Bhandari v. Waddington Date:, 2003 BCSC 498

Citation: Bhandari v. Waddington Date: 20030401 2003 BCSC 498 Docket: S073542 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: JAGMOHAN BHANDARI PLAINTIFF AND: SHEILA WADDINGTON DEFENDANT REASONS FOR JUDGMENT OF MASTER NITIKMAN Counsel for the Plaintiff: R.C. Gambrel Counsel for the Defendant: T.A. Hulley Date and Place of Hearing/Trial: February 4, 2003 New Westminster, BC [ 1 ] This is the defendant’s application for the plaintiff’s complete, unedited MSP claims history printout from January 1, 1995 to the present date.

The issue is whether the printout is relevant and, if so, from what date. [ 2 ] The plaintiff was involved in a car accident on June 22, 2000. Liability and quantum of damages are at issue. [ 3 ] As a consequence of the accident, the plaintiff claims to suffer from pain, disfigurement, inconvenience, and limitation of his use of his legs and arms and loss of amenities of life formerly enjoyed. The plaintiff claims past and prospective loss of income and earning capacity. [ 4 ] The plaintiff’s family doctor provided a medical-legal report dated May 13, 2002.

The report reveals that the plaintiff was involved in motor vehicle accidents in January 1997, July 1998, and January 1999. The doctor says that the plaintiff suffered soft-tissue injuries to his back and neck in January 1997, a neck injury in July 1998, and neck and mid and lower back injuries in January 1999. The doctor reports that the plaintiff recovered fully from all of these injuries. [ 5 ] When defendant’s counsel received the medical-legal report, he requested a print out of the plaintiff’s MSP claims history from January 1, 1995 to present.

Initially, plaintiff’s counsel was prepared to provide the printout from the date of the most recent accident in June 2000 but not earlier. [ 6 ] The defendant brought this motion. In response, plaintiff’s counsel agreed to an order for production from January 31, 1997 to present, provided it was a Halliday order. Counsel said the MSP record prior to January 31, 1997 was irrelevant and the record subsequent to that date likely contained irrelevant material. [ 7 ] Counsel has provided the court with a number of case authorities dating back to Halliday v. McCulloch , 1986 CanLII 1004 (BC CA) , [1986] B.C.J.

No.223 (BCCA). Other cases include Feher v. Cook , [1997] B.C.J. No.3197 (BCSC)(Master) , Cherepovitski v. Blue , [1998] B.C.J. No.3163 (BCSC) , Creed v. Dorio , 1998 CanLII 1358 (BC SC) , [1998] B.C.J. No.2479 (BCSC), Amador v. Mo , [2000] B.C.J. No.2256 (BCSC) , Amos v. Virk , [2002] B.C.J. No.106 (BCSC) , Smith v. Funk , 2002 BCSC 747 (Master), Smith v. Funk , 2002 BCSC (Appeal), Lutsiak v. Morton , [2002] B.C.J. No. 662 (Master) and S.B.V. v. H.R.P. , [2002] B.C.J.

No.2507 (BCSC) (Master) . [ 8 ] A survey of the above decisions does not, by any means, represent an exhaustive look at all the case law dealing with production of medical records, but since it takes in a span of approximately 16 years, it does provide a reasonable overview. [ 9 ] There is a seemingly never ending conflict over Halliday versus non- Halliday orders for production of records. Usually, though

not exclusively, the defendant wants medical records. The plaintiff refuses to produce them unless they are first provided to plaintiff’s counsel to “vet” by blanking out portions of them or omitting them entirely in conformity with counsel’s view of what is “relevant” to the issues before the court, what is privileged, and what is “private” or “confidential”, or “potentially embarrassing to the plaintiff”. [ 10 ] The case authorities themselves contribute to certain confusion about the state of the law concerning Rule 26 disclosure. On the one hand, Halliday and Virk ,(supra), for example, set out what I understand to be the “correct” procedure for seeking production of records. In

summary, it seems to me that those cases say that the defendant may ask the plaintiff to produce records that appear to the defendant to be relevant in the Peruvian Guano sense ( Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 ) and whether or not the records are named in the plaintiff’s list of documents. It is then up to the plaintiff to obtain the records and, by a supplementary list of documents, advise whether there is any objection to production and, if so, the basis for the objection.

It is then open to the defendant to bring an application for production of the records or unedited records on the grounds that the defendant does not accept that there is a sufficient or any basis for the claim of privilege or privacy or irrelevance. It is at this point that Rule 26(11) may be invoked. [ 11 ] If this is the “correct” procedure as set out in or contemplated by Rule 26, for reasons that are not entirely clear to me although I suspect they have to do with cost, it does not appear to be the procedure followed in most cases.

When the defendant requests production of a document, what typically happens is that the plaintiff dose not obtain the document and review it, but rather informs counsel that he/she will consent to production provided it is in Halliday form. This places the defendant in the position of having to make a court application at which time the various arguments are made regarding what evidence the court needs before it should make a Halliday order for production. Should it be the plaintiff’s affidavit evidence?

Or is it sufficient for plaintiff’s counsel to tell the court that the objection to production in non- Halliday format is based on the possibility that there may be information contained in the records that is “privileged”, “private” or “irrelevant”? There is legal authority for this position. See Smith v. Funk (supra)(Master). [ 12 ] The contrary position is expressed in several cases.

The underlying rationale appears to be that the plaintiff must be taken to know what are in his/her medical records and it is only the plaintiff who can depose that the records contain matters that are private, embarrassing, and so on. Some of the authorities referred to above make it abundantly clear that it is only counsel who is able to determine and advise the client as to relevance in the legal sense, or privilege, as in solicitor-client privilege, that attaches to any documents in question.

Perhaps “prejudicial” should be added to that list since it is possible that some medical records could be highly prejudicial to the plaintiff and only counsel would be able to properly assess whether or not that was so. See, for example, Amos v. Virk (supra) and particularly Skuse v. Dutra , [1982] B.C.J. No.1351 , cited and relied upon in Amos v.

Virk . [ 13 ] Briefly put, certainly a majority of the authorities cited stand for the proposition that, whether the onus is a heavy or light one, it is the plaintiff who must be taken to know what is in his/her medical records and therefore to have some personal knowledge of whether or not the requested documents contain information that would merit a Halliday order. See Feher v. Cook (supra), Cherepovitski v. Blue (supra) and the cases cited therein, Amador v. Mo , Creed v.

Dorio . [ 14 ] In the following statement from Cherepovitski , the court takes a very strong position on the issue of evidence: “A bare assertion of a claim to privilege [query “irrelevant” or “private”] made by a legal assistant [query “plaintiff’s counsel”] on information and belief falls far short of the evidence required to support the granting of an order in Halliday form.”. And see also Creed v.

Dorio (supra) wherein the court dismissed the plaintiff’s privacy argument but went on to make a Halliday order. [ 15 ] In my view, the decision in Creed must be taken to mean that if there is evidence to support a finding that privacy outweighs the probative value of the information, then a Halliday order can provide a mechanism to protect those privacy concerns.

I am fortified in this conclusion by the court’s strong endorsation of the principle of wide production of documents as one which is “[r]equired to ensure ‘…not only that all relevant non-privileged documents have been produced, but that the defendant has been afforded a means of satisfying himself that is in fact the case.’” [ 16 ] In the case at bar, the gist of it is that the defendant has requested the MSP printout from January 1, 1995 to present without establishing to the court’s satisfaction the relevance of the information sought from January 1995 forward. [ 17 ] Plaintiff’s counsel submits that there is a great deal of very general and very detailed information in the MSP record.

He agrees that it would likely contain “relevant” information but submits that it will also contain “privileged” or “private” information and, as such, an order for production in Halliday form is appropriate. [ 18 ] The plaintiff has not provided any affidavit evidence. In fact, there is no evidence at all in support of the plaintiff’s position. Plaintiff’s counsel says that no affidavit is required.

He says that a claim of privilege is being asserted by the plaintiff through plaintiff’s counsel and submits that if more than that was required, the court of appeal in Halliday (supra), would have said so. [ 19 ] Plaintiff’s counsel referred to Smith v. Funk (supra) in which, although there was no affidavit from the plaintiff, the court did make an order for production of the Ministry of Human Resources records pertaining to the plaintiff. It should also be pointed out that in Smith v.

Funk the plaintiff had suffered severe damage to his cognitive functioning: in the circumstances, an affidavit from him could hardly be expected. There was, however, an affidavit from the plaintiff’s solicitor who deposed that he did not believe the Ministry’s records were relevant to any issue in the action. Moreover, plaintiff’s solicitor did not believe that the defendant had provided a proper evidentiary base for production of the records. [ 20 ] Smith v. Funk was appealed.

The court noted that the Master had determined that the defendant had not established that any of the Ministry’s records were relevant to the proceeding. The court said that an order under Rule 26(11) was discretionary, that the court’s exercise of the discretion was to be guided by the principles set out in Peruvian Guano , and that relevance was a condition precedent to the making of a production order under Rule 26(11). The court further noted that the Halliday order for production was only made because the plaintiff had agreed to production on that basis.

It was for these reasons that the appeal was dismissed. [ 21 ] In my view, Smith v. Funk does not assist plaintiff’s counsel here. I do not agree that either Smith v. Funk or Halliday v. McCullough can be said to stand as authority for the principles that no evidence is required to support an order for production in Halliday form or that the mere assertion by plaintiff’s counsel that some information in the document sought might turn out to be irrelevant or

privileged, is sufficient to justify a Halliday order. [ 22 ] In the result, I find that the defendant has not established that the MSP printout prior to January 1997 is relevant to the issues before the court, and the plaintiff, having acknowledged the relevance of the MSP records from January 1997, has not established any reason for an order in Halliday form for the MSP record from that date to the present.

Accordingly, I order that the defendant is entitled to a non- Halliday order for production of the plaintiff’s MSP printout from the beginning of January 1997 to date. [ 23 ] In view of the divided success, the parties should bear their own costs. “Master S. Nitikman” July 4, 2003 – Corrigendum to the Reasons for Judgment issued by Master S. Nitikman advising that under the heading of counsel for the plaintiff to read R.C. Gambrel and counsel for the defendant to read T.A. Hulley and not as previously written in the Reasons for Judgment dated April 1, 2003.