argument, as the privacy rights should not be abridged without cogent reasons to do so. I do not find there are any cogent reasons to order production of these records, especially since liability is admitted and there is other evidence available to indicate the severity of the collision and the injuries sustained by the plaintiff.

In Gamble v. Brown, the Plaintiff had been injured in two motor vehicle accidents, one in 2009, and one in 2011. The Plaintiff settled her 2009 action before the 2011 accident.

 

Prior to trial for the 2011 accident, ICBC’S lawyer sought an Order from the Court requiring the Plaintiff to sign an authorization addressed to her counsel for the 2009 accident regarding production of the Plaintiff’s file, in particular any briefs, settlement letters, file memos, communications, or similar documents, that touched upon her injuries and the effects of such injuries on her life.

 

Counsel for the Plaintiff took the position that the documentation sought by the Defendant was subject to settlement privilege.

 

ICBC’S lawyer’s argued that there should be an exception to settlement privilege. To do this, ICBC’S lawyer would have to show that there was a competing public interest that outweighed the public interest in encouraging settlement. In this case, the public interest was the potential for the Plaintiff to achieve double recovery, by possibly being compensated for injuries or economic loss which were also encompassed by the later action.

 

The Court denied the Defendant’s application, noting that it was not shown that the public interest in preventing double recovery took precedence over the public interest in encouraging settlement.

 

The Court took note of the fact that some of the Plaintiff’s medical reports, and even one of the Defendant’s own medical reports, showed that the Plaintiff no longer suffered any effects of the 2009 accident at the time of the 2011 accident. Were there to have been an indivisibility of injuries between the two accidents, then the Court’s ruling likely would have been different.

 

[29] In the case at bar, the first accident occurred on March 19, 2009. The subject accident occurred on September 1, 2011. By account of some of her physicians, and at least one expert report prepared for the defendant, the plaintiff was doing well and not suffering any effects from the 2009 accident well before the occurrence of the 2011 accident.

 

[30] As well, the plaintiff has offered the defendant a letter from her previous solicitor confirming the terms of the settlement she received for the injuries she sustained in the 2009 accident, together with medical-legal documents from the previous accident.

 

[31] In this case, I am of the view that the defendant/applicant has not shown that the public interest in preventing double compensation has taken precedence over the public interest in encouraging settlement such that I should order the production of the mediation brief, settlement letter, file memo, communication or similar document prepared by the plaintiff’s previous solicitor.

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.

 

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.

 

 

 

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).

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 decisionthat 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.