Court refuses to bar surveillance of plaintiff attending at IME; says it is a "legal discovery tool"

In reasons for judgment released this week, the court in Marques v. Stefanov, 2016 BCSC 2589, refused a plaintiff's application for a condition barring surveillance on his attendance at an IME.  The court refused to impose a blanket condition against surveillance of the plaintiff saying it was an "otherwise legal discovery tool".  Madam Justice Dorgan said:

[1]             THE COURT:  The application in this motor vehicle accident case concerns an independent medical examination of the plaintiff sought by the defendant.

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[6]             The condition the plaintiff seeks to impose as a condition of attendance, which is not agreed to, concerns surveillance.  The plaintiff asserts that it would be appropriate for the court to order that the defendant not be entitled or not be able to surveil the plaintiff as he travels to and from the independent medical examination appointment.  It is agreed between the parties that there will be no surveillance of the plaintiff during the course of the medical examination.

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[18]         Without more, and with all due respect, I do not consider myself bound by these statements in respect of surveillance.  To impose the general conditions sought by the plaintiff would, in my view, unduly restrict the defendants' right of discovery without compelling evidence of why it would be reasonable to do so and why it would be required and necessary to do so in order to achieve parity between the parties.

[19]         Such a general “rule”, if imposed, would, in a motor vehicle case, limit a defendant's ability to surveil a plaintiff where, for example, the plaintiff is compelled by a subpoena to attend court.  It could be in an unrelated case, but compelled nonetheless to attend court in order to provide evidence.

[20]         That, in my view, is a restriction which ought to be avoided unless the evidence and the arguments convince a court in the exercise of its discretion that such a restriction is necessary to achieve parity between the parties.  I know that Mr. Collins, during argument, suggested that a plaintiff could be surveilled at the courthouse and indeed Mr. Collins points out that within the courthouse itself there are signs to indicate that surveillance is in place.  That, in my view, is different than having a defendant in a case like this conduct surveillance.  A defendant would not be able to surveil a party inside the courthouse.  The surveillance signs Mr. Collins refers to are signs to indicate security surveillance is in place.

[21]         In my view, the imposition of a broad, all‑encompassing restriction, as is sought here, of an otherwise legal discovery tool should be avoided.  Such restriction, if any, should be imposed by a court exercising discretion judicially, on evidence, which would lead the court to conclude that the restriction was necessary in order to achieve parity between the parties, and is therefore a reasonable restriction of an otherwise legal discovery tool.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2589.htm