2008 BCSC 1542 Joubarne v. Sandes

Before: Master Caldwell

Reasons for Judgment

Counsel for the Plaintiff:	S. Ballard
Counsel for the Defendant:	B.D. Home
Date and Place of Hearing:	September 17, 2008
	New Westminster, B.C.

[1] This application arises from a motor vehicle accident which occurred on March 8, 2005. Liability has been admitted. The trial is set for seven days commencing March 9, 2009. The defendants apply for a variety of disclosure; the plaintiff does not oppose that sought in paragraphs 1-7, 12, and 15, nor does she oppose paragraphs 13 and 14 as they relate to these enumerated and unopposed paragraphs and accordingly those matters can be dealt with as agreed.

[2] The only real dispute surrounds the defendants request for production of materials from previous legal proceedings commenced by the plaintiff. In particular the defendants seek:

(a) a copy of the medical report of Dr. Bloch requested by Ms. Joubarne’s counsel in a pervious proceeding unrelated to this motor vehicle accident (the “Great West proceeding”);

(b) a copy of submissions prepared by the plaintiff, dated July 11, 2005 and September 23, 2005, regarding a claim which she brought against Mr. Murray in the Surrey Registry of the Provincial Court of British Columbia;

[3] Dealing first with the defendants request for examination for discovery transcripts, the defendants’ material indicates at paragraph 30 that “the lawsuit was settled”. A similar issue was addressed by the Supreme Court of Canada in Juman v. Doucette, [2008] 1 S.C.R. 157 wherein Mr. Justice Binnie said at ¶51 and ¶53

51. As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant's privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d'Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.

53. I would not preclude an application to vary an undertaking by a non-party on the basis of standing, although I agree with Livent Inc. v. Drabinsky that success on such an application would be unusual. What has already been said provides some illustrations of potential third party applicants. In this case the Attorney General of British Columbia, supported by the Vancouver Police, demonstrated a sufficient interest in the appellant's transcripts to be given standing to apply. Their objective was to obtain evidence that would help explain the events under investigation, and possibly to incriminate the appellant. I think it would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant's right to silence and the protection against self-incrimination afforded her by the criminal law. Accordingly, in my view, the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the [page187] message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.

[4] I am of the view that, in the circumstances of this case, the implied undertaking survives and should not be ordered to be set aside. On balance, the plaintiff’s privacy interest outweighs the defendants “fishing expedition” as referred to by Binnie J.A. I am also of the view that the same must be said of the medical report of Dr. Bloch. That report was a document created for the previous proceeding. There is no evidence before me to indicate that it was incorporated into the record of that proceeding, in fact I am advised that the action settled before trial. In the absence of evidence to the contrary, I would expect that such report would have been created and received subjected to a claim of privilege; there is no evidence before me as to the waiver of such privilege. The defendants’ application for production of the discovery transcript and the medical/psychiatric report is dismissed.

[5] The defendants’ application for a copy of the plaintiff’s submissions in the provincial court proceeding is, however, a different matter. That action went to trial; the plaintiff apparently made various oral submissions and representations to the court and, I assume, gave evidence. In addition she is said to have provided written submissions dated July 11, 2005 and September 23, 2005. In my view, any undertaking regarding those submissions was spent by their use in that proceeding. There will be an order that the plaintiff provide defendants counsel with a copy of such submissions within 60 days of this order. I have provided for a period longer than the 14 days sought by the defendants to allow for the possibility that the plaintiff does not have a copy of such submissions. In such case the plaintiff is required by this order to make all reasonable efforts to obtain a copy of both submissions, including application to the provincial court.

[6] Costs will be in the cause.

“Master Caldwell”

Citation:	*Joubarne v. Sandes,*
	2008 BCSC 1542