8 Year Old Too Young To Be Examined for Discovery

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defense application to examine an 8 year plaintiff.
In today’s case (Dann-Mills v. Tessier) the Plaintiff was involved in a ‘serious motor vehicle accident’ when he was 17 months old.  A lawsuit was brought on his behalf by his litigation guardian.  The Defendants sought to examine the Plaintiff for discovery.  The Court found that this would be inappropriate and dismissed the application.  In doing so Mr. Justice Voith provided the following reasons:

[38]        I question the possible utility or value of any examination for discovery of Jorin, particularly in light of some of the medical conclusions I have identified. It was this issue that I canvassed most fully with counsel for the applicant.

[39]        It is generally understood that the central objects of an examination for discovery are:

i)        to enable the examining party to know the case it must meet;

ii)        to enable a party to procure admissions which will dispense with other formal proof of its case; and

iii)       to procure admissions which will damage an adversary’s case.

See e.g. Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, loose-leaf, 3rd ed. (Markham: LexisNexis, 2006) at 7-178.

[40]        The applicant and other defence counsel accepted that they had no desire to obtain any “admissions” from Jorin on discovery. Instead, the applicant said that the “primary reason” for Jorin’s intended discovery related to the first consideration I identified; that being, to enable the defence to know the case that it must meet.

[41]        Respectfully, I struggle to see how this can be so. This is not a case where the defendants may be surprised by Jorin’s evidence at trial. Jorin will not be present at the trial. Instead, the whole of Jorin’s case will be established by expert evidence, of which the defendants will have ample notice, and through other witnesses. The defendants can examine Jorin’s father and his grandmother (Jorin’s litigation guardian). They can interview his teachers and his special-needs assistants. In earlier applications, it became clear that Jorin, who requires full-time supervision, has had a series of caregivers. These sources are likely to be far more fruitful and reliable than the examination for discovery of an infant who, there is reason to believe, without deciding that it is so, struggles with comprehension, attention and language difficulties.

[42]        The last basis for an examination of Jorin that was raised by counsel for the applicant was a desire, in a sense, to see Jorin and how he functions. There is significant disparity in the existing medical opinions on Jorin’s functionality. I have referred to some of these differences earlier in these reasons. Other differences are apparent in the letters of Drs. Purtzki and Joschko, respectively. Counsel considers that some opportunity to see and interact with Jorin would potentially be helpful for settlement and other purposes.

[43]        First, it would appear that a discovery of Jorin would only achieve this object for the single counsel who conducted the examination for discovery, and not for the teams of counsel who represent the various defendants in this action. I cannot imagine that the intention would be to conduct the examination in the presence of all counsel who are involved in these actions.

[44]        Second, though I do not question counsel’s expressed goal, I consider that this object can be otherwise achieved. I suggested to counsel that Jorin might be videotaped, or that counsel might possibly view Jorin, at a medical examination, through a glass mirror. Though counsel for Jorin indicated he would not be opposed to such endeavours, I was also told by counsel for the defendants that the examining independent medical practitioners might object. Nevertheless, I consider that with some ingenuity there are far better means available to get a sense of Jorin and his functionality than a brief examination for discovery would yield.

[45]        In all the circumstances, I do not consider that an examination for discovery of Jorin would be appropriate, and I am unprepared to allow that examination to take place.

Liability Admission Overturned Late in Litigation

When fault for a crash is admitted in a formal lawsuit the Court has discretion to allow withdrawal of the admission in appropriate circumstances.  Reasons for judgement were released today by the BC Court of Appeal documenting one such instance.
In today’s case (Sidhu v. Hothi) the Plaintiffs alleged they were involved in a collision caused by the Defendant.  They sued for damages and ICBC admitted fault on behalf of the defendant.  In the course of the lawsuit a witness was interviewed who provided a statement indicating the Plaintiffs may not have been in the vehicle at all.  ICBC sought to withdraw the admission of fault.  The plaintiffs opposed arguing it was too late to do so.  The BC Court of Appeal disagreed and in finding withdrawal was appropriate provided the following reasons:

[25]         Turning, then, to what I regard as the real issue in this case – whether the chambers judge erred in concluding that most of the Hamilton factors weighed in favour of the defendants – I would suggest it would be preferable to frame items 3‑8 of the Hamilton test not as conditions that must be met, but as factors that should be considered in determining what result is in the interests of justice. Thus I would reframe items 3‑8 as follows:

(a)      whether the admission was made inadvertently, hastily, or without knowledge of the facts;

(b)      whether the “fact” admitted was or was not within the knowledge of the party making the admission;

(c)      where the admission is one of fact, whether it is or may be untrue;

(d)      whether and to what extent the withdrawal of the admission would prejudice a party; and

(e)      whether there has been delay in the application to withdraw the admission and any reason offered for such delay.

I have omitted item 6 of the original list (that the fact admitted be one of mixed fact and law), since in most cases, including Hamilton itself, this has been held to be irrelevant provided a triable issue is raised (see alsoNesbitt (B.C.S.C.) at para. 56.)

[26]         The decision as to what is in the interests of justice involves a considerable degree of discretion, and as noted in Goundar v. Nguyen 2013 BCCA 251, this court should generally not interfere with such a decision unless the judge erred in principle. In my view, the chambers judge correctly weighed the “delay” factor against the fact that the admission was made without knowledge of the evidence; that the insurer’s failure to appreciate the significance of Mr. Hothi’s witness statement was a simple oversight; that witnesses to the accident are still available; and most importantly, that if the application were dismissed, the plaintiffs might be perpetrating a fraud on the defendants and on the court. In my opinion, this possibility is one that would be very difficult to countenance. Further, allowing the application will ensure that the plaintiffs’ claim will be heard on the merits – an overarching objective referred to in Rule 1-3 of the new Supreme Court Civil Rules.

[27]         For these reasons, I would dismiss the appeal.

Parties of Record Have Standing To Address Pre Trial Witness Examination Orders

Reasons for judgement were released this week (Brooks v. Abbey Adelaide Holdings Inc.) considering the procedural question of whether a party of record has standing to make submissions during an opposing party’s application for an order compelling the pre-trial examination of a witness.  In short the Court held that all parties of record have standing to make submissions during these applications although the standing is limited.  In reaching this decision Master Young provided the following reasons:

[1]             THE COURT:  I have been asked to decide whether a party to an action has standing in a hearing of an application by another party to examine a witness prior to trial under Rule 7-5 of our new Supreme Court Civil Rules.

[2]             Apparently there is no authority on this point under the new Civil Rules..

[12]         I find that the party has a right to make submissions on the scope and the duration of the examination as it relates to relevance and proportionality.

[13]         So I find that they have limited standing. They do not have standing to object to a witness being questioned, because I think that infringes the common law right of property to a witness. But I do find that they do have standing to address procedural issues, proportionality issues and issues of privilege.

[14]         Having said that then, I will allow the plaintiff to make submissions of the application.

Absent Agreement Discoveries To Take Place At Lawyers Office

Reasons for judgement were released today (Schroeder v. Sweeney) by the BC Supreme Court, Kelowna Registry, addressing a practice point.  Where are examinations for discovery to take place if the parties can’t agree?  Master McDiarmid ruled that the default is the lawyer’s office of the party being examined.  The court provided the following reasons:

[4]             Subrule 7-2(11) needs a bit of analysis. It provides, firstly, that you are to find a Registry closest to where the party to be discovered resides in British Columbia and then you are to find a location within 30 kilometres of that registry. It does not say that the discovery is to take place at the registry, although in the past that is where discoveries did take place. All of the larger registries had rooms where examinations for discovery occurred. It is true that often the most convenient location is the place where the court reporters carry on their business.

[5]             However, I have always understood the default position (for parties resident in B.C.) to be that if the parties could not agree, the party would be discovered at that party’s counsel’s office.

[6]             There are reasons why that is convenient to the party. One reason is that the full documents in the possession of that party will be available. A second is that the party being examined is in a surrounding where that party’s counsel practises and so the party is presumably somewhat more comfortable there.

[7]             In responding to this particular application, I reviewed some comments — and not unreasonable comments by the plaintiff, where he deposes basically, that yes, he  could go to the court reporter’s office, but he does depose to some issues with parking. That does, to some extent, impact on his convenience. It seems to me though that the — what I am going to call the default provision which was certainly the provision I understood as counsel was that if parties could not agree, the discovery should take place at the office of the counsel representing the party to be discovered. The matter is somewhat of an important practice point.

[8]             I am dismissing the application and ordering that the discovery take place at the office of the plaintiff’s counsel. The part of the application that the plaintiff attend Okanagan Court Reporters is dismissed and instead of that, the order is that the plaintiff attend at examination for discovery at the offices of his counsel.

Speculation No Reason for Second Defence Medical Exam

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, confirming that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur.
In the recent case (Litt v. Guo) the Plaintiff was involved in two collisions and sued for damages.  In the course of the lawsuit the Plaintiff consented to a defence medical exam with a physician that addressed the Plaintiff’s injuries.  As trial neared the Defense applied for a further exam with a new physician arguing that the initial report was dated and further that “the plaintiff might file a newer report” and the Defendant wished to respond to this anticipated development.  In noting that both arguments were insufficient for a Court ordered second defense medical exam Madam Justice Fenlon provided the following reasons:

[10]         The second ground raised by the defendants, and the ground that Mr. McHale referred to as the primary basis supporting the application for another IME by a different specialist, is that the most recent report of Dr. Bishop will be two years old at the date of trial in October 2014. The defendants fear that the plaintiff might file a newer report before the August 4 deadline for delivery of such reports, and the defendants say they would then be at a disadvantage because the plaintiffs will have a fresher report, a report based on a more recent assessment of the plaintiff.

[11]         The defendants submit that they would wish to put before the Court the best evidence, the evidence of an examination of the plaintiff at a time more recent than October 2012. There are, in my respectful view, two weaknesses with that submission. The first is that it anticipates what has not yet occurred.  If the plaintiff does submit a report prepared by one of her experts based on a recent examination of the plaintiff and if something new comes out of that report, then presumably Dr. Bishop could be invited to comment on it and the defendants would be in a position to file a rebuttal report. There is nothing in the record before me to suggest that he would not be able to comment on such a report or that there would be a need for further examination should he, in fact, be faced with such a report.

[12]         The second weakness is that passage of time alone is not a basis for ordering a second medical examination of a plaintiff. Dr. Bishop’s report is very clear in terms of his diagnosis, prognosis and his description of the pattern of symptoms Ms. Litt will experience into the future. He describes a likely aggravation of symptoms on activity, which it seems is exactly what is reflected in the medical reports which initially led to this application.

[13]         In short, despite Mr. McHale’s able submissions, I cannot find that a further examination is necessary to ensure reasonable equality of the parties in preparing for this trial.

Increased "Sexually Aberrant Behavior" Brain Injury Claim Leads to Police File Disclosure

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing document relevancy issues in a disputed brain injury claim.
In today’s case (Mackinnon v. Rabeco Holdings (1989) Ltd.) the Plaintiff was involved in a 2010 vehicle collision.  He sued for damages alleging that “he sustained a brain injury…as a result of the accident which caused or contributed to an increase in the frequency and severity of his pre-accident sexually aberrant behaviour culminating ultimately in a criminal conviction“.
Prior to the collision “the plaintiff took clandestine photos of a woman. The incident was reported to police in Langley who investigated, but no charges were laid.”.  In a post collision incident, the Plaintiff plead guilty to “surreptitiously unlawfully observing or recording for a sexual purpose a person in circumstances that give rise to an expectation of privacy contrary to s.162(1)(c) of the Criminal Code”.
The Defendant sought production of police materials from these incidents arguing the documents were relevant given the allegations in the lawsuit.  Master Harper agreed and ordered production.  In doing so the Court provided the following reasons:
[17]         The plaintiff will attempt to prove at trial that the injuries sustained in the motor vehicle accident caused or contributed to the escalation of his sexual proclivities. That fact, if found by the trier of fact, is material. The defendants seek to obtain evidence as to the timeline of the escalation in the Plaintiff’s sexually aberrant behaviour and compare his behaviour pre- and post-accident…

[22]         Because the defendants are not seeking production of the videos and photographs themselves (sensibly, in my view because I would not have ordered their production), secondary documents which refer to the nature of the images and the dates on which they were made are a reasonable substitute for those original documents. I find that certain specific documents in the possession of the RCMP with respect to the 2009 incident should be produced. These are: the incident report; any statements made by the plaintiff to the RCMP and the investigating police officer’s notes, with identifying information of the victims to be redacted.

[23]         I find that certain specific documents in the possession of the RCMP with respect to the June 25, 2012 incident should be produced. These are: the Narrative Report to Crown Counsel; the notes of the investigating police officer or officers and any statements made by the plaintiff to the RCMP.

[24]         The video catalogue was referred to by Crown Counsel as being made by someone other than Crown Counsel. There is no evidence as to who that someone is. It is possible that the video catalogue was not made by the RCMP and is not in the possession of the RCMP. There is no evidence before me in this application that the video catalogue is in the possession of the RCMP and no evidence from which I can draw an inference that the video catalogue is probably in the possession of the RCMP. Therefore, I dismiss that part of the application.

[25]         As stated above, counsel for the Defendants is not seeking disclosure of the videos and photos themselves. Any identifying information of the victims will be redacted.

Case Planning Conference Transcripts Are Tough To Come By

BC Supreme Court  Rule 5-2(7) 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 few cases released to date interpreting this rule have made it clear that the Court is reluctant to deviate from this fall back position.  Reasons for judgement were released today the BC Supreme Court, Nanaimo Registry, following this trend.
In today’s case (Darel v. Samy) a variety of orders were made at a case planning conference.  The Plaintiff applied for reasons to be published arging that these were desirable “for the intended purpose of bringing the “conduct” of the defendants “to light”.
Master Bouck rejected this request and in doing so provided the following brief reasons:
[5]             The plaintiff’s request for release of the transcript is denied for the reasons articulated in Parti v. Pokorny. Firstly, a transcript is not required to resolve any dispute about the terms of the case plan order. Second, there is no precedential value in any of the terms of the order. Third, the court does not issue reasons for judgment at the request of a party. And finally, the comments of a presider are not rulings or reasons.
 

Lack of Doctor's Affidavit Thwarts Independent Medical Exam Application

While the BC Supreme Court does have the ability to compel a Plaintiff to attend a defence medical exam a proper evidentiary foundation must be established before the Court will be prepared to exercise this power.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dismissing an application due in part to a lack of evidence from the proposed physician.
In last week’s case (Rathgeber v. Freeman) the Plaintiff was injured in a collision and sued for damages and also sought Part 7 benefits from ICBC.  ICBC sent the Plaintiff to an independent medical exam with an orthopedic surgeon who provided a report addressing the Plaintiff’s injuries.  Some four years later the tort claim was still ongoing and the Defendant brought an application for a further exam with the same physician.  The Court dismissed this noting that the previous exam covered tort issues and even if there was a change of circumstances making a further report necessary there was nothing in the evidence justifying a further physical examination.  In dismissing the application the Court provided the following reasons:
[23]         In some respects, Dr. Kousaie’s November 9, 2009 report “resembles” a report in a tort claim. The doctor sets out his qualifications, for example, as well as facts and assumptions. He includes details of the accident, the plaintiff’s recreational history and comments on the possibility of academic impairment. He indicates that the examination involved a comprehensive physical examination. Those aspects of the report appear to be more consistent with a comprehensive report prepared to address the plaintiff’s complaints in a tort action.
[24]         On the other hand, the report is now four years old and while Dr. Kousaie makes reference to the neck injury, he appears to have focused on low back pain as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s review of the then available imaging and x-rays did not indicate any trauma to the spine although some minor disc bulges were noted in the lumbar area.
[25]         More recent assessments, and that of Dr. Twist in particular, suggest an increasing focus on the neck injury and indeed the CT scan referred to earlier shows a small circumferential disc bulge in the cervical spine, a condition not evident at the time of Dr. Kousaie’s first examination.
[26]         Taking a holistic view of the circumstances, Dr. Kousaie’s 2009 report is comprehensive and to some extent addresses issues more relevant to a tort claim than a Part 7 claim. The results of the CT scan and the shift in focus to the plaintiff’s neck injury, however, are issues which the defence may need to address. There is, however, nothing in the evidence before me to show why a further examination, rather than a review of the available materials by Dr. Kousaie or some other qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence. While I do not wish to be taken as suggesting that the proposed examiner should, in all cases, provide an affidavit with respect to the necessity for a further examination, such an affidavit would have been of significant assistance to me in this case.
[27]         On the basis of the material before me, the application is dismissed.

An IME "Should Not Be Ordered Simply To Allow The Defendants To Ask the Same Questions Asked in Discovery"

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing an application for an independent medical exam noting the Defendant’s could have obtained the sought information through the discovery process.
In this week’s case (Foster v. Chandel) the Plaintiff was injured in a 2009 collision.  The Plaintiff agreed to attend a Defense medical exam.  Subsequent to this the Defendant requested a second exam with a psychiatrist.   The Defendant argued that this was necessary because “the plaintiff is taking the maximum dosage of anti-depressant medication; has been seen by a psychiatrist (but not for treatment); and is suggested [by her family doctor] to be suffering from a mood disorder related to chronic pain.“.
Master Bouck dismissed the application noting all of this could be explored through the discovery process.  In reaching this conclusion the Court provided the following reasons:
[18]         There is no evidence from any medically-trained person suggesting that a psychiatric examination is necessary or useful to either diagnose or treat the plaintiff. The plaintiff is taking medication in the dosage recommended by physicians with no suggestion of prescription abuse. The emotional symptoms are said by the medical experts to emanate from the plaintiff’s physical pain, not from any alleged psychiatric condition or disorder.
[19]         The defendants submit that the psychiatric examination may reveal other causes for the plaintiff’s anxiety and depression. It may also reveal the nature and extent of these conditions.
[20]         Such information can be sought at the plaintiff’s examination for discovery. A psychiatric examination should not be ordered simply to allow the defendants to ask the same questions asked in discovery but in a different manner and venue.
[21]         The nature and extent of the plaintiff’s pain disorder and resulting symptoms is revealed in the records and reports of the treating physicians. There is no evidence to suggest that a psychiatrist could offer a “better” diagnosis or prognosis on that condition.
[22]         The facts of this case have many parallels to those discussed in Wocknitz v. Donaldson, 2010 BCSC 1991. As in that case, the defendants do not have the necessary evidentiary foundation to support an order for “this particularly invasive form of examination”: para. 20.

Late Defence Medical Exam May Be Ordered in Exceptional Circumstances

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing court orders for late defence medical exams.
In this week’s case (Jackson v. Yusishen) the Defendant brought an application for a ‘responsive’ functional capacity evaluation.  Mr. Justice Barrow dismissed the application finding that on the facts before him the evidentiary burden for a late exam were not met.  Despite this result the Court provided the following interesting comments addressing that a late defense medical exam may be justified in exceptional circumstances:
[15]         There are three rules engaged by this application. The Rules of Court distinguish between new or fresh expert reports and responsive reports. Rule 11‑6(3) provides that, unless the court otherwise orders, expert reports other than responsive reports must be served on all parties of record at least 84 days before the scheduled trial date.
[16]         Rule 11‑6(4) deals with responsive reports and provides that such reports must be served on every party of record at least 42 days before the trial date.
[17]         The third rule engaged by this application is Rule 7‑6, which provides that the court may order a person submit to an examination by a medical practitioner or another appropriately qualified person. An order under Rule 7‑6(1) is discretionary. While there are a host of factors that should be considered when exercising the discretion conferred by that rule, one of the factors might broadly be taken to be whether the examination sought will advance the litigation, in the sense of potentially yielding relevant evidence touching on a material issue.
[18]         In the context of a personal injury action, meeting that evidentiary threshold where the object of the examination is the eventual production of a fresh or new expert report will not usually be difficult. On the other hand, where the time limited for serving fresh or new expert reports has passed, and thus the only purpose of an independent medical examination is in furtherance of the production of a responsive expert report, the evidentiary burden will generally be more difficult to meet…
[32]         Although the evidentiary burden has not been met in this case, I acknowledge that, on occasion, there may be circumstances which might justify the ordering of an independent medical examination, otherwise than in support of the preparation of a responsive report. It may be that, in some cases, the court may anticipate or at least allow for the possibility that a fresh opinion would be exceptionally admissible, notwithstanding that the 84‑day deadline has passed. Although not framed that way in Luedecke, the issue may have arisen at trial after the production of the report that the master ordered. In this case, however, there is no basis to conclude that an independent medical examination is necessary to level the playing field.

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If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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