Starko v. Blanchard, 2013 ABQB 425

Court of Queen ’ s Bench of Alberta Citation: Starko v. Blanchard, 2013 ABQB 425 Date: 20130726 Docket: 0703 00973 Registry: Edmonton Between: Kathy Starko, Melvin N. Starko and Kara Anne Starko, by Her Next Friend, Melvin N. Starko Plaintiffs - and - Wayne J. Blanchard, Also Known As Wayne Blanchard, Also Known As Wayne V. Blanchard, Also Known As Wayne Victor Blanchard, R&S Industries Inc., Carrying on Business Under the Name and Style of Big Eagle Hydro-Vac Defendants _______________________________________________________ Memorandum of Decision of L. A.

Smart, Master in Chambers _______________________________________________________ Introduction [ 1 ] The Defendants apply to compel the Plaintiffs Kathy Starko and Melvin Starko to provide complete answers to undertakings that are outstanding, refused or redacted and which were given at the questioning on November 8 – 9, 2010. During the course of the questioning Kathy Starko was requested to give 54 undertakings and Marvin Starko was request to give some 27 undertakings although some of the undertakings have been completed, partially completed or documentation provided has parts redacted.

Furthermore, there is the issue arising from the position of counsel for these Plaintiffs that no documentation from before the accident on February 10, 2005 need be provided.

Kathy Starko [ 2 ] Undertakings 4, 7, 9, 10, 12, 16, 19, 22, 27, 31, 36, 37, 43, and 51 have been completed to the Defendants ’ satisfaction. [ 3 ] Undertakings 1, 8, 11, 20, 21, 28, 29, 30, 31, 32, 33, 34, 35 and 47 are all objected to on the basis that the documentation requested is not under her control. Rule 5.11(1) provides that the Court may order a record to be produced if the Court is satisfied that the relevant and material record under the control of the party has been omitted from an Affidavit of Records. Rule 5.30(1)(

b) provides that if during questioning a person answering questions has under their control a relevant and material record that is not privileged, the person must undertake to produce the record within a reasonable time. As noted, the objection is on the basis that Kathy Starko does not have control over the documentation. Understandably, with the high profile privacy concerns are now given, non-parties in possession of relevant documentation absent a request or permission justifiably decline to produce documentation. One would have thought given the stated purpose and intention of the rules and notably Rule 5.1(1) that the word “ control ” would be given an expansive

interpretation. Surely in circumstances where a party need only request documents or give permission for their release one can be said to be in control. Absent a refusal to provide documentation by a non-party, to require a litigant to bring court applications under Rule 5.13 to compel production leads to unnecessary delays and costs. [ 4 ] Nonetheless, in McAllister v. Calgary (City) , 2012 ABCA 346 , the Court of Appeal considered the

interpretation of “ control ” in the context of Rule 5.6 which deals with the content of Affidavits of Records. The language of former Rule 187.1 regarding disclosure of records provided that records must be in a party ’ s “ possession, custody or power ” . Under those rules for it to be said that there was power over a record being held by a non-party, the party had to have a legal right to access the record or to get copies of it from the non-party ( Brown v. Nguyen , 2006 ABQB 783 ). The conclusion of the Court in McAllister was that the test for disclosure remains the same. I can see no basis upon which to apply a different

interpretation to Rule 5.30. Since Mrs. Starko cannot enforce compliance with a request she may make, she does not have “ control ” over those records and therefore I must decline to order production as set out in the undertakings sought under this category. [ 5 ] In relation to the redactions from various files of doctors and dentists (Undertakings 2, 15, 17, 18, 23 and 24), I have reviewed those files and have concluded that the content redacted is not relevant and material to these proceedings. [ 6 ] Undertakings 38 to 41, and 44 to 46 pertain to the farming operation conducted by Kathy and Melvin Starko.

In Undertaking 38 a request was made for the family farm ’ s ledger and expense invoices. A ledger was provided but no supporting invoices or similar materials. The Defendants seek copies of invoices to support the ledgers, banking records for the farm, cattle records, barter records and supporting documentation generally as it relates to income loss from farming operations. Although I agree that these Plaintiffs have no obligation to create records, the Defendants are entitled to receive material supporting the ledgers produced and other documentation that relates to the operation of the farm.

The Defendants are not obliged to simply accept the ledgers as presented but may test their accuracy. To the extent that records have not already been produced, the Plaintiff shall provide supporting invoices, bank records, cattle\cattle count records and other documentation that supports the income loss arising out of farming operations. [ 7 ] The request to making inquiries of the Provincial and the Federal Government to obtain a list of farm subsidies or benefits from each and provide the same in Undertaking 42 need not be answered.

This information is publicly available and the Defendants may conduct their own investigations in that regard. [ 8 ] With respect to Undertakings 48 and 50, statements requested have already been provided, albeit there will be a necessity to provide evidence updating this information in the future.

In my view what has been provided is satisfactory at this point in time. [ 9 ] Undertaking number 49 requesting a copy of a policy from Manulife, Maritime or Manufacturers Life has been satisfied by the delivery of the Manulife policy. [ 10 ] The request for further particularization of the housekeeping claim, loss of opportunity claim and special damages is not a request for document production per se, however, any future documentation coming into the possession of Mrs. Starko pertaining to these items must be provided pursuant to the Rules.

[ 11 ] The requirement to respond to Undertaking 3 appears to have been satisfied by the completion of Undertaking 4 save and except to the extent that Plaintiff ’ s counsel may have deleted portions of the updated charts and notes of Dr. Buck on the basis that they are not relevant and material.

As this update is not before me, I am unable to address that issue. [ 12 ] With respect to the prescription printouts requested in Undertakings 5 and 6, these have been reviewed and the items which in my view require disclosure have been identified and will be provided by way of copies to counsel of the attached printouts indicating the items. [ 13 ] The updated Alberta Healthcare Statement provided in response to Undertaking 14 requires a comparison between the entries in that statement with Dr. Wong ’ s file and perhaps others. I am not prepared to complete this exercise without assistance of counsel. Mrs.

Starko ’ s counsel shall identify the appropriate chart or record that establishes the service provided is not relevant and material to the action. [ 14 ] As for Dr. Wong ’ s chart, I have reviewed the redaction ’ s that have been made to the portion of the chart post accident provided to the Defendants. I have identified six items which appear to be of a nature relevant and material to the action and these will be provided by way of copies of the attached pages to counsel identifying those items. To that extent Undertaking 13 has been satisfied. The issue of the provision of Dr.

Wong ’ s chart for dates previous to the accident are dealt with below. Melvin Starko [ 15 ] Undertakings 2, 8, 9, 10, and 21 have been completed to the satisfaction of the Defendants. [ 16 ] The documentation requested in Undertakings 3, 4, 5, 15, 16, 23, 24, and 25 is not within the control of Melvin Starko and production will not be ordered. [ 17 ] On a review of the complete chart of Dr.

Neil Starko, Optometrist, I am satisfied that the non-redacted portions are the only entries, which could be relative and material to this action, and therefore Undertaking 1 is complete. [ 18 ] The updated Alberta Healthcare Statement shall be requested and subject to review and proper redaction by Mr. Starko ’ s counsel shall be provided to the Defendants to satisfy Undertaking 12. As noted above, any redaction ’ s must be supported by a reason why it is not relevant and material. The redactions from the prescription information for Undertaking 14 are appropriate.

The balance of that Undertaking shall be addressed below. [ 19 ] Mr. Starko shall provide any supporting documentation, including any invoices for fuel, which show what his expenses were in association with the barter agreement as requested in Undertaking 17. Undertaking 18 calls upon Mr. Starko to speculate and provide an opinion which he is not obliged to do and therefore is correctly refused. Undertaking 19 has been answered by advising that he has no further particulars other than what have been provided during questioning. [ 20 ] To the extent that Undertaking 20 requests documentation to support Mr.

Starko ’ s income loss, those shall be provided. Supporting documentation with respect to the ledgers provided for the farm shall be provided when requested for Undertaking 22. [ 21 ] In relation to Undertaking 26, the request to advise whether a loss of opportunity claim is being made has been answered by reference to the pleadings. Supporting documents for the special damages claim requested in Undertaking 27 shall be provided. [ 22 ] Dr. Wong ’ s chart as it relates to post accident matters has been reviewed and the content of the redactions, except as I set out below, are not relevant and material.

To that extent Undertaking 11 has been satisfied. The issue of the provision of Dr. Wong ’ s chart for dates previous to the accident are set out below as is my direction with respect to undertakings 6, 7, 13, and the remainder of 14.

Dr. Wong’s Pre-Accident Charts [23] Mr. and Mrs. Starko take the position that medical records of their family physician, Dr. Wong, previous to the February2005 accident are not relevant and material. They rely on the decision of Justice Binder in Milicevic v. Jakubec, 2005 ABQB 654 atparagraph 40 where the court states: “In my view what is relevant and material is the medical condition of the Plaintiff at the moment before the 2001 accident.

This conditionwill be the starting point in determining whether as a result of the negligence of the Defendant, the Plaintiff’s medical condition wasadversely affected and if so to what extent, and the amount of compensation the Plaintiff is entitled to receive to compensate him for anyadditional injuries sustained by him.” [24] It is important to note that on that basis Justice Binder declined to direct disclosure of a settlement agreement from a 1998accident, including the breakdown of the Plaintiff’s view of quantum each head of damage and not medical records.

Regardless, it isargued that this case is also authority to restrict the production of medical records to post accident medical records. [25] These Plaintiffs also rely upon Feraco v. Rasul, 2003 ABQB 951, wherein Justice Read concluded that not all of the generalor family practitioners, medical file and charts are producible but must be relevant and material. In that case she agreed that the health ofthe Plaintiff was in issue but references to gynecological and obstetrical matters were not relevant and material to injuries sustained in thesubject motor vehicle accident.

She agreed that portions of the general practitioners charts were properly blacked out. [26] In this case the Plaintiffs have followed the practice of blacking out entries as approved by Justice Read in Feraco. Relyingon the reasoning of Justice Binder in Milicivec. they have blacked out entirely Dr. Wong’s charts pre-accident. They also justify thisapproach based on opinions expressed by Dr. Wong. In her letter of January 26, 2007, she stated in part that “All the symptoms which he(Mr. Starko) experienced from the MVA on February 10/05 were caused by injuries of that accident.”. In addition, Mr.

Starko stated inquestioning that his prior back injury had been rehabilitated from the 1988 incident. In the case of Mrs. Starko, Dr. Wong states in herJune 30, 2006 letter that “Prior to the MVA on February 10/05, Mrs. Starko did not suffer from headaches. She did not have painfulsymptoms in her head, neck, upper and lower back, right arm, right wrist or right hand. Her pre-existing disc degenerative disease in hercervical and lumbar spine were asymptomatic. All the symptoms which she experienced after the MVA on February 10/05 were causedby injuries of that accident.

After the accident, she was totally disabled from her employment and to date has not been able to return toher pre-accident employment.” [27] I don’t disagree with Justice Binder’s analysis in Milicivec that the starting point for assessment of the injuries andcompensation is the date of the accident, but it is still necessary to establish the Plaintiff’s condition at that date. In order to do so, since itis most unusual for someone to have a complete report as to their condition in hand prior to an accident, is to examine someone’s earliermedical history. The decision of Justice Veit in Kachkar v.

Attwell, ((1990) (AB KB), 74 Alta L.R. (2d), 63 supportsthis view, “for example, to assess the strength of the causal link between the accident and the injuries alleged in the severity of the effectof injuries.” Furthermore, notwithstanding the opinions expressed by Dr. Wong, the Defendants are entitled to make their ownassessment. That is not to say that things which are not material and relevant as dealt with by Justice Read in Feraco need be produced. [28] The starting point for determining what is relevant material is the pleadings.

The Plaintiffs have alleged in their Statement ofClaim that they continue to suffer pain caused by and arising from the injuries. The specific information in issue regarding Mr. Starko isthe lower back work injury he suffered in 1988. I have reviewed the files of Dr. Wong in their entirety. Certainly one’s initial reaction isto suggest that an injury dating back to 1988 is unlikely to be relevant. My concern, however, on review, it is apparent that there have hasbeen an episode with respect to this lower back so much so that Dr.

Wong issued a certificate on March 14, 2002, indicating that Mr.Starko was unable to look for work for a period of two months or longer as he had severe discogenic lumbar back pain. There is nothingin Dr. Wong’s chart around that time that there was any trauma or other readily apparent reason for the lower back pain. Having regard toDr. Wong’s entire chart, the episode is consistent with the symptoms caused by the injuries incurred in 1988. Under the circumstances, Iam of the view that the Defendants are entitled to review all contents of Dr. Wong’s chart pre-accident pertaining to his 1988 injury and

treatment. [ 29 ] In the case of Mrs. Starko much of the concern is the pain from the injuries being so debilitating that she is no longer able to return to work or assist with farm work as she did in the past. Dr. Wong has reported that Mrs. Starko ’ s symptoms do not arise from the injuries sustained. However, in 2004 Mrs. Starko sought treatment for constant pain in her left hip. The location and existence of this constant pain prior to the accident is sufficiently connected to the alleged injuries sustained such that I am also of the view that the Defendants are entitled to receive the contents of Dr.

Wong ’ s chart pre-accident pertaining to this medical issue. [ 30 ] Returning to Undertaking 6 and 7 of Mr. Starko, the Defendant may reapply or bring such other appropriate application for disclosure after its review of Dr. Wong ’ s chart which I have directed to be disclosed. To the extent that pharmacy printouts apply also to the previously redacted injury and treatment, these must be disclosed as requested in Undertaking 14. Finally, in light of my general conclusion that the pre-accident medical condition may be relevant and material, I direct that Dr. Kanani ’ s chart or notes if available from Mr.

Starko ’ s hospital visit in 2001 be obtained. Counsel for Mr. Starko will review the file and to the extent that it may be relevant and material will be produced to satisfy Undertaking 13. Costs [ 31 ] In my view the results of the application has been mixed and I therefore direct that each of the parties bear their own costs. Dated at the City of Edmonton, Alberta this 26 th day of July, 2013. L. A. Smart M.C.C.Q.B.A. Appearances: Philip Lopatka Loptaka Law for the Plaintiffs Kathleen Kenny Chatwin LLP for the Defendants