2008 BCSC 958 Vavrovics v. ICBC

Before: Master Caldwell

Reasons for Judgment

Counsel for the Plaintiff:	G.A. Smith
Counsel for the Defendant:	E. Segal Agent for Defence Counsel
Date and Place of Hearing:	May 8, 2008
	New Westminster, B.C.

[1] This matter arises from a motor vehicle accident which occurred on November 16, 2004. A tort claim was commenced and is set for trial in late September; this file involves a claim by the plaintiff against ICBC for Part 7 benefits, but no trial date has been set.

[2] In preparation for the tort trial, plaintiff’s counsel had the plaintiff attend upon Dominic Shew of Harbourview Rehabilitation for the purpose of obtaining a Functional Capacity Report (“FCR”). The FCR was prepared on November 13, 2007 and remains subject to a claim of privilege by the plaintiff in the tort file.

[3] Two months prior to the FCR, plaintiff’s counsel requested reimbursement of some $4,415 for chiropractic treatment pursuant to Part 7 of the Regulations. Defence counsel replied in November that payment would be considered following the plaintiff’s attendance at a Part 7 medical examination with Dr. Bishop, an orthopaedic surgeon. The plaintiff attended upon Dr. Bishop on February 20, 2008 but neither a report nor, more importantly, Dr. Bishop’s notes have been provided to plaintiff’s counsel.

[4] Upon receipt of the FCR plaintiff’s counsel provided same to the plaintiff’s GP, Dr. du Plessis for the stated purposes of:

(1) assisting her in her course of treatment of the plaintiff;

(2) to bolster the evidence of Dominic Shew at trial;

(3) to address and meet a possible mitigation defence at trial; and

(4) to strengthen the expert/medical evidence in support of the plaintiff’s damage claims.

[5] Dr. du Plessis responded to plaintiff’s counsel with a three paragraph letter dated January 29, 2008, which reads as follows:

I read the functional capacity report and discussed it with Ms. Vavrocics [sic]. I agree with the recommendations that were made.

1. Physiotherapy and exercise therapy as outlined.

2. Portable TENS machine for her to use at home.

3. Generalized active exercise program created and monitored by kinesiologist.

4. Household help with yard cleaning and house cleaning as outlined 1

5. Vocational counseling. The patient has difficulties with her occupation as Farrier and career counseling is strongly recommended.

I trust that this letter would be helpful in order to provide further care to this patient. Feel free to contact me if any further information is needed.

Dr. C.H. du Plessis

[6] That letter was forwarded to defence counsel on February 21, 2008 in support of a written request for various services. Defence counsel now demands production of the FCR on the basis that privilege was waived by the plaintiff when the FCR was sent to Dr. du Plessis and on the basis that it was reviewed by Dr. du Plessis in coming to her “conclusion”. It is to be noted that there is absolutely no evidence from Dr. Bishop indicating that he requires the report for his purposes.

[7] While the FCR might be of use to Dr. Bishop, it will remain unavailable to him unless the plaintiff is found to have waived, expressly or impliedly, the privilege which attached to it when it was written. To establish an express waiver it is ordinarily necessary to show that the possessor of the privilege knew of its existence and voluntarily demonstrated an intention to waive it: Kamengo Systems Inc. v. Seabulk Systems Inc., [1998] B.C.J. No. 3003 and S&K Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983) 45 B.C.L.R. 218 (BCSC). Counsel for the plaintiff says at ¶13-18 and ¶24 of his affidavit:

13. I sent the FCE to Dr. Du Plessis. As legal counsel I did not consider it to be my role to direct or initiate treatment. I recognized that in her role as care giver Dr. Du Plessis had a responsibility to act in accordance with the treatment needs of her patient. The FCE likely assisted her in this respect.

14. I asked Dr. Du Plessis to meet with her patient and advise me of her recommendations. I advised that I would forward her report to ICBC and seek funding under Part 7 in connection with her recommendations.

15. My principal and dominant reasons for sending the FCE to Dr. Du Plessis were:

a. to obtain a letter to bolster and support the evidence of Dominic Shew at trial;

b. to prevent and/or meet a possible mitigation defence at trial; and,

c. to strengthen the expert evidence in support of the claims for damages.

16. I provided the FCE to Dr. Du Plessis in her capacity as an expert witness in connection with the tort action and the Part 7 action.

17. In sending the FCE to Dr. Du Plessis I was aware of the possibility that I may obtain Part 7 funding in connection with the FCE recommendations. Obtaining Part 7 funding was a relatively minor reason for sending the report to the doctor, because it was my opinion that ICBC was unlikely to provide any such funding at this stage of the tort litigation.

18. Based on my previous experience in dealing with ICBC I considered it unlikely that support for the claims being advanced by the plaintiff, especially in the months leading up to the trial, would arrive in the form of funding from ICBC. In this respect I was aware that the adjuster also had at least two roles – Part 7 adjuster and tort adjuster.

24. It was never my intention to waive privilege over Dominic Shew’s report. For the reasons noted above I considered myself obligated to seek the decision of the treating doctor in connection with the recommendations in the FCE. I further considered it my obligation to then provide the report of the treating doctor to ICBC.

[8] I am not satisfied that the plaintiff waived privilege of the FCR by providing it to Dr. du Plessis for the stated purposes of treatment and possible expert opinion. A waiver of privilege may however be implied by a partial disclosure. Again, in S&K Processors, McLachlin J. (as she then was) said:

In cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive privilege at least to a limited extent. The law then says that in fairness and consistency it must be entirely waived.

[9] The question then becomes, did the plaintiff waive privilege by disclosing, to the defendant, parts of the FCR when disclosing the Dr. du Plessis letter. As indicated by Mr. Smith, the primary purpose of providing Dr. Du Plessis with the FCR was patient treatment and mitigation. The Part 7 import was minimal at best, in fact, the Part 7 issue rested primarily on the medical exam by Dr. Bishop. The letter in my view expresses no actual opinion as contemplated by Rule 40A. In Dhaliwal v. Bassi, [2007] B.C.J. No. 832, Burnyeat J. said at ¶9-10:

[9] While I can conclude that Dr. Passey was "primarily responsible" for the content of his February 2, 2007 opinion, that is not enough. In accordance with the authorities reviewed above, Rule 40A(5) makes no provision for entry into evidence of opinions where there is merely a reporting of the opinion of others or, where, if the opinion of a number of experts is included within one letter, it is not clear which part of the opinion is authored by which expert and the qualifications of each expert and the facts and assumptions upon which their opinion is based are set out in separate statements as is required by Rule 40A(5)(a) and in (b). Despite the inclusion of the words "primarily responsible" in Rule 40A(5)(c) of the Rules of Court, I am satisfied that it was not the intention of the Legislature to allow an expert opinion to be provided without particularizing which expert was providing which portion of an opinion if the opinion was authored by more than one expert.

[10] Unless the authors of all parts of an opinion are known, unless the qualifications of each person contributing to the opinion are known, and unless the facts upon which each of the persons contributing to an opinion are set out, the cross-examination of an expert witness regarding the opinion that had been provided would be impossible.

[10] On such reasoning, the Dr. du Plessis letter is not an admissible opinion but rather is a comment by the plaintiff’s GP to the plaintiff’s lawyer regarding medical treatment. I am unaware of any authority which would dictate that reports which are prepared for purposes of litigation but which are provided to an individuals GP for treatment purposes lose the protection of privilege. No such authority was provided to me. I see the Dr. du Plessis letter as no more than confirmation that such process take place and that Dr. du Plessis intends to use it “…in order to provide further care to this patient.” The provision of the letter to defence counsel was little or no different in my view than providing Dr. du Plessis’ updated clinicals to defence counsel. I cannot agree, without clear authority to the contrary, that a GP’s reference to a privileged report in his or her clinicals would negate the claim of privilege over the expert report.

[11] The application of the defendant is dismissed with costs to the plaintiff in any event of the cause.

“Master Caldwell”