Seeley v. ICBC, 2018 BCPC 59

Citation: Seeley v. ICBC 2018 BCPC 59 Date: 20180316 File No: 41114 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: ANGELA SEELEY CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Claimant: Mr. Jerry Steele Counsel for the Defendant: Ms. Alissa Reynolds Place of Hearing: Kamloops , B.C. Date of Hearing: March 12, 2018 Date of Judgment: March 16, 2018 [ 1 ] This file came before me for a number of pre-trial applications, some of which proceeded by consent and others which did not.

The applications reserved for judgment are with respect to compelling the Claimant to either respond to certain questions regarding her weight and meals she ate on the day in question or, alternatively, for the production of her medical records or her driver’s license to establish her weight at the time of the accident which is the subject of these proceedings. Also outstanding is the issue of whether an order ought to be made permitting the Defendant to interview the BC Ambulance attendants who made observations of Ms. Seeley. [ 2 ] At issue is a single vehicle accident in which Ms.

Seeley was the driver and sole occupant. At the time, she evidently gave two different versions of what happened leading to the accident. The one she stands by is that she was texting. The Defence theory is that Ms. Seeley was impaired at the time of the accident and was incapable of driving her vehicle in a safe manner. The Defendant also alleges that the Claimant made false statements to the Insurance Corporation of British Columbia, including that she had nothing to drink before the accident. [ 3 ] The Defendant has hired a blood analyst who requires certain information including Ms.

Seeley’s weight on the day of the accident, the food she consumed that day, and what time she consumed that food. While Ms. Seeley has responded to some of these questions, her answers are sufficiently vague that the Defendant’s blood analyst is unable to determine Ms. Seeley’s weight on the day of the incident, the food she ate that day, or what time she ate it. [ 4 ] There is no law requiring witnesses to speak to parties absent an order compelling them to do so.

However, the BC Ambulance Service has a policy regarding the disclosure of personal information pursuant to s. 22(1) of the Freedom of Information and Protection of Privacy Act . Absent an order compelling the ambulance attendants to speak with the Defendant, they therefore decline to do so. The preferred form of order was provided by counsel for the BC Ambulance Service as follows: 1.

That the Claimant will sign an authorization allowing BC Emergency Health Services, Bruce Anderson, and Allan Maciak to answer written questions posed by counsel for the Defendants pertaining to the plaintiff and motor vehicle accident that is the subject of these proceedings; or 2.

In the alternative, that BC Emergency Health Services, Bruce Anderson, and Allan Maciak are authorized to answer written questions posed by counsel for the Defendants pertaining to the plaintiff and motor vehicle accident that is the subject of these proceedings in the absence of a written authorization from the plaintiff. [ 5 ] The Claimant is opposed to the application saying that the Defendant is attempting to conduct an examination for discovery or to serve interrogatories.

This would obviously expand the complexity of the proceedings which is not contemplated by the Small Claims Act . [ 6 ] Rule 7(14) of the Small Claims Act provides as follows:

(14) At a settlement conference, a judge may do one or more of the following: (

f) order a party to produce any information at the settlement conference or anything as evidence at trial; (

g) order a party to (

i) give another party copies of documents and records by a set date, or (ii) allow another party to inspect and copy documents and records by a set date; (

l) make any other order for the just, speedy and inexpensive resolution of the claim. [ 7 ] I note that the language in (

l) does not track s. 2 of the Small Claims Act in that the word “simple” is not included. [ 8 ] I have been provided with a number of cases relating to this application: Strata Plan VR 1327 v. Crane Canada Ltd. , [1995] B.C.J. No. 2811 ; Ismail v. Haverty , [1996] B.C.J. No. 858 ; Lovrich v. Insurance Corporation of British Columbia , [1993] B.C.J. No. 2003 ; L.L.C. v. P.G. , [1994] B.C.J. No. 1589 ; Belanger v. AT & T Canada Inc. , [1994] B.C.J.

No. 2792 . [ 9 ] In Strata Plan VR 1327, supra , Judge Martinson, as she then was, had before her an application by the Defendant for the production of documents at a pre-trial conference in the context of an action for damages brought by the Plaintiff in negligence for the manufacture of defective toilet tanks. The application related to raw data supporting the report prepared by a professional engineer.

Having identified that there is no formal disclosure procedure such as examinations for discovery and interrogatories, the purpose of the Small Claims Act as set out in s. 2, and establishing that disclosure or production orders of this sort should be generally made at settlement conferences, she considers the function of Rule 16(6). [ 10 ] In the process of her analysis, Judge Martinson referred to Rule 7(14)(

l) which permits the court to make “any other order for the just, speedy and inexpensive resolution of the claim” at the settlement conference. She referred to it as “one stop shopping” allowing litigants to deal with all of these outstanding issues at the settlement conference. The current difficulty with that approach is the settlement conferences do not permit, in the time allotted, for the exploration of any pre-trial applications in addition to attempts at settlement.

The only pre-trial disclosure orders that can be made are the standard ones as opposed to any applications that might be opposed. [ 11 ] Judge Martinson then concludes at paragraph 36: 36 Applications under Rule 16 should generally be confined to the enumerated categories. However, I am of the view that Rule 16(6)(

o) gives a Judge the authority to grant a production/disclosure order before the trial but not at the Settlement Conference. The foundation is the Court's general power to make any order or give any direction it thinks necessary to achieve the purpose of the Act and the rules. This power should only be exercised in exceptional circumstances as the Settlement Conference is the most appropriate forum for such applications.

[ 12 ] I will add to Judge Martinson’s conclusions that whatever orders are made under Rule 16(6)(

o) need not be restricted to those that are also simple so long as they are just, speedy and inexpensive. [ 13 ] It is appropriate that the parties continue to raise the nature of the documents they wish disclosed during the settlement conference. However, the functional reality is that if there is an opposed application, it will likely be adjourned to an application date. Furthermore, as in this case, the need for certain documents is not necessarily known at the settlement conference. In those cases, it is useful to proceed under Rule 16(6)(o).

Pre-trial conferences can be separate and distinct from a settlement conference and are suitable for these applications, as well as for application list days. [ 14 ] In the Ismail, supra decision, Judge Baird Ellan, as she then was, had before her an application for production of an expert report. The report had been prepared by an expert retained by the Insurance Corporation of British Columbia, but not in the possession of the Defendant. The application was unique in the sense that ICBC insured both Ms. Ismail and Mr. Haverty.

As such, it had been given notice under the Insurance and (Motor Vehicle) Act of the claim and was involved, although not a participant in the proceedings. The court considered whether it was open to her to make an order against ICBC for production of a document in its possession, but not in the possession of a party. She confirmed the appropriate process is to file a motion, serve it on the party in possession of the document, and afford everyone the opportunity to respond to the application. This was the procedure she endorsed under s. 2 of the Small Claims Act .

She cited Rule 16 as the appropriate rule under which such an application would be brought. It was only on the facts of that case and the involvement of ICBC that made it appropriate to grant the order without notice to ICBC. [ 15 ] In this case, the BC Ambulance attendants are aware through their counsel that such an order might be sought. However, no actual notice of this motion was given to them.

It is essential to give notice to non-parties whether the order sought is production of documents or responses to interrogatories. [ 16 ] In Lovrich , supra Judge Martinson, as she then was, dealt with an application for pre-trial disclosure at the settlement conference. In that case, ICBC advised the court that there was a witness who had material information to the claim leading to the denial of coverage, and ICBC would not reveal the name of the witness or what the witness would say, but did intend to call the witness at trial.

Judge Martinson addressed the various sections of the Small Claims Act and various rules under the Supreme Court Rules not encompassed in the Small Claims Act or Rules . She addressed the differences at paragraph 22 to 24 of her decision: 22 The scheme of the Small Claims Act and Rules is to provide for the resolution of disputes in a just, speedy, inexpensive and simple manner. It is anticipated that litigants can have disputes resolved without lawyers. The Act specifically provides that litigants cannot recover lawyers fees as costs. The ordinary rules of evidence do not apply.

The Rules give the Judge broad powers to achieve the objective including the power to determine the procedure to be followed at the trial. It is not an adversary system in the classic sense. 23 This can be contrasted to the Supreme Court Rules. While the stated object of the Small Claims Act and Rules (Section 2(1) of the Act supra.) is concerned with resolving disputes in "a simple manner" the stated objective of the Supreme Court Rules (Rule 1(5) supra.) does not include the words "simple manner".

The Supreme Court Rules provide detailed disclosure methods such as the deliver of documents, admissions, examinations for discovery and pre-trial examination of witnesses. These are not simple procedures and they anticipate the involvement of lawyers. Unsuccessful litigants can be required to pay the legal costs of the other party. 24 The Pre-Trial Conference in Supreme Court has a different purpose from the Settlement Conference in Provincial Court.

The Supreme Court Rule governing the Pretrial Conference does not give the presiding judge broad powers to mediate and try to settle disputes as do the Small Claims Rules. The primary purpose of the Supreme Court Rule is to organize the case for trial. [ 17 ] There is a pre-trial process in Provincial Court as well. It is usually incorporated in the brief settlement conferences but is also mandated as a separate appearance for lengthier trials. Its purpose is also to organize the case for trial and it also does not focus on settlement.

It is well-suited to applications of this nature if they are not resolved at the Settlement Conference. [ 18 ] Having addressed these differences, Judge Martinson concluded that a comparison between the Rules is not helpful but that the absence of a corresponding rule in the Small Claims Rules was not determinative of the question. She concluded at paragraph 28: 28 The advantages of disclosure in this context is that it allows litigants to assess their position and decide whether a trial is in fact the most effective way of resolving the dispute.

It allows the judge presiding at the Settlement Conference to mediate if appropriate. It allows the judge presiding at the Settlement Conference to set out the issues that are agreed upon as well as those in dispute so that the trial can focus on the real issues. It allows the parties to prepare for trial in an effective manner. It can prevent time consuming, costly and inconvenient adjournments of trials. It allows disputes to be resolved on their merits. [ 19 ] The same can be said of applications under Rule 16(6)(

o) either at pre-trial or on an application list day. [ 20 ] There is no procedure in place in Provincial Court for interrogatories to be delivered to witnesses. Judge Baird Ellan had the opportunity at paragraph 14 of the Ismail decision to consider whether another alternative was available where a document had not been produced: 14 The remaining issue is whether there is another reasonable avenue which can be taken by the claimant to obtain the information contained in the report. The cases in Supreme Court require the applicant to firstly attempt to obtain the document from a party, and to show that, in the case of witnesses, the applicant cannot approach them directly for a

summary of their evidence. The defendant has resisted production and does not possess the document, so the first alternative is not open. With respect to the second, the document is in the nature of a report rather than a

summary of evidence. Since it has already been prepared, and presumably was the subject of a fee, it would in my view be more just, inexpensive and expedient to order its duplication and production than to require the claimant to commission its own report or ask for an additional

summary from the expert. [ 21 ] In this case, the Defendant would like to speak to the ambulance attendants about their observations of the Claimant which observations are not reflected in the ambulance attendant records. They have already declined, based on their privacy policy, to provide a

summary of their evidence or to speak with counsel for the Defendant. It is not something which the Defendant can recover from the

Claimant. [22] Finally, counsel for the Defendant referred to L.L.C., supra, which is the family court decision of Judge Stansfield, as he thenwas, which provides the Provincial Court has inherent jurisdiction over procedural matters and matters relating to the administration ofjustice, saying at paragraph 31: 31 I conclude that this Provincial Court possesses an inherent procedural jurisdiction which is, as Jacob suggests (at page 50),"complementary" to the Rules of the court.

In the absence of a contrary binding authority I conclude such jurisdiction exists as anessential corollary to the establishment of the court and the substantive jurisdiction which it is charged to administer. [23] In contrast, counsel for Ms. Seeley produced Belanger, supra, also a decision of Judge Stansfield. He provides at paragraphs 5to 8 as follows: 5 Rule 16 of the Small Claims Rules contemplates applications being made to a registrar without a hearing (in respect of those matterslisted in Rule 16(2)), and to a judge at a hearing (referred to in practice as a "chambers application").

Rule 16(6) sets out those orderswhich a judge may make upon application brought pursuant to Rule 16.

All of the specific orders listed in Rule 16(6) arise from mattersto which reference is made elsewhere in the Rules: where the Rules elsewhere say that in a particular situation a person may apply to ajudge for particular relief, that is picked up in Rule 16. 6 Rule 16(6) does not specifically authorize an application for an order dismissing a claim, or determining a point of law; it does notexpressly include parallel remedies to those which exist in the Supreme Court under (for example) Rule 18 (summary judgment), Rule18A (summary trial), Rule 34 (ruling on a point of law), or Rule 33 (stated case). Rule 16(6)(

o) does provide that a judge may make "anyother order that a judge has the power to make and notice of which is served on the other party"; it is under this sub-rule that thedefendant originally applied. 7 In my view judges of this court should be slow to expand the application of Rule 16 beyond the specific matters listed in Rule 16(6)unless in a particular situation it can be demonstrated that the broad jurisdiction under Rule 16(6)(

o) must be invoked if the objectives ofthe court as defined in

section 2 of the Small Claims Act are to be achieved.

Section 2 provides that the purpose of this Act and the rules is to allow people who bring claims... to have them resolved... in a just, speedy, inexpensive andsimple manner. 8 In Artisan Floor Co. v.

Lam (1993), (BC SC), 76 B.C.L.R. (2d) 384 Chief Justice Esson, after discussing thebackground of the increase in monetary jurisdiction in this court, including the opinions of the 1988 Justice Reform Committee,suggested that judges of this court must be vigilant in protecting against the practice of this court becoming too like that of the SupremeCourt, as he observed: Nothing in the legislation or its history would indicate that (in increasing the monetary jurisdiction)... the legislature intended to bringabout more complex procedures "which would clutter the system" and cause the Small Claims Court to cease to be "a forum wherepeople could feel comfortable acting on their own behalf".

The language of s. 2(1) and the provision for settlement conferences in everycase indicates an intention to retain a simple procedure which would avoid the difficulties encountered after earlier increases in monetaryjurisdiction. [24] In other words, authority must already exist either in the Act or the Rules before an application can be brought under Rule 16(6).Only if the overarching objective of the court, as defined in s. 2 of the Small Claims Act is served should Rule 16(6)(

o) be invoked. Suchan application is similar in nature to a chambers application and may be brought on an application list day or at a pre-trial conference ifbrought under Rule 16(6)(

o) instead of Rule 7(14). [25] Bearing in mind the caution against expanding the application of Rule 16 beyond specific matters set out in Rule 16(6); bearingin mind the overarching purpose of the Small Claims Act; and bearing in mind the caution against becoming too like the Supreme Court,I must be satisfied before ordering the ambulance attendants to respond either to an interview or interrogatories that such an order meetsthose objectives. I am not satisfied in this case.

If a party is to call the ambulance attendants as witnesses to these proceedings, a witnesswill-say statement must be provided for each attendant. While the witness will-say statement is not a fulsome disclosure of what thewitnesses will say, such will-say statements must provide sufficient information that a party may prepare cross examination. To permitinterrogatories or to require witnesses to respond to interviews would be neither speedy, inexpensive or simple. I dismiss that application. [26] Claimants themselves do not provide witness will-say statements.

Therefore, there is no other way for the Defendant to acquirethe important information sought from Ms. Seeley other than to attend trial and ask her those questions under cross examination. Whilethat is in most cases going to be the appropriate manner in which to proceed, in this case, it will result in an adjournment of the trial inorder for the expert witness to factor the evidence into his or her report. That would not be just, speedy, inexpensive or even simple. I amsatisfied that it is appropriate to compel Ms.

Seeley to produce by way of a statement how much she weighed on the date of the incident,what food she ate on the date of the incident, and what time she ate that food. [27] The application to extend the time set aside for trial was granted at trial by consent, both parties agreeing that the number ofwitnesses contemplated had grown and the time required for trial had grown correspondingly. [28] There will remain outstanding the issue of the cell phone records from Telus. There is a lack of clarity in the response fromTelus with respect to whether the information sought by the Defendant is still available.

It is incumbent upon a party seeking productionof a document to ask for it first from the other party. If it is in possession or control of that other party, and relevant to the proceedings,the other party must produce it. If they are unable to produce it for one reason or another, that ought to be communicated to therequesting party without delay so that the appropriate third party application can be made. In this case, I am not satisfied that Ms. Seeleyhas made the appropriate efforts to confirm that the dates and times of her text messages is unattainable at this time from Telus.

There isalso no indication whether she has asked whether her cellular bills from that period of time are still available from Telus and whetherthose cellular bills reflect incoming and outgoing text messages on a date and time basis. She has also not indicated whether she has

searched for those same documents in her own records. [ 29 ] I have made orders with respect to the cell phone production. In the event that Ms. Seeley does not comply or the Defendant determines it is necessary to bring an application to compel production of whatever records may exist, the Defendant has liberty to renew its application on notice to Telus and Ms. Seeley. _______________________________ S.D. Frame Provincial Court Judge