Cullihall v Liyanage, 2016 ABQB 551

Court of Queen’s Bench of Alberta Citation: Cullihall v Liyanage, 2016 ABQB 551 Date: 20161005 Docket: 1501 03547 Registry: Calgary Between: Darren Cullihall Plaintiff - and - Kasun Chandana Borala Liyanage Defendant _______________________________________________________ Memorandum of Decision of J.L.

Mason , Master in Chambers _______________________________________________________ [ 1 ] Darren Cullihall commenced this negligence action against Kasun Chandana Borala Liyanage in relation to a motor vehicle accident that took place on April 4, 2013 on an off ramp from Highway 1 to Highway 22, west of Calgary. [ 2 ] Mr. Cullihall alleges that as a result of the accident, he suffers from serious impairment of physical and cognitive functions. He claims that he is substantially unable to perform the essential tasks of his employment and occupation.

He alleges that he has and will continue to incur medical and rehabilitation expenses and loss of income. [ 3 ] Mr. Liyanage defended the claim on a variety of grounds, including a denial that Mr. Cullihall suffered the injuries, losses, or damages alleged, or alternatively that they pre-existed the accident. Mr. Liyanage also alleges that Mr. Cullihall failed to mitigate, including by failing to return to the workforce in a reasonable and timely fashion.

[ 4 ] Affidavits of records were exchanged and Mr. Cullihall was questioned on June 21, 2016. [ 5 ] At the questioning, Mr. Cullihall testified that just prior to the accident, he had been temporarily dismissed from his electrician position at Kentz Canada Ltd., in order to complete the final portion of his schooling at SAIT to get his journeyman’s ticket. He said he was unable to continue his schooling after the accident and not able to go back to work until November or December of 2013, when he took a job with Corona Electric Ltd. in Lethbridge. He worked for Corona for about a year, then returned to Kentz.

He then went to Westwood Electric Ltd., where he continues to work as a journeyman electrician, having completed the schooling to get his ticket earlier this year. [ 6 ] Counsel for Mr. Liyanage asked Mr. Cullihall to make a request for employment records from Kentz (now known as Callisto Construction Ltd.), Corona and Westwood (the “Employers”). His counsel declined to make the request, on the basis that “we don’t control them”. This exchange followed: Mr. Dear : Would you provide your consent for the defendant to make a request of your former employers for their employment file? Mr. Conway : No. Mr.

Dear : Why not? Mr. Conway : Because that’s not the means by which you obtain that information. It’s a third party that we don’t control. If you want to make an application, then you can do that. Mr. Dear : Right. I’m asking if he would consent to that application. Mr. Conway : I’ll wait to see the application. [ 7 ] On September 16, 2016, Mr. Liyanage applied in morning chambers under rule 5.13 for an order directing the Employers to provide records to him. Of the Employers, only Callisto Construction Ltd attended, but took no position on the merits. [ 8 ] Mr.

Cullihall opposed the application, on the basis that the proper procedure under rule 5.13 is to have the non-party’s records go first to the plaintiff for assessment of relevance, materiality and privilege. [ 9 ] For the reasons that follow, I conclude that it is the court’s function to determine relevance, materiality and privilege under rule 5.13. There is no blanket procedure as suggested by Mr. Cullihall.

While there is no serious dispute about the existence of typical records on the Employers’ file, and the relevance and materiality of their typical contents, the breadth of some of the defendant’s requests and the lack of clarity in the plaintiff’s claimed entitlement to privilege require further submissions in order for the court to make the necessary determinations.

Rule 5.13 [ 10 ] Rule 5.13 provides a mechanism for litigants to obtain records from a non-party: 5.13(1) On application, and after notice of the application is served on the person affected by it, the Court may order a person who is not a party to produce a record at a specified date, time and place if (

a) The record is under the control of that person, (

b) There is reason to believe that the record is relevant and material, and (

c) The person who has control of the record might be required to produce it at trial.

(2) The person requesting the record must pay the person producing the record an amount determined by the Court. Are the records sought in the control of the Non-party Employers? [ 11 ] There was no issue raised by Mr. Cullihall as to the employment records sought being in the control of the Employers. His counsel maintained the position he took at questioning in this regard. Is there reason to believe that the records of the Non-Party Employers are relevant and material? [ 12 ] Mr. Cullihall submits that Mr. Liyanage is on a fishing expedition.

He argues that relevance and materiality cannot be determined without looking at the records, and that he is entitled to conduct this review and make the appropriate determinations as to relevance, materiality and privilege. [ 13 ] Rule 5.2 defines relevance and materiality for purposes of disclosure: 5.2(1) For the purposes of this Part, a question, record or information is relevant and material only if the answer to the question, or the record or the information, could reasonably be expected (

a) to significantly help determine one or more of the issues raised in the pleadings, or (

b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.

(2) The disclosure or production of a record under this Division is not, by reason of that fact alone, to be considered as an agreement or

an acknowledgment that the record is admissible or relevant and material. [14] Rule 5.13 calls for a determination to be made by the court as to relevance and materiality. It is one of the pre-conditions tosuccess under the rule. The manner in which that determination is arrived at must necessarily be determined in the context of theparticular facts and pleadings in issue. [15] Here, we are dealing with records contained in employment files maintained by the Employers. The court can reasonablypresume that there would be certain types of records maintained on such files.

It is not difficult to discern their typical contents. [16] Mr. Cullihall did not suggest that the types of records sought did not exist or were not of the type typically maintained by anemployer. He agreed that they likely contained relevant and material information. In the particular situation here, it may not be necessaryto review the particular records for relevant and material contents.

Rather, it may be appropriate to consider each type of record sought,and assess whether, as rule 5.13 contemplates, there is reason to believe that these contain information relevant and material to thematters in issue in the litigation. [17] As with its predecessor rule 209, rule 5.13(1)(

b) continues to recognize that relevance and materiality need not be guaranteedin order for records to be directed to be produced by non-parties: see for example, Yellowbird v Lytviak (1997), (ABKB), 210 AR 81 (QB) at 84-85, citing Frenette v Metropolitan Life Insurance Co., [1992] 1 SCR 64. [18] In Yellowbird, Ritter J stated: In my view, the test is not one of likely relevance but rather…it is one of whether or not the party requesting has reason to believe thatthe document relates to the matter in issue.

Such reason to believe must be beyond something that raises a scintilla of a reason, butlikelihood of relevancy can only be established if the party has actually seen the document. To conclude that likelihood of relevance isrequired would be to render rule 209 meaningless. I draw support for this conclusion from the decision of the Supreme Court of Canada in [Frenette v Metropolitan Life Insurance Co.]…wherein…L’Heureux-Dube J...states: It follows from this that an applicant need not show that a document is admissible in evidence at the trial as the condition of his obtainingan order under this rule.

If a party seeking the order is able to satisfy the judge that the document, or information in the document, mayrelate to a matter in issue, the judge should make the order unless there are compelling reasons why he should not make it, e.g., thedocument is privileged. (emphasis L’Heureux-Dube J’s) [19] Against this backdrop of general principles relating to rule 5.13 applications, I turn now to Mr. Cullihall’s specific submissionthat the proper procedure under rule 5.13 is to have the non-party records go first to the plaintiff for assessment of relevance, materialityand privilege.

Who determines relevance, materiality and privilege under rule 5.13? [20] So long as Mr. Cullihall has not been and is not in control of the records, he is not required to disclose them: rule 5.6 and seefor example, Brown v Malik, 2007 ABQB 270. Mr. Cullihall now wants to control the disclosure and production of records that he hassteadfastly maintained are not within his control. [21] Mr.

Cullihall relies on Phillips v Watson, 2007 ABCA 144 in support of his assertion that it is first the plaintiff who suggestswhat records of a non-party should be disclosed and produced. [22] It is not clear whether Phillips involved an application under rule 5.13’s predecessor, rule 209. The Court of Appeal’s reasonsindicate that the plaintiff had the records in her possession, but did not want to produce them to the defendant on the basis of relevance.In any event, the decision does not stand for the proposition advanced by Mr. Cullihall.

The ratio is that the court must determine therelevance and materiality of records before ordering production where there is an objection, and not delegate that determination to aparty’s physician (paragraph 9). [23] In that case, the plaintiff Ms. Phillips received psychiatric treatment from Dr. Plowman between 1993 and 1995. In 1997, Ms.Phillips was injured in a motor vehicle accident and sued the Watsons for damages relating to her injuries, including chronic pain. Ms.Phillips received further psychiatric treatment from Dr.

Plowman in January and March 1998. [24] Following discoveries, the Watsons applied for Ms. Phillips to be examined by their rheumatologist, Dr. Russell. In addition,they requested production of Ms. Phillips’ psychiatric records. Ms. Phillips objected only to the latter, on the basis of relevance. At thehearing, Ms. Phillips offered the records to the chambers judge for his examination but refused to produce them to the Watsons. [25] The chambers judge declined to look at the records and determine relevance and materiality. Instead, he ordered that they bedelivered to the Watsons’ expert, Dr. Russell.

He directed that Dr. Russell could have regard to those records he considered relevant, butshould ignore any records that did not relate directly to a psychological or psychiatric element to Ms. Phillips’ pain. [26] The Court of Appeal held that the diagnosis of chronic pain by its very nature includes a psychological component, and therecords sought may be relevant to the psychological impact of such pain. That did not mean, however, that every psychological recordwould be relevant. Where production was objected to on the basis of relevance, there would have to be a determination of that factor.

TheCourt found that the chambers judge erred by failing to make that determination, prior to ordering their release to Dr. Russell. The Courtnoted at paragraphs 8, 9 and 11 of its reasons: Although issues may sometimes arise as to how the relevance and materiality of psychiatric reports ought to be assessed, we do not intendto lay down blanket rules for performing this analysis. Each case will be determined on its own facts, and in accordance with the judge’sassessment of the requisite relationship of the contents of the report to the issues in dispute. (Emphasis in original)

In some circumstances, the relevant documents will be extremely technical in nature, and it may be difficult for the judge to determinerelevance and materiality without some guidance. Perhaps the plaintiff’s lawyer will highlight the areas in dispute. Or it may be that ajudge will require medical opinion as to the relationship between the contents of the psychiatric reports and the issues at stake in thelawsuit.

The parties, of course, may aid the judge in such circumstances by electing to produce affidavit or oral evidence with respect tothe type of records that may, or may not, be relevant to the facts in issue...What a judge cannot do, however, is refuse to make adetermination on relevance and materiality before ordering production of the records in a case where there is an objection to production. ... ...The judge is responsible for making the determination of whether the documents ought to be produced.

Although the method used tomake this decision may vary according to the circumstances of the case, the duty to determine whether the documents ought to beproduced remains unchanged. We, too, recognize the problem if all of a sudden lawyers started making blanket objections to medicalreports because they are irrelevant. But we do not anticipate problems would arise with respect to most medical reports, and certainlygroundless objections could be dealt with by an order for costs. But there may be times when the material is of a very confidential natureand its connection to the issues at stake is tenuous, if at all.

In the end, the judge must make the decision. [27] Similarly here, I do not consider that every record on the Employers’ files will be relevant and material to this litigation andthat is not what the defendant asked for. For the most part, the defendant has identified and requested specific types of records, and set itsrequests in the context of this personal injury action in which the plaintiff has alleged past loss of income, and placed his future ability towork in issue. [28] The existence and typical contents of the records can generally be ascertained without difficulty.

However, some of thedefendant’s requests appear to be overly broad and further submissions are needed to determine relevance and materiality. In my view,this approach is consistent with Phillips. [29] Mr. Cullihall also refers to Lund v Lauzon, [1996] AJ No 980 (QB), Burton v Berci, 2006 ABQB 523 and Knor v Fehr,[1994] AJ No 1252 (QB). Each of those cases addresses the obligation of a plaintiff to disclose relevant and material records in his orher possession. Master Funduk recognizes this distinction at paragraph 2 of his reasons in Knor v Fehr. [30] Mr.

Cullihall further argues that the records sought may potentially contain privileged information. [31] As with objections on the basis of relevance, the court is also obliged to consider objections on the basis of privilege underrule 5.13. In some cases, it may be necessary for the court to review the disputed documents in order to resolve the question of privilege.This too is consistent with Phillips.

At paragraph 10 of its reasons, the Court of Appeal notes that the Supreme Court of Canada directedsome flexibility in regard to the mode of determination, citing the reasons of McLachlin J (as she then was) in A.M. v Ryan, (SCC), [1997] 1 SCR 157 at paragraph 39: In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditionsshould attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case.

While it is not essential ina civil case such as this that the judge examine every document, the court may do so if necessary to the inquiry. On the other hand, ajudge does not necessarily err by proceeding on affidavit material indicating the nature of the information and its expected relevancewithout inspecting each document individually. The requirement that the court minutely examine numerous and lengthy documents mayprove time-consuming, expensive and delay the resolution of the litigation. Where necessary to the proper determination of the claim forprivilege, it must be undertaken.

But I would not lay down an absolute rule that as a matter of law [32] However, the person objecting has to provide some cogent basis for expecting that privileged records may exist, and the basisof the claim to privilege. Mr. Cullihall’s submissions do not do so in a sufficiently clear fashion.

He indicated that “there is a first foreverything.” The non-party records at issue in this application are contained in employment files, which do not raise obvious matters ofprivilege, as for example, a lawyer’s file would. [33] I do not suggest that information subject to privilege in favor of an employee could never be found in an employer’s file.However, Mr. Cullihall is asserting claims of privilege in this action which he has commenced to recover alleged damages for incomeloss and impairment of future ability to work.

Further submissions are necessary in order for the defendant and the court to understandthe basis of the privilege claimed. [34] Counsel for Mr. Cullihall also referred to consent orders reached with another lawyer from the defendant’s firm, in which aprocedure such as he suggests be ordered here was set out. Again, there is no blanket procedure, and each case is to be determined on itsown facts. The existence of those other orders, which were all issued by consent in one action, is not determinative of this matter, and donot demonstrate a “general practice” as suggested by counsel for Mr. Cullihall.

They simply reflect an agreement between counsel tofollow that procedure in that particular lawsuit. Determination of relevance and materiality [35] There is no serious dispute about the existence of typical records maintained by the non-party Employers, and their typicalcontents. Counsel for the plaintiff concedes that most of the records requested contain relevant and material information. The breadth ofsome of the defendant’s requests and the lack of clarity in the plaintiff’s claimed entitlement to privilege require further submissions inorder for the court to make the necessary determinations.

Court review of some of the records may or may not be necessary. [36] Counsel shall make an appointment to attend before me at a 2 pm sitting to make further submissions on relevance, materialityand privilege. No briefs are necessary. I encourage counsel to discuss the requested records and attempt to narrow their disputes inadvance of the hearing. Counsel for Mr. Cullihall shall advise the court in advance of the hearing, what categories of records remain indispute, along with the specific bases of objection and their grounds.

Counsel may also consider that further affidavit evidence mayassist the court in making the necessary determinations. In that event, counsel shall exchange the affidavits in advance of the hearing andprovide courtesy copies to the Masters’ office.

Costs [ 37 ] LoVecchio J observed in Brown v Malik at paragraphs 52 -53 : …there are many practical reasons why a voluntary request for records should be made by a plaintiff. It is the plaintiff that has the burden of proof at trial and evidence apart from the word of the plaintiff may go a long way to establishing facts and reaching negotiated settlements.

Additionally, in order to avoid the necessity for a Rule 209 application, a plaintiff may agree to request records even though they are not in his or her power in order to keep the costs of the litigation down... [ 38 ] The parties may address costs of this hearing when they attend before me to address the relevance, materiality and privilege of the non-party records. Heard on the 16 th day of September, 2016. Further submissions received September 20 th and 22 nd , 2016. Dated at the City of Calgary, Alberta this 5 th day of October, 2016. J.L. Mason M.C.C.Q.B.A. Appearances: Steven C.

Schott McLennan Ross LLP for Mr. Liyanage Brian W. Conway Taylor Conway for Mr. Cullihall