We will review the principles relating to the production of pre-mva medical records in a recent decision Fallahpour-Sichani v Harapnuik, 2019 BCSC 2046 (CanLII) and explore the factors that must be considered when such a request is being made by the defence. This will offer a great review and will allow us the opportunity to review the Court’s analysis when dealing with these applications.
This subject case relates to a chambers application filed by the defendant seeking an Order that the pre-mva medical and employment records from the plaintiff be produced as far back as 8 years pre-MVA. The plaintiff was agreeable to seeking and producing records from only 3 years pre-MVA and therefore oppose this application.
Defence arguments:
The defence puts forth the following arguments in support of their application to seek pre-mva and employment records from 8 years pre-mva:
- three years does not provide an adequate picture of the plaintiff’s pre-accident health or work performance
- the plaintiff was off work for one year prior to the accident
- the plaintiff’s potentially relevant injuries and work absences date back to 2007
- the plaintiff has a documented history of depression
- the plaintiff has pre-existing migraine headaches
- the plaintiff suffered with low back pain prior to the mva
- the plaintiff has taken numerous sick days off work prior to the accident
- the plaintiff’s alleged loss of earning capacity is simply a continuation of a pattern of absenteeism that began well before the accident.
- Clinical records of the plaintiff’s GP document persistent pain in the plaintiff’s low back prior to the mva
- Records indicate the plaintiff suffered with pre-existing pain to her right knee, and left shoulder including fatigue, anxiety and depression from 3 years prior to the mva
- the plaintiff had knee surgery in 2015 and was off work for some time
- the plaintiff was seeing a counsellor for depression
- the plaintiff had also seen a psychiatrist
- these records are relevant and should be produced as they will speak to the lost earning capacity, including past wage loss being advanced by the plaintiff in this claim
The relevant rule is Rule 7-1(18) of the BC Supreme Court Civil Rules:
(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;
The plaintiff argues that in the event this Order is made, the Order should be made pursuant to Halliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194 (C.A.) (“Halliday Order”). A Halliday Order would require that the requested records from the third parties be provided first to counsel representing the plaintiff. This would allow counsel the opportunity to review those third party records for purposes of relevance. If information within those records are deemed not relevant, counsel may redact such information prior to producing those records to the defence. Quite a common process in personal injury litigation.
In these applications, we often see similar arguments raised. First, liability is in dispute and furthermore, causation is being argued. Also, quantum is another category of debate. The theory of the defence was clearly outlined: the injury, loss and/or damage suffered by the plaintiff were pre-existing and not the fault of the defendant.
Redactions
Having advocated and worked for plaintiffs for many years, I have often had to redact information found in the clinical records that was not relevant to the claim. Similarly in this case, certain entries in the clinical records were redacted with notations of “unrelated gynecological” and “private family matter.” However, when depression and anxiety are being claimed by a plaintiff, we see that the defence will argue that these specific claims now open the door to access to almost everything and that these “private” matters are now relevant. However, there are limits to these requests.
The Plaintiff’s position was simple: “she argues that those conditions are adequately disclosed in the documents produced from three years prior to the accident.”
The Court’s Analysis – referenced cases:
The referenced cases noted below are very helpful and should be noted and reviewed. I have extracted the key point in each case, but there are fantastic quotations in these cases that are quite useful. Please take the time to review each case.
“Pleadings determine relevance, but some evidence is required to support an application for production of documents under this Rule (para. 62). Orders requiring document production from third parties must also comply with the objective of proportionality (para. 65).”
-and –
“The objective of proportionality also requires consideration of a plaintiff’s legitimate privacy rights.”
“Rule 7-1(18) is not intended to provide broad discovery of documents from non-parties.”
- Edwards v. Granzer, 2012 BCSC 138, at para. 52.
“How far back a plaintiff’s health will be in issue is fact-specific; there is no rule that can be applied from one case to another.”
“While there is no rule, absent evidence that greater disclosure is required, two years prior to an accident is generally considered adequate for a defendant to properly investigate a pre-existing condition.”
Conclusion:
[26] The defendants in this case have put the plaintiff’s pre-accident health in issue. They have demonstrated a connection between the plaintiff’s pre-accident pain, anxiety and depression, and her damages claim. However, I agree with the plaintiff that eight or nine, and in some categories, almost 12, years of production fails the proportionality analysis.
– and –
[36] The application by the defendants for further production of medical and employment documents is dismissed with costs to the plaintiff in the cause.
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