Angela Sofia Clausen v. Arne Terence Clausen, 2003 BCSC 496

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Clausen and Clausen v. Royal Inland Hospital et al., 2003 BCSC 496 Date: 20030401 Docket: 32567 Registry: Kamloops Between: Angela Sofia Clausen and Arne Terence Clausen Plaintiffs And Royal Inland Hospital, Jane Doe #1, Jane Doe #2, and Nurses Unknown, and John Phillip Sigalet Defendants Before: The Honourable Mr. Justice Harvey Reasons for Judgment (In Chambers) Counsel for the Defendant, John Phillip Sigalet: B.W.

Stock Date and Place of Hearing: March 26, 2003 Vancouver, B.C. [ 1 ] The defendant John Phillip Sigalet applies for an order permitting the admission of fresh evidence in support of the appeal of Master Groves' December 9, 2002 order. [ 2 ] The defendant appeals from the decision of Master Groves made December 9, 2002, dismissing "the balance of the defendant's motion". The "balance of the defendant's motion" consists of the following documents and information requested by the defendant, Sigalet: (

i) All school records of the plaintiff "Mrs. Clausen" from Calgary and Smithers; (ii) The telephone number of Brandy Brigdon; (iii) Copies of all income tax returns for Mrs. Clausen prior to 1999; (iv) Medical records regarding Mrs. Clausen from Dr. Forder, Dr. Dawson and Dr. Crawford, prior to August 10, 1999; (

v) Calgary counsellor's records regarding Mrs. Clausen; (vi) The surname and address of Lana, Mrs. Clausen's labour coach; (vii) Medical Services Plan records for Mrs. Clausen prior to 18 months before the birth of Julia Clausen; (viii) Copies of Mr. Peel's records regarding Arne Terence Clausen ("Mr. Clausen"); (ix) Medical records regarding Mrs. Clausen from Dr. Julia Anderson prior to 18 months before the birth of Julia Clausen; (

x) Calgary police records regarding Mrs. Clausen's complaint of sexual abuse against her father; (xi) Authorization for the release of Julia Clausen's medical records from the Prince George Hospital; (xii) Mr. Clausen's income tax returns prior to 1999;

(xiii) Mr. Peel's records regarding Mr. Clausen; and (xiv) Mr.

Clausen's employment records from Desert City Security, Vancouver International Protective Services, the Tribal Justice Training program, Northwest Community College and Ronik Security. [ 3 ] I comment in passing the defendant Sigalet has abandoned the request for production of the documents under (x). [ 4 ] In keeping with the decision I have reached related to the appeal from the learned Master's order, it is not necessary to deal with the application to permit the admission of fresh evidence in support of the appeal. [ 5 ] Upon consideration of the evidence, and particularly the allegations in the statement of claim which bear upon the question of damages, with one exception (see paragraph 8 of the Master's reasons), in my view, the learned Master erred in law in his finding, "the test the Court has to apply – are the documents and disclosures requested relevant to the pleadings". [ 6 ] I note that in his reasons, the Master makes no reference to authority supporting his finding as to the test to be applied. [ 7 ] In such circumstances, the test to be applied is whether the documents and information under consideration "may relate to a matter in issue".

This test has also been described as whether the documents and information are possibly relevant, or whether the documents and information have the potential of relevancy. [ 8 ] In the course of her able submission, counsel for the defendant Sigalet referred me to numerous decisions of the courts, and particularly of the courts of this Province, confirming the appropriate test to be applied. [ 9 ] I will not review these authorities but rather will list them for the purpose of reference. Dufault v. Stevens (1978), 1978 CanLII 366 (BC CA) , 6 B.C.L.R. 199 (B.C.C.A.); Compagnie Financier et al. v.

Peruvian Guano Company (1882), 11 Q.B.D. 55 ; Proconic Electronics Limited and Far East United Electronics Ltd. v. Wong (1985), 1985 CanLII 253 (BC SC) , 67 B.C.L.R. 237. [ 10 ] I comment in passing that prior to the hearing of the application below, counsel for the plaintiffs had written to counsel for the defendant Sigalet by way of a letter dated October 7, 2002 in which, in relation to the said defendant's request for documents and information, stated: There are no issues with respect to our position on those documents.

In other words, we agree that the documents requested are relevant and we have taken steps to obtain those documents. [ 11 ] While I do not suggest that this position should have been considered to have been binding or to have had legal effect, it appears to have been disregarded completely by the Master. [ 12 ] For these reasons, I would allow the appeal and direct that the plaintiffs, which the exception of subparagraph (

x) referred to supra , produce the remaining documents and information set out supra . [ 13 ] It is understood with regard to documents not under the plaintiff's control, including those that may be outside the jurisdiction of this Court, that they provide any authorizations or consents necessary for their production. [ 14 ] The defendant Sigalet is entitled to the Costs of this application. “R.B. Harvey, J.” The Honourable Mr. Justice R.B. Harvey