Can A Litigation Guardian Be Ordered to Attend an Independent Medical Exam?


(UPDATE:  Please note Leave to Appeal the Below Decision was granted by the BCCA on January 25, 2011)
When a mentally incompetent person brings a lawsuit in BC they must do so through a litigation guardian or a committee.  Generally, when personal injuries are the subject of a lawsuit, the Defendant is entitled to have the Plaintiff attend an ‘independent’ medical exam.  What about the litigation guardian?  Can they be ordered to attend an independent medical exam?  The BC Supreme Court Civil Rules are silent on this point however, reasons for judgement were released today considering this question using the Court’s ‘inherent jurisdiction’.
In today’s case (Bishop v. Minichiello) the Plaintiff was injured in a 2005 motor vehicle collision.  He was an infant at the time and brought the lawsuit by way of litigation guardian.  The Plaintiff became an adult prior to the lawsuit resolving.  Normally, when this occurs, the Plaintiff files an affidavit and overtakes the lawsuit without the litigation guardian.  In today’s case the Plaintiff did not do this apparently because his injuries may have rendered him “unable to appreciate the extent of his own injuries and unable to effectively conduct the litigation on his own behalf.”.
The Defendant brought a motion that both the Plaintiff and his litigation guardian attend a series of medical exams.  The Plaintiff opposed arguing that the Rule authorizing the Court to compel a Plaintiff to attend an Independent Medical Exam does not empower a Court to extend the order to a litigation guardian.  Mr. Justice McEwan noted that while this was true it could be remedied by resorting to the Court’s inherent jurisdiction.  In granting the application the Court noted as follows:
[12] The defendant submits that although Rule 7-6 (1)-(3) makes no specific provision for a person other than the party to be examined to attend and answer questions, Wong (guardian ad litem) v. Wong [2006] B.C.J. No. 3123 (C.A.) established that the court may, in the interests of justice make ancillary orders to give effect to the purpose of the Rules, found in Rule 1(5) [now Rule 1-3]. In Wong, the question was whether the court could order a plaintiff to video tape an examination…

[13]         Rule 20-2 reads:

(3)        Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must:

(b)        be invoked against the party by invoking the same against the party’s litigation guardian.

[14]         Rule 13-1 reads:

(19)      When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[15]         On the question of inherent jurisdiction I think the characterization found in R & J Siever Holdings Ltd. v. Moldenhauer 2008 BCCA 59, is most apt:

In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg. Prob. 23 at 23-25. As the author said, at 25,

The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.

[16]         The Rules do not, properly speaking, confer jurisdiction. To the extent that they reflect a consensus of the Judiciary (and the Bar) as to the presumptions, or expectations, or shifts in onus that will contribute to the just and expedient conduct of litigation, they are useful in bringing predictability and stability to civil procedure. To the extent that they do not reflect such a consensus, they cannot be regarded as mandatory impediments to doing the right thing in any particular case.

[17]         The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.

[18]         Whether such an order is appropriate requires the court to weigh the plaintiff’s objection against the defendant’s rationale for the request…

[20]         The plaintiff’s objection to the attendance of the litigation guardian is primarily that a conversation between the litigation guardian and the examining physician creates a form of statement that is not controlled within the process and that might well lead to conflict or confusion later, if the guardian and the Doctor do not agree as to what was said.

[21]         The defendant’s point is, primarily, that in a case where the defence is guessing as to the mental status of the plaintiff, it would be prudent to have the person who knows him best, and who is also the litigation guardian, available to answer questions about his condition, especially where it is suggested that, among the effects of the injuries suffered in the accident, is a lack of insight or appreciation on Brandon Bishop’s part of the harm that has occurred.

[22]         In Tsantilas (Litigation Guardian) v. Johnson, Cranbrook Registry #18128 (20100211) Melnick, J. made a similar order in a case involving both counsel who appear in this proceeding. In what I gather to be a case of an under-age person, the court ordered the attendance of the litigation guardian at an assessment…

[23]         I think that as long as the case continues to be conducted by Charlotte Bishop as litigation guardian, the implication that, for reasons related to his injuries Brandon Bishop is unable to conduct the litigation will remain, along with the implication that talking to him will not yield the whole story. The plaintiff’s concerns about possible confusion do not outweigh the defendant’s interest in the appointed examiners getting accurate and complete information. Accordingly, Charlotte Bishop, as litigation guardian, must attend and answer the questions posed by the examiners as they require.

bc injury law, bishop v. minichiello, Defence Medical Exams, independent medical exams, Inherent Jurisdiction of the Court, Mr. Justice McEwan, Rule 1-3, Rule 13-1, Rule 20-2, Rule 7-6(1), Rule 7-6(2), Rule 7-6(3)

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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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