Mikulik v. Huang and Cheung,


2008 BCSC 967


Date: 20080715
Docket: M064356
Registry: Vancouver


Romauld Mikulik



Ri Xing Huang and Kim Ying Cheung


Before: Master Donaldson

Oral Reasons for Judgment

In Chambers
July 15, 2008

Counsel for Plaintiff

V.T. Leblanc

Counsel for Defendants

D. Weinrath

Place of Trial/Hearing:

Vancouver, B.C.


[1]                THE COURT:  This is an application for production of records.  Counsel are to be commended in having reached an agreement, albeit what I will refer to as the 11th hour for production of records, for their efforts in resolving matters.

[2]                In looking at the notice of motion, the two items that need to be dealt with are item 1(2) namely vacation photographs, and 3(c) whether or not updated clinical records from the GP and/or treating physician should go in Halliday form.

[3]                Dealing firstly with 3(c) whether or not there should be production in Halliday form.  No material was filed on behalf of the plaintiff indicating that there is any basis for the records to be provided in Halliday form.  The current jurisprudence is such that if records are to go in Halliday form there must be a basis indicating there are some privacy, relevancy or privilege issues relating to what would otherwise be produced.  Thus the records will be produced to the defendants.

[4]                So far as the production of vacation photographs are concerned, there are a number of decisions which I consider to be of interest.  These range from Tupper v. Holding a decision of Master Scarth; the reported [2003] B.C.J. No. 216; the decision of Gasior v. Bayes a decision of Master Caldwell reported 2005 BCSC 1828; a decision of Master Bolton in Watt v. Meier, 2005 BCSC 1834; and the decision of Mr. Justice Myers in Desgagne v. Yuen 2006 BCSC 955. 

[5]                Tupper followed a discovery of the plaintiff during which she was asked and gave evidence that she had been on a number of holidays since the series of accidents complained of.  Further the plaintiff claimed a loss of enjoyment of life and damages for that loss of enjoyment.  It was found by Master Scarth:

7.         The documents sought include photographs of the plaintiff on vacation, posing or sitting with friends on the beach, and in front of various tourist sites. In short, they show her enjoying life.  It seems reasonable to conclude that they may assist the defendant in its defence of the plaintiff's claim that her ability to enjoy life is not what it was before the accidents.

[6]                Then Master Scarth deals with concerns about loss of privacy and the like.

[7]                In Gasior Master Caldwell concluded there was an evidentiary basis for the request, but that the production of photographs taken for personal use is in his view far more invasive than probative and accordingly he declined to order their production, commenting that the defendant has remedies in terms of obtaining its own pictorial evidence should it wish to do that.

[8]                The decision of Watt v. Meier includes reference by Master Bolton to photographs of a wedding and a honeymoon and stated that although he could not categorically state that under any conceivable circumstances the photographs cannot lead to an inquiry that conceivably be relevant, but the odds were almost infinitesimal that simply seeing photographs or videos from the wedding or honeymoon could be relevant in the case.  He goes on to state that photographs from an ordinary vacation are not quite the same.  He makes reference to a circumstance where, depending on the injuries such as a broken leg, such photographs would indeed be relevant.  In the Watt matter the only injuries plead were cognitive difficulties resulting from a brain injury and Master Bolton found that he could not think of any reason why the photographs would be relevant.

[9]                In Desgagne v. Yuen Mr. Justice Myers dealt with a number of record‑keeping devices such as the computer, PDA and items of that nature.

[10]            So far as photographs are concerned, he reviewed the decisions of Tupper, Gasior and Watt and at paragraph 49 says the following:

This is not a case where the plaintiff seeks damages arising out of an inability to undergo physical activity and the defendants suspect that the plaintiff may have been engaging in vigorous physical activity on vacation. Rather, the plaintiff’s predominant injury is cognitive, and the loss of enjoyment of life stems largely from that aspect of her injury.  I do not see, nor have the defendants shown, how photographs of the plaintiff on vacation, or with her friends and family, may shed any light on these cognitive abilities.

[11]            He concludes therefore the vacation photographs need not be produced.

[12]            Here counsel on behalf of the plaintiff points out there should be evidence of the existence of photographs and then if it is established that photographs exist, that they be shown to be relevant.  He also raises the issue of others being in photographs and those other people having privacy rights.

[13]            I am satisfied here that the fact of the plaintiff having been on vacation is such that one can presume there are some photographs having been taken, whether by the plaintiff or by others, and of course if the plaintiff is not in the possession or control of photographs taken then nothing need be produced by the plaintiff.

[14]            It is my understanding there is a discovery scheduled for the 12th of August of this year, and although the trial is not set until the 23rd of March, '09, I am satisfied it is not a sufficient stretch, if you will, to require there to be proof of holiday or vacation photographs prior to ordering that they be produced.

[15]            So far as the privacy issues relating to others is concerned, the only interest the defendant has is in the activities of the plaintiff.  The plaintiff claims damages for loss of enjoyment of life and injury to portions of the plaintiff's anatomy as were injured in a 1998 workplace injury.  There is a significant likelihood of probative value in vacation photographs, the vacation having been taken at a time when he states he was disabled from carrying on his normal work duties.  Apparently the holiday in the Dominican Republic was some time between the 15th of December and the 13th of January and took place after the 6 November motor vehicle accident.

[16]            So I am satisfied that there should an order go that vacation photographs taken during that time frame of the vacation to the Dominican Republic be produced, but that it be at the option of the plaintiff to delete the facial features of any persons other than himself in the photographs. 

[17]            (Submissions)

[18]            THE COURT:  The facial features will be appropriate to delete.  

[19]            (Submissions re costs).

[20]            THE COURT:  As liability has been admitted, the defendant is entitled to its costs in any event of the cause. 

[21]            MS. WEINRATH:  There was the matter of the MSP printout by consent.

[22]            THE COURT:  Yes, so ordered.

“Master Donaldson”