In this consent authorization case (Nikolic v. Olson,2011 BCSC 125) the Supreme Court of BC essentially has forced an injury claimant to sign “consent” forms for release of private information from people outside the lawsuit and outside British Columbia. This presents important implications for personal injury lawyers representing injury claimants and the out-of-Province entities that will be responding to these forced consent forms.
The injury claimant was a resident of Saskatchewan and while in Kelowna, British Columbia, his vehicle was struck from behind by a vehicle owned and operated by the at fault driver. The claimant brought a personal injury claim request compensation for pain and suffering, past loss of income and loss of earning capacity.
The at fault driver sought an order from this Court requiring, among other things, that the claimant sign authorization allowing the at fault driver to obtain the complete SGI file related to the claimant and the complete clinical records relating to the care and treatment rendered to the claimant by several medical professionals.
Important to this court application the claimant did not object to production of the records on grounds of irrelevance, privilege, privacy or confidentiality and the judge accepted without inquiry that the requested records were relevant to the personal injury claim and were therefore compellable.
The Honourable Mr. Justice Williams found,
“[93] In British Columbia, relevant non-privileged documents are compellable in a civil action. Full and complete disclosure between or among litigants prior to trial is essential to the truth-seeking function of the litigation process and proper administration of justice.
[94] This Court has the authority under the former Rules to compel production and to specify the mechanics of its production orders. Rule 26(1.1) permits the court to order a litigant to list documents in his or her power, which may include those held by foreign non-parties. Rule 26(10) empowers the court to order a litigant to produce a document for inspection and copying in the manner it thinks just. Furthermore, R. 1(12) grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively, a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.
[95] In my view, the following excerpt from para. 110 of Hood J.’s reasons in Lewis is apt:
There is also no doubt that the Court has substantive jurisdiction or power pertaining to the discovery and inspection of documents under Rule 26, particularly the compelling or ordering of production of documents. … In my opinion, the manner in which production is achieved is for the Court. The Court’s substantive jurisdiction or power to compel the production of documents includes the jurisdiction or power to create the mechanisms or the means by which production is made.
[96] As expressed in the jurisprudence, there are, no doubt, potentially unwieldy implications of a court order compelling authorization of third party production. Given these concerns, such orders should not be granted lightly. In this respect, L. Smith J. in McKay v. Passmore, 2005 BCSC 570, [2005] B.C.J. No. 1232 (QL), offers worthwhile guidance. That was a personal injury case arising from a motor vehicle collision. An application was brought for an order that the plaintiff execute an authorization allowing the defendants to obtain records held by the Manitoba Workers Compensation Board. Her Ladyship held, at para. 36, that while the court has jurisdiction to grant such an application, there was insufficient basis on the evidence to do so. She concluded, at para. 40, that the circumstances of the case before her did not warrant the order sought in light of the R. 26(11) criteria provided by the Court of Appeal in Dufault, which she outlined at para. 38:
1. The applicant must satisfy the court that the application is not in the nature of a “fishing expedition.”
2. He or she must show that a person who is not a party to the action has a document or documents in his or her possession that contains information which may relate to a matter in issue.
3. If the applicant satisfies those criteria, the court should make the order unless there is a compelling reason not to make it (i.e. because a document is privileged or because grounds exist for refusing the application in the interests of persons not parties to the action who might be affected adversely by an order for production and the adverse affect would outweigh the probative value of the document.)
[97] Obviously these criteria, among other relevant factors, ought to be considered by a court considering an application for an order compelling a litigant to authorize production of documents held by a third party whether located within or outside British Columbia.
[98] For two examples as to how the McKay/Dufault criteria may apply, see Distinctive Photowork Co. v. Prudential Assurance Co. of England Property and Casualty (Canada) (1994), 98 B.C.L.R. (2d) 316, [1994] B.C.J. No. 3231 (QL) (S.C. Chambers); and Tetz v. Niering, [1996] B.C.J. No. 2019 (QL), 1996 CarswellBC 1887 (S.C. Chambers).
[99] These cases, although they raise slightly different issues, do not detract from, but rather inform, the basic proposition that where a litigant is under an obligation to make disclosure of documents, then that obligation must be honoured. Where such documents are in the hands of third parties, the usual format will entail the litigant voluntarily agreeing to provide a document authorizing the record holder to release the material, and that will resolve the matter. However, in other cases, where consent is refused, litigants are entitled to seek relief and the court has jurisdiction to enforce the disclosure obligation, specifically by making an order whereby the party whose records are being sought will “consent” to their release. While the wording is unfortunate and has engendered a regrettable state of controversy, the underlying concept is, in my view, straightforward.
[100] The Olsons have a legitimate interest in obtaining the requested records and I am satisfied that their application is not in the nature of a fishing expedition. I also find that the third parties named by the defendants in their application possess the requested records which relate to a matter or matters in this case. By way of obiter dicta, I note that the common law test for relevance under the former Rules is broader than what seems to be provided by the wording of the current Rules. There are, furthermore, no compelling reasons why the order sought should not be made.
[101] Accordingly, I order the respondent/plaintiff, Mr. Nikolic, to provide signed authorizations allowing the applicants/defendants, Josiah Olson and Joel Olson, to obtain from the third parties named the records listed in clauses (c), (d), (e) and (f) of the proposed order reproduced at para. 3 of these reasons.”
As a personal injury lawyer in British Columbia since 1995 I have represented injury claimants on many ICBC applications to obtain personal information. This case is unlikely to be the end of the struggle between the privacy rights of innocent injury claimants and the at fault driver’s right to defend the injury claim. This case also appears to be inconsistent with the case of Desjardins v. Huser which may leave it to the Court of Appeal to decide. Posted by Mr. Renn A. Holness
Issue: Should ICBC and other insurance companies be able to use the court to force injury claimants to “consent” to other people producing private information?