Thursday, March 24, 2011

"Fishing Expedition" Slammed

In personal injury cases insurance companies, like ICBC, commonly seek court orders for production of all kinds of irrelevant documents.  They also frequently ask that Plaintiff's calculate their wage loss claims and "particularize" the claims pre-trial.  In a recent case called Zecher v. Josh, 2011 BCSC 311, ICBC attempted to gain documents related to the plaintiff's student line of credit and a calculation and assessment of his wage loss claim prior to trial. 

With regard to the calculation and assessment of the Plaintiff's wage loss claim Master Bouck dismissed the request stating that the Defendants had provided no legal basis for justifying such an order.  Master Bouck then went on to dismiss the application for the line of credit and called the request a "fishing expedition" that was aimed at attacking the Plaintiff's credibility.  Master Bouck stated as follows in Zecher:
[21] What the defendants are actually seeking is an assessment of the plaintiff’s wage loss claim. 
[22] During submissions, I asked defence counsel whether the SCCR or any other authority supports an order that the plaintiff provide a calculation or assessment of the wage loss claim in advance of trial. The answer given was to the effect that such orders have been given in the past. 
[23] Neither that answer nor the authorities cited create a legal basis justifying the order sought.
In dismissing the defendant's request for the PhamaNet records Master Bouck held:

[49] As for the evidence presented, none of the medical reports exhibited to the affidavit material suggest any pre-existing condition or pharmacological use that might be relevant to the plaintiff’s post-accident complaints. 
[50] The defendants have failed to meet the threshold test of demonstrating relevancy of the pre-accident PharmaNet records. 
[51]    The defendants did not address the plaintiff’s suggestion that the PharmaNet records are redundant given other disclosure to date. As a matter of proportionality, that issue would need to be satisfactorily addressed before the court would consider granting an order sought.
And finally, in regards to accessing documentation on the plaintiff's school line of credit, Master Bouck ruled that the defendant's were embarking on a fishing expedition and dismissed their application:

[54] The plaintiff opposes the production of the School Line of Credit records on the basis that those records neither prove nor disprove a material fact “beyond what has already been disclosed through the employment records”. It is submitted that the defendants are on a fishing expedition. 
[55] In submissions, defence counsel indicated that the objective in obtaining these records is to determine whether the plaintiff left pilot training for financial as opposed to health reasons. In other words, the defendants theorize that the plaintiff may have ended the training solely because the line of credit was exhausted. 
[56] The examination transcript excerpts do not disclose whether this theory was put to the plaintiff. 
[57] Based on the evidence presented, I agree with the plaintiff that the defendants are embarking on a fishing expedition for evidence from which an attack can be made on the plaintiff’s credibility. Such evidence will not be ordered produced under Rule 7-1 as credibility is not a material fact: Roberts v.Singh 2006 BCSC 906. 
[58] The application for production of the Student Line of Credit records is dismissed.

posted by Collette Parsons at


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