Blackwell v. Kwok

2013 BCSC 246 Blackwell v. Kwok

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Blackwell v. Kwok, 2013 BCSC 246 Date: 20130219 Docket: M105340 Registry: Vancouver Between: Jennifer Leanne Blackwell Plaintiff And Amoura Rose Valena-Karen Kwok Steven Norman Ballegeer VW Credit Canada, Inc. Credit VW Canada, Inc. Defendants Before: The Honourable Mr. Justice Funt Reasons for Judgment Counsel for the Plaintiff: N. Kelly Counsel for the Defendants: B. Loewen Place and Date of Trial/Hearing: Vancouver, B.C. December 6, 2012 Place and Date of Judgment: Vancouver, B.C. February 19, 2013 [1] The defendants apply for an order to depart from the time when a plaintiff must normally provide information about an expert to a defendant under the Supreme Court Civil Rules, B.C. Reg. 168/2009. [2] In the course of a case planning conference, the defendants requested that the Court order the plaintiff to advise the defendants as soon as the plaintiff obtains the expert report of a psychiatrist or psychologist and decides to rely upon the expert for a trial that counsel plan to have scheduled for the latter part of 2014. The defendants say they need this information to be able to file a "responding report" at least 42 days before trial as contemplated under Rule 11-6(4) of the Rules. [3] The defendants say that it is hard to obtain an expert report from a psychologist or psychiatrist in less than a year. The plaintiff

frankly acknowledges the existing difficulty of obtaining an expert report of a psychiatrist or a psychologist in less than a year. [4] The defendants do not require the report or even the name of the expert at the time the plaintiff decides to rely upon its expert for trial. The defendants ask only that they be told the specialty of the expert. [5] In this action, the plaintiff claims damages for injuries she allegedly suffered as a result of a November 23, 2008 motor vehicle accident. Among other injuries, the plaintiff pleads that she suffered headaches, fatigue, insomnia, anxiety and depression as a result of the accident. [6] The plaintiff has been involved in three subsequent motor vehicle accidents with actions commenced for two of them, and I am told that an action will be commenced for the latest accident. Counsel plans to have all four actions heard together. Counsel will be the same for all four actions. [7] The plaintiff objects to the defendants' application and notes that when the Rules came into force, the difficulty in retaining certain types of experts was well known. Accordingly, the timelines set forth in Rules 11‑6(3) and (4) should be observed, including the rule that a plaintiff need not provide an expert's specialty nor name in advance, but only provide an expert report no later than 84 days before trial. [8] The plaintiff argues that, if the defendants

wish, the defendants could now arrange for an independent medical examination of the plaintiff by a psychiatrist or psychologist chosen by the defendants. [9] The defendants respond that most expert reports are expensive and that, if the plaintiff will not be tendering an expert report by a psychologist or psychiatrist, the defendants will, in all likelihood, incur an unnecessary and significant expense. [10] Quite understandably, the plaintiff also wishes to guard her counsel's solicitor's brief. Chief Justice McEachern described the importance of a solicitor's brief in Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129: ... There are strong and valid reasons for privilege which should not lightly be diluted, and conflicting policies, even where they collide head-on, often co-exist, with one subject to the other. While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege. ... ... More to the point, in my view, is the statement of Cotton, L.J. in Lyell v. Kennedy (1881), 27 Ch.D. 1 at pp. 18-19 where he said: Now the only privilege which can be claimed, and such as here the Defendant desires to claim, is what is called "professional privilege", that is to say, that if a man does not employ a solicitor he cannot protect that which, if he had employed a solicitor, would be protected; the reason for this

privilege being, as has frequently been stated, that the English law being technical, the greatest facilities ought to be afforded to everyone who is involved in litigation to consult a solicitor and to receive from his solicitor communications which shall be privileged, and to enable the legal adviser of the party employing him to make a sufficient investigation, and so obtain the fullest means of ascertaining what advice he shall give as to the course to be adopted, without affording the opportunity to an opponent of prying into those communications, those searches, those responses, which are according to English law all of a confidential character. To the same effect are the judgments in Anderson v. Bank of B.C. (1876), 2 Ch.D. 644 (C.A.), as follows: Again, the solicitor's acts must be protected for the use of the client. The solicitor requires further information, and says, I will obtain it from a third person. That is confidential. It is obtained by him as solicitor for the purpose of the litigation, and it must be protected upon the same ground, otherwise it would be dangerous, if not impossible, to employ a solicitor. You cannot ask him what the information he obtained was. it may be information simply for the purpose of knowing whether he ought to defend or prosecute the action, but it may be also obtained in the shape of collecting evidence for the purpose of such

prosecution or defence. All that, therefore, is privileged. (per Jessel, M.R. at pp. 649-650) Looking at the dicta and the judgments cited, they might require to be fully considered, but I think they may possibly all be based upon this, which is an intelligible principle, that as you have no right to see your adversary's brief, you have no right to see that which comes into existence merely as the materials for the brief. (per James, L.J. at p.

656) In my view the purpose of the privilege is to ensure that a solicitor may, for the purpose of preparing himself to advise or conduct proceedings, proceed with complete confidence that the protected information or material he gathers from his client and others for this purpose, and what advice he gives, will not be disclosed to anyone except with the consent of his client. [11] Plaintiff's counsel referred me to the Court's decision in Nowe v. Bowerman, 2012 BCSC 1723. In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial. The Court denied the application: [10] The area of expertise of an intended expert witness is a matter of trial strategy. Trial strategy is a key component of a solicitor's brief. It may well evolve as plaintiff's counsel builds a case and makes decisions based upon a myriad of factors and considerations. Intentions may change as the process unfolds over time. [11] In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor's brief will not be justified. [12] That being

said, there may well be cases in which a departure from the usual timelines can be justified. For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. ... [12] I note that in Nowe, the plaintiff argued that it was "not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert" (para. 7). Although possibly a longer period may be justified in some cases, I am not satisfied that a "departure from the usual timelines can be justified" in the case at bar. [13] In my view, the defendants' application should be rejected. I see no prejudice if the normal rules for delivery of expert reports apply. If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff's pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief. [14] Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: "While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege". [15] The Court declines to make the order sought. ___ "Funt J."____ Funt J.