Williams v Holland et al –, 2022 NBKB 169

Citation: Williams v Holland et al – 2022 NBKB 169 Date: 20220916 Docket: FC-368-2017 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: LYNDON WILLIAMS, Plaintiff – and – DONALD HOLLAND and INTACT INSURANCE COMPANY, Defendant Date of Hearing: August 31, 2022 Date of Decision: September 16, 2022 Subject Matter: Third Party Document Production – Rule 31.11 Before: Justice Terrence J. Morrison At: Burton, New Brunswick Appearances: George A. McAllister, Q.C. for the Plaintiff Tessa C. Belliveau for the Defendant, Donald Holland

D E C I S I O N Morrison, J. I. INTRODUCTION [ 1 ] This motion arises from a motor vehicle collision on January 3, 2016. As a result of which, the plaintiff suffered injuries which he alleges resulted in headaches, cognitive deficits, neck, back and shoulder pain, anxiety, and post traumatic stress.

He is claiming damages for loss of income, loss of earning capacity and cost of care among other heads of damage. [ 2 ] The defendant, Donald Holland (the “defendant”) has admitted liability for the accident but denies causation with respect to the alleged injuries. [ 3 ] The defendant brings this motion seeking the following orders: 1) Pursuant to Rule 31.11(1) (third party production) an order that the Red Cross produce the plaintiff’s file relating to a maintenance course provided to the plaintiff; and 2) Again, pursuant to Rule 31.11(1) that Intact Insurance Company (“Intact”) produce its file with respect to the plaintiff’s claim for

Section “B” benefits. [ 4 ] The plaintiff takes no issue with the Red Cross file. The Red Cross does not object to producing the file and it made no submissions with respect to this motion. The motion is granted. It is hereby ordered that the Red Cross produce the plaintiff’s file in relation to the maintenance course provided to the plaintiff within 30 days of being served with the signed order issued pursuant to this decision. [ 5 ] The defendant’s counsel will prepare the order for my signature and will be responsible for serving the same on the Red Cross. II. ANALYSIS AND DECISION [ 6 ] I now turn to the motion seeking an order that Intact produce its

Section B file. [ 7 ] As mentioned, the motion is brought under the third-party production provisions of Rule 31.11. [ 8 ] Because the motion requests relief only as against the third party, it is not necessary to engage in a determination of whether the

Section B file is in the possession or control of the plaintiff, including whether the plaintiff has an enforceable right of production against Intact. Both parties have referred to the New Brunswick Court of Appeal decisions in Riley v Paul, 2006 NBCA 84 and Tower v Foulkes , 2015 NBCA 29 . In both of those cases the Court refused to compel the production of the

Section B files in question. However, those were motions to compel the plaintiff to produce the files under Rule 31.04. The Court’s decisions were focussed on whether the

Section B files were in the possession or control of the plaintiff. As mentioned, that is not the inquiry in this case as we are dealing with a motion under Rule 31.11. [ 9 ] In order to succeed the defendants much demonstrate: 1) That the documents relate to a material issue in the action; and 2) It would be inequitable to require the applicant to proceed to trial without having discovery of the documents in question.

[10] In addition to the two requirements just mentioned, the applicant must adequately identify thesubject document or documents and not be embarking on a fishing expedition. In Bennett v State Farm Fire & Casualty Co., 2011NBCA 27 the Court stated at para. 24: 24 A party seeking relief under Rule 31.11 bears the burden of demonstrating that the application is not in the nature of a"fishing expedition". Rule 31.11 envisages a motion focused on one or more adequately described documents and an order directingtheir production for inspection (see Lang Shirt Co. v. London Life Insurance Co. (Ont.

H.C.), and Esso Resources Canada Ltd. v. StearnsCatalytic Ltd., 1990 ABCA 144 , [1990] A.J. No. 479 (Alta. C.A.)). Although the targeted document need not be identifiedin such detail "that it can be picked out from any number of other documents", it must nonetheless be adequately described(see Canadian Civil Procedure Law, at para. 13.159). The determination of descriptive adequacy must, of necessity, be case-specific.[Emphasis added] [11] The Court also noted in paragraph 25 of Bennett that in some circumstances it may be fairlyobvious that all documents in the file relate to a material issue.

In this case, the plaintiff has placed his medical condition, including hismental state, in issue.

Section B coverage provides indemnity for bodily injury which requires medical and rehabilitation expensesand/or recompense for loss of income. In this case, the plaintiff received medical and rehabilitation benefits for injuries sustained in thevery same motor vehicle collision which is the subject of this action. [12] The defendant has not identified particular documents in the

Section B file, rather he hasrequested production of the entire

Section B file. Counsel for the plaintiff submits that this is an over-reach by the defendant. He arguesthat such an over-reach violates the proportionality provisions of Rule 1.02.1 and is therefore fatal to the defendant’s motion. Rule1.02.1 provides as follows: 1.02.1 Proportionality In applying these rules, the court shall make orders and give directions that are proportionate to what is at stake in the proceeding and theimportance and complexity of the issues. [13] I fail to see how requesting the entire

Section B file in this case violates Rule 1.02.1. In hisstatement of claim, the plaintiff alleges that he has suffered serious injuries and is claiming general damages for, among other things,pain and suffering, loss of income, loss of earning capacity and cost of care. While the quantum of the claim is not discernable from theRecord, it has the potential to be a significant claim. The request for production of the

Section B file does not seem to me to bedisproportionate to what is at stake in the plaintiff’s action. [14] While the plaintiff has not identified particular documents in the

Section B file, in my view thisis a case where it is obvious that all of the documents in the

Section B file relate in one way or another to the injuries alleged to havebeen sustained by the plaintiff in the subject motor vehicle collision. I reject the arguments of plaintiff’s counsel that the defendants didnot raise in their Statement of Defence an issue which can be said to “pivot on Intact’s reason for not paying the plaintiff loss of incomebenefits” and thus the

Section B file does not relate to a material aspect of the action. The

Section B file will undoubtedly containmedical assessments or evidence which inform the payment or nonpayment of

Section B loss of income and or medical expenses. Asmentioned, these medical conditions were put in issue by the plaintiff. [15] The next question to be determined is whether it would be inequitable to allow the applicant toproceed to trial without discovery of the

Section B file. In Clements v Fougère, 2007 NBCA 4 the Court of Appeal had this to say atpara. 40: 40 As a general rule, in personal injury actions, all non-privileged documents that bear upon the material issues must be voluntarilyproduced at the earliest reasonable opportunity. The notes of all treating caregivers, whether labeled as "chart" notes, "progress" notes,"file" notes or "clinical" notes, are almost invariably critical in determining issues such as causality and the seriousness of thecompensable injuries. Courts should not easily accept the view that it would be fair to force the defendant to proceed to trialwithout the benefit of discovery of those notes. [Emphasis added]

[ 16 ] I am satisfied that all preconditions for the issuance of an order under Rule 31.11 have been satisfied. [ 17 ] Intact is hereby ordered to produce to counsel for the defendant’s a copy of the requested

Section B file within 30 days of receipt of the signed order with respect to this motion. Again, counsel for the defendant is responsible for preparing the order for my signature and for serving it upon Intact. [ 18 ] Intact was prepared to produce the

Section B file to the defendant if the plaintiff consented. The plaintiff refused to consent. The defendant is entitled to costs which I fix at $1,000. ______________________________ Terrence J. Morrison, J.C.Q.B.