IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160406

Docket: M71410

Registry:
Nanaimo

Between:

Jamie Leach

Appellant

(Plaintiff)

And

Hayley Jesson and
Linda Jesson

Respondents

(Defendants)

Before:
The Honourable Mr. Justice Thompson

On
appeal from: An order of a Master, dated February 25, 2016 (Leach v. Jesson,
2016 BCSC 434, Nanaimo Docket No. M71410).

Reasons for Judgment

[1]            
This is an appeal from the dismissal by a master of the plaintiff’s
application for an order for production of redacted copies of the defendant’s
hospital and ambulance records for 20 November 2012, the date of the rear-end
motor vehicle accident that gave rise to this action. The master’s oral reasons
for judgment are indexed at Leach v. Jesson, 2016 BCSC 434. Liability
for the collision has been admitted by the defendants. The trial of this
damages assessment is scheduled for the 18 April 2016 assize.

[2]            
Before the master, the plaintiff sought an order that the records be
sent to the defendants’ solicitors. The order sought allowed for redaction of
information except portions related to the cause of the accident, the severity
of the collision, events leading up to and subsequent to the collision, and the
nature and extent of the defendant driver’s injuries (including her ability to
recall the collision and observe events after it).

The Master’s Decision

[3]            
The master refused the application for production of the hospital and
ambulance records. She held that the hospital records are not relevant. She
went on to hold that if she was wrong on relevance, she would not order
production as it would not be proportional to do so. I quote from the master’s
reasons:

[8]      In ordering disclosure
of these records, I have to be cognizant of the privacy issues for this
defendant, as well as the rights of the plaintiff to have the best evidence
available to him in order to pursue his claim in this matter.

[9]      More important is
knowing that the scope of disclosure sought is proportionate to the matter in
issue. The plaintiff indicates they expect the records to contain information
from the defendant as to how the collision occurred, the speeds involved, a
description of the force on impact, as well as information about whether or not
the plaintiff actually did leave his vehicle after the impact. He argues that
this information is relevant to the injuries sustained by the plaintiff.

[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.

[12]    I agree with the reasoning in the
Gulamani v. Chandra and Chandra case, a 2009 decision of Madam Justice
Arnold-Bailey, reported at 2009 BCSC 1487, where Madam Justice Arnold-Bailey,
in a case where liability was denied, stated at paragraph 44, the defendants’
“medical records relating to injuries allegedly sustained in the accident do
not relate to a matter in question in the action. The injuries of the defendant
are irrelevant to liability for the accident and the damages suffered by the
plaintiff.”

[13]     No case was cited
indicating when and how hospital records of the defendant should be producible,
where liability is admitted. If I am wrong on the relevance of these documents
in this matter, I find that the defendant’s hospital records should remain
private, as it has not been established to my satisfaction that an invasion of
her privacy is necessary in this case.

[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.

Standard of Review

[4]            
The proper approach to an appeal from an interlocutory order of a master
is, subject to two exceptions, to ask whether the master was “clearly wrong.”
The exceptions are when the order is properly characterized as vital to the
final issue in the case, or when the error alleged is one of law — in which case the appeal proceeds by
way of a rehearing on the merits based on the record before the master. See Abermin
Corp. v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188 (S.C.); Northland
Properties Ltd. v. Equitable Trust Co. (1992), 71 B.C.L.R. (2d) 124 (S.C.).

[5]            
The plaintiff submits
that the master’s decision is vital to the assessment of damages because there may
be material in the hospital or ambulance records that might be used to
cross-examine the defendant driver on her evidence that the plaintiff was up
and around shortly after the collision. The plaintiff says that if the
defendant driver’s evidence concerning the actions of the plaintiff is
accepted, then “this could influence the trial judge’s decision on the degree
and causation of the plaintiff’s injuries” and consequently put a damper on his
damages claims.

[6]            
Virtually every interlocutory decision can be argued as potentially
impacting the final outcome of a case. While I accept the proposition that an
interlocutory decision addressing production of documents is capable of being
vital to the final issue, the question is whether the master’s decision to
refuse the order for production of these records in this case is vital to the
damages assessment. In my opinion, it is not vital. In fact, having read the
medical reports that are part of the record, my impression is that the question
of what the plaintiff did or did not do at the accident scene is unlikely to
play any significant role in the outcome of the damages assessment.

[7]            
The plaintiff submits that the master’s finding that the records sought
“do not relate to a matter in question in this action, because liability for
the accident has been admitted” is an error of law. In Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para.
35, Mr. Justice Iacobucci addressed the subject of locating the boundary
between questions of law and questions of mixed law and fact:

Briefly stated, questions of law
are questions about what the correct legal test is; questions of fact are
questions about what actually took place between the parties; and questions of
mixed law and fact are questions about whether the facts satisfy the legal
tests. … I recognize, however, that the distinction between law on the one hand
and mixed law and fact on the other is difficult. On occasion, what appears to
be mixed law and fact turns out to be law, or vice versa.

[8]            
Iacobucci J. went on to explain that questions of statutory
interpretation are generally questions of law. Further, where the point in
controversy might potentially arise in many cases in the future — as contrasted
with a set of facts that is very particular such that a decision about whether
the legal test is satisfied does not have precedential value — it is likely to
be a question of law (paras. 36-37). And this observation appears at para. 37:

Of course, it is not easy to say
precisely where the line should be drawn; although in most cases it should be
sufficiently clear whether the dispute is over a general proposition that might
qualify as a principle of law or over a very particular set of circumstances
that is not apt to be of much interest to judges and lawyers in the future.

[9]            
In Housen v. Nikkolaisen, 2002 SCC 33 at paras. 31-36, the
majority judgment stresses the importance of determining whether a purely legal
question is “readily extricable” from what might otherwise be characterized as
mixed law and fact.

[10]        
I think this is a case that turns not so much on the interpretation to
be given to the provisions of the Supreme Court Civil Rules that bear on
the production of documents in the hands of third parties or the authorities
that consider those provisions, but on whether the facts of this case satisfy
the legal test. Moreover, I think the dispute is over a very particular set of
circumstances that is unlikely to have precedential value. The purely legal
question is not “readily extricable.” I conclude that the issues on this appeal
are ones of mixed law and fact.

[11]        
Accordingly, because the master’s decision is not vital to the final
issue in the case and this appeal raises no readily extricable legal question, the
order appealed from ought to be reviewed on the “clearly wrong” standard.

Issue on Appeal

[12]        
Counsel for the parties prepared helpful written submissions. However,
the focus of the appeal narrowed in oral argument. Mr. de Turberville argues
that the hospital and ambulance records might disclose some ammunition to
attack the defendant’s ability to reliably recall and recount events at the
accident scene, and that the documents sought therefore might assist (directly
or indirectly) in proving or disproving a material fact in relation to the damages
issues in the action.

[13]        
The plaintiff will testify that he was a passenger in the car that was
struck, and that after the collision he was unable to get out of the car. His
evidence will be that he was extricated from the car on a backboard. He says that
whether this is found to be so, or whether he was at the defendant driver’s car
window after the collision inquiring after her health (as the defendant driver testified
at her examination for discovery), may impact on the trial judge’s findings as
to the extent of the plaintiff’s injuries which would, in turn, affect the
damages assessment.

[14]        
The plaintiff argues that the master over-emphasized the defendants’
admission of liability for the accident, and fell into error in finding that
the documents sought are not relevant to any matter in question in the action. The
plaintiff submits that the matters in question relate to the assessment of
damages. The plaintiff submits that if the records disclose the material the
plaintiff hopes to find, the records will assist the plaintiff in neutralizing
the defendant driver’s evidence about the plaintiff’s actions in the aftermath
of the collision and would therefore be relevant to damages issues.

[15]        
The plaintiff cites Biehl v. Strang, 2010 BCSC 1391. The issue in
that case was the reliability of the plaintiff’s memory concerning an oral
contract. The defendants sought disclosure of prescription drug records and
diary extracts related to drug use. Mr. Justice Punnett found the requested
production, as part of an effort to determine if the plaintiff had suffered
damage to his cognitive or memory functions, to be relevant and to be evidence
that might assist in proving or disproving a material fact (paras. 28-29).

[16]        
As to whether production of the documents is proportionate, the
plaintiff says that (1) the defendant was treated in emergency and there will
therefore be a small number of documents with few pages per document; (2) the
redaction process will safeguard the defendant’s privacy; and (3) there is, therefore,
no proper basis for the master’s conclusion that production of these documents
is not proportionate.

Analysis

[17]        
I conclude that the appeal must be dismissed. I do not find it necessary
to address the question of whether the master erred in finding that the
documents sought are not relevant. Because I rest my conclusion on the
proportionality point, I am prepared to assume for the purpose of analysis that
the hospital and ambulance records may contain material that would assist the
plaintiff in casting doubt on the defendant’s ability to recall and recount
what happened at the accident scene.

[18]        
The applicable Supreme Court Civil Rules are R. 1-3 and R.
7-1(18):

Object

1-3 (1) The object of these Supreme Court Civil Rules
is to secure the just, speedy and inexpensive determination of every proceeding
on its merits.

Proportionality

(2) Securing the just, speedy and inexpensive determination
of a proceeding on its merits includes, so far as is practicable, conducting
the proceeding in ways that are proportionate to

(a) the amount involved in the
proceeding,

(b) the importance of the issues in
dispute, and

(c) the complexity
of the proceeding.

Documents not in possession of
party

7-1 (18) If a document is in the possession or control
of a person who is not a party of record, the court, on an application under
Rule 8-1 brought on notice to the person and the parties of record, may make an
order for one or both of the following:

(a) production, inspection and copying
of the document;

(b) preparation of a certified copy that
may be used instead of the original.

[19]        
As I said earlier in these reasons, what the plaintiff did or did not do
at the accident scene is unlikely to play any significant role in the outcome
of the damages assessment. Using the words employed in R. 1-3(2), the importance
of this issue in dispute is slight. The master was quite right in these
circumstances to pay close attention to proportionality. In any particular
case, the decision whether production of documents is proportionate to the
amount involved, the importance of the issue or issues in dispute, and the
complexity of the proceeding will depend on the weight that the judge or master
attaches to the relevant considerations in play in that case. It is essentially
a weighing process. In my opinion, it is the sort of decision that is entitled
to deference.

[20]        
It is true that the quantity of material sought by the plaintiff is
likely to be small and if production were ordered the invasion of the
defendant’s privacy would be unlikely to be of a high order. On the other hand,
the question of what the plaintiff did at the scene of the accident is an issue
of slight importance. On balance, the master evidently concluded that ordering
production would not be consistent with conducting this action in a way that is
proportionate. The defendants have not demonstrated that the decision was
clearly wrong.

Order

[21]        
The appeal is dismissed, with costs to the defendants in any event of
the cause.

“Thompson J.”