Wai Wai Oo v. Lee et al. Date:, 2003 BCSC 553

Citation: Wai Wai Oo v. Lee et al. Date: 20030321 2003 BCSC 553 Docket: S055477 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment Master Barber March 21, 2003 BETWEEN: WAI WAI OO PLAINTIFF AND: ERIC LEE, LIN MEI-LI MARY LEE PHONE TINT DEFENDANTS Counsel for the Plaintiff: D. Elgee Counsel for the Defendants: F. Hansford [ 1 ] THE COURT: The application before me is for production of certain clinical records, all post-accident, from the providers as set forth in the notice of motion.

They have all had delivery of the material. [ 2 ] The application is opposed only in one respect. The plaintiff acknowledges that the documents may be relevant, but argues that they should be, first of all, produced in Halliday form. The plaintiff, through counsel, refers me to Halliday v. McCulloch and page 5 of that case, where Mr. Justice Lambert says: I have suggested that the order should permit decisions with respect to relevance, within the meaning of the Peruvian Guano case, to be made in the first instance by the patient-litigant, subject to being disputed by adverse parties.

I have done so because it permits the patient-litigant to avoid disclosing embarrassing or confidential material that is completely irrelevant or that can be made completely irrelevant, if he wishes, by amending his pleadings before the time for delivery of the documents to adverse parties. But if that method of disputing relevance were to be abused, in any particular case, then there should be some recognition of that abuse in an award of costs. And if that method of disputing relevance were to be shown to be impractical, then the mechanics I have suggested should be modified. [ 3 ] I certainly agree with Mr.

Justice Lambert's comments and I have no difficulty in accepting his views. [ 4 ] In this case, the accident occurred in 1998. The writ was issued in 1999 by the current solicitor who acts for the plaintiff. That person obviously was acting for some time, if only for a day or two, prior to 1999. All the documents that are being requested are from providers of healthcare services to the plaintiff. That solicitor had the opportunity to obtain those records to see if there was anything that was either, in the terms of Mr. Justice Lambert, embarrassing or confidential, from prior to 1999, and has not done so.

One must only assume, seeing as there is no affidavit from the plaintiff with respect to this, that there is nothing in those records that is of such a nature to be embarrassing or confidential that she would object to it being produced. [ 5 ] The plaintiff's solicitor has mentioned that there are two lines of cases: one which suggests matters should be, first of all, disclosed in Halliday form; secondly, the other line of cases which says that no, there must be an affidavit from the plaintiff to at least infer some reason to order them to be in Halliday form.

In my view, the latter line of cases is the predominant one and the one that I have followed consistently in applications of this nature. [ 6 ] First of all, there is no affidavit from the plaintiff here. Secondly, I look to the period of time since this action has been commenced and that this particular solicitor has been acting since that time. I come to the conclusion, as stated earlier, that there cannot be anything in the records that is of such an embarrassing or confidential nature, or of no relevance. Otherwise, the plaintiff would have notified her solicitor and there would be an affidavit from her.

As there is not, the order goes as requested. [ 7 ] MR. HANSFORD: Yes, Your Honour, liability is admitted in this case, so I'd ask for costs to be assessable against plaintiff in any event of the cause; assessable at the same time as costs of the action. [ 8 ] THE COURT: Mr. Elgee? [ 9 ] MR. ELGEE: I would only say again that the plaintiff's view is, given -- two views, that his approach is totally reasonable --

[ 10 ] THE COURT: That is correct, Mr. Elgee, but on the other hand you have been in front of me on a number of occasions on this exact same view. As far as I am aware, none of my decisions have been appealed. Therefore, I think costs to the defendant in any event of the cause is appropriate. [ 11 ] MR. HANSFORD: Assessable with costs of the action. [ 12 ] THE COURT: Oh, yes. Not now, later. (EXCERPT CONCLUDED) “Master R. Barber”