In British Columbia it is assumed that every personal injury claimant is entitled to the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest (see: Logan v. Hong, 2013 BCCA 249, para 11). Personal injury lawyers know of course that it is not always obvious whether a document is relevant and should be disclosed.
The ICBC claimant does give up some privacy rights when they commence a personal injury lawsuit as ICBC and the defendant may demand documents to defend the claim. If a document, such as a pharmanet printout, discloses the fact of a particular medical treatment, in addition to the names of medications prescribed for an illness, the claimant may choose not to broadcast this and keep this information private.
As Madam Justice Saunders points out at paragraph 12 and 13 of Logan v. Hong:
The order discloses the fact of a particular medical treatment, in addition to the address and contact information, all of which the patient may choose not to broadcast. Further, it matters not, in my view, the nature of the medical treatment. Here the treatment in issue is a cosmetic one, but the applicable principle protects patients in that situation just as it would were the treatment for mental health issues, sexual and procreative issues, or any of the myriad of medical issues of a more general nature.
The special place of confidentiality in the physician-patient relationship is of long standing. In Halls v. Mitchell, [1928] S.C.R. 125, the Supreme Court of Canada commented upon the duty of secrecy owed to a patient, affirming that the patient’s right of confidentiality is superseded only by issues of paramount importance.
Proportionality under Rule 1-3(2) is now also required. Allowing orders for irrelevant documents does not help to secure just, speedy and inexpensive determination of proceeding on the merits and will promote unnecessary requests from ICBC for documents. These demands often require personal injury lawyers to attend chambers and increases the cost and complexity of the litigation.
Document Production to ICBC under Rule 7-1(1) and (18)
Discovery of documents between parties of record in a lawsuit has been narrowed in the new Rules of Court from the broad basis set out before 2010. Rule 7-1(1) now only requires a party to list documents in the party’s possession or control that can be used at trial to prove or disprove a material fact.
The narrowing of the discovery obligations will require ICBC to provide some evidence to support an application for additional documents under Rule 7-1(18). A requirement for evidentiary support in requests for additional documents and third party records prevents against unwarranted “fishing expeditions” based solely upon pro forma pleadings.- See Kaladjian v. Jose, 2012 BCSC 357.
It is appropriate and often necessary that doctors and clinicians contact the patients’ lawyer to find out what documents should be disclosed in the ICBC injury claim. Disclosure obligations for family physicians will vary depending on whether the patient is making an ICBC claim and whether a lawsuit has been filed with the court. It is best to call the lawyer to find out the obligations in the case.
Need to get documents from ICBC? Learn more about what documents ICBC has to disclose to the injury claimant:
Posted by Vancouver Personal injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
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