Who pays for the cost of obtaining third party records in personal injury cases, defendant or plaintiff?

Often defence counsel will ask the Plaintiff to produce medical records and other third party records (such as employment files). In doing so, they will want the Plaintiff to pay for the cost of obtaining the records.  This request occurs either during an examination for discovery or shortly after close of pleadings (usually the first or second letter received from opposing counsel). The Rules of Civil Procedure state that all parties are entitled to a copy of productions and must pay for copies.  The Rules are silent as to who pays for records which are not in the party’s possession, but within their control such as medical records in the hands of a third party physician.  Defence counsel will often refer us to the following case: Veillette v. Piazza Family Trust, 2012 ONSC 4782 (S.C.J.) which state that the Plaintiff should pay for the cost of obtaining third party records requested by the Defendant and the Defendant simply pays for copies.  This is not a personal injury case.  There is no appellate authority on the issue and the Divisional Case specifically declined in a case a few years ago to make a general statement on the issue.  There are a few cases where the Superior Court of Justice has decided both ways on the issue. I have those cases. In the end, the law is that who pays for third party records remains fact specific and each case must be assessed on their own facts. The closer the request is to a fishing expedition, the more likely a court will order the Defendant to pay for third party records. The more relevant the documents are to the issues plead, the higher the risk that the Court will order the Plaintiff to pay for the third party records requested by the Defendant. I refer defence counsel to the following cases:

In Bazzi v. Allstate, [1994] O.J. No. 1310 the Court sets out general principals on production.  At paragraph 29 it states:

"…For the foregoing reasons, while I would order production of the clinical notes through a direction to the moving party (the defendant), in order that they be made available to the defendant, the cost of copying or transcribing these shall be at the defendant’s expense."

In Velocci v. Jain, [2001] O.J. No. 5567, the Court followed the Bazzi case, indicating it is the defendant’s obligation to reimburse the plaintiff for costs associated with obtaining medical documents.

In Demiroglu, the Divisional Court stated at paragraph 2 of their decision: "We are all of the view, however, that this is not the proper case in which a general pronouncement can reasonably be made on the issue of who pays for the production of documents relating to the plaintiff’s injuries but in the possession of others." 

One can argue that the case of Veillette v. Piazza Family Trust does not apply to personal injury cases as it did not deal with the particular issues of production faced by parties and counsel in the personal injury action context.  

As your personal injury lawyers, we ensure that our staff and lawyers are familiar with all aspects of the law and keep informed or developments in the law.

Marc-Nicholas Quinn,
Quinn Thiele Mineault Grodzki LLP
Personal Injury Lawyers – Mediators
310 O’Connor Street
Ottawa, ON K2P 1V8
Tel: (613) 563-1131
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