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Production of the Defendant’s Hospital Records

If there is a dispute about what occurred at the scene of the crash, can I obtain the offending driver’s hospital records, which might have recorded what the offending driver said at the time?

In a recent judgment of the British Columbia Supreme Court, Justice Thompson discussed the relevance of the defendant’s hospital and ambulance records in a personal injury case (Leach v Jesson, 2016 BCSC 591).  A master had already refused the plaintiff’s application on the basis that they were not relevant.  Even if they were relevant, said the master, it would not be proportional to order production.

Counsel for the plaintiff argued that the records might hold some clarifying information regarding the behaviour of the plaintiff at the crash site.  The evidence of the plaintiff and the defendant differed in that regard, and plaintiff counsel argued that the records may help to neutralize the defendant driver’s evidence about the plaintiff’s post-crash behaviour.  The material, it was argued, was therefore relevant to damages issues.  Citing the Supreme Court Civil Rules regarding proportionality, Justice Thompson dismissed the appeal:

[17]         I conclude that the appeal must be dismissed. I do not find it necessary to address the question of whether the master erred in finding that the documents sought are not relevant. Because I rest my conclusion on the proportionality point, I am prepared to assume for the purpose of analysis that the hospital and ambulance records may contain material that would assist the plaintiff in casting doubt on the defendant’s ability to recall and recount what happened at the accident scene. 

[18]         The applicable Supreme Court Civil Rules are R. 1-3 and R. 7-1(18):

Object

1-3 (1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

Proportionality

(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

Documents not in possession of party

7-1 (18) If a document is in the possession or control of a person who is not a party of record, the court, on an application under Rule 8-1 brought on notice to the person and the parties of record, may make an order for one or both of the following:

(a) production, inspection and copying of the document;

(b) preparation of a certified copy that may be used instead of the original.

[19]         As I said earlier in these reasons, what the plaintiff did or did not do at the accident scene is unlikely to play any significant role in the outcome of the damages assessment. Using the words employed in R. 1-3(2), the importance of this issue in dispute is slight. The master was quite right in these circumstances to pay close attention to proportionality. In any particular case, the decision whether production of documents is proportionate to the amount involved, the importance of the issue or issues in dispute, and the complexity of the proceeding will depend on the weight that the judge or master attaches to the relevant considerations in play in that case. It is essentially a weighing process. In my opinion, it is the sort of decision that is entitled to deference.

[20]         It is true that the quantity of material sought by the plaintiff is likely to be small and if production were ordered the invasion of the defendant’s privacy would be unlikely to be of a high order. On the other hand, the question of what the plaintiff did at the scene of the accident is an issue of slight importance. On balance, the master evidently concluded that ordering production would not be consistent with conducting this action in a way that is proportionate. The defendants have not demonstrated that the decision was clearly wrong.

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