Typically, as in this Victoria personal injury case(Zecher v. Josh, 2011 BCSC 311), ICBC and other insurance companies will demand that injury claimants disclose medical records, employment records, and school records dating back before the car accident. The best personal injury lawyers in Victoria, Vancouver and all other parts of British Columbia need to be aware that Rule 7-1, production of documents under Civil Rules, is no longer governed by the Peruvian Guano test, rather documents to be produced are those that could, if available, be used by any party at trial to prove or disprove a material fact.
The injury claimant in this case was a 31 year old man who allegedly suffered injuries in a motor vehicle accident which include injury to neck, back, left shoulder, collar bone, right knee, and Post traumatic stress disorder.
At the time of the accident, the claimant worked as a bartender in the Victoria area and had training to become a helicopter pilot. A line of credit was taken out by the claimant to finance this training. After the car accident the claimant dropped out of the pilot training program, apparently due to health problems related to the accident. He had not been employed since that time.
The the lawyer for the defendants applied to court to force the claimant to disclose, monthly statements from his Student Line of Credit account, particulars and a calculation of any past wage loss claim, and records from the College of Pharmacists of British Columbia from before the accident. The court dismissed all requests on the grounds that the material filed in support of the court application was inadequate. As Master Bouck found,
“ The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.
 Form 32 of the SCCR lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
 No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
 In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1 (4) allows the parties to include a list of authorities in the application record.
 By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
 As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers. As well, this particular document is not reflective of the generally good quality of work emanating from the office of defence counsel.”
With respect to the PharmaNet records the defendants failed to meet the threshold test of demonstrating relevancy of the pre-accident records. The defendants did not address the injury claimant’s suggestion that the PharmaNet records are redundant.
The court application was dismissed with leave to reapply. The top priority for any personal injury lawyer in BC filing a Notice of Application is to ensure all relevant factual and legal arguments are included in the Notice. This case seems to stand for the proposition that best efforts should be made to provide the court with an effective analysis of the legal basis for (or against) making the order in the civil court application.
Posted by Personal Injury Lawyer in Vancouver Mr. Renn A. Holness, B.A. LL.B.
Issue: Should an applicant that loses a civil court application for production of documents be allowed to re-apply to the court for the same documents after losing?
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