



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



Jones v. Donaghey,









2011 BCCA 6




Date: 20110107

Docket: CA038412

Between:

Cody Jones by his
Litigation Guardians,
Keith Jones and Crystal Seward

Respondent

(Plaintiff)

And

Julie Ann Donaghey

Appellant

(Defendant)

Corrected
Judgment:
the date of the lower Court Order was corrected and the citation
for the lower Court judgment was removed.




Before:



The Honourable Madam Justice
  Newbury





The Honourable Mr. Justice Mackenzie





The Honourable Mr. Justice K. Smith




On appeal from: the
Supreme Court of British Columbia, August 6, 2010,
(
Jones v. Donaghey,
Victoria Registry No. 08-1842)




Counsel for the Appellant:



R. Harper





Counsel for the Respondent:



N. Foley, F. Sierecki





Place and Date of Hearing:



Vancouver, British
  Columbia

November 30, 2010





Place and Date of Judgment:



Vancouver, British
  Columbia

November
  30, 2010





Date of Reasons:



January
  7, 2011





Written Reasons by:





The Honourable Mr. Justice K. Smith





Concurred in by:





The Honourable Madam Justice Newbury

The Honourable Mr. Justice Mackenzie








Reasons for Judgment of the Honourable
Mr. Justice K. Smith:

[1]

After hearing this appeal, we allowed the appeal with reasons to
follow.  These are my reasons.

[2]

Julie Ann Donaghey, a defendant in the underlying action, appeals with
leave from an order of the Honourable Mr. Justice Macaulay of the Supreme
Court of British Columbia by which, on application of the plaintiff, he ordered
her to attend for a psychiatric examination pursuant to Rule 7-6(1) of the
Supreme
Court Civil Rules
, (the successor of Rule 30(1) of the
Rules of Court
),
which provides,

(1)        If the physical
or mental condition of a person is in issue in an action, the court may order
that the person submit to examination by a medical practitioner....

[3]

The question is whether the chambers judge erred in concluding that Ms. Donagheys
mental condition is an issue in the litigation and consequently ordering Ms. Donaghey
to attend for a psychiatric examination pursuant to Rule 7-6(1) on the basis
that evidence of her mental condition is potentially ... relevant to an issue
or issues in the case.  In my view, he did and I would allow the appeal.

[4]

The
Supreme Court Civil Rules
prescribe the rules that regulate
practice and procedure in the Supreme Court  they set out the administrative
system under which disputes are taken to the court and adjudicated.  Clearly,
such a system must have an orderly method of determining the precise point or
points to be decided in each case.  In the Supreme Courts administrative
system, this method is known as pleading.  The rules governing pleading are
set out in Part 3 of the
Rules
.  Thus, the law of pleading is an element
of the law of practice and procedure.

[5]

Part 7 of the
Rules
sets out another element of this system.  It
is entitled Procedures for Ascertaining Facts.  Rule 7-6(1), pursuant to
which the order under appeal was made, regulates part of this component of the
administrative system.

[6]

It is trite to say that words take their meaning from their context. 
The modern principle of statutory interpretation mandates that words are to
be read in their entire context in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament:  Elmer A. Driedger,
The Construction of Statutes
,
2d ed. (Toronto: Butterworths, 1983) at 87.  This approach is equally
applicable to subordinate legislation, like the
Supreme Court Civil Rules
,
enacted by the provincial legislatures.  Thus, the meaning of issue in Rule
7-6(1) must be ascertained by considering it in the context of the
Rules
as a whole in accordance with this modern principle.

[7]

In the law of pleading, issue is a term of art.  As was said in
Farrell
v. Secretary of State for Defence
, [1980] 1 All E.R. 166 at 173 (H.L.), the
primary purpose of pleadings is to define the issues and thereby to inform the
parties in advance of the case they have to meet and so enable them to take
steps to deal with it.  In D.B. Casson,
Odgers on High Court Pleading and
Practice
, 23rd ed. (London: Sweet & Maxwell/Stevens, 1991) at 123-124, issue
is explained in this way:

The pleadings should always be conducted so as to evolve some
clearly defined
issues
, that is, some definite propositions of law or
fact, asserted by one party and denied by the other, but which both agree to be
the points which they wish to have decided in the action.

...

The function of pleadings then is to ascertain with precision
the matters on which the parties differ and the points on which they agree; and
thus to arrive at certain clear issues on which both parties desire a judicial
decision.

[Emphasis in original.]

[8]

Thus, an issue of fact is a disputed question of fact.  However, not
every disputed question of fact is an issue.  In
Howell v. Dering
,
[1915] 1 K.B. 54, Lord Justice Buckley, discussing the meaning of issue in a
rule of court that provided for costs to follow the event of an issue tried
before a jury, said, at 62,

It is impossible to say that
every question of fact which is in dispute between a plaintiff and a defendant
is an issue.  The word can be used in more than one sense.  It may be said
that every disputed question of fact is in issue.  It is in a sense, that is to
say, it is in dispute.  But every question of fact which is in issue and
which a jury has to determine is not necessarily an issue within the meaning
of the rule.  I should define issue for the purposes of this rule in some
such words as these:
An issue is that which, if decided in favour of the
plaintiff, will in itself give a right to relief, or would, but for some other
consideration, in itself give a right to relief; and if decided in favour of
the defendant will in itself be a defence
.  [Emphasis added.]

[9]

Accordingly, an issue is a disputed fact the resolution of which will,
without more, have legal consequences as between the parties to the dispute.

[10]

Such facts are referred to as material facts in
Danyluk v.
Ainsworth Technologies Inc.
, 2001 SCC 44 at para. 54, [2001] 2 S.C.R.
460:

[54]

A cause of
action has traditionally been defined as comprising every fact which it would
be necessary for the plaintiff to prove, if disputed, in order to support his
or her right to the judgment of the court:
Poucher v. Wilkins
(1915),
33 O.L.R. 125 (C.A.).  Establishing each such fact (sometimes referred to as
material facts) constitutes a precondition to success.

[11]

Professor James B. Thayer called them ultimate facts in
A
Preliminary Treatise on Evidence at the Common Law
, Reprint (South
Hackensack, N.J.: Rothman Reprints Inc., 1969) at 194, where he said, ... [R]easoning
... intervenes ... between the primary facts, what may be called the raw
material of the case, and the secondary or ultimate facts, and at 197, where
he stated, When it is said that a fact is for the jury, the fact intended ...
is that which is in issue, the ultimate fact, that to which the law directly
annexes consequences.

[12]

The
Rules of Court
, which governed when the underlying action was
commenced, adopted the description material in Rule 19(1):

(1)        A pleading shall be as
brief as the nature of the case will permit and must contain a statement in
summary form of the material facts on which the party relies ....

[13]

The
Supreme Court Civil Rules
has continued this traditional usage
in Rule 3-1(2)(a):

(2)        A notice of civil claim must do the following:

(a)        set out a concise statement of the material facts
giving rise to the claim....

[14]

Accordingly, since the purpose of pleadings is to define the issues of
material or ultimate fact as between the parties, whether a proposition of fact
is in issue for purposes of Rule 7-6(1) must be determined from an
examination of the pleadings:
Astels v. Canada Life Assurance Co.
, 2006
BCCA 110 at para. 4, 23 C.P.C. (6th) 266.

[15]

Relevant, the term used by the chambers judge, belongs to the law of
evidence.

[16]

The relationship between relevance and issues of material or ultimate
fact was explained in
R. v. Watson
(1996), 30 O.R. (3d) 161 at 172, 108
C.C.C. (3d) 310 (C.A.):

Relevance ... requires a
determination of whether as a matter of human experience and logic the
existence of Fact A makes the existence or non-existence of Fact B more
probable than it would be without the existence of Fact A.  If it does then Fact
A is relevant to Fact B.  As long as Fact B is itself a material fact in
issue or is relevant to a material fact in issue in the litigation then Fact A
is relevant and
prima facie
admissible.

[17]

This concept is succinctly illustrated, albeit using different
terminology, in
R. v. White
, [1926] 2 W.W.R. 481 at 485, 45 C.C.C. 328
(B.C.C.A.), where the Court adopted a passage from S. L. Phipson, ed.,
Best
on Evidence
, 12th ed. (London: Sweet & Maxwell, 1922) at 6 that
included these words:

The fact sought to be proved is
termed the principal fact; the fact which tends to establish it, the
evidentiary fact.  When the chain consists of more than two parts, the
intermediate links are principal facts with respect to those below, and
evidentiary facts with respect to those above them.

[18]

Thus, a material fact is the ultimate fact, sometimes called ultimate
issue, to the proof of which evidence is directed.  It is the last in a series
or progression of facts.  It is the fact put in issue by the pleadings. 
Facts that tend to prove the fact in issue, or to prove another fact that tends
to prove the fact in issue, are evidentiary or relevant facts.  And, as
Professor Thayer said at 197, Issues are not taken upon evidential matter.

[19]

In the case at bar, the plaintiffs litigation guardians are his natural
parents.  The plaintiff was born on July 9, 2006.  In September 2006, he was
removed from the custody of his parents by the Director of Child Development
pursuant to the provisions of the
Child, Family and Community Service Act
,
R.S.B.C. 1996, c. 46 and, following a presentation hearing in the
Provincial Court, he was ordered, over the opposition of his parents, into the
interim custody of the Director.  In the late fall of 2006, the Director placed
him in the foster care of Ms. Donaghey and her partner, Erana King.  In
December 2006, while he was in their care, the plaintiff claims, he suffered a
traumatic brain injury when either Ms. Donaghey or Ms. King shook
him.

[20]

The plaintiff pleaded intentional assault (i.e., battery) and
negligence against Ms. Donaghey, as follows:

16.       On or about December 20, 2006, while the Infant was
in a Director appointed foster home with the Defendants, Donaghey and King, the
Defendant Donaghey intentionally assaulted the Infant by:

(a)        Violently shaking the
infant; or

(b)        Such further particulars
which are not yet known to the Plaintiffs.

...

27.       In addition and/or in the alternative to the
allegations set out in paragraph 16 hereof, the Defendant, Donaghey was
negligent and breached her duty of care to the Infant, the particulars of which
include:

(a)        agreeing to act and/or
to continue to act as a foster parent when she knew or ought to have known that
she and/or King were not adequately trained, supervised or supported by the Director
or that she and King were unable to meet the needs of the Infant;

(b)        failing to care for
and/or adequately meet the needs of the Infant;

(c)        failing to adequately
supervisor [
sic
] and/or support King;

(d)        interfering with the
proper and/or appropriate fostering of the relationship between the Infant and
the Parents;

(e)        causing harm to the
Infant by negligent and/or inappropriate physical handling of the Infant;

(f)         failing to adequately
discharge her duties as locus parentis to the Infant;

(g)        failing to protect the
Infant from harm;

(h)        leaving the Infant with
King when she knew or ought to have known that King was prone to violence
and/or prone to take inappropriate and potentially dangerous behaviours in
relation to the Infant;

(i)         such further particulars as are not yet know[n]
to the Plaintiff.

[21]

Ms. Donaghey denied these allegations in her statement of defence.

[22]

The plaintiff also pleaded negligence against Ms. King and the
Director in these terms:

28.       In addition and/or in the alternative to the
allegations set out in paragraph 18 hereof, the Defendant, King was negligent
and breached her duty of care to the Infant, the particulars of which include:

...

(d)        Leaving the Infant with Donaghey when she knew or
ought to have known that Donaghey was prone to violence and/or prone to take
inappropriate and potentially dangerous behaviours in relation to the Infant;

...

29.       The Director and/or its agents were negligent and
breached its duty of care to the Infant, the particulars of which include:

...

(n)        placing the Infant into the care of Donaghey
and/or King when the Director knew or ought to have known that such a placement
was and/or continued to be unsafe, inappropriate or unsafe and/or inconsistent
with the best interests of the Infant.

[23]

Ms. King and the Director denied these allegations in their
respective statements of defence.

[24]

On his application, the plaintiff relied on evidence that Ms. Donaghey
had admitted on examination for discovery to anger management issues as a
young woman (more than 20 years ago) for which she had received psychological
counselling and that she had yelled at a co-worker in 2009, and on expert
psychiatric opinion evidence that, during a videotaped statement she gave to a
police officer investigating the plaintiffs injury, she displayed an
exaggerated emotional response; that although such responses can occur in the
general population, they are more likely to occur in a person with a
personality disorder; that although anger management problems may occur in
the general population, they are more likely to occur in persons with
personality disorders; and that to determine whether Ms. Donaghey has a
personality disorder would require a psychiatric examination.  Accordingly, he
contended, Ms. Donagheys mental condition was in issue in the action and
he was therefore entitled to an order that she attend for examination by a
qualified psychiatrist to investigate whether she suffers from a personality
disorder.

[25]

The chambers judge agreed.  He began his reasons by noting that the
plaintiffs specifically allege that Ms. Donaghey was prone to violence and/or
prone to take inappropriate and potentially dangerous behaviours in relation to
the infant and that

[v]irtually identical allegations
are made against the co-defendant, King, who was also a foster parent at the
material time.  In addition, the plaintiffs claim that Her Majesty the Queen,
as represented by the ministries responsible, negligently approved the personal
defendants as foster parents when they knew, or ought to have known, that the
foster parents were prone to violence as set out above.

[26]

After stating that [t]he plaintiffs expressly raised the question of
pre-disposition in their pleadings, the chambers judge said,

Whether proof of a personality
disorder with associated anger management problems may go more to the question
whether the ministry, having known of the past counselling, should have made
further inquiries into Donagheys background rather than to proving that
Donaghey committed the alleged assault, is an open question.  Potentially, such
evidence is relevant to one or both issues, depending on the actual content.

[27]

He concluded,

In my view, the plaintiffs are
entitled to the order sought.  I am satisfied that Donagheys mental condition
at the relevant times is an issue in the litigation.

[28]

Thus, he concluded that whether Ms. Donaghey has a personality
disorder is relevant to one or both issues he identified and, as well, that
her mental condition is an issue in the litigation.

[29]

In my view, the chambers judge erred.  The test under Rule 7-6(1) is not
whether the mental condition of a person is relevant to an issue; rather, it
is whether the mental condition is itself in issue.  Moreover, Ms. Donagheys
mental condition is not put in issue by the pleadings.

[30]

The issue raised by Ms. Donagheys denial of the allegation in
paragraph 16 of the statement of claim is whether she intentionally assaulted
the plaintiff by violently shaking him.  That Ms. Donaghey suffered from a
personality disorder is not a material fact in respect of this issue, that is,
proof that she suffered from a personality disorder would not in itself have
legal consequences as between these parties.

[31]

The issue raised between the plaintiff and Ms. Donaghey in
paragraph 27 is whether Ms. Donaghey breached her duty of care to the
plaintiff in any one or more of the specified ways.  None of these allegations
put Ms. Donagheys mental condition in issue.

[32]

The issues raised as between the plaintiff and Ms. King and as
between the plaintiff and the Director respectively in paragraphs 28(d) and
29(n) of the statement of claim are whether these defendants breached their
duty of care to the plaintiff by leaving him with Ms. Donaghey when they knew
or ought to have known one or more of the particularized facts.  Thus, the
issue in each case is the state of mind of these defendants.  Proof that Ms. Donaghey
suffered from a personality disorder would not entitle the plaintiff to success
on these issues.  Her mental condition is not a definite proposition of ...
fact, asserted by [the plaintiff] and denied by [Ms. King/the Director],
... which both agree to be the point which they wish to have decided:  Odgers,
supra
, at para. 5.

[33]

Ms. Donagheys mental condition might be an evidentiary fact
relevant to the issues raised in the paragraphs under discussion, as the
chambers judge concluded.  However, as I have said, relevance of the mental
condition of a person to an issue is not the test under Rule 7-6(1).  Rather,
the persons mental condition itself must be in issue to warrant an order
pursuant to the rule and none of these allegations put Ms. Donagheys
mental condition in issue.

[34]

This situation may be contrasted with the more common situation in which
a plaintiff claims damages on the basis that a defendant has negligently caused
him or her personal injury.  In such a case, the defendants denial puts the
plaintiffs condition, whether physical or mental or both, in issue.  The
plaintiffs injury is a material fact and the failure to prove it will be fatal
to the action.  Accordingly, the defendant may be entitled to a medical
examination pursuant to Rule 7-6(1) to obtain evidence of the plaintiffs
physical or mental condition.  However, as I have explained, this is not such a
case.

[35]

For those reasons, I would allow the appeal, set aside the order that Ms. Donaghey
attend for a psychiatric examination, and dismiss the plaintiffs application.

The
Honourable Mr. Justice K. Smith

I agree:

The Honourable Madam Justice
Newbury

I agree:

The Honourable Mr. Justice
Mackenzie


