IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Yousofi v. Phillips,

 

2010 BCSC 1178

Date: 20100311

Docket: M081927

Registry: Vancouver

Between:

Shekib Yousofi

Plaintiff

And:

Terry Phillips

Defendant

Before: The Honourable Mr. Justice Hinkson

Oral Reasons for Judgment

In Chambers

Counsel for the Plaintiff

J.M. Cameron

Counsel for the Defendant

S.P. Shariff

Place and Date of Trial/Hearing:

Vancouver, B.C.

March 11, 2010

 

Place and Date of Judgment:

Vancouver, B.C.

March 11, 2010

 


(Judgment on Plaintiff's application for adjournment of trial)

[1]             THE COURT:  I am going to order that the trial in this matter be adjourned generally and that the case be removed from Rule 66 protocol and be dealt with as a normal personal injury case. I will leave it to counsel to set a new trial date.

(Judgment on defendant's application re documents and particulars request)

[2]             THE COURT:  I am going to deal firstly with the motion for particulars.

[3]             The entitlement of a party to particulars is described in Rule 19 of the Rules of Court and is discussed by Mr. Justice Joyce in Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371, beginning at paragraph 9.

[4]             In that case, His Lordship makes the point that:

Particulars are provided to disclose what the pleader intends to prove. How that party intends to prove the material facts and particulars is a matter of evidence. The pleading party is not required to, and indeed, is not entitled to set out in the pleadings the evidence that he or she intends to adduce at trial to prove the facts that have been pleaded.

[5]             In David et al v. Her Majesty the Queen in Right of Canada et al, 2004 BCSC 1306, Mr. Justice Cohen considered the distinction between the material facts and evidence and referred to an earlier decision of Mr. Justice Joyce when he was a master of this court, Firestone v. Smith, [1991] B.C.J. No. 2660 (S.C.)(QL), where Master Joyce said at paragraph 11: 

In my view the concern raised by the plaintiff at this stage is that he does not know but would like to know now what precise evidence the defendant may lead in support of his allegations of fact. In my respectful opinion the plaintiff is not entitled to ascertain the evidentiary basis of the defendant’s case by way of this demand for particulars.

[6]             Turning to the notice of motion for particulars, the particulars sought at a relatively late juncture following examinations for discovery include a request for further and better particulars with respect to:

(a)      The Plaintiff's Past and Prospective Loss of Enjoyment of Life

In my view, that is an inappropriate request for particulars and is a matter that can and should be pursued by way of examination for discovery. In my view, it is not necessary to provide particulars with respect to that head of damage.

(b)      The Plaintiff's Past and Prospective Physical Disability

The injuries alleged by the plaintiff have been set out in the statement of claim and the extent of his disability arising therefrom is not a matter that is required as an item of pleadings. It, too, should be pursued by examination for discovery.

(c)      The Plaintiff's Past and Prospective Loss of Earnings

Insofar as the past loss of earnings is concerned, this is information that can be identified and quantified and should be provided by the plaintiff to the defendant. It is not, in my view, appropriate that it be provided as particulars, but I am satisfied it should be provided in some fashion to the defendant, and I am going to direct that the plaintiff quantify his claim for past loss of earnings and provide that information to the defendant.

Insofar as prospective loss of earnings is concerned, I am not satisfied that that is a matter that can be necessarily particularized, and I leave it to the defendant to pursue that through examinations for discovery.

(d)      The Plaintiff's Past and Prospective Loss of Earning Capacity

Like the prospective loss of earnings, I do not consider this to be an appropriate subject matter for particulars, and it is a matter that can be pursued by way of examination for discovery.

(e)      The Plaintiff's Past and Prospective Loss of Opportunity to Earn Income

This is a head that is hard to distinguish from past and prospective loss of earning capacity. To the extent there is any difference, in my view it should be treated the same as the request for particulars of past and prospective loss of earning capacity.

(f)       The Plaintiff's Past and Prospective Loss of Housekeeping Capacity

This is another matter that in my view does not warrant particularization in the pleadings. It can be pursued through examinations for discovery.

(g)      The Trust Award on Behalf of the Plaintiff's Friends and Family

This, too, is not a matter that, in my view, should be dealt with by way of particulars, with this exception:  The individual or individuals for whom a trust award is claimed should be identified in the statement of claim where the trust award is advanced.

(h)      The Plaintiff's Special Damages

These are matters that should be identified by the plaintiff for the defendant, but not as particulars of the pleadings.

[7]             I have mentioned a variety of matters that can be dealt with by way of examination for discovery. I understand from counsel for the defendant that some of these matters have been pursued by examination for discovery, but complete answers have not been provided. In the circumstances, it is my view that the defendant should be entitled to continue the examination for discovery previously conducted to pursue the areas that in my view should be pursued by way of examination for discovery.

(Judgment on defendant's motion for further production of documents)

[8]             THE COURT:  The defendant seeks a variety of records in a personal injury action which arises from a motor vehicle accident that occurred on May 7, 2006.

[9]             The plaintiff was born, I understand, in Uganda and emigrated to Canada in his late teens or sometime thereafter.

[10]         The defendant seeks a wide variety of records. I will deal with each request.

[11]         The defendant seeks an order that the British Columbia Institute of Technology deliver any and all records it may have regarding the plaintiff within 14 days of an entered order of this court. As I understand it, that application is not opposed. The Institute has been served, so that order will go.

[12]         A second application is for records from the North Burnaby Adult and Continuing Education Centre for any and all records it may have regarding the plaintiff within 14 days. That is not opposed, and the Centre has been served, so that order will go.

[13]         The third application is for the records of the Securiguard Services Limited, who were the employers of the plaintiff at the time of the accident. I am advised that it is the belief of counsel for the plaintiff that that business is no longer operative. I understand that their address for service was used to provide notice of the motion. In the circumstances, I will grant that order, and it may be that if there is no business still operating that it will not be complied with, but that remains to be seen.

[14]         The fourth application is for the records of the Eileen Dailly Leisure Pool and Fitness Centre, the fifth, for the records of the Bonsor Recreation Centre, and the sixth for the records of the Eastburn Community Centre. Each of those centres has been served with notice of the motion. It is not opposed. The records, as I understand it, relate to efforts at rehabilitation by the plaintiff. I will grant the orders sought in the terms sought for each of those institutions or businesses.

[15]         The next is that the plaintiff deliver records to the defendant. The first is the complete police file. I am advised that the plaintiff will consent to an order that those records be produced, but that the police in question have not been served with any notice. So I will adjourn that application generally.

[16]         The next is a request that the plaintiff provide a list of special damages, and I understand that has been done, so that motion is not being pursued. I will adjourn it generally.

[17]         The defendant also requests the following:  copies of any documents relevant to the proceedings from a folder referred to during the examination for discovery of the plaintiff, copies of financial records with respect to monies forwarded by the plaintiff to his relatives in Europe, copies of financial records with respect to monies forwarded by the plaintiff to his relatives in Asia, and copies of financial records with respect to monies related to the plaintiff's school funding May 7th, 2006 to the present. Those applications are opposed by the plaintiff.

[18]         I consider that if the plaintiff was making reference to documents at his examination for discovery that any documents he was referring to should be produced. I do not consider that the financial records concerning monies provided by the plaintiff to his relatives have any real potential relevance to the proceedings and I will dismiss that application.

[19]         The financial records with respect to funding of the plaintiff's schooling have potential relevance, and I will order that they be produced if they exist.

[20]         The next application is for copies of the high school transcripts of the plaintiff for the years 1996 to 1999, which I understand to be records from either Uganda or Pakistan. I do not consider that the issues in the action warrant the expense necessary to try and obtain those records, and I will dismiss that application.

[21]         The next group of documents are records relating to the computer science studies undertaken by the plaintiff in Pakistan or Canada. I will grant an order for production by the plaintiff of any records in his possession that emanate from either Pakistan or Canada, but I will not require that he apply to obtain any records that are not already in his possession.

[22]         The next request is for copies of any and all certificates or diplomas granted to the plaintiff. I consider that to be an unreasonably expansive request and dismiss that application.

[23]         The next group of documents requested are copies of all credit card bills, receipts or other bills from May 6th to the present, copies of all financial documents relating to payments made by the plaintiff for his sister's wedding, copies of all financial documents relating to payments made by the plaintiff for his grandmother's passing, and a schedule of his outstanding debts for the years 2004 to 2009 inclusive. I do not consider that the request for these documents is a reasonable one and I dismiss that aspect of the defendant's application.

[24]         There is a request for a copy of an e-mail sent by a police officer to the plaintiff after he was assaulted in the summer of 2007. If that document is still in the possession of the plaintiff, it should be provided to the defendant. If it is not in his possession, it cannot be.

[25]         Finally, under this group of requests, there is application that the plaintiff produce copies of any and all records relating to his accident of July 6th, 2008 for which he attended at the Royal Columbian Hospital, including, but not limited to, police records and statements.

[26]         The police records, I understand, will be the subject of a proposed consent order, so I will make no order with respect to those. The Royal Columbian Hospital has not been served with an application, so I am not in a position to make any order concerning their records.

[27]         To the extent that there are any other records that can be identified, the defendant will have to pursue that in examination for discovery, because the present description is too broad to be of any assistance.

[28]         Next, the defendant seeks an order that the plaintiff execute and deliver authorizations for production of records from February 24th, 2010. In a case referred to as Stead v. Brown, 2010 BCSC 312 (CanLII), I refused a similar request on the basis that a consent which is not given willingly is not a consent at all. I remain of that view and dismiss the request for consent documents from the plaintiff captured in paragraph 8 of the notice of motion.

[29]         Next, the defendant seeks potential witness information for specific individuals that are identified in the notice of motion. In my view, this is a reasonable request, and if the plaintiff has that information, I order that he provide it through his counsel to counsel for the defendant.

[30]         The tenth order sought is costs of all parties for the delivery of documents for production and inspection be paid forthwith by the defendant and costs of any party for delivery of a copy of the documents paid forthwith after delivery by solicitor for the party receiving such documents.

[31]         To the extent I can understand that, I gather that the defendant is suggesting that the documents that it has sought and that I have ordered production of be paid by the defendant, but if the plaintiff wishes copies of any documents obtained, that the plaintiff or his counsel should pay that cost. If that is the thrust of the tenth numbered relief sought, then I grant that order.

[32]         Finally, the defendant seeks costs of the application in any event of the cause. In my view, there has been divided success on the application and the parties should bear their own costs.

[33]         Does that take care of everything, counsel?

[34]         MS. SHARIFF:  Yes, your Honour. Thank you so much.

[35]         MR. CAMERON:  My Lord, just one last matter we didn't address on the adjournment application and on the particulars application. I would just seek costs in the cause.

[36]         THE COURT:  Well, the adjournment application I probably would have had difficulty granting but for your personal circumstances, Mr. Cameron, and your friend quite properly said that she didn't wish to prevent you from having surgery.

[37]         MR. CAMERON:  Actually, you're -- having made that point, you're quite correct. I withdraw that on the adjournment application. And I'll leave the particulars to your own decision.

[38]         THE COURT:  Well, on the particulars you have succeeded, Mr. Cameron. It did not occupy a great deal of time today. I am going to give you costs on a minimum scale. I forget whether it is (a) or (c), but whatever the minimum is, you can have the costs of that application.

[39]         MR. CAMERON:  Thank you, My Lord.

“Hinkson J.”