Court Finds Case Planning Conference Recordings Not Presumptively Available

Court considered granting Defendant an order allowing access to the recording of a case planning conference

In the case of PARTI V. POKORNY, 2011 BCSC 955 (“PARTI”), the Court considered whether it was appropriate to grant the Defendant an order allowing access to the recording of a case planning conference (“CPC”). The Defendant’s application was made under Rule 5-2(7) of the SUPREME COURT CIVIL RULES, which states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order”. The Defendant in PARTI was seeking a court order which would allow a court reporter to access this recording and make a transcript based on its contents.

In PARTI, the Plaintiff sustained injuries in a motor vehicle accident for which the Defendant had admitted liability. Defence counsel argued “on behalf of the defendant, and in reality ICBC” (at para. 5), that the Court’s analysis should begin with the presumption that CPC transcripts should be available for public access in conformity with the “open court principle”, unless a compelling reason for not granting access under Rule 5-2(7) exists.

The Plaintiff in PARTI argued that Rule 5-2(7) implies a presumption that CPC transcripts should not be made available unless there is a compelling reason to produce the transcript based on the specific circumstances of the case at hand. However, the Defendant did not argue that the transcript was needed for a specific purpose, as the Judge was “advised that this case is scheduled for mediation to take place shortly” (at para. 7), negating the need for a CPC transcript. Rather, the Defendant argued that the CPC transcript could “be used by ICBC for educational purposes, for the benefit of ICBC adjusters and employees, and for the future guidance of other counsel retained by ICBC” (at para. 8). The Defendant also argued that the transcript could be used as a precedent to help with the completion of other CPCs.

At the CPC in PARTI, Verhoeven J. had made orders for early disclosure of experts’ reports, as well as disclosure of the names and areas of expertise of the expert witnesses that the parties were planning to rely on at trial. Verhoeven J. inferred “that the kind of orders I made in this case could be sought by ICBC on behalf of other defendants in other cases, and that perhaps the CPC transcript could be used to that end” (at para. 9). While the Court agreed with the Defendant’s submission that the open court process can have an important educational aspect, it found that the rule against obtaining a CPC recording without a court order “is a very limited derogation of the open court principle” (at para. 42). In addition, the Court held that because CPCs are not strictly confidential in that they are held in open court where “ICBC adjusters or any member of the public may attend”, and because there is no rule against those who participate in a CPC discussing what happened, presumptive availability of CPC recordings is not necessary to achieve such educational goals.

The Court also found that one purpose of Rule 5-2(7)’s requirement of a court order for the production of CPC recordings was to allow for the parties to have “full and candid” discussion without having to worry about what is said becoming available to others outside the CPC. The Court held at paragraph 36 that “the legislature is presumed to have been aware of the open court principle when it enacted R. 5-2(7) of the SCCR, limiting the application of that principle in the context of CPCs”.

The Court in PARTI rejected the Defendant’s argument that there should be a presumption in favour of disclosing CPC recordings, holding instead that a party must show that there are “compelling grounds” for production. Because Verhoeven J. found that the Defendant had not established the existence of a compelling reason for production of the recording, an order under Rule 5-2(7) was not made.

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