Issues: Discovery production obligations; requirement to establish materiality and relevancy when seeking production
This action was a personal injury claim where liability, quantum and causation were in dispute. The defendants’ application related to production of documentation by the plaintiff and third parties in relation to the particulars of the wage loss claim. The defendants sought production of three documents: i) statements from the plaintiffs student line of credit related to occupational training; ii) particulars of the wage loss claim; and iii) prescription records dating back to five years before the accident at issue.
The court in this instance was critical of very broadly worded requests for particulars from defence counsel with actually demonstrating the relevancy and materiality of evidence. In finding that the defendants were actually seeking an assessment of the plaintiff's wage loss claim, the court found no authority for an order that the plaintiff provide a calculation or assessment of the wage loss claim in advance of trial. The court went on to state that a plaintiff may be obliged to provide information on a wage loss claim (as opposed to an assessment) under the rules of discovery. However, there was no evidence in this case that the plaintiff was asked in discovery to inform himself on the particulars of his claim.
In order to require production of the prescription records, the defendants were required to establish that such documents would prove or disprove a material fact and are relevant. The court then considered its previous decision in Moukhine v. Collins, 2010 BCSC 621, which held that “"whether a mere allegation in a pleading that a plaintiff's injuries are not the result of an accident, but are caused by his or her pre-accident health condition is enough, without more, to entitle a defendant to production of
pre-accident medical records" (at para 4). The court noted the discretion it has not to order such production and found the defendants failed to present any material that would suggest a pre-existing condition that would illustrate the relevancy of the pre-accident prescription records.
The court did go on to note that regarding both the wage loss particulars and the prescription records, more particulars could be presented in a second notice of application which sets out in greater particularity the factual and legal basis for the relief sought as the dismissal in this case was largely based on the inadequacy of material presented.
Regarding the line of credit records, the court held that the defendants were embarking on a fishing expedition for evidence from which an attack can be made on the plaintiff's credibility and such evidence will not be ordered produced as credibility is not a material fact.