Hoyt v. I.C.B.C.

2001BCCA0154 Citation: Hoyt v. I.C.B.C. Date:20010301 2001 BCCA 154 Docket: CA026484 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: DEBORAH JANE HOYT PLAINTIFF (RESPONDENT) AND: INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANT (APPELLANT) Before: The Honourable Madam Justice Rowles The Honourable Mr. Justice Finch The Honourable Mr. Justice Donald J. A. Graham Counsel for the Appellant D. Roberts, Q.C. Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia 6 February, 2001 Place and Date of Judgment: Vancouver, British Columbia 1 March, 2001 Written Reasons by: The Honourable Mr. Justice Finch Concurred in by: The Honourable Madam Justice Rowles The Honourable Mr. Justice Donald Reasons for Judgment of the Honourable Mr. Justice Finch: I [1] The issue on this appeal is whether the identity of potential witnesses can be compelled in answer to interrogatories delivered under Rule 29(1) which reads, in part: A party to an action may serve on any other party ... interrogatories in form 22 relating to a matter in question in the action.... (emphasis added) [2] A master in chambers dismissed the plaintiff's application to strike out interrogatories served upon the plaintiff by the defendant. He held that, as the names of potential witnesses could be compelled on examination for discovery, they were equally compellable on interrogatory. [3] On appeal to the Supreme Court of British Columbia, a judge in chambers held that the master had erred in law. The judge indicated that the court has consistently held that the identity of potential witnesses can not be compelled by interrogatories unless their identity is a material fact in issue. He allowed the plaintiff's appeal and ordered those parts of the interrogatories seeking the identity of potential witnesses to be struck out. II [4] Following an accident on 14 December, 1998 in which the plaintiff alleges she was injured, she applied to I.C.B.C. for payment of accident benefits. I.C.B.C. refused payment on the basis that she had "not established that the injuries which she indicates she sustained in the accident entitled her to accident benefits." [5] The plaintiff commenced an action for a declaration that she was entitled to no fault benefits, judgment for the amount of the no fault benefits payable, and for other relief. In her amended statement of claim the plaintiff alleged that she was the owner of a vehicle insured by the defendant, and that she held a B.C. driver's licence. She alleged that she suffered injuries while driving her car when it was struck by another vehicle. She alleged particulars of the injuries, and their effects, caused by the accident. [6] The amended statement of claim then contained the following allegations: 9. The Plaintiff's medical practitioner has found that the Plaintiff suffered injury in the said motor-vehicle accident of Monday, December 14, 1998 and her medical practitioner has prescribed therapy and medication reasonably necessary for the Plaintiff's rehabilitation from those injuries. 10. The Plaintiff applied for No-Fault Benefits for medical expense coverage from the Defendant so that she could be indemnified for the cost of the medical treatment that she required because of these injuries, but the Defendant refuses or neglects to provide the Plaintiff with such indemnity and to pay for such medical treatment. 11. The Defendant has denied the Plaintiff her No-Fault Benefits pursuant to its policy of minimal damage. 12. The Defendant's policy for minimal damage states that the Defendant only adjust a claim on its merit if the vehicle driven by the claimant is damaged beyond criteria accepted by the Defendant, subject to the following exceptions: a. the existence of pre-existing health problems, injuries or conditions of the claimant; b. a lifestyle or employment increasing susceptibility to injury; c. presence of an objective injury warranting compensation; d. the effectiveness of the Plaintiff as a witness; and e. other extenuating circumstances. 13. The Defendant's minimal impact policy is not prescribed by statutory or other legislative authority with respect to No-Fault Benefits. 14. Notwithstanding that the Plaintiff does not accept that the Defendant has the right to deny her coverage for No-Fault Benefits, except by applying the statutory provisions for No-Fault Benefit coverage, the Plaintiff, on the 22nd of December 1998 and since that date has specifically detailed how her claim ought to be accepted under the said criteria applied by the Defendant, and specifically she has advised the Defendant how: a. her employment situation as day-care operator that increases her susceptibility to injury; b. she has objective injuries as documented by her physician of muscle spasm and difficulty moving her head and as documented by her physiotherapist as neurological deficits indicated by differing pupil dilation, asymmetrical facial expression, decreased corneal reflex over left eye, asymmetrical babinski response, impaired balance, deviated tongue thrust and decreased range of motion for neck, shoulder an upper middle back. 15. Notwithstanding, that the Plaintiff has provided information to the Defendant, such that she ought to have met the requirements to receive No-Fault benefits pursuant to the No-Fault statutory scheme AND the Defendant's own minimal damage criteria, the Defendant has, wrongfully denied and continues to deny the Plaintiff No-Fault benefits contrary to the Defendant's own criteria, and the statutory scheme for such benefits and in such a manner to amount to bad-faith on the part of the defendant in its handling of the Plaintiff's claim for No-Fault Benefits. [7] The defendant's amended statement of defence admits that the accident occurred, but denies that the plaintiff suffered any injury. The defendant pleaded that the plaintiff failed to comply with the Regulations under the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (the "Act"), denied that it had failed to pay benefits, alternatively said that it had paid to the plaintiff any benefits she was entitled to, and pleaded the provisions of the Act and Regulations. [8] At the same time that it delivered its defence, the defendant also delivered interrogatories. The interrogatories to which counsel for the plaintiff objected were: 2. Have you returned to your usual employment as of the date of these Interrogatories? If you have not returned to your usual employment to date by reason of injuries sustained in the motor vehicle accident which is the subject matter of this lawsuit ("the Motor Vehicle Accident"), have you been told not to return and, if so, by whom? Do you know when you will be returning to your usual employment and, if so, what is that date? 3. What are the names and addresses of all medical institutions, medical doctors, chiropractors, physiotherapists, psychologists or any other person who has been treating you or been consulted by you with regard to diagnosis, treatment or assessment of the injuries sustained by you in the Motor Vehicle Accident? 4. Prior to the MVA Date, have you ever sustained injuries which are similar in nature to the injuries sustained in the Motor Vehicle Accident? If so, give the date and details of the previous injury, or injuries, as well as the names of the physicians and practitioners from whom you received treatment? 5. Subsequent to the MVA Date, have you ever sustained injuries which are similar in nature to the injuries sustained in the Motor Vehicle Accident? If so, give the date and details of the subsequent injury, or injuries, as well as the names of the physicians and practitioners from whom you received treatment? (emphasis added) [9] A master in chambers ordered that all interrogatories be answered. The plaintiff appealed. [10] The order appealed from reads: THIS COURT ORDERS that the Appeal of the Plaintiff be allowed and pursuant to Rule 29(7) of the Rules of Court that the following Interrogatories or parts thereof be struck out: (a) Interrogatory #2: that part of that Interrogatory which reads as follows: "if you have not returned to your usual employment to date by reason of injuries sustained in the motor vehicle accident, which is the subject matter of this lawsuit (the motor vehicle accident) have you been told not to return and, if so, by whom." (b) Interrogatory #3: the entire interrogatory; (c) Interrogatory #4: that Part of that Interrogatory which reads as follows: "as well as the names of the physicians and practitioners from whom you received treatment." (d) Interrogatory #5: that part of that Interrogatory which reads as follows: "as well as the names of physicians and practitioners from whom you received treatment." III [11] Counsel for the defendant contends that there is no general rule against the use of interrogatories to obtain the names of witnesses. He says that the cases relied upon by the plaintiff to support this position were wrongly decided. He says that the proper scope and purpose of interrogatories is as set out in British Columbia Lightweight Aggregate Ltd. v. Canada Cement LaFarge Ltd. (1977), 4 B.C.L.R. 259 (C.A.), namely, that interrogatories must be relevant and must relate to a matter in question. Whether they meet this test is governed by the pleadings. Counsel for the defendant says that in most motor vehicle litigation the existence of a professional witness will relate to facts in issue, so that interrogatories asking for the identity of such a witness will be proper. Use of interrogatories for this end will conform with the general purpose of the rules, namely, the just, speedy and inexpensive determination of cases on their merit. He says that in this case the interrogatories in question were proper and should not have been struck out. [12] Counsel for the plaintiff says that the learned chambers judge did not err in ordering interrogatories to be struck out. He says that unless the name of a person is material or relevant to a fact in issue on the pleadings, it cannot be obtained on interrogatories. Interrogatories are limited to questions that will elicit facts necessary to defeat the opponent's case or to support the interrogator's own case. While there are some cases where the identity of a witness is a material fact in issue, this is not one of them. Here, whether the plaintiff suffered injuries or suffered from a pre-existing condition are material facts in issue. The identity of the individual who diagnosed the plaintiff's condition either pre or post accident is not relevant to the diagnosis or to the plaintiff's health. The identities of doctors, hospitals, or physiotherapists are not facts the plaintiff must prove. They do not make any fact in issue either more or less probable. The judge's order was in accord with a well-established practice of the B.C. Supreme Court, and this Court should not interfere with such a practice unless it is shown to be clearly wrong. IV [13] In the course of their submissions, counsel referred us to many authorities. The leading case in British Columbia on the scope of questions permissible on interrogatories is B.C. Lightweight. It considered the rule on interrogatories contained in the then new 1977 Supreme Court Rules. In the action, the plaintiff sued for damages for the destruction of its business, alleged to result from a conspiracy by the defendants to achieve that goal. The defendants denied the conspiracy, and any misconduct. Both sides delivered interrogatories. The defendants objected to the plaintiff's interrogatories on the grounds that they were irrelevant and unnecessary. The chambers judge described the scope of the plaintiff's interrogatories as "immense." He used as an illustration: 1. "'Identify all interests in real property held at any time by the Defendant specifying when each was acquired, from whom, and for how much, and when each was disposed of, to whom and for how much.'" [14] The judge rejected a submission by counsel for the plaintiff that the scope of interrogatories was intended to be the same as that for oral examinations for discovery. He said at 260: Under the Supreme Court Rules, 1961, there was a distinction between the wide latitude allowed in cross-examination under examination for discovery and the limited scope of interrogatories: McConachy v. Times Publishers Ltd. (1964), 50 W.W.R. 389, 49 D.L.R. (2d) 349 (B.C.C.A.). The distinction remains. And such finding in law is fatal to nearly all the interrogatories left in dispute. The only ones I find valid are: (6a), (3), (4) and (5). The balance is struck out. The plaintiff will have leave to serve new ones in its place. [15] This Court dismissed the plaintiff's appeal. Mr. Justice Taggart gave the judgment of the Court. He agreed with the chambers judge that under the 1977 Rules the scope of interrogatories had not been made equal to the scope of questions that might be asked on examinations for discovery. He said at 265: It is true that the proviso contained in 1961 M.R. 343 does not appear in the 1977 rules relating to interrogatories, but in my opinion the language employed in R. 29 indicates that interrogatories must be relevant in the sense that they relate to a matter in question in the action. To that extent at least the proviso to be found in 1961 M.R. 343 is carried forward into the new rules. [16] The proviso in the 1961 Rule, to which he referred, said this: Provided that interrogatories which do not relate to any matters in question in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness. (Form 16, App. K.) [17] Mr. Justice Taggart continued at 266: I must express my concern with language used by the trial judge in relation to the question of the relevance of interrogatories. I reiterate that the judge said: "It [R.29(1)] does not say may relate to matter in question in the action. So without a positive determination that the question relates to a matter in question in the action, an interrogatory should be disallowed." I think that may be putting too great an emphasis on relevancy insofar as interrogatories are concerned. 1977 R. 29(1) and (5) use the words "relating [or relate] to matter in question in the action". Whether the interrogatories fall within those words can only be ascertained from the pleadings and proceedings in the action as they stand when the interrogatories are issued. [18] There is a reference in the reasons of Taggart J.A. to the judgment of A.L. Smith L.J. in Kennedy v. Dodson, [1895] 1 Ch. 334 concerning the proper use of interrogatories. The quoted passage from Kennedy is at 264: The legitimate use, and the only legitimate use, of interrogatories is to obtain from the party interrogated admissions of facts which it is necessary for the party interrogating to prove in order to establish his case; and if the party interrogating goes further, and seeks by his interrogatories to get from the other party matters which it is not incumbent on him to prove, although such matters may indirectly assist his case, the interrogatories ought not to be admitted. [19] There was much discussion on this appeal as to whether the Court in B.C. Lightweight approved of that passage. That question has also been the subject of much discussion in cases decided since B.C. Lightweight. [20] In my view, that question must be answered in the negative. In B.C. Lightweight the Court was addressing its attention to the language of our Rules 29(1) and (5), the former using the phrase "relating to a matter in question in the action," and the latter the phrase "does not relate to a matter in question in the action." It held that whether interrogatories fell within those words could only be "ascertained from the pleadings and proceedings in the action as they stand when the interrogatories are issued." [21] Whether an interrogatory relates to a matter in question in the action is clearly a broader test than that enunciated by A.L. Smith L.J. in Kennedy. He limited the use of interrogatories to obtaining "admissions of fact which it is necessary for the party interrogating to prove in order to establish his case." No such limitation can be read into the language of Rules 29(1) and (5), and on a careful reading of the judgment in B.C. Lightweight I am satisfied that the Court did not intend to endorse any such limitation. The question that Court was asked to decide was whether the scope of interrogatories was as broad as the scope of questions permitted on examinations for discovery. It said that it was not. It did not say that the scope of interrogatories was as narrow as the test propounded by A.L. Smith L.J. [22] Before referring to other B.C. cases, it may be useful to mention Marriott v. Chamberlain,[1886] 17 Q.B.D. 154 (C.A.). That was an action for libel, to which the defendant pleaded justification. Facts in issue were whether the plaintiff had fabricated a story that the defendant had circulated a letter, and whether the plaintiff had been informed by a solicitor as to the existence and location of copies of the letter. The defendant delivered interrogatories seeking the names and addresses of the solicitor and the persons who possessed the copies. The lower courts ordered the plaintiff to answer the interrogatories, and that order was affirmed by the court of appeal. Lord Esher, M.R. said this at 163: The law with regard to interrogatories is now very sweeping. It is not permissible to ask the names of persons merely as being the witnesses whom the other party is going to call, and their names not forming any substantial part of the material facts; and I think we may go so far as to say that it is not permissible to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves. But with these exceptions it seems to me that pretty nearly anything that is material may now be asked. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue. Bowen and Fry L.JJ delivered separate concurring judgments. [23] The decision in Marriott is not referred to in any of the judgments delivered in Kennedy. In my view, this casts significant doubt on the correctness of the passage quoted from it, even at the time it was decided. [24] There are many B.C. cases where the court has refused to permit interrogatories to be used for the purpose of obtaining the names of potential witnesses. These appear to be cases where the identity of the witnesses was not shown to be relevant to a fact in issue. The list of cases , not exhaustive, includes: Twitchell v. Delta Hotels Limited (1978), 9 B.C.L.R. 204 (S.C.), Sherwin v. Sillis (1979), 15 B.C.L.R. 391 (S.C.), Silvaggio v. Adamson (1988), 27 B.C.L.R. (2d) 182 (S.C.), Hou v. Westbild Holdings Ltd. (1994), 98 B.C.L.R. (2d) 92 (S.C.), Weir-Jones Engineering Consultants Ltd. v. Perimeter Technology Corp., [1995] B.C.J. No. 152 (Q.L.) (S.C.), and Doran v. Grisnich, [1996] B.C.J. No. 2926 (Q.L.) (S.C.). [25] Some of these cases state the bare proposition that interrogatories may not be used to obtain the names of witnesses. Many of those cases cite Kennedy as authority for that proposition. It does not appear to me that any of these cases was wrongly decided in the result. However, the language of Rule 29 does not, on its face, give rise to such a restricted construction. And, as noted above, it is of much broader scope than the passage cited from Kennedy. [26] In this group of cases, the correct interpretation of Rule 29 appears to be best captured by Mr. Justice Macdonell in Silvaggio. After an extensive review of the authorities he said at 190: The chief difficulty in this case is that the statement of defence is terse and no such link can be drawn between the names of the various professionals and a matter in question between the parties. I have grave doubts about the viability of a rule which prevents parties from obtaining names of witnesses by interrogatories when they are able to do so by way of oral discovery. Such an anomaly may have the consequence of adding to litigation expense and discouraging settlement. Yet, in the absence of evidence of such names being directly material to a matter in issue in the pleadings, and until such time as the rules might be amended, I am bound by the expression of the limitations on discovery by interrogatories in B.C. Lightweight Aggregate Ltd. v. Can. Cement Lafarge Ltd.and the above-cited decisions in this court. [27] In other B.C. cases, interrogatories seeking the names of potential witnesses have been held to be proper: see Pierre v. Canadian Broadcasting Corporation (C.B.C.), [1993] B.C.J. No. 2175 (Q.L.) (S.C.), Roitman v. Chan (1994), 99 B.C.L.R. (2d) 182 (S.C.) and A & B Sound Ltd. v. Future Shop Ltd. (1996), 2 C.P.C. (4th) 373, [1996] B.C.J. No. 1344 (Q.L.)(S.C.). In Pierre the plaintiff claimed damages arising from incidents in which the defendant had published or broadcast her image and had identified her as a witness to murder. The defendant pleaded, inter alia, the plaintiff's consent to the broadcast. The plaintiff delivered interrogatories which included questions as to the identity of persons to whom the consent was given. [28] Mr. Justice K.J. Smith held at para.20 that: [T]he test for whether interrogatories are proper is whether they are relevant to the issues raised in the pleadings.... [29] He said further at para.23: Here, the defendants are corporations and as such can act only through agents. Thus, the identity of the person referred to in interrogatory 2(b) goes to the issue of whether employees or agents of the defendants heard the words, that is, whether the alleged consent was communicated to the defendants, a material fact. Similarly, the identity of the persons referred to in interrogatory 8(b) is directly relevant to the defendant's state of mind, which is a material fact. [30] In my respectful view, that is a correct statement and application of the principle. [31] The words in Rule 29(1) "relating to a matter in question in the action" are therefore to be interpreted as creating a test of relevance. What is relevant is that which makes a fact in issue more or less probable. Generally, the names of witnesses have no probative value. They identify the means or the source by which a party can prove matters that are in issue. But of themselves, the identity of witnesses generally adds nothing to the proof. [32] However, in some cases, such as Marriott, Pierre, Roitman and A & B Sound, the identity of a witness may be relevant to a material fact in issue. In such cases, interrogatories may properly be used to obtain discovery of such evidence. [33] Applying the test of relevance to the interrogatories in this case, in my respectful view, the master was in error and the chambers judge was correct. The identity of doctors, physiotherapists or other health care professionals providing treatment to the plaintiff are not facts in issue on the pleadings, and do not tend to render either more or less probable the fact that such treatment has been rendered or received. The fact of treatment is relevant. Who provided the treatment is not. [34] I have examined Part 7 of B. C. Reg. 447/83, the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act. I can see nothing in Part 7 - "Accident Benefits" that would make relevant the interrogatories in issue. [35] The learned master said: I am of the view that there is no difference between the propriety of a question asked on an interrogatory and of a question asked on an examination for discovery, except that an interrogatory is not a cross-examination and an examination for discovery is. Apart from that, there is no difference. [36] This statement is clearly not correct, for at least two reasons. First, B.C. Lightweight is authority directly to the contrary. Second, the rule governing examinations for discovery contains this: 27(22) Unless the court otherwise orders, a person being examined for discovery shall answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action. (emphasis added) [37] The question arose in the course of counsel's submissions as to why there should, in principle, be a difference between the scope of questions permissible on examination for discovery and in an interrogatory. The history of the rules, and their application, suggest that the two procedures were not intended to provide parallel means of obtaining the same information. Rather, they supplement one another. Interrogatories can be burdensome for the recipient and can add unnecessarily to the exchange of paper, duration of proceedings and expense. They were not intended to provide the equipment for a fishing expedition. [38] If the Court, or those responsible for suggesting revisions to the rules, should come to the conclusion that the scope of interrogatories should be broadened, it is within the power of the Court to seek appropriate amendments. Some of the cases referred to suggest that would be useful. [39] However, in the absence of such an amendment, this Court should not interfere with decisions of the trial court on matters of practice in that court, unless such practise is based on an error in principle. In Bradley v. Cowan, [1971] 1 W.W.R. 140 (B.C.S.C.), Mr. Justice Ruttan said at 143: It is not within the discretion of this Court to ignore practice which has long continued for many years and indeed even higher courts on appeal will not likely disturb such practice. Broom, Legal Maxims, 10th ed., has this to say at p. 82: "The practice of the Court is the law of the Court. Every Court is the guardian of its own records and master of its own practice." And in our own Court of Appeal Sloan C.J.B.C. said in British Columbia Packers Ltd. v. Burrard Iron Works Ltd. et al (1955), 17 W.W.R. 409 at 410: "We are the custodians of our own practice and a long existing one should not be disturbed except on irresistible grounds not present here." [40] See also Cowan v. Duke of Buccleugh (1876), 2 App. Cas. 344 at 347 and Re Patterson and Nanaimo Dry Cleaning & Laundry Workers Union Local No. 1, [1947] 4 D.L.R. 159 at 173 (B.C.C.A.). [41] Here, the well settled practice of the trial court will not generally permit the use of interrogatories to obtain the names of witnesses, unless they can be shown to be relevant to issues raised in the pleadings. No proper basis has been shown for this Court to interfere with that practice. [42] I would dismiss the appeal. "The Honourable Mr. Justice Finch" I AGREE: "The Honourable Madam Justice Rowles" I AGREE: "The Honourable Mr. Justice Donald"