2005 BCSC 77 Lewis v. Petryk

Before: Master Keighley

Reasons for Judgment

Counsel for the Plaintiff	H. Mugford
Counsel for the Defendant	T.D. Heuchert
Date and Place of Trial/Hearing:	January 6, 2005
	New Westminster, B.C.

[1] This is an application by the defendant for the following orders:

1. Within seven (7) days of pronouncement of an order of this Honourable Court, Counsel for the Plaintiff shall prepare and deliver to Counsel for the Defendant a complete and unedited copy of the clinical records of Dr. Suzanna Ng, in their possession and listed as document number 19 on the Plaintiff’s First Supplemental List of Documents, and counsel for the Defendant shall be at liberty to examine the copies received by counsel for the Plaintiff from Dr. Suzanna Ng.

2. The costs of this application shall be to the Applicant in any event of the cause.

BASIS FOR THE APPLICATION

[2] As the documents sought are presently in the possession of the plaintiff and her counsel, the application for production is brought pursuant to Rule 26(10) of the Rules of Court which reads as follows:

(10) The court may order the production of a document for inspection and copying by any party or by the court at a time and place and in the manner it thinks just.

Rule 26(7) reads as follows:

(7) A party who has delivered a list of documents to any other party shall allow the other party to inspect and copy the listed documents that are within the delivering party’s possession and control, except those which the delivering party objects to producing, and, when the delivering party delivers the list, that party shall also deliver a notice stating a place where the documents may be inspected and copied during normal business hours.

BACKGROUND

[3] The plaintiff’s claim arises out of a motor vehicle accident which occurred on February 17, 2002. The plaintiff claims damages for personal injuries including: musculo-ligamentous injuries, bruised tail bone, knee pain and disability, emotional and/or psychological difficulties, loss of enjoyment of life, permanent physical disability, and loss of earnings. The defendant has admitted liability for the accident. The parties have not yet set a trial date.

[4] On September 1, 2004, counsel for the plaintiff delivered his client’s First Supplemental List of Documents of the plaintiff which included, as Document 19 of Part 1, the “Clinical records of Dr. Suzanna Ng” for the period 11-19-1992 to 09-18-2001 (the “clinical records”).

[5] On September 13, 2004, in response to a request by counsel for the defendant for a copy of the clinical records, counsel for the plaintiff produced an edited copy on which reference to alleged gynaecological/obstetrical issues had been obscured. On December 7^th, plaintiff’s counsel determined that one of the edited items was relevant and provided a copy of that entry.

[6] The plaintiff takes the position that the obscured portions of the clinical records are irrelevant as well as private and confidential. Her counsel says that the edited portions do not have the potential to either directly or indirectly affect the issues in this case.

[7] The defendant says that other records indicate that the plaintiff experienced stress, anxiety and emotional difficulties prior to the accident. Her obstetrical/gynaecological issues may well, the defendant says, have some effect on her psychological well-being, and should be explored, in light of her claims.

DISCUSSION

[8] Although this application is brought with respect to documents in the possession of a party to the litigation, the comments of Brett, L.J., in Cie Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at 63 (C.A.), as to what constitutes a “relevant” document in the context of documents in the possession of a third party, are of assistance:

It seems to me that every document relates to matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put the words ‘either directly or indirectly,’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.

[9] This passage was approved and applied by the British Columbia Court of Appeal in the case of Dufault v. Stevens [1978] 6 B.C.L.R. 199, 86 D.L.R. (3d) 671. Craig, JA, the author of the decision stated that an applicant need not show that the document would ultimately be admissible at trial. He noted that production might be declined if the order might adversely affect or embarrass non-parties but went on to say:

Subject to these conditions, any party is entitled to an order for production and inspection of a document which may relate to an issue in a trial, notwithstanding that the document may contain some information which is irrelevant or which might be embarrassing to one of the parties.

[10] Similarly, in the case of Stewart v. Ahrens [1991] B.C.J. No. 3576 (B.C.S.C.), Master Tokarek ordered production of the plaintiff’s psychiatric records in spite of the plaintiff’s assertion that some of the things she may have said to, or discussed with her psychiatrist, were embarrassing or revealed on a confidential basis. In the case of Langlois v. Ordorfer and Ordorfer [1978] 6 B.C.L.R. 260 (B.C.S.C.), cited by Master Tokarek, the Court considered an application under Rule 26(11) for the production of records which, the plaintiff feared, would reveal information of prior emotional disorders which were irrelevant to his claim for personal injury. Anderson, J., said as follows:

I do not think it is open to the plaintiff to take this position. The claim for damages relates to damages which are often related to emotional factors, and pre-existing emotional factors, and the defendants, therefore, have a right to peruse all the plaintiff’s medical records in order to properly assess the plaintiff’s claim and to prepare for trial.

While it may be that material that is otherwise confidential may be disclosed to counsel for the defendants and his medical advisors, that is one of the risks taken by the plaintiff when he commences an action. In practice, however, if the medical records turn out in whole or in part to be irrelevant, the disclosure of the confidential information will be a limited disclosure, namely, to counsel for the defendants and his medical advisors. The information disclosed will go no further. The plaintiff cannot, of course, object to disclosures in open court if the information turns out to be relevant to the claim for damages.

[11] In the case of Drager v. McInnes, 1999 Carswell BC 2602 (B.C.S.C.), Master Patterson ordered the production of the plaintiff’s obstetrical and gynaecological records in the face of expert evidence as to relevance: in light of the breadth of the relevancy test and the possibility that there might be evidence in the records which might assist the defendant in the prosecution of its case.

[12] The plaintiff has not sworn an affidavit in opposition to this application. The affidavit of Billie Attig, a legal assistant employed by counsel for the plaintiff indicates, on information and belief, that:

Dr. Ng is the plaintiff’s family doctor and the plaintiff has consulted her for reasons unrelated to the injuries the plaintiff received in the subject motor vehicle accident;

The portions obscured in the clinical records were unrelated to the plaintiff’s injuries and of a highly personal and confidential nature;

The plaintiff has specifically instructed her counsel not to produce the clinical records in unedited form;

The plaintiff specifically instructed her counsel not to disclose to the defendant, in any way, the nature of the obscured information beyond that of using the generic words “gynaecological” or “obstetrical”.

[13] The plaintiff submits that she has met the evidentiary requirement for an order in the form of that introduced by the decision in Halliday v. McCulloch (1986) 1 B.C.L.R. (2d) 194 (B.C.C.A.) as the evidentiary requirements for such an order are not onerous, Grewal v. Hospedales [2003] B.C.J. No. 2462, (B.C.S.C.) and there is evidence that certain of the records might contain information which should be protected from disclosure on the basis of irrelevancy or privacy.

[14] I note that in the Grewal case, the Court had before it affidavit evidence that certain records contained embarrassing information, examples of which the plaintiff particularized. By contrast I am asked here to determine that records of an obstetric/gynaecological nature are, in the absence of any specific evidence as to relevancy or privacy, ipso facto, exempt from disclosure.

[15] Here the application for production is made pursuant to Rule 26(10). The clinical records were listed by the plaintiff without qualification. In such circumstances the plaintiff should generally be required to disclose the document in its entirety: North American Trust Co. v. Mercer International Inc.(2000) 71 B.C.L.R. (3d) 72 (B.C.S.C.), Glaxo Group Ltd. v. Novopharm Ltd. (1996) 70 C.P.R. (3d) 300 (Fed T.D.). In the North American case, Lowry, J., as he then was, said as follows at p. 77, paragraph 13:

Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of the document is producible if a part of it relates to a matter in question. But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues.

[16] Where a litigant feels he or she has good reason to withhold disclosure of parts of a discoverable document on grounds of relevancy, the proper procedure appears to be that the document is to be listed with an appropriate note to that effect. The document should then be produced in edited form for copying with other listed documents requested by the other party. If the other party challenges the manner of editing, the editing party may apply, pursuant to Rule 26(1.2) for an order excusing the editing party from compliance. The court might then inspect the document to determine the validity of the objection under Rule 26(12).

[17] The question is whether a review of the clinical records will assist in determining their relevance, in the absence of expert evidence as to materiality and/or an opportunity to hear the plaintiff’s evidence at trial. I am of the view that it will not. While the review contemplated by Rule 26(12) may be of assistance in determining issues of privilege, it seems to me that issues of relevancy, in the absence of evidence indicating that the records are clearly not relevant, should be left to the trial judge.

[18] That said, I am left with a lingering concern that the clinical records “might” be irrelevant and that, notwithstanding the unqualified listing of these records, the plaintiff may suffer unnecessarily from their production.

[19] There is a further alternative, and one which I find compelling in the circumstances of this case, namely, adjournment of the defendant’s application in order to allow the plaintiff to file an affidavit stating with precision why the redacted items are not relevant to her claim or the defence of it. It may well be that, upon review of this affidavit, the defendant may resolve not to proceed further with her application for production. However, should the defendant not then accept the edited records, the matter may be set down before me for further argument as to the exercise of my discretion.

[20] The defendant’s application will be adjourned generally. The plaintiff will have 14 days from the date of these reasons to deliver the affidavit referred to in the preceding paragraph.

“Master P. Keighley”