Cambie Surgeries Corporation, Chris Chiavatti, Mandy Martens, Krystiana Corrado, Walid Khalfallah by his litigation guardian Debbie Waitkus, v. Specialist Referral Clinic (Vancouver) Inc., 2018 BCSC 1063

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cambie Surgeries Corporation v. British Columbia (Attorney General), 2018 BCSC 1063 Date: 20180614 Docket: S090663 Registry: Vancouver Between: Cambie Surgeries Corporation, Chris Chiavatti, Mandy Martens, Krystiana Corrado, Walid Khalfallah by his litigation guardian Debbie Waitkus, and Specialist Referral Clinic (Vancouver) Inc. Plaintiffs And: Attorney General of British Columbia Defendant And: Dr. Duncan Etches, Dr.

Robert Woollard, Glyn Townson, Thomas McGregor, British Columbia Friends of Medicare Society, Canadian Doctors for Medicare, Mariёl Schooff, Daphne Lang, Joyce Hamer, Myrna Allison, and the British Columbia Anesthesiologists’ Society Intervenors And: The Attorney General of Canada Pursuant to the Constitutional Question Act Before: The Honourable Mr. Justice Steeves Oral Ruling re Production of Data Counsel for Plaintiffs: P. A. Gall, Q. C. S. Gyawali Counsel for Defendant: J. D. Hughes K. E. Saunders J. G. Penner P. T. Duncan Place and Date of Trial/Hearing: Vancouver, B.C.

June 14, 2018 Place and Date of Judgment: Vancouver, B.C. June 14, 2018 [ 1 ] THE COURT: So we should -- I was going to say complete, but we should take the application for the wait time data to the next stage. So this involves the plaintiffs' application of May 28, 2018. [ 2 ] The plaintiffs seek large amounts of data under the Surgical Patient Registry or SPR admitted into evidence. It is essentially the Ministry of Health's data for all surgical procedures in the province, obviously of considerable quantity. [ 3 ] British Columbia is generally opposed to the application.

It is concerned about vast amounts of data this late in the trial, which is to say 100 days into the trial. On the other hand, British Columbia is not opposed to some documents being admitted. They have I think a legitimate concern about expanding the record beyond what it is now in a significant degree, especially at this stage of the litigation. I should say I do not see any reason for admitting every surgery in the province in this trial. [ 4 ] The plaintiffs presented an affidavit in four volumes.

That was a constructive start to the process, but then later on they continued to seek the admission of a flash drive with the entire SPR on it. There is a dispute about whether this information has been

available only recently in 2017 or back to 2013. The significance of that dispute is to ask the question why was the plaintiffs' application not made prior to trial instead of 100 days into trial? [ 5 ] It seems to me that the data was available to the plaintiffs in 2013, albeit in a raw sense. About early 2017 the plaintiffs obtained documents indicating a review of the data from the point of view of a different calculation for wait 2 times, and that seemed to have set in motion the current application by the plaintiffs. [ 6 ] During the course of argument the discussion was heated.

British Columbia from the beginning has spent considerable resources preparing the Common Book and prima facie facts and has urged all parties to use that document. At the beginning of the trial, the plaintiffs were frankly indifferent to the Common Book. Now the plaintiffs seek to admit documents in a form very similar to the Common Book, but British Columbia opposes any additions to the Common Book.

In any event, there were some developments during argument, and there was a constructive idea about presenting a witness from British Columbia who could be used to tender documents from the SPR. [ 7 ] On that basis, the following will take place:

a) British Columbia will produce a witness to explain in chief and in cross-examination documents put to her or him from the SPR.

b) The plaintiffs will provide by the end of the day on June 14, 2018, an outline of the areas they seek evidence on and the specific documents they seek admitted.

c) The witness giving evidence on the SPR will be scheduled to give and complete that evidence between June 25 and July 13 or as otherwise agreed.

d) The object is not to admit records of every surgery in the province, but to admit records that are relevant to the pleadings. [ 8 ] There is a similar evidentiary issue regarding documents with respect to diagnostic services. That is apparently an area not covered under the SPR and it would require a different witness or witnesses. That matter will have to be heard at a different time than any evidence about the SPR and through a different witness or witnesses. [ 9 ] In the meantime, the plaintiffs' application filed May 28, 2018 is adjourned generally. [ 10 ] MR.

PENNER: My Lord, if I can just ask for clarification that the witness who will be called will be called by the plaintiffs as an adverse witness? [ 11 ] THE COURT: Right. Counsel have talked about that. [ 12 ] MR. GALL: I don't know, My Lord. You said the witness would give evidence in chief. I don't know what you meant by that, or in direct.

If they're going to lead the evidence of this witness first, we would need a witness statement from that witness, but if it's our witness as an adverse witness, then that wouldn't happen. [ 13 ] THE COURT: Sorry, have counsel agreed that this person will be an adverse witness? [ 14 ] MR. GALL: I don't think we've reached an agreement, but that's what I intended. [ 15 ] THE COURT: You can't both talk at once. [ 16 ] MR. GALL: That's what I proposed. I don't know if we reached agreement on that. [ 17 ] THE COURT: Well, on the record no one has proposed that. [ 18 ] MR.

PENNER: The plaintiffs have served a notice of intention to call adverse witness with relation to this particular individual. So my understanding is that that is the plaintiffs' intention. [ 19 ] THE COURT: All right. So in light of the notice to call this person as an adverse witness, she or he will be an adverse witness called by the plaintiffs. [ 20 ] MR. PENNER: Thank you, My Lord. [ 21 ] THE COURT: And we have talked about adverse witnesses before. There is a process for that, which I do not have at hand. [ 22 ] MR. PENNER: The parties are familiar with that, My Lord. [ 23 ] THE COURT: Yes. All right. “J. J.

Steeves, J.” The Honourable Mr. Justice Steeves