If a defendant (ICBC or otherwise) requests updated clinical records or documents, should the requesting party pay upfront for the expense of obtaining them?

What if the documents requested are numerous, and what if the plaintiff is charged interest on all outstanding expenses carried by his/her lawyer?

In today’s BCSC masters’ chambers decision of Hickey v. The Roman Catholic Archdiocese of Vancouver 2015 BCSC 2314 (unpublished), the defendant sought a number of orders, including that the plaintiff obtain and provide updated clinical records from all treaters and doctors within 14 days, or provide an authorization to the defendant enabling the same.

One issue was who should pay the upfront expense for obtaining the requested clinical records. While providing an authorization would require the defendant to pay and obtain the documents, plaintiff counsel argued that she should be entitled to obtain them and review them for privilege – but that defence should bear the up-front expense for obtaining the documents they requested.

In practice, defendants often pay for requested records up-front which are obtained and reviewed by plaintiff counsel before being provided to the defendant. Outstanding expenses (including those incurred for record-gathering) are paid by the defendant as costs at the end of the case. In his reasons for judgment Master Taylor commented on the common practice of defendant’s paying upfront for their requests, but concluded that this practice is not a rule:

[36] Opposition to this application appears to be founded on the practice where in some instances, defendants have agreed to reimburse plaintiffs for the costs of obtaining documents requested by defendants. However, it is not a rule, it is a practice only that depends on the parties, the issues and the urgency with which the documents are sought. It is not a rule upon which the plaintiff can rely for reimbursement before the plaintiff provides the required documents.

[37] In my view, Rule 7-1 is a code which all parties seeking or producing documents must observe, but if, in practice, one party wishes to reimburse the opposite party for the cost of obtaining the documents requested, they may do so, but it is not a requirement that they do so. Obviously, if the reimbursement does not occur, the plaintiff will make a claim for all of the costs of obtaining the necessary documents as disbursements when presenting the plaintiff’s Bill of Costs.