Beriana v. Miller et al Date:, 2003 BCSC 1995

Citation: Beriana v. Miller et al Date: 20030320 2003 BCSC 1995 Docket: S072836 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment Madam Justice Neilson March 20, 2003 BETWEEN: VICKY BERIANA PLAINTIFF AND: CORBIE MILLER, CAROL DEE KELPIN, also known as CAROL KELPIN, And NIRMAL SING BERIANA, also known as NIRMAL BERIANA DEFENDANTS Counsel for Plaintiff D. Elgee Counsel for Defendants B.

Adair [ 1 ] THE COURT: This is an appeal from an order of a Master directing that the plaintiff provide a list of all medical and health- care personnel who have treated her, with respect to the injuries sustained in a motor-vehicle accident and an appeal, as well, from the Master's order that the plaintiff pay the defendants' costs, fixed at $500 in any event of the cause. [ 2 ] It is a situation in which, for reasons that are unclear to me, the plaintiff to date has refused to produce clinical records of her treating doctors and other health-care professionals, although such documents are clearly relevant to the issues raised in the pleadings. [ 3 ] As I have indicated quite firmly to counsel during the argument, I have difficulty understanding why this matter has come to take so much of their clients' money and their time in pursuing an application of this nature, first before a master and now on appeal to this court.

Ordinarily, I agree with defence counsel, these matters are dealt with efficiently by the plaintiff simply signing authorizations, which are sent to her health-care professionals, her counsel then vetting the records and producing those that are not disputed to opposing counsel, so that everyone can get on with the action as quickly and as efficiently as possible. [ 4 ] I believe the Master expressed similar comments, when he came to deal with costs when the application was before him. [ 5 ] Having said all of that, I am satisfied that Rule 26(11), which was the rule under which the application before the Master was brought, does not permit the Master to order the plaintiff to prepare and deliver to the opposing solicitor a list of all medical and health- care personnel who have treated her.

I can understand in these circumstances why the Master would make that order.

It makes eminent common sense, but the appellant is correct that jurisdiction to make such an order does not lie under Rule 26(11), and the defendant here does not seriously contest that. [ 6 ] What the defendant has put forward is a request that I exercise my jurisdiction on this appeal to order the plaintiff to deliver a list of documents pursuant to Rule 26(1.1), which provides the Court may order that a party deliver to any other party a list of the documents that relate to a matter in question in the action and that, although not in the possession or control of the party against whom the order is made, are within that party's power. [ 7 ] In my view that rule is broad enough to apply to a situation where clinical records are the documents in question.

They are in the hands of third-party doctors and other health-care professionals, but the plaintiff has the power to have them produced, in the sense that she can provide an authorization to those health-care practitioners, and they are obliged to then produce a copy of her records to her counsel. [ 8 ] Having considered the circumstances here and the concerns of cost and efficiency, which are set out in Rule 1(5) of the Rules of Court , in my view the best course is for me to allow the appeal, but to accompany that order with a direction that the plaintiff deliver to the defendants' solicitor a list of documents that are in the possession or control of her health-care practitioners, which, in my view are

within her power to provide. Just so there is no misunderstanding, I anticipate that the list will be brief and obviously not enumerate each record, but simply say clinical records of Dr. X. [ 9 ] With respect to the matter of costs, having read the Master's comments when he awarded costs, I agree entirely with his sentiments and with his order. As I have already indicated, in my view this application and appeal were not justified, in terms of the interests of the parties in minimizing the expense.

These records are going to have to be produced and the argument of plaintiff's counsel that this should be done once the doctors' names have been revealed in the course of examinations for discovery just does not accord with common sense. It seems to me it is not in the plaintiff's interests to go to a discovery when her clinical records have not yet been produced. The upshot of that will be they will be then produced and she will just have to return for a second discovery.

None of that makes any sense to me. [ 10 ] Accordingly, the Master's order for costs will stand and my order will be that the appeal be allowed, but on the condition that the plaintiff provide the list under Rule 26(1.1) as I have indicated. (PROCEEDINGS) [ 11 ] THE COURT: All right. I am going to order costs to the defendants, for the same reasons that the Master ordered costs on the first application. Although there has been some discussion about whether it was brought under the right rule, I remain of the view that such applications really should not be necessary in actions of this nature.

The documents requested were very basic and I think the Master eloquently expressed his surprise that such an application was before him. The same applies to my view of the case. [ 12 ] MR. ADAIR: Can I ask the Court to summarily assess costs in the same way that the master did, in any event of the cause, payable at the end of the proceeding? [ 13 ] THE COURT: In any event of the cause, payable at the end of the proceeding, and what do you say are your costs? [ 14 ] MR. ADAIR: Well, first of all my costs were the review of the materials -- [ 15 ] THE COURT: No, numbers.

I am not going to sit here and calculate it. [ 16 ] MR. ADAIR: The master set $500. I think that is an appropriate number. I have to come from Chilliwack to deal with this. We're here for half a day and there's preparation of materials, looking at cases and so -- [ 17 ] THE COURT: Well, the materials are basically the same as what was before the master. [ 18 ] MR. ADAIR: That's correct. [ 19 ] THE COURT: And it seems to me it is a little less rigorous, as a result. You're using the same materials again. I am inclined to set costs at $350, Mr. Elgee, unless you have some submission. All right. [ 20 ] MR.

ADAIR: Thank you, My Lady. Those are payable at the conclusion. [ 21 ] THE COURT: At the conclusion of the proceeding. [ 22 ] THE REGISTRAR: My Lady, can I ask now you wanted three years pre-accident? [ 23 ] THE COURT: I'm sorry, yes, and the list will include a list of documents in the hands of health-care practitioners dating back to three years prior to the accident, which is -- what was the date again? [ 24 ] MR. ADAIR: It was July 2001. I forget the exact date. [ 25 ] THE COURT: Okay. We'll make it July 1st then, 1998, and onwards. [ 26 ] MR. ADAIR: Thank you, My Lady. “K.E.

Neilson, J.” The Honourable Madam Justice K.E. Neilson