2005 BCSC 580 Reischer v. Love

Before: The Honourable Mr. Justice Bouck

Reasons for Judgment

Counsel for the Plaintiff/Respondent:	D. McLeod
Counsel for the Defendants/Applicants:	M.J.C. Smith
Date and Place of Trial/Hearing:	20050111
	Victoria, B.C.

INTRODUCTION

[1] In this hotly contested personal injury action, the defendant seeks three interlocutory orders. One is for a further psychiatric assessment of the plaintiff. The second is for production of third party documents. The third is for a continuation of the plaintiff’s examination for discovery.

[2] Counsel for the defendants on this application is not the same person as counsel of record.

FACTS

[3] Ms. Reischer’s Statement of Claim alleges that she was injured in an accident at Courtenay, B.C., on 21 October 1999 when an automobile driven by the defendant Joshua Robert Love collided with the rear of the motor vehicle driven by the plaintiff. The defendants deny liability. I will first deal with the facts relating to the three issues mentioned above: A Further Psychiatric Assessment; Production of Documents; Continuation of the Plaintiff’s Examination for Discovery.

[4] On 26 June 2001, Ms. Reischer underwent a medical assessment by Dr. H. Davis, the defendants’ psychiatrist. In December 2001, Ms. Reischer’s daughter became an incomplete quadriplegic as a result of a motor vehicle accident. On or about 21 July 2003, Ms. Reischer was involved in another motor vehicle accident and brought a civil action to recover damages for the consequences to her health.

[5] Following Dr. Davis’ 26 June 2001 examination, numerous hospital and clinical records became available. They show the plaintiff received approximately 36 emergency, ambulance and hospital attendances between 16 May 2001 and 26 July 2003. From July 2003 until 20 September 2004 she attended at St. Joseph’s General Hospital in Courtenay, B.C., about 21 times for various complaints including stress. Between 12 April 2002 and 21 July 2003, she attended four times on a Dr. Konway of Courtenay Medical Associates.

[6] As a result of an Order made on 9 July 2003, the records of North Island Mental Health and Addiction Services indicate she received assistance from it on 2 October 2002 and 4 October 2002. It seems that defence counsel seeks the production of updated and unedited medical records of Courtenay Medical Associates, Dr. D. Konway and St. Joseph’s Hospital. He also wants the plaintiff’s Pharmanet Medication Profile from 1 September 1995 plus Ambulance Crew Reports arising from ambulance attendance on her following the accident.

[7] Plaintiff’s counsel practices in Victoria, B.C. Defence counsel practices in Campbell River, B.C. They agreed to the examination for discovery of Ms. Reischer at Courtenay, B.C., on 5 November 2004. It did not proceed due to Ms. Reischer’s unexpected hospitalization. They then got into a correspondence dispute as to whether the discovery should take place at Courtenay, B.C., on 15 and 16 December 2004, on 16 and 17 December 2004 or on 16 December and until noon on 17 December 2004.

[8] Plaintiff’s counsel agreed to change the discovery dates from 15 and 16 December 2004 to 16 and 17 December 2004 in order to accommodate defence counsel. However, defence counsel advised plaintiff’s counsel that he would be adjourning the discovery on Friday, 17 December 2004, at noon because he was not available that afternoon due to “a previously scheduled matter”. Defence counsel then took out an appointment to examine Ms. Reischer for discovery on 16 December 2004. Counsel for Ms. Reischer insisted that the discovery continue for the scheduled two days if necessary.

[9] The discovery began at 10:00 a.m. on 16 December 2004. Defence counsel partially completed his questions by 4:15 p.m. that day. He then said he did not wish to continue on the morning of 17 December 2004 because he did not have all the material for that purpose. Plaintiff’s counsel advised defence counsel that Ms. Reischer would not attend to complete her discovery unless the defendants obtained a court order.

[10] Unfortunately, the affidavits in this motion contain many inadmissible statements. In particular, they recite hearsay without properly identifying the person whose information the deponents relied upon. They also contain inadmissible personal opinions. All of these defects were enough to dismiss the applications: Ulrich v. Ulrich, 2004 BCSC 95. However, since neither counsel objected to these significant defects I assume they both agreed to the truth of all the facts contained in their opponent’s affidavit(s).

ISSUES

[11] 1. Are the defendants entitled to a second psychiatric examination of Ms. Reischer?

2. Are the defendants entitled to production of the third party documents mentioned in this application?

3. Are the defendants entitled to a continuation of Ms. Reischer’s examination for discovery?

ANALYSIS

1. A Second Psychiatric Examination of Ms. Reischer

[12] Rules 30(1) and (2) are the applicable rules. They read:

30 (1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.

(2) The court may order a further examination under this rule.

[13] Apparently, there is no dispute concerning issues that might arise under Rule 30(1). The only difference between the parties is whether I should exercise my discretion and order a second examination under Rule 30(2).

[14] Case law indicates that additional medical examinations are discretionary. Master Brandreth-Gibbs has written extensively and helpfully on this issue. In Trahan v. West Coast Amusements Ltd., 2000 BCSC 691, at paras. 48 and 50, she refers to the case law and sets out the guiding principles. For convenience, I will paraphrase them:

• The discretion must be exercised judicially on the basis of the evidence produced;

• A second examination may be appropriate where there is some question which could not have been dealt with on the first examination;

• A second examination is not allowed just because the magnitude of the loss is greater than what was previously known;

• Passage of time alone is not a sufficient reason to order a second examination;

• Where diagnosis of an infirmity is difficult and existing assessments are aged, a court may order a second examination;

• Differences of opinions between medical professionals is not sufficient reason to order a second examination where the first examiner could have discovered the issue on the first examination.

[15] It appears that on 26 June 2001, Dr. Davis could not do a complete assessment of Ms. Reischer’s psychiatric condition because of late discovery of hospital records and the like. Thus, the defendants could not then determine how her psychiatric condition may have affected the physical and emotional injuries she claims she suffered following the accident.

[16] This dispute falls within the discretionary principle of allowing a second examination because diagnosis of Ms. Reischer’s infirmities is difficult and Dr. Davis’ 26 June 2001 psychiatric assessment is now aged by almost three years.

[17] For these reasons, I grant the defendants' application for a second psychiatric examination under Rule 30(2).

2. Disclosure of Third Party Documents – Rule 26(11)

[18] Defendants and plaintiffs may apply under Rule 26(11) for disclosure of third party documents. In most instances, the defendant makes the application. This is the case here. Therefore, I will structure the analysis based on the defendant’s right to disclosure. There may be some differences in the details when a plaintiff asks for disclosure.

[19] There are at least four ways a defendant may obtain production of third party documents under the common law and the Rules of Court. The first is by interviewing the witness who allegedly has the documents. The second is by obtaining an order to cross-examine or depose the witness under Rule 28. The third is to subpoena the witness to appear at the trial and bring with him or her documents relating to the matters in question under Rule 39. The fourth is a proceeding under Rule 26(11). I will deal with each of these methods in that order.

(a) Pre-trial Interview of a Witness

[20] There is no property in a witness or in any documents a witness lawfully possesses, even though that witness may be called to testify on behalf of the other party: Cross on Evidence, 7th ed. (London: Butterworth's, 1990) at page 441-442:

If a third party is consulted by a legal adviser for the purposes of litigation, perhaps as a potential witness, a question may arise as to the extent to which privilege can be claimed in respect of communications to him. Since there is no property in a witness, the third party is compellable. He is then free to testify, subject only to the ordinary operation of legal professional privilege, which will not protect documents submitted to him for expert advice, not otherwise protected.

[21] If a third party may disclose information about a defendant at trial, there does not appear to be any common law reason why the third party cannot disclose the same information before trial.

[22] When a plaintiff puts his or her medical condition in issue, there is no longer any privacy or confidentiality attached to the plaintiff’s medical records: Cook v. Ip (1985), 52 O.R. (2d) 289 (C.A.) at 292:

... The production of medical records is thus fundamental to a court’s determination of the nature, extent and effect of the injuries which may have been suffered and the appropriate measure of damages flowing from them.

It is also important to the parties that they have early production of these documents. Settlement of disputes at an early date is of great benefit to the parties and to the judicial system. In order to make an informed, fair and just settlement, counsel for the parties must be in possession of all pertinent material.

No doubt medical records are private and confidential in nature. Nevertheless, when damages are sought for personal injuries, the medical condition of the plaintiff both before and after the accident is relevant. In this case, it is the very issue in question. The plaintiff himself has raised the issue and placed it before the court. In these circumstances there can no longer be any privacy or confidentiality attaching to the plaintiff’s medical records.

[23] Once plaintiff patients put their health in issue, they waive any claim to confidentiality: Hay v. University of Alberta Hospital (1990), 69 D.L.R. (4th) 755 (Alta Q.B.) at 761 per Picard J.:

I find that the right of the patient to confidentiality ceases when he puts his health in issue by claiming damages in a lawsuit … The patient cannot use confidentiality to preclude the normal operation of the legal process and the adversary system. ...

[24] A claim of confidentiality by a third party witness, such as a doctor or hospital official, is not protected by any legally recognized privilege: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworth's, 1999) at para. 14.11:

Although confidentiality is the cornerstone for the protection of communications within particular relationships, confidentiality alone is not sufficient to attract privilege.

[25] Among other authorities, the learned authors rely upon two cases. In D. v. National Society for the Prevention of Cruelty to Children, [1977] 1 All E.R. 589 (H.L.) at 596 c-d, Lord Diplock commented:

… but as I have already indicated there is the authority of this House that confidentiality of itself does not provide a ground of non-disclosure …

[26] And, in Re: MacMillan Bloedel and Assessors (1981), 130 D.L.R. 675 (B.C.S.C.) at 681, McEachern C.J.S.C. discussed at length the same concept and concluded:

… it is clear that confidentiality alone does not create privilege or immunity.

[27] Since the common law allows a party to interview any potential witness before trial, it seems the defendant may interview a plaintiff’s doctor in a personal injury action before trial: Hay v. University of Alberta Hospital, supra, at 758:

... The rules set out the procedure for handling expert evidence and assembling reports, documents and records of physicians. There is no provision, however, for the type of ex parte interview that is sought in this application. The mere absence of such a provision does not mean that the rules have abrogated the right to contact a witness with a request for such an interview. An interview with a witness can be an important and practical method of preparation for trial and is consistent with the aim of the Rules of Court in assisting the adversarial system to operate fairly and ensuring that there is a full and efficient disclosure of all material facts to the court.

[28] On these authorities, a defendant may interview before trial the plaintiff’s doctor, hospital officials and any other person who may have information relating to the matters in question in this action.

[29] A cautionary warning: provincial and federal privacy legislation may affect this process in the absence of a court order. A defendant who wishes to interview potential witnesses without first obtaining an order should examine the provisions of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, the Personal Information Protection Act, S.B.C. 2003, c. 63, and the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.

[30] When interviewing potential witnesses, a defendant may request access to any medical or other records the witnesses control relating to the action. The witnesses may decline the request. If they do, the law provides other means of obtaining the information.

(b) Deposing a Potential Witness - Pre-Trial Examination of Witnesses – Rule 28.

[31] Rule 28 gives a defendant the right to apply for an order to examine any person before trial if that person may have material evidence relating to a matter in question in the action: Rule 28(1). There is one restriction. A defendant may not examine an expert retained by the opposing party in anticipation of litigation unless the defendant cannot obtain facts and opinions on the same subject by other means: Rule 28(2).

[32] Before a court will grant such an order, the defendant must prove that the witness refused or neglected upon request to give a responsive statement: Rule 28(3)(c).

[33] On the assumption that a non-expert witness has documents relating to a matter in question in the action, the failure of the witness to produce the documents on request would seem to constitute a non-responsive statement under Rule 28(3)(c).

[34] Once the court makes an order, the subpoena served on the witness may require the witness to bring to the examination any document in his or her possession relating to the matters in question in the action: Rule 28(5)(a).

[35] In this way, a defendant may acquire production of third party documents that are not privileged.

(c) Production of Third Party Documents at the Trial Under Rule 40(39)

[36] By means of a subpoena, a defendant may require any person to bring to the trial any document in the person’s possession or control relating to the matters in question: Rule 40(39)(a). It reads:

40. (39) A party, by subpoena in Form 21, may require any person to bring to the trial

(a) any document in the person’s possession or control relating to the matters in question, without the necessity of identifying the document …

[37] Usually, this rule applies to defendants who wish to put into evidence documents under the control of a reluctant witness as part of their case. However, the words of the rule are flexible. Before the plaintiff begins presenting his or her evidence, arguably, the rule allows a defendant to subpoena a witness in order to examine the documents in the witness’s possession.

[38] Once the witness takes the stand and produces the documents, the court may then order the marking of the documents as exhibits for identification. Both parties may then examine them and use them for their own purposes.

[39] Before the trial judge admits them into evidence, he or she decides whether they are proven and relevant to any fact in issue.

(d) Application for Production of Documents - Rule 26(11)

[40] These defendants apply for an order under Rule 26(11) that the third parties Courtenay Medical Associates/Dr. D. Konway, St Joseph’s General Hospital, College of Pharmacists of B.C. and the British Columbia Ambulance Service produce to them as of the dates specified in the Notice of Motion, their records relating to Ms. Reischer. Rule 26(11) reads:

26 (11) Where a document is in the possession or control of a person who is not a party, the court, on notice to the person and all other parties, may order production and inspection of the document or preparation of a certified copy that may be used instead of the original. An order under Rule 41 (16) in respect of an order under this subrule may be made if that order is endorsed with an acknowledgment by the person in possession or control of the document that the person has no objection to the terms of the proposed order.

[41] It is the position of the defendants that they only have partial production of Ms. Reischer's third party records. The plaintiff does not object to producing some of these records but she wishes to edit them before sending them to the defendants. The defendants seek an order that the third party send the documents directly to them.

[42] Since the third parties did not appear on this motion, they apparently do not object to disclosing the documents.

[43] Ordering production of third party documents is discretionary. Many judges and masters have written helpful judgments on the interpretation of Rule 26(11). In most instances, it is not a question of a defendant’s right to obtain disclosure rather, it is a question of the mechanics of the disclosure.

[44] In Halliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194, our Court of Appeal dealt extensively and helpfully with the issue. With respect to embarrassing information contained in third party documents, at p. 196, the court seemed to accept the reasoning of Craig J.A. in Dufault v. Stevens (1978), 6 B.C.L.R. 199 (C.A.), that embarrassing information concerning the patient was not a relevant consideration:

… embarrassment to a party to the litigation ought not to be a relevant consideration for the chambers judge.

[45] As to privileged communications, the court said at p. 198 that the adverse party to the application has the right to edit the document before sending it to the applicant:

… the patient-litigant … or his solicitor must make the first determination of whether the document is within the privilege.

[46] When forwarding the documents to the applicant, the adverse party must properly describe any edited claim for privilege: p. 198. Should the adverse party object to those reasons he or she may then apply to the court to settle the issue:

… any document for which the privilege is claimed should be properly described to all adverse parties and the reasons for non-disclosure should be set out. That would then permit an application to the court to settle any disputed question on the claim of privilege.

[47] The patient litigant may edit out any information that discloses embarrassing or confidential material, p. 200:

… the order should permit decisions with respect to relevance, within the meaning of the Peruvian Guano case, to be made in the first instance by the patient-litigant, subject to being disputed by adverse parties. I have done so because it permits the patient-litigant to avoid disclosing embarrassing or confidential material…

[48] Rule 26(1) concerns party versus party documents. It requires a party to disclose to the other party documents “relating to any matter in question in the action”. Rule 26(11) deals with third party documents, not party versus party documents. It does not contain the quoted words mentioned in Rule 26(1).

[49] Halliday v. McCulloch seems to read those quoted words into Rule 26(11) because they were part of then Form 89 demanding discovery of documents in the possession or control of another party. Halliday v. McCulloch suggests those words in Form 89 dealing with party versus party documents should be contained in an order for production of third party documents under Rule 26(11), pp. 198-199:

2. If the chambers judge decides that the case is one where an order under R. 26(11) should be granted, in relation to medical records, and if, on the application, the patient-litigant whose records are sought asserts a claim of litigation privilege, then the Jones v. Nelson form of order should be adapted, as contemplated by Seaton J.A., to the new circumstances of a claim of litigation privilege so that the order would require:

…

(c) the compilation, from the required records, of a list of documents or supplementary list of documents, by the patient-litigant or his solicitor, in accordance with R. 26(1), (13) and Form 89, including:

…

(ii) any claim that a document should not be produced because it does not relate to any matter in question in the action within the meaning of the Peruvian Guano case …

[50] Today, a party must use Form 92 of the rules as a vehicle to demand discovery of documents from another party under Rule 26(1). Form 92 requires the opposing party to “make discovery of all documents which are or have been in your possession or control relating to any matter in question in this action ...”

[51] The full name of the Peruvian Guano case is Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.). It interpreted the meaning of the English Rules of the Supreme Court, 1875, Order XXI, Rule 12. That rule is similar to our Rule 26(1).

[52] In Peruvian Guano, the defendants asked the plaintiff to deliver a further and better affidavit of documents. The plaintiff defended on its plea that it had no further documents in its possession “relating to matters in question in the action”. At pp. 62‑63, the court gave those quoted words the following wide interpretation:

… the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and … every document relates to the 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 in 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 …

[53] In Halliday v. McCulloch, supra, at p. 200, the court held that the plaintiff should first decide whether any of the third party documents fall within the Peruvian Guano disclosure rule. It went on to say that the initial vetting by the plaintiff would allow the plaintiff to avoid disclosing any information of an embarrassing or confidential nature that is completely irrelevant.

[54] Rule 26(11) does not specifically give a plaintiff the right to edit third party documents on the grounds of privacy or relevancy before sending them to the applicant. As to privacy, the common law does not protect plaintiffs from the consequences of third parties disclosing to defendants the contents of documents relating to the plaintiffs.

[55] The Privacy Act, R.S.B.C. 1996, c. 373, creates a civil cause of action for anyone that violates the privacy of another person: s. 1(1). However, it is not a violation of a person’s privacy if the act or conduct is authorized by law or by any process of a court: s. 2(2). In this case, Rule 26(11) authorizes the production of the third party documents to the defendant. Hence, Ms. Reischer has no right to resist production of third party documents relating to her physical and mental health on the grounds of privacy unless that privacy is protected by other statute law such as the: Freedom of Information and Protection of Privacy Act, the Personal Information Protection Act, and the Personal Information Protection and Electronic Documents Act.

[56] Rule 26(11) is part of the discovery process and not part of the trial process. Our Supreme Court Rules encourage full and open disclosure during the discovery process: Homalco Indian Band v. British Columbia (1998), 56 B.C.L.R. (3d) 114, [1998] B.C.J. No. 2102 (B.C.S.C.) at para. 17. Rule 26(11) does not specifically restrict the production of third party documents based on a relevancy objection. Instead higher court decisions apply the pre-trial Peruvian Guano test. In essence, that test restricts production of third party documents where the documents have no investigative value to the defendant.

[57] Thus, Rule 26(11) catches a broader group of documents than just those that a court may consider relevant at a trial. Sopinka, supra, at para. 2.35 defines relevance (in the context of a trial) as follows:

For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter.

[58] A judge decides the relevance of documents presented at a trial for admissibility purposes after hearing both parties. According to Halliday v. McCulloch, without ever hearing from the defendant, the plaintiff initially decides three things. First, whether the third party document is privileged. Second, whether the document has any investigative value to the defendant. Third, whether the document contains information of an embarrassing or confidential nature.

[59] One might wonder how a plaintiff knows everything about the defendant’s case in order to make the difficult judgment call as to whether a third party document has any investigative value to the defendant. It may be asking too much of a plaintiff to err on the side of the defendant if the call is close. One might also wonder how a lay litigant plaintiff could fairly draw these exquisite distinctions.

[60] With great respect, it does not seem possible for a plaintiff to know all about the defendant’s case so that he or she is able to say with confidence that a particular document might or might not have any investigative value to the defendant. A plaintiff may not be fully informed about the defendant’s case during pre-trial discovery. Plaintiffs and defendants have no right to depose expert witnesses before trial. Hence, they do not know the exact nature of the other party’s expert. They only find this out with the production of expert reports 60 days before trial: Rule 40A(2).

[61] Apart from solicitor-client privilege, it is not clear what other legal privilege Ms. Reischer can rely upon in resisting disclosure of all information contained in the third party documents. In Halliday v. McCulloch, supra, at p. 196, the court seems to refer to solicitor-client privilege when mentioning “litigation privilege”:

... Craig J.A. made it clear, in Dufault v. Stevens, at p. 204, that the production order should not override the litigation privilege. ...

[62] The law protects plaintiff patients from disclosing to others information they exchanged with their legal advisors. It is often called solicitor-client privilege: see Sopinka, supra, at paras. 14.42 to 14.114. At paras. 14.94 to 14.125, Sopinka also discusses how the client may waive the privilege.

[63] In Canada, no similar privilege attaches to confidential information exchanged between a doctor and a patient: Sopinka, supra, at para. 14.183, although qualified privilege for psychiatric communications between a patient and a psychiatrist has a tentative foothold in Canada’s common law provinces: Sopinka, supra, para. 14.187.

[64] Under Rule 26(12), a defendant may apply to the court for a hearing when a plaintiff denies a defendant access to a third party document based upon the plaintiff’s allegation that it is protected by privilege, that it has no investigative value to the defendant or that it is of an embarrassing or confidential nature:

26 (12) Where, on an application for production of a document, production is objected to, the court may inspect the document for the purpose of deciding the validity of the objection.

[65] Halliday v. McCulloch requires the plaintiff to state the grounds of privilege for failing to produce a document.

[66] On the privilege hearing, the plaintiff’s argument necessarily would be circumspect because a full, frank and open presentation in the presence of the defendant would defeat the privilege. Because a defendant would not know the nature of the plaintiff’s claimed privilege, he or she could not answer the defendant’s claim effectively. The hearing Judge or Master is left in the unsatisfactory position of ruling on the privileged objection based on incomplete arguments from both the plaintiff and the defendant.

[67] The next part of the hearing may involve an inquiry into the two remaining issues: the investigative value of the document to the defendant, and whether the document discloses embarrassing or confidential information. Because these kinds of documents do not fall within any known legal privilege, the defendant should receive an unedited copy of them at the hearing before the Rule 26(12) judge.

[68] Only the defendant knows whether the edited document may have any investigative value under the Peruvian Guano rule. As to documents containing embarrassing or confidential information, Halliday v. McCulloch tries to protect the plaintiff from production of these documents. This seems contrary to other authority mentioned above and therefore unique to this particular rule.

[69] Production of these two unedited types of protected documents at the hearing opens up a catch 22 situation. Since the plaintiff must disclose these unedited documents, the plaintiff’s objection to production seems to become moot. This is because the defendant then knows the complete contents of all the documents, apart from those covered by privilege.

[70] Hospital records have a unique evidentiary position compared to other third party documents because they are admissible in evidence at trial by statute: Hospital Act, R.S.B.C. 1996, c. 200, s. 51(2):

51. (2) A copy of a hospital record certified to be true and correct by the administrator of the hospital or by another officer of it is admissible as evidence in a court without proof of the official position or signature of the administrator or officer.

[71] Rather than appear in court in answer to a defendant’s subpoena, hospital officials may elect to deliver hospital records to the defendant before the trial, or bring the records to the court in a certified form. Because the statute appears to override any privilege, that creates an unusual problem should the records contain allegedly privileged information.

[72] In my view, Rule 26(11) never intended that disclosure of third party documents should be as cumbersome and unsatisfactory as it has become. There are dozens, if not hundreds, of Judges’ and Masters’ decisions discussing Rule 26(11). Many conflict with one another. There is no way to rationalize them. This results in applications like the present one where the parties seek clear guidance so that others will not have to do the same thing all over again. I do not pretend this judgment will provide that clarity.

[73] I am bound by the law laid down in Halliday v. McCulloch and must follow its directions. By way of a summary, that case applies a four step procedure for disclosure of third party documents under Rule 26(11):

First, the defendant applies to the court for a third party disclosure order, on notice to the third party and the plaintiff.

Second, subject to any objection by the third party, or failure by the defendant to comply with the rule, the court usually orders the third party to disclose the documents to plaintiff’s counsel.

Third, plaintiff’s counsel may then edit out part or all of a document on the grounds of solicitor-client privilege, that the document has no investigative value to the defendant under the Peruvian Guano test, or that it contains embarrassing or confidential information.

Fourth, the plaintiff must then deliver any edited third party document and any third party document not subject to editing, to the defendant. The plaintiff must articulate in writing to the defendant the reasons for editing any privileged document, any document that does not comply with the Peruvian Guano test and any document that is of an embarrassing or confidential nature.

[74] Should the defendant be unsatisfied with the plaintiff’s editing, the defendant may apply to the court to settle those disputed issues: Rule 26(12).

[75] Adopting that procedure, I order the third parties to deliver the documents set out in the defendants’ notice of motion dated 22 December 2004 to counsel for the plaintiff within 21 days of receipt of this order. Within 21 days thereafter, plaintiff’s counsel shall deliver them to defence counsel together with appropriate explanations of any claim for privilege, any claim based upon a lack of investigative value to the defendants and any claim that a document contains embarrassing or confidential information.

SUMMARY

[76] (a) A defendant may interview a third party witness and request production of documents in the witness’s possession that may have an investigative value to the defendant. A claim by the witness that the documents may contain confidential or embarrassing information concerning the plaintiff is not sufficient for the witness to deny production. Because this process does not require a court order, a third party may have a statutory obligation to resist disclosure.

(b) By means of an order, a defendant may examine a third party witness under Rule 28 and obtain production of documents in the possession or control of the witness even though they may contain confidential or embarrassing information concerning the plaintiff.

(c) A defendant may subpoena a third party to produce a documents at trial under Rule 40(39). The defendant may then review it after a court orders the document be filed as an exhibit for identification.

(d) Under Rule 26(11) a plaintiff may edit any third party documents before delivering them to the defendant. The plaintiff may edit out any privileged information, any information that has no investigative value to the defendant, and any information that is confidential or embarrassing to the plaintiff.

3. Continuation of the Plaintiff’s Examination for Discovery.

[77] Most of the time, counsel agree to discovery dates as they try to accommodate one another’s schedules. This is one of those rare occasions where they ask a judge to intervene. Although the dispute seems trivial, I must assume that both counsel acted on the instructions of their clients.

[78] Plaintiff’s counsel's refusal to attend a continuation of the discovery with his client after Thursday, 16 December 2004, without an order has merit. He did not agree to a one-day discovery. He thought it would take two days. He said he would agree to an adjournment after two days of discovery if defence counsel did not finish the examination by the end of Friday, 17 December 2004. Nonetheless, defence counsel decided unilaterally to only examine the plaintiff for the one day on Thursday, 16 December 2004.

[79] Although the equities favour the plaintiff, this is not a situation where the law should deprive the defendants of their right to continue examining Ms. Reischer for discovery. The lapse by defence counsel is something that can be resolved by a cost order.

[80] No particular rule of court allows me to order the resumption of an examination for discovery that the examining party unilaterally ended. This is one of those rare instances where I may exercise my inherent jurisdiction and order the discovery to continue. Therefore, I order that Ms. Reischer attend for her continuing examination at such time and place as counsel may agree. If they cannot agree, they may apply to the Master or a Judge to fix the exact dates and times.

COSTS

[81] The defendants succeeded on their applications for a second psychiatric examination of Ms. Reischer. They succeeded on their right to obtain production of third party documents, but lost on their application to have the documents delivered to them in the first instance. The plaintiff succeeded on the discovery issue because I found defence counsel’s position unreasonable. Taking all of these factors into consideration as best I can, I order each party to pay their own costs.

JUDGMENT

[82] 1. Ms. Reischer must attend a further psychiatric examination before a medical practitioner of the defendants’ choice.

2. The defendants are entitled to disclosure of the third party documents in keeping with the process set out above.

3. Ms. Reischer must attend a further examination for discovery at a time and place agreed upon by counsel.

4. Each side will bear their own costs.

“J.C. Bouck, J.”
The Honourable Mr. Justice J.C. Bouck

Citation:	*Reischer v. Love,*
	2005 BCSC 580