Dupas v. City of Richmond, 2018 BCSC 1059

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dupas v. City of Richmond, 2018 BCSC 1059 Date: 20180618 Docket: S166045 Registry: Vancouver Between: John Peter Dupas Plaintiff And City of Richmond Defendant Before: The Honourable Mr. Justice G.C. Weatherill Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: B.T. Lepin Counsel for the Defendant: S. Morishita D. Hwang Place and Date of Hearing: Vancouver, B.C. June 8, 2018 Place and Date of Ruling: Vancouver, B.C. June 8, 2018 [ 1 ] THE COURT: This action arises out of a slip and fall incident on January 5, 2016.

The plaintiff alleges that he slipped on the defendant’s premises and injured himself. [ 2 ] The notice of civil claim filed June 30, 2016 alleges various physical injuries which cause and continue to cause him pain, suffering, loss of enjoyment of life and permanent physical disability. It also alleges that he has sustained and continues to sustain loss of earnings, including loss of income, loss of earning capacity by virtue of his injuries, that he is precluded from returning to work or in the alternative has a diminished capacity to work.

It alleges that the plaintiff has sustained loss of housekeeping capacity by virtue of his injuries, and the various categories of damages claimed include non-pecuniary loss, lost of past and future income, loss of earning capacity past and future, lost of housekeeping capacity past and future, cost of future care and special damages. [ 3 ] It appears from the evidence that the plaintiff has been someone who has suffered from a permanent brain injury for many years, and the case involves a complex matrix of various injuries both before the January 5, 2016 injury and after.

Plainly, the plaintiff’s mental and physical health is intertwined among his condition before and after the incident. [ 4 ] At the plaintiff’s first examination for discovery on February 22, 2018, documents related to the plaintiff’s income for various years in the past were requested. There was no response from the plaintiff thereafter, and counsel for the defendant requested those documents a second time. In May 1, 2018, plaintiff’s counsel sent an email to defendant’s counsel stating: John -- the plaintiff -- is dropping his income loss case on my advice -- at least for now.

If he happens to find a publisher who will pay him money and publish one or more of his books, I will notify you immediately and agree to a further discovery. [ 5 ] In that same email, plaintiff’s counsel took the position that the documents requested relating to the CPP disability claim and persons with disability claim were not relevant. [ 6 ] On May 2, 2018, in response to a letter from defendant’s counsel disagreeing with the position taken on the relevance of those documents, plaintiff’s counsel wrote: My client is not claiming for past loss income or any future of capacity at this time.

At this time he has no factual basis to do so. Accordingly I will object to all questions you may ask on these topics.

[ 7 ] The continuation of the plaintiff’s examination for discovery proceeded on May 3, 2018.

The plaintiff, when questioned, was at best equivocal on whether or not he was pursuing a past and future loss or earnings or loss of earning capacity claim. [ 8 ] Counsel for the plaintiff, during her submissions this morning, advised the court that she has had several discussions with the plaintiff regarding his claim for loss of earning capacity and, at one stage at least, indicated to him that he may have to find another counsel if he persisted in that claim. [ 9 ] In the circumstances of this case, with the plaintiff having a brain injury, in my view, it would behoove the counsel for the plaintiff to amend her pleadings to formally and unequivocally drop the claims set out in the original notice of civil claim relating to that head of damage.

She did not. She relied entirely upon her statements to the counsel for the defendant that her client was not going to be pursuing the claim.

In my view, that was not good enough. [ 10 ] Ultimately after this notice of application which was filed on May 25, 2018 and the response filed on June 1, 2018 were exchanged, counsel for the defendant was served with the notice to admit which I have not seen, but which apparently has given counsel for the defendant the necessary comfort that he need no longer concern himself with the loss of income-earning capacity claim. [ 11 ] The application before me this morning raises three issues.

The first is whether production by the plaintiff of his persons with disability records and CPP disability benefit record ought to be ordered. Counsel for the plaintiff has throughout taken the position that they are irrelevant as they relate only to loss of earning capacity. In my view, those records are plainly relevant to the claim for non- pecuniary loss as they would relate to the plaintiff’s physical and mental health prior to the slip and fall, which is the subject matter of the case.

The production order in respect of those records is allowed and will go. [ 12 ] The second issue relates to the request during the examination for discovery of the plaintiff that he provide the contact information for a woman by the name of Cheryl Taylor. The plaintiff gave evidence during his examination for discovery that he had discussed the slip and fall event with Ms. Taylor shortly after it occurred. Until the morning of this hearing, plaintiff’s counsel had refused to provide that information and then today, during the hearing, conceded that it was something that ought to be provided.

That order will go. [ 13 ] Finally, the defendant seeks production of unredacted records of the plaintiff’s treating psychiatrist, Dr. Bhopal, who has been treating the plaintiff in his capacity as a psychiatrist from 2007 until shortly after the incident in question. The notice of civil claim pleads that the plaintiff’s depression condition was caused at least in part by the slip and fall. While Dr. Bhopal’s records have been produced, certain portions of them have been redacted by counsel for the plaintiff as being either irrelevant or privileged.

She did not have those unredacted copies available for the court but stated, as an officer of the court, that they relate to nothing more than various outbursts on the part of the plaintiff to his psychiatrist about complaints he had with his lawyer and other professionals. Counsel for the plaintiff submits that they are not relevant to this proceeding. [ 14 ] The law is clear that to maintain privilege on an application such as this, the onus is on the respondent, in this case, the plaintiff, to produce cogent evidence in support of the claim of privilege or irrelevance.

In this case, the plaintiff relies on the affidavit of a paralegal in the office of counsel for the plaintiff who, on this topic, swore an affidavit #1 dated May 31, 2018, at paragraph 42: Mr. Dupas was refer to referred to Dr. Jaswant Bhopal in 2007 for his treatment of his cognitive and mood complaints. [ 15 ] At paragraph 43: I am informed by Ms. Lepin and do verily believe that the entries that have been redacted from Dr. Bhopal’s clinical records predate the slip-and-fall incident and they are not relevant to this action or to any symptoms claimed by Mr.

Dupas as a result of the slip and fall, nor, in fact, to any psychiatric complaints whatsoever. [ 16 ] It is noteworthy that the plaintiff himself swore an affidavit on the same day, May 31, 2018, but did not in any way deal with the Dr.

Bhopal records. [ 17 ] Although the evidence supporting the claim of privilege or irrelevance proffered by the plaintiff is woefully inadequate and in normal circumstances I would order as a result that the documents be produced in their full unredacted form, in the circumstances of this case, I am going to allow counsel for the plaintiff, if she wishes to maintain the claim of privilege and/or irrelevance, to provide me with copies of the unredacted records and I will review them and give my decision on them. [ 18 ] My

schedule is such that I will not be able to do so until the end of June. So if counsel wishes to maintain that position, the unredacted records are to be forwarded to me at the courthouse by no later than Friday, June 15, 2018. If they have not been forwarded to me by Friday June 15, they will be produced to defendant’s counsel in their entirety unredacted. [ 19 ] I am deeply troubled by the positions plaintiff’s counsel took on this application, including seeking an order for special costs against the counsel for the defendant personally pursuant to Rule 14-1(33)(c).

In my view, defendant’s counsel has conducted himself as he should have throughout, given the uncertainty involved in the pleadings, and it was entirely unwarranted to seek the orders sought against him. Because the application response filed by counsel for the plaintiff sought costs against the counsel for the defendant personally, he was required to retain separate counsel to attend this hearing to represent him. That counsel is Ms. Hwang. [ 20 ] In my view, there was no basis for the position taken by plaintiff’s counsel.

The attendance of special counsel was unnecessary, and it is the conduct of plaintiff’s counsel that has resulted in this application, in my view, an unnecessary application, and for unnecessary costs to be incurred. Pursuant to Rule 14-1(33)(c), I am ordering that the costs of the attendance of Ms. Hwang at this hearing be payable personally by Ms. Lepin. I am assessing those costs at $2,000 payable forthwith. [ 21 ] Costs of the application itself are to the defendant at scale B. The defendant is entitled to his costs of this application. You will be paying Ms.

Hwang’s costs of her attendance personally of $2,000

[ 22 ] MS. LEPIN: Okay. I will need the contact information and everything. [ 23 ] THE COURT: The court has it. [ 24 ] MS. LEPIN: Thanks. [ 25 ] THE COURT: Is there anything further? [ 26 ] MS. LEPIN: No. [ 27 ] MR. MORSHITA: No. [ 28 ] MS. HWANG: No, My Lord. “G.C. Weatherill J.”