IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100129

Docket: 08-2758

Registry: Victoria

Between:

Edward George Gorse

Plaintiff

And:

Darryl Kenneth Straker and Linda Marie Galipeau

Defendants

Before: The Honourable Mr. Justice
Macaulay

Reasons for
Judgment

[1]            
Generally at issue in a contested liability motor vehicle accident claim
are cross-applications under R. 26(11) of the Rules of Court to compel non-parties
to produce documents in their possession or control. Entitlement to an order is
at issue in some cases but more particularly at issue is whether the various
orders should be in “Halliday” or “Jones” format.

[2]            
As is often the case in personal injury claims, the defendants seek
production of a broad array of medical documents from the B.C. College of
Pharmacists, various hospitals, clinics, doctors and other health
professionals. The defendants also seek production of education and employment
records from a variety of sources. The plaintiff seeks access to documents from
two police departments, the Insurance Corporation of British Columbia (ICBC)
and the Superintendent of Motor Vehicles.

[3]            
Assuming the defendants are entitled to production, which was conceded
in relation to many of the applications here, it is somewhat surprising that
the format of the order remains a live issue. Given the length of time that the
two formats have been available, one would expect the law to be relatively
settled. The appellate decisions giving rise to Jones and Halliday orders are
more than 20 years old and the wording of the subrule has not changed in the
interim: Jones v. Nelson (1980), 24 B.C.L.R. 109, 19 C.P.C. 264 (C.A.)
and Halliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194, 14 C.P.C. (2d) 70
(C.A.). Both Jones and Halliday are rooted in the general
principles respecting non-party document production set out in the earlier
Court of Appeal decision Dufault v. Stevens (1978), 86 D.L.R. (3d) 671
(B.C.C.A). In addition, I observe that the Court of Appeal addressed the
question comparatively recently in Grewal v. Hospedales, 2004 BCCA 561,
33 B.C.L.R. (4th) 294.

[4]            
As well, in 2003, the Court of Appeal declined to address the question
on the hearing of three appeals from chambers orders. The appeals were moot as
the documents in question had been produced to the requesting party but, in
dismissing the appeals for that reason, Low J.A. for the court, in Amos v.
Virk, 2003 BCCA 449, 18 B.C.L.R. (4th) 335 at para. 4,
addressed the question respecting the format of the orders as follows:

Nor am I persuaded that there is any need for
us to rule on the issues raised in order to settle the law for the guidance of
litigants and the judiciary. The law is well settled by the three cases I have
cited [Dufault, Jones, Halliday]. The
application of the law so settled depends upon the facts and circumstances in
each case and the proper exercise of judicial discretion.

Nonetheless, as I set out below, significant recurring
aspects of the question continue to require decision in individual cases.

[5]            
Even though the law is settled, a review of the various chambers decisions
relied on by counsel suggests some differences in approach. In part, this is
because the applications are inevitably fact and circumstance specific as Low
J.A. pointed out in Amos.

[6]            
My general conclusions are as follows. It is necessary to start with a
review of the pleadings to determine the matters in issue. Some applications
fail at this preliminary point because it is obvious from the specific nature
of the documents sought that the party seeking production is engaged in a
fishing expedition. There is, at law, no obligation on any third party to
produce irrelevant documents. See Dufault.

[7]            
Assuming the application survives the initial review for relevancy, the
court must then consider the evidence that the parties rely on. It is, at this
point, that some of the potential inconsistency appears in the chambers
decisions. I discuss some of the cases below and list others that I have
reviewed.

[8]            
In short, I conclude that a Halliday order is not a default order for
medical or other records in which the subject of the record has an obvious
privacy interest. The court should grant a Halliday order if satisfied, on the
evidence, that there is a likelihood that a Jones order will also result in the
inappropriate production and disclosure of irrelevant or privileged documents.

[9]            
The problem that frequently presents is that one party seeks access to
records of a non-party respecting the other party that are of a type in which
it is reasonable to expect that some will be relevant and others irrelevant. A
similar problem often arises respecting litigation privilege. It is often
reasonable to assume that counsel for the party, who is the subject of the
records, will have communicated with the non-party concerning the litigation.
Such communications, if in existence, are likely subject to litigation
privilege. It is arguable that, in Halliday, Lambert J.A. anticipated
that the mechanism he described would operate in all such cases without
requiring an evidentiary base. As I set out later, I do not accept that
contention.

[10]        
The threshold for making a Halliday rather than a Jones order is low.
Nonetheless, some admissible evidence is necessary to meet it.

[11]        
This leads to another issue that has attracted attention in the case
law: whether the party who alleges an adverse impact on his or her privacy
interest arising from the production of irrelevant, private information must
personally provide evidence. After all, the affected party is ordinarily in the
best position to explain how his or her privacy interest would be adversely
impacted.

[12]        
In my view, the party alleging the adverse impact should ordinarily
swear an affidavit setting out, at least in general terms, the nature of the
privacy interest but that is not an absolute requirement so long as there is
other admissible evidence on the point. These are not final orders so
affidavits sworn on information and belief are admissible.

[13]        
Keeping in mind that the evidentiary threshold is relatively low, the
evidence does not necessarily need to disclose all the details of the privacy
interest but must be sufficient to reasonably identify the nature of the
interest and why it appears to be unrelated to any material issue in the litigation.

[14]        
I propose now to set out in detail the settled law and to review some of
the differences in the lines of authority to demonstrate how I reconciled them
in reaching my general conclusions. After that, I will address the questions
relating to both entitlement and format. 

[15]        
Generally, the plaintiff says all the orders should be in Halliday
format. The defendants say that the orders should be in Jones format.
Regardless of the form of order, all applications under Rule 26(11) have a
clearly identified legal starting point.

[16]        
Based on Dufault, at 675, the applicant must first satisfy the
court “that the document contains information which may relate to a matter in
issue”, and that the application is not in the nature of a fishing expedition.
This formulation of the test stems from the well-known decision of Compagne
Financière et Commercials du Pacfique v. Peruvian
Guano Co. (1882), 11 Q.B.D. 55 at 63, and permits access to documents that
relate to a matter in issue indirectly as well as directly.

[17]        
In Jones, the plaintiff obtained an order in Chambers for the
production of hospital records. The terms of the order directed the hospital to
deliver certified copies to the solicitor for the plaintiff who was to deliver
copies of the records to the solicitor for the defendant. It is apparent that
the court, at 110-11, relying on a passage in Dufault, at 678, to the
effect that confidentiality is “not a ground for refusing to make the order
also applicable to the defendants”, considered it more in line with the
objective of the Rules, namely the securing of a “just, speedy and inexpensive
determination of every proceeding on its merits”, to make a single production
order in favour of both parties. Justice Seaton, for the court, noted that the
Jones format would likely be limited to cases of the type before the court on
that occasion (at 113). Jones did not involve any consideration of
privacy or privilege.

[18]        
In Halliday, the court also dealt with the production of hospital
records, albeit on the application of the third party insurer, ICBC, but was
directly concerned with the mechanics of protecting claims of litigation
privilege. Justice Lambert, at 198, suggested a “set of mechanics” that he
hoped would “be susceptible to adaptation in varying circumstances.”

[19]        
From this flowed the common Halliday order. If the defendant or third
party brings the application, a Halliday order provides that the records first
go to the plaintiff’s counsel who determines whether to advance any claim of
privilege. The mechanics went a step further. Justice Lambert also contemplated
that plaintiff’s counsel would raise “any claim that a document should not be
produced because it does not relate to any matter in question in the action
within the meaning of the Peruvian Guano case” (at 199). The documents
are then appropriately listed and the list, together with
certified copies of all other documents, are delivered to counsel for
the other parties. In that way, any issues as to the validity of claims for
privilege or lack of relevance under the Peruvian Guano test can be
addressed under R. 26 and the Rules generally.

[20]        
Justice Lambert explained his reasoning at 200, in part, as follows:

I have suggested that the order
should permit decisions with respect to relevance, within the meaning of the Peruvian
Guano case, to be made in the first instance by the patient-litigant,
subject to being disputed by adverse parties. I have done so because it permits
the patient-litigant to avoid disclosing embarrassing or confidential material
that is completely   irrelevant or that can be made completely irrelevant,
if he wishes, by amending his pleadings before the time for delivery of the
documents to adverse parties.

The importance for present purposes is that the mechanics,
and the Halliday orders that are now in widespread use, recognize the important
role of plaintiff’s counsel in determining issues of relevance and privilege.

[21]        
In Grewal, the Court of Appeal returned to the format question.
At issue, originally before a Master, was the appropriate form of order. The
Master made a Jones order. On appeal, D. Smith J., then of the Supreme Court,
allowed the appeal and made a Halliday order. Ultimately, the Court of Appeal
upheld Smith J.’s decision after concluding that her order accorded with the
jurisprudence.

[22]        
Justice Rowles, for the Court of Appeal, described the reasoning of
Lambert J.A. in Halliday as predicated, at least partially, on counsel
for the plaintiff adhering to his or her obligation to determine what is
relevant and to ensure that all documents that are relevant are disclosed. In discussing the records of the plaintiff’s gynaecologist, at
para. 51, Rowles J.A. made the following observation:

Although it was not advanced
before us, I think it might also have been argued, based on the pleadings and
the plaintiff’s affidavit, that no order for production ought to have been made
with respect to the records of … the gynaecologist, for it could readily be
inferred that his clinical records were irrelevant to the claims the plaintiff
was advancing in the lawsuit as revealed in the Statement of Claim.

With respect to some other health
professionals, at para. 52 she pointed out that there was nothing in the
pleadings to “ground a causal relationship between” the matters for which she
saw the doctors and the claims in the lawsuit. She concluded that the Master,
in making a Jones order, erred in principle by not taking those considerations
into account. This statement, in my view, reinforces the need to first consider
the material issues raised in the pleadings and their relationship to the type
of record in respect of which production is sought. 

[23]        
Of significance for present purposes, Rowles J.A. did not find it
necessary to address the plaintiff’s submissions respecting privacy issues
because she had succeeded in her main argument that a Halliday order was
necessary to determine questions of relevance. Nor was it necessary to address
any question respecting the plaintiff’s obligation to present evidence because
the plaintiff did so.

[24]        
When a Halliday order is made, so long as counsel fulfills his or her
obligations, there is, apart from the minimal delay associated with the
two-step process, no prejudice to the opposing party’s discovery rights. If the
opposing party feels that relevant information may not have been disclosed, he
or she can still apply to the court to make a determination, as with other
disclosure concerns. Further, as suggested in Halliday, at 200, any
abuse of the order by overextending claims of privilege or unduly restricting
relevance can be dealt with in a costs order.

[25]        
In my view, privacy considerations add to the justification for making
Halliday orders for the production of medical and some other types of records.
The reasoning in this regard may be followed through various decisions since Halliday,
up to and including the Supreme Court decision in Keller v. Poulin (16
September 2009), Nanaimo S41497 (S.C.).

[26]        
In Hope v. Brown (1990), 52 B.C.L.R. (2d) 234 at 238, 45 C.P.C.
(2d) 22, Master Horn noted that a Halliday order protects the three interests of
discovery, privacy, and privilege, while a Jones order only protects the
interest of discovery. See also Smith (Guardian ad litem of) v. Funk,
2002 BCSC 747, 2 B.C.L.R. (4th) 391 at para. 40; Grewal v.
Hospedales, 2003 BCSC 1624, 26 B.C.L.R. (4th) 70 at para. 18, D. Smith J; and Keller at para. 2.

[27]        
Master Horn’s reference to privacy must be viewed in context. Dufault
requires the production of documents that are relevant as defined in Peruvian
Guano even if private. In other words, the private nature of the document
does not render it irrelevant. The subject matter, regardless of privacy
considerations, determines relevance.

[28]        
If, however, an irrelevant, private document is produced, even
inadvertently, the potential embarrassment and harm is great. That is the
important consideration that Master Horn implicitly identified in Hope. 

[29]        
Of course, discovery of documents is also extremely important. The
proper and efficient administration of justice requires that a defendant be
able to prepare a full and complete defence. It also assists the court in
getting to the truth in order to render a just verdict. There can be no
challenge to these propositions. See Frenette v.
Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647 at 666, 89 D.L.R.
(4th) 653; M. (A.) v. Ryan, [1997] 1 S.C.R. 157, 143 D.L.R. (4th) 1
at para. 38; and finally, Amador v. Mo, [2000]
B.C.J. No. 2256 at para. 10 (S.C.).

[30]        
The potential collision between the need to protect privacy interests in
irrelevant materials, on the one hand, and to ensure adequate discovery as a
facet of the proper administration of justice, on the other, requires a
balancing: see Frenette at 666, and M. (A.) at para. 10. The
Supreme Court judgment in Grewal refers to both these passages (at
paras. 23 and 25 respectively).

[31]        
Justice McLachlin, as she then was, in M. (A.), at para. 38, also noted that an opposing party does not have the
right to delve into private aspects of the litigant’s life simply because a
litigant has made a claim; it must be necessary for the proper disposition of
the litigation. Although not specifically dealing with Halliday orders, M. (A.)
concerned a defendant’s request for disclosure of the plaintiff’s
psychiatrist’s notes under R. 26(11).

[32]        
It is also significant that privacy rights are now entrenched in s. 8 of
the Charter and its values should guide the development of common law.
As pointed out by D. Smith J. in Grewal, at paras. 22 and 27, a Halliday
order ensures that a plaintiff’s records are not subject to a form of
unreasonable search.

[33]        
The safeguards present in Halliday orders ensure the necessary balancing
to provide relevant information while avoiding the disclosure of private,
potentially embarrassing, irrelevant information to an opposing litigant. As
set out earlier, there is a general obligation on counsel to ensure the
disclosure of all relevant documents and information. There is no obligation to
disclose irrelevant, private documents or information.

[34]        
I accept that these are important considerations and that the balancing
referred to is necessary on applications under R. 26(11). I reiterate, however,
that the focus here is on avoiding the production of irrelevant, private
documents. Some documents in the possession of non-parties may contain
intensely private information but if the content properly relates to a matter
in issue, they are producible. 

[35]        
One function of a Halliday order, as part of this balancing process, is
to ensure that irrelevant, private information is not inadvertently disclosed
because of the potential harm. If, however, a Halliday order went in all cases,
even when the privacy interest related to an issue in dispute in the
litigation, such an order would unnecessarily hinder the proper administration
of justice due to the resulting delay in production.

[36]        
For these reasons, I am unable to agree with those who suggest that a
Halliday order should be granted whenever there is a potential privacy interest
in the documents in question. Instead, I conclude that the court must first be
satisfied on the evidence that the record is likely to contain irrelevant,
private information. 

[37]        
In the result, I am satisfied that, when the record sought is likely to
contain not only relevant, producible information but also irrelevant, private
information, the order for production should be in Halliday format. This is
very often the case with medical records and may also be applicable to MSP,
disability, workers’ compensation, employment or educational records. 

[38]        
When the records at issue relate to medical or psychological assessment
or treatment of the plaintiff after a motor vehicle accident, they may well
include relevant, producible documents; irrelevant, private, non-producible
documents; and documents properly subject to litigation privilege. Counsel for
the plaintiff should take care to present evidence to demonstrate that there
is, in fact, some irrelevant, private information or documents, properly
subject to litigation privilege. It is not enough to identify the mere
possibility because the court cannot properly draw an inference from a
possibility.

[39]        
It follows that I accept the contention of counsel for the defendants
that the decision whether to make an order in Halliday format must be evidence
based. In his written submissions, counsel asserts, relying on the Supreme
Court decision in Grewal at para. 17, that:

A bare assertion of privacy or
confidentiality over the records to be produced in the absence of any evidence
regarding irrelevant or privileged information does not meet the requisite
threshold for a Halliday type order.

The passage in Grewal summarizes authority for the
proposition that a bare assertion of privacy or confidentiality, “in the
absence of any evidence regarding irrelevant or privileged information,” is an
insufficient basis for a Halliday order. In the same paragraph, the judge also
referred to authority that an “expression of mere concern” that the records
might contain irrelevant or privileged information is not sufficient.

[40]        
I agree with those statements. It is not enough for a party or, as is
often the case, a paralegal assisting the party’s lawyer to swear an affidavit
raising a mere possibility of privileged or irrelevant, private information. In
reaching this conclusion, I also considered and followed the reasoning in the
following chambers decisions: Wieler v. Bercier, 2004 BCSC 752; Sullivan
v. Lockhart, 2002 BCSC 1891; Bhandari v. Waddington, 2003 BCSC 498,
13 B.C.L.R. (4th) 373; and finally, Ross (Committee of) v. Lai, 2002
BCSC 1864.

[41]        
The evidentiary burden is not an onerous one. The evidence necessary to
support a conclusion that the particular records sought are irrelevant will
vary according to the content of the pleadings and the nature of the record. In
some cases, it may be possible to conclude, on an analysis of the pleadings,
that they are irrelevant and, accordingly, not required to be produced at all.
When it is apparent that some, but not necessarily all, of the records should
be produced, there must be some evidence respecting the content of the records
said to require the review by counsel contemplated by a Halliday order.

[42]        
When the documents at issue are said to be private and irrelevant, it is
usually the party who provides the evidence. For example, in Grewal, the
plaintiff deposed that the consultation with her gynaecologist related to the delivery
of her two children and that, in her view, the records were not relevant to the
claims that she had advanced. If the question relates to litigation privilege,
an appropriate agent or employee of the party’s lawyer should swear to the fact
of the communications said to give rise to the privilege without disclosing
actual content.

[43]        
In the present case, the plaintiff did not provide an affidavit.
Instead, a paralegal in the office of plaintiff’s counsel swore an affidavit
and appended, as exhibits, extracts from the plaintiff’s sworn evidence at
examination for discovery. It would have been preferable, in my view, for the
plaintiff to provide an affidavit but I do not go so far as to say that it is
an absolute requirement. I will later review the adequacy of the extracts and
the other evidence in relation to the individual records sought.

[44]        
The extracts from the plaintiff’s examination for discovery do not cover
all the individual records sought. Instead, the plaintiff relies on the
“Clinical Records –  Protocol” or procedure that
plaintiff’s counsel employs for “sorting, editing, redacting, numbering and
copying clinical and hospital records.” It is the policy in counsel for the
plaintiff’s office “in every instance to edit all of our clients’ medical
records pursuant to the Protocol”. The Protocol is a laudatory professional
example and, I expect, largely effective. A Master of this court specifically
approved it in Slater v. Tanner, 2007 BCSC 1996.

[45]        
The problem is that the Protocol is, unfortunately, just that. It is not
evidence of any fact that assists the court in determining whether a particular
record is irrelevant or privileged. Instead, it is evidence about the steps
that counsel takes after receiving documents from a non-party. It demonstrates
that counsel, at that point, turns his or her attention to the questions of
relevance and privilege. It does not address the questions before me as counsel
for the plaintiff did not obtain the documents in question.

[46]        
The Protocol complies with lawyers’ ethical and professional obligations
respecting documents once in the possession or control of the client party. It
follows that I do not accept Slater as authority for relying on the
Protocol absent any evidence respecting the issues raised by the application.

[47]        
In Slater, the Master made a Halliday order in reliance on the
Protocol but the narrow issue before him was whether the order should extend to
a review by plaintiff’s counsel for relevancy as well as privilege. The court
was not asked to address the evidence issues that I discuss here.

[48]         With
the foregoing in mind, I turn next to a description of the issues and the
individual applications.

[49]         The issues are pretty standard for
an accident claim. The plaintiff alleges that he suffered injuries in an
accident in March 2007. He claims that the defendant, Straker, drove out of a
parking lot and cut in front of his car, causing the collision. Liability for
the accident is in issue. In particular, the defendants say that the plaintiff
was speeding and not paying attention because he was using a cell phone or a
ham radio at the time of the accident. The defendant, Galipeau, is the owner of
the vehicle and there is an issue whether she was negligent in allowing Straker
to drive her vehicle.

[50]         The plaintiff claims to be suffering
from physical injuries to his neck, back, right shoulder, arm and hand, right
leg and knee, and left leg and ankle, and to be experiencing traumatically
induced reflex symptomatic dystrophy (or complex regional pain syndrome).
Additionally, the plaintiff claims he is suffering from shock, sleep
disruption, headaches, a brain injury and psychological injury.

[51]         The plaintiff seeks general
non-pecuniary and pecuniary damages including pain and suffering, loss of
amenities of life, loss of wages, medical and treatment expenses, loss of
savings and interest, future cost of medical treatment and care, loss of
earning capacity and loss of the market value of the vehicle.

[52]         The statement of defence alleges
that any injuries or loss suffered by the plaintiff are the result of
pre-existing conditions or subsequent accidents. It also alleges that the
accident was not the proximate cause of the plaintiff’s injuries. The
defendants claim that even if the plaintiff was injured by the accident, he
failed to mitigate his damages because he did not follow recommended medical
treatment, return to work or seek alternative employment.

[53]         In my view, the defendants failed to
meet the threshold test in Dufault and are inappropriately “fishing” in
some cases. It is incumbent on the defendants to demonstrate a connection to
the issues beyond a mere possibility. I am satisfied that they failed to do so
regarding the following pre-accident medical records:

         
(1)      St. Joseph’s Hospital;

         
(2)      pre-accident
Victoria General Hospital;

         
(3)      pre-accident Royal
Jubilee Hospital;

         
(4)      Dr. Martin, neuorologist;

         
(5)      Dr. Noel, Otolaryngologist;

         
(6)      Drs. Thiessen, Potiuk, Inman and Zedel, all
General Physicians; and

         
(7)      the Mayfair Walk-in
Clinic.

[54]         The limited evidence demonstrates
that the plaintiff had a motorcycle accident more than 20 years ago and
suffered a right hand and shoulder injury. At other times in the past, he
suffered other minor injuries. I do not accept that there is any possibility that
those injuries explain the plaintiff’s current allegations. The plaintiff also
attended hospital in 1999 for an artery blockage and had an angioplasty at
another hospital. He saw the otolaryngologist in 2001 for a consultation and
needle biopsies. The plaintiff attended family doctors in 2005 for obviously
unrelated matters like stitches to a hand, calluses on the feet and an eye
irritation.

[55]         The evidence does not disclose why
the plaintiff attended a family doctor in 2006. The plaintiff was also unable
to say why he attended the walk-in clinic but denied attending for injuries
similar to those that he attributes to the accident at issue.

[56]         It is apparent that the defendants,
for the sake of completeness, are seeking to recreate the plaintiff’s entire
pre-accident adult medical history. I am not persuaded that Peruvian Guano
permits such a broad expedition.

[57]         The defendants also seek production
of patient profile records from the B.C. College of Pharmacists dating back to
January 2002, more than five years before the accident. According to the
defendants, the records are relevant to determining the plaintiff’s pre- and
post-accident medical condition and whether he followed recommended treatments.
The plaintiff testified at his examination for discovery about his medications
at the time of the accident and at the time of his examination.

[58]         In my view, the defendants did not
establish any basis for pre-accident pharmacological records. I accept that the
post-accident records are relevant.

[59]         In spite of my conclusions, I note
that the plaintiff agreed to a Halliday order for most of these records,
including the pre-accident pharmacological records. Where the plaintiff so
agreed, I make a Halliday order. Otherwise, I would deny the applications
described above.

[60]         Earlier, the plaintiff produced the
records of his long-time family doctor, Dr. Miles, for the period June 11,
2002 to October 24, 2008. Now, the defendants seek production of all clinical
records relating to any treatment of the plaintiff from the time of the first
consultation to June 11, 2002. In my view, the defendants have failed to
demonstrate relevance and are embarking on a fishing expedition. In spite of
that, the plaintiff agrees to a Halliday order respecting the pre-June 11, 2002
records. I make a Halliday order in such regard.  

[61]         The defendants also seek
post-accident records from Vancouver General Hospital. Apparently, the
plaintiff was hospitalized at some point for hepatitis after drinking
contaminated water. This too is a fishing expedition. Because the plaintiff
already agreed to a Halliday order, I make such an order.

[62]         The other post-accident medical
records that the defendants seek are as follows:

         
(1)      Dr. Goranson, Psychologist;

         
(2)      Dr. Malcolm, Neuropsychologist;

         
(3)      Dr. Filbey, Physiatrist,

         
(4)      Dr. Lambert, Chiropractor; and

         
(5)      Dr. Sutter, Optometrist.

The
plaintiff agrees to the production of all these records pursuant to a Halliday
order.

[63]         The plaintiff testified on
examination for discovery that Dr. Goranson is his treating psychologist and that
he sees her once per month, but he was unable to say who referred him to her or
when. He claims a psychological injury arising from the accident which he
described as issues with memory and returning to work. While I accept the
possibility that the psychologist’s records also contain irrelevant documents
or materials subject to litigation privilege, there is no proper evidence on
the points. I make a Jones order for the production of these records.

[64]         The records sought from Dr. Malcolm
relate primarily to raw test data. I agree with the defendants that these
records are relevant. I also accept that the clinical notes and records of Dr.
Filbey, Dr. Lambert and Dr. Sutter are relevant. Again, there is a possibility
that these records contain materials subject to litigation privilege, or
irrelevant material, but there is no adequate evidence on the points. I make a
Jones order relating to the production of these records.

[65]         It is hopefully apparent from the
foregoing that the Court wishes to encourage counsel to work out approaches to
the production of potentially sensitive medical records by agreement whenever
possible. The decision in Halliday apparently intended to initiate that
encouragement. I suggest, respectfully, that much time and expense can be
avoided if the plaintiff and defence bars agree on a Halliday order. If they
are unable to do so, counsel will be required to expend more time and energy
creating the necessary evidentiary record than was done in this case.

[66]         I turn next to the defendants’
application for the production of various employment records. These include the
complete records of Human Resources Development Canada; the Canada Revenue
Agency; Worksafe BC and the Workers’ Compensation Board; and finally, pre-accident
employers, Radioworks Communications, Victoria Auto Transmissions, Glen Oak
Ford and Speedy Auto Glass (later Pacific Cellular).

[67]         The defendants say that the
plaintiff’s complete pre-accident employment and unemployment history is necessary
to assess his capacity to work and, accordingly, his alleged loss of earning
capacity and the issue of mitigation. The plaintiff agrees that more current
information is relevant but points out that the records sought go back more
than 20 years.

[68]         The evidence discloses that the
plaintiff worked in the automotive industry until 1986, when he switched career
paths to the cellular and radio industry. He continued working in the latter
industry up to the time of the accident but had not, by the time of his
examination for discovery, returned. The plaintiff began work with his current
employer, Radioworks Communication, in June 2001 and his counsel obtained and
produced the employment file.

[69]         The plaintiff collected unemployment
insurance, as it was then called, for a brief period in the 1980s and also
filled out injury forms for the Workers’ Compensation Board on two occasions in
2004 and 2005 for minor employment injuries that did not result in any time
lost from work. The tax return that the defendants seek is for 2008.

[70]         I am not persuaded that the
defendants met the threshold for the production of any of the records sought,
except the 2008 tax return. The order for the production of the tax return will
be in Jones format.

[71]         There is an issue whether the
plaintiff was using a ham radio in his vehicle at the time of the collision.
The defendants seek production of the repeater records for the date of the
accident. The plaintiff agrees to a Halliday order but offers no evidence about
the existence of irrelevant data. Nonetheless, the records outside the
immediate time of the collision are clearly irrelevant. I make a Jones order
for the production of the ham radio usage records limited to the period fifteen
minutes before and after the time of the collision. I assume that counsel will
agree on the time of the collision.

[72]         The last category of records that
the defendants seek relates to the plaintiff’s academic history. Once again,
the defendants go too far in seeking to reconstruct the entire history. Records
are sought from the Greater Victoria School District No. 61, Vancouver
Island University, Camosun College, Justice Institute of British Columbia and
the Provincial Emergency Program. The evidence indicates that the plaintiff
left school in Grade 11 to become a mechanic. He then immediately completed a
four-year automotive mechanics apprenticeship at Malaspina College, (now
Vancouver Island University) and Camosun College.

[73]         Within the last 10 years, before his
examination for discovery, the plaintiff completed an online course with the
Justice Institute and, since the accident, in 2008, completed a one-day course
with the Provincial Emergency program. These two courses both relate to his
interest in radio and his current volunteering with emergency services. There
is no evidence that the plaintiff was ever employed by either the Justice
Institute or the Provincial Emergency Program.

[74]         I am not persuaded that the
defendants have established any entitlement to these records. The plaintiff is
now age 56. Most of the records are extremely dated. It is unlikely that their
content would assist in assessing the plaintiff’s current capacity to earn
income. While I concede it is possible that there may be something of relevance
in the records, it is incumbent on the defendants to demonstrate more than a
fishing expedition. In my view, they have failed to do so.

[75]         I observe that the office of
plaintiff’s counsel also has in place a Protocol for obtaining and reviewing
employment records. My earlier discussion of the Protocol for medical records
applies in this instance as well. I would not refuse a Jones order on that
basis if the evidence justified ordering production. As on other occasions, the
plaintiff agreed to the production of these records pursuant to a Halliday
order. For that reason alone, I make a Halliday order respecting these academic
records.

[76]         I turn next to the plaintiff’s
applications for the production of records in the possession of non-parties.
These include records relating to the defendant Straker in the possession
of the Victoria Police, the Saanich Police, ICBC and the Superintendent of
Motor Vehicles. Entitlement to the production of these records is at issue.

[77]         It is apparent that the police
records to which the plaintiff seeks access relate to driving incidents or
investigations on occasions other than the accident at issue. These records do
not relate to any material issue in the pleadings. I am not persuaded that the
plaintiff is entitled to production of any of the police records sought.

[78]         It is apparent that the plaintiff
seeks access to the police records in the hope that something will surface to
assist in challenging Straker’s credibility or to demonstrate that he was a bad
driver. I do not read Dufault or Peruvian Guano as extending
relevance that far. If they did, there would be no end to an opposing party’s
right to production. Almost any dealings in one’s life might lead to something
that could be used to challenge credibility.

[79]         As to Straker’s driving on other
occasions, I do not accept that information about that topic will assist in
determining whether he was negligent at the time of the subject accident. See Fisher
v. Andrews, [1983] B.C.J. No. 961 (S.C.) and K.L.V. v. D.G.R.,
[1993] B.C.J. No. 1662, as examples of cases where materials not probative of
the issues in dispute were not producible.

[80]         The plaintiff submits that punitive
damages are an appropriate remedy if the defendant “was wilfully reckless by
operating a vehicle at all.” I need not address that as there is no claim for
punitive damages.

[81]         I also dismiss the plaintiff’s
application for the production of the records of the Superintendent of Motor
Vehicles. These are described in the Notice of Motion as the “complete file” of
Straker’s “operation of a motor vehicle, including but not limited to licencing
status, prohibitions, warnings, suspensions, infractions, offences,
investigations, fines and convictions.” Apart from the evidence of traffic
violations on other occasions that I have already referred to, coupled with the
likelihood that the Superintendent’s office has a file respecting Straker,
there is no further evidence to consider on this application. It fails for the
same reasons as the applications for police records.

[82]         Finally, the plaintiff seeks
production of the complete file records of ICBC from March 6, 2007 to
December 18, 2007, respecting the subject accident. In addition, the
plaintiff seeks production of Straker’s “driving abstract”; the complete file
regarding “all claims by or against [Straker] involving his operation of a
motor vehicle”; and, finally, all expert reports and supporting file material,
except where subject to litigation privilege. The Insurance Corporation agreed
to and has produced some, but not all, of the materials described.

[83]         The evidence in support of the application
amounts to a chronology of the proceeding and a listing of other claims
involving Straker that the plaintiff became aware of as a result of conducting
searches in the Provincial and Supreme Court Civil Registries. The evidence of
ICBC is to the effect that it already produced all relevant records other than
those that are properly subject to privilege.

[84]         The plaintiff contends that the
entirety of the ICBC file up to the time litigation was in contemplation, some
nine months after the accident occurred, is producible. That submission
overlooks the fundamental requirement that only relevant materials need be. I
am not persuaded that ICBC failed to produce relevant documents. I dismiss the
plaintiff’s application regarding the production of the Insurance Corporation’s
files.

[85]         The plaintiff also seeks an order
that Straker re-attend for a further examination for discovery to examine him
respecting documents, including his statement, that ICBC produced after the
initial examination for discovery.

[86]         I am not persuaded that a further
examination for discovery is necessary. The content of the statement is either
consistent or inconsistent with the defendant’s evidence on discovery. Assuming
the latter, cross-examination on inconsistencies is for trial rather than
examination for discovery as it goes solely to the credibility of the
defendant. See Terbasket v. Harvey, [1994] B.C.J. No. 2754, and Hornby
v. Advanced Nutrients Ltd., 2008 BCSC 962.

[87]         In the result, the plaintiff’s
applications are dismissed in their entirety. The defendants’ applications
succeed only to the limited extent and for the reasons set out earlier.

[88]         I return to my suggestion that
counsel should, wherever possible, work through the questions of non-party
document production in a manner that recognizes and balances the often
competing interests. The present applications would likely have been
unnecessary if counsel had done that. In the circumstances,
neither succeeded in their primary positions in any meaningful fashion.
Both sides will bear their own costs as a result.

                  “M.D.
Macaulay,
J.”            

The Honourable Mr. Justice Macaulay