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Insufficient Reasons Lead To Retrial Of Diminished Earning Capacity Award

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

Update May 27, 2014 – After reassessment the trial judge assessed damages at the original amount
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Reasons for judgement were released last week by the BC Court of Appeal sending a case for re-trial after a judge failed to adequately explain how substantial damages for diminished earning capacity were assessed.
In the recent case (Morgan v. Galbraith) the Plaintiff was injured in a 2006 collision. He worked as a senior account manager at the Royal Bank of Canada at the time.  Following the crash he returned to this job with accommodation until his contract expired.  From there he never returned to work at the bank instead he pursued a career in professional lacrosse.  This chapter of his life ended with a concussion suffered in 2011.  By the time of trial he was working as a basketball and lacrosse coach.
At trial it was found that the Plaintiff suffered from ongoing injuries from the collision.  His diminished earning capacity was assessed at $700,000.  The BC Court of Appeal found that the reasons supporting such an assessment were lacking from the trial judgement and the matter was sent back to trial for reassessment of this loss.  In doing so the BC Court of Appeal provided the following reasons:
[54]         The economic evidence relied on by Mr. Morgan quantified lifetime earnings of a sport coach in Oregon at $883,004.  The judge did not explain the basis of his $700,000 assessment.  This amount approximates 80% of lifetime earnings of a coach, notwithstanding that Mr. Morgan is now employed as a coach.  I do not mean to imply that the assessment must be a mathematical calculation.  Rather, my point is that there must be findings of fact on which to base the assessment.  Here, the reasons for judgment on this point are not sufficient to permit appellate review.  The judge gave no hint as to the factual basis on which he reached the conclusion that on these facts $700,000 was an appropriate measure of Mr. Morgan’s future damages.  The judge did compare this case to another similar case, but, in my view, that would not be an appropriate way to assess what is essentially a pecuniary damage award.  I do not consider that it is appropriate for this Court to infer from the judge’s reasons the necessary findings of fact in order to substitute a different award or to affirm the correctness of the award. 
[55]         The judge could well have chosen the earnings approach given that Mr. Morgan was likely to pursue a career in sport regardless of the accident and that doing so after the accident was possible but with limitations.  The judge made no findings concerning the extent of those limitations.  As I have concluded that the appropriate disposition of this appeal is to remit the question of the assessment of damages for future loss of earning capacity to the judge, I will leave to the trial judge the question of the appropriate approach to adopt.  To reiterate, I agree with Mr. Morgan that on a proper evidentiary basis the judge has already found that there is a loss of future earning capacity under the Perren test.  He need not reconsider that finding.  But it will be necessary for him to revisit the assessment on a proper factual underpinning.
[56]         If the assessment is still to be based on the capital asset approach the judge must consider the four questions in Brown in the context of the facts of this case and make findings of fact as to the nature and extent of the plaintiff’s loss of capacity and how that loss may impact the plaintiff’s ability to earn income.  Adopting the capital asset approach does not mean that the assessment is entirely at large without the necessity to explain the factual basis of the award: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.
[57]         In conclusion, on this ground of appeal, I would remit the question of the quantification of future loss of earning capacity to the trial judge to reassess damages in accordance with these reasons.

$130,000 Non Pecuniary Assessment for Chronic Fibromyalgia

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized. 57 Comments on $130,000 Non Pecuniary Assessment for Chronic Fibromyalgia

Adding to this site’s archived ICBC fibromyalgia cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry dealing with such an injury.
In last week’s case (SR v. Trasolini) the Plaintiff was involved in a 2007 rear end collision.  Fault was admitted by the Defendant.  Although causation was vigorously contested, the Court conclude the collision caused a fibromyalgia condition which left the plaintiff partially disabled with chronic symptoms.  In assessing non-pecuniary damages at $130,000 Madam Justice Ballance provided the following reasons:
[169]      The injuries sustained by Ms. R. have caused her years of suffering, fluctuating degrees of chronic pain all over her body that is sometimes quite severe, and the concomitant diminution of joy and pleasure to most aspects of her life.  Although her symptoms have gradually improved, particularly in the year or so leading up to trial, they remain sufficiently significant to continue to meet the diagnosis of fibromyalgia.  The expert opinion evidence that I accept is skeptical that Ms. R. will ever fully recover to her former self despite her completion of the Pain Program, commitment to physiotherapy and other treatment modalities and reasonable exercise when she is able.
[170]     A formerly outgoing, sociable and highly energized and engaged woman, Ms. R. is now more reclusive and has had to lean heavily on her aging mother to perform her share of household chores and, for about a six-month period, to assume most of her personal grooming.  She worries about her future, including how she will be able to care for her elderly mother in the passing years.
[171]     The Accident has left Ms. R. to confront the grim reality that she has an incurable and complex syndrome that manifests as chronic pain and an array of other unwelcome physical, psychological and cognitive impairments.  For years to come, possibly indefinitely, she will be vulnerable to episodic aggravation of her physical symptoms, which in turn, will disrupt her sleep and produce an adverse effect on her overall emotional and cognitive well-being.  The person she was before the Accident has been forever altered.
[172]     While the toll taken on Ms. R. by the ill-effects of the Accident have been life- altering domestically, emotionally, recreationally, socially and vocationally, the most deleterious consequence for her is that it has limited her ability to fully realize her most passionate of life’s goals, namely to serve her faith.
[173]     I have reviewed all of the cases placed before me by counsel.  I do not propose to review them in detail as they provide general guidelines only, other than to say that only one of the authorities relied on by the defendants involved a plaintiff afflicted with fibromyalgia or a chronic pain syndrome.  Ms. R.’s authorities are far more instructive in light of their factual similarities to her circumstances; even still, they are not determinative.
[174]     Having considered the evidence as a whole and the application of the governing principles, it is my opinion that a fair and reasonable award for Ms. R.’s non-pecuniary damages is $130,000.

Why An Acquittal of Criminal Charges Is No Barrier to a Civil Negligence Case

Written by admin on . Posted in ICBC Liability (fault) Cases. 50 Comments on Why An Acquittal of Criminal Charges Is No Barrier to a Civil Negligence Case

If the OJ Simpson saga taught us anything it is that being acquitted of criminal charges does nothing to stop a civil action for damages from proceeding.  Reasons for judgment were released last week by the BC Supreme Court, Vernon Registry, demonstrating this.
In the recent case (McClusky v. Desilets) the Plaintiff was profoundly injured in a single vehicle collision in 2008.  The driver was charged with dangerous driving under the Criminal Code.  The case proceeded to trial where he was acquitted.  The Defendant then sought to have the lawsuit by the injured plaintiff against him dismissed arguing that “the issue of liability was determined when he was acquitted of criminal charges“.
Mr. Justice Steeves quickly dispatched this argument, finding the matter could proceed and ultimately determined that the defendant was negligent in causing the collision.  In addressing the Defendant’s argument the Court provided the following reasons:
[153]     With regards to the criminal charges against the defendant, he was charged with dangerous driving causing death and dangerous driving causing bodily harm. A trial was held in November 2010 and, on December 3, 2010, Mr. Justice Dley acquitted the defendant on all charges. Among other findings he concluded that there were insufficient factors on speed that would elevate the facts of the case to the level of a criminal offense. As a result it was not possible to conclude beyond a reasonable doubt that the defendant’s driving was objectively dangerous. Further, in reviewing all the evidence, the trial judge concluded that the defendant’s driving was not a marked departure from the standard of care that a reasonable person would observe in his circumstance (paras. 59, 61).
[154]     It is now submitted on behalf of the defendant in this civil action that the issue of liability has been decided in his favour by the previous criminal proceedings. That is, he is not liable for the accident and the injuries to the plaintiff.
[155]     The approach of previous decisions on this issue have focused on issue estoppel (Petrelli v. Lindell Beach Holiday Resort Ltd. 2011 BCCA 367 at para. 63; citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25). With regards to issue estoppel there are three preconditions: the same question has been decided in the previous proceeding, the previous decision was final and the parties in both proceedings are the same. In the subject case, the parties are not the same as the criminal proceeding and the issues of criminal negligence causing death and dangerous driving causing bodily harm are not the same issues as the civil liability of the defendant here. On this basis issue estoppel has no application.
[156]     With regards to abuse of process, such an abuse has been found where an arbitrator was asked to re-litigate whether an employee was guilty of a criminal sexual assault. A previous criminal court had convicted the employee. The arbitrator found that that the employee had not committed the sexual assault and the courts set this decision aside (Toronto (City) v. CUPE (2001), 55 O.R. (3d) 541,149 O.A.C. 213).
[157]      In the subject case, again, the defendant was acquitted of criminal charges with regards to the same incident that gave rise to this civil action. However, the cause of action in the latter is based in negligence not in the Criminal Code. I am not re-litigating whether the defendant committed a criminal offence, as was apparently the case in Toronto (City).
[158]     I find that it is not an abuse of process for the plaintiff to seek civil damages against the defendant when the defendant had previously been acquitted of criminal charges.

$90,000 Non-Pecuniary Assessment for Neck Injury Requiring Surgical Fusion

Written by admin on . Posted in ICBC Spine Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a neck injury requiring surgical intervention.
In this week’s case (Gormick v. Amenta) the Plaintiff, a “young, athletic police officer” was injured in a 2008 collision.  Liability was admitted by the Defendant.  The Plaintiff suffered a neck injury which required disc removal and fusion at the C5-C6 level.  The Plaintiff had pre-existing issues to her neck and the Court found that there was a 10% chance surgery would be required even absent the collision.  The Plaintiff was left with some residual symptoms but the Court found her residual earning capacity was not impacted.  In assessing non-pecuniary damages at $90,000 Mr. Justice Sigurdson provided the following reasons:
[71]         In sum, the plaintiff had some neck pain and restricted motion prior to the accident that did not impair her work or ability to enjoy life to any measurable degree.  Because of her underlying condition, which was largely asymptomatic, she suffered injuries in the accident that were extremely painful and required surgery.  The surgery, though successful, has resulted in stiffness and restricted motion that appear to have affected the strength of her throwing arm and her ability to lift.  Although surgery was not a likely option for her pre-existing condition, now that she has had it she is at 25% risk of suffering adjacent segment disc disease within 10-15 years.
[72]         In all the circumstances, I assess general damages at $90,000.  In doing so, I also take into consideration the pain and suffering that she will suffer in the future as a result of her injuries that were caused by the accident. …
116]     The plaintiff is a very capable police officer.  She has done well in her career and I expect, given the evidence of Sergeant Arruda, that she will continue to do well.  She has had two children and has maintained an active busy life.  I recognize that she appears to have some symptoms that persist, but to the extent they were caused by the motor vehicle accident, I have included that in my assessment of general damages.  I expect that her patrol work may make her uncomfortable due to stiffness or lack of range of motion, but I am not satisfied that the plaintiff has demonstrated that the injuries in the accident have given rise to a real and substantial possibility of a loss of income or capacity in the future, and as such, I make no award under this head. 

Traffic Signal Sequence Evidence Resolves Liability Dispute

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 55 Comments on Traffic Signal Sequence Evidence Resolves Liability Dispute

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating the potential value of traffic signal sequence evidence following an intersection collision.
In this week’s case (Kuma-Mintah v. Delange) the Plaintiff and Defendant were involved in an intersection collision.  The Plaintiff was heading westbound through a T-intersection.  At the same time the Defendant was attempting a left hand turn.  Both motorists claimed to have a green light arguing the other was to blame.  Evidence of the intersections traffic signal sequence ultimately proved important in resolving the dispute.

The Defendant initially gave evidence that she was stopped at the intersection for 30 seconds before the light turned green.  However traffic signal sequence evidence demonstrated that the vehicle would have only had to wait 11.3 seconds before changing sequence.  This ultimately undermined the reliability of the Defendant’s evidence.  In highlighting the significance of this evidence Mr. Justice Walker provided the following reasons:
[19]         Ms. Delange claims to have been stopped facing south at the Intersection on a red traffic signal. She said that she waited to turn left to head eastbound on the Lougheed Highway before the signal facing her turned to green. Once the traffic signal facing her turned to green, she proceeded slowly into the Intersection. As she did, she heard her husband, who was sitting behind her in the passenger seat on the left side of the vehicle, yell out that Mr. Kuma-Mintah’s vehicle was not going to stop. The collision occurred.
[20]         There was a period of time while she was giving evidence during the trial when Ms. Delange sought to move away from her wait-time estimate of 30 seconds that she gave at her examination for discovery. Her discovery evidence was very clear on the point. She also suggested the possibility that other vehicles were present at or near the Intersection. The evidence from the traffic engineer concerning the traffic signal sequence for the Intersection, which was not expert evidence, became known to Mr. Kuma-Mintah’s counsel only a few days before the trial began and to defence counsel shortly before the start of the trial (no adjournment of the trial was sought by the defence). While I do not consider that Ms. Delange, in providing new evidence suggesting a different wait-time and the possibility of other vehicles at or near the Intersection, was attempting to provide dishonest or misleading testimony following the recent disclosure of the traffic engineer’s evidence, her attempt to explain away her very clear discovery evidence was indicative of her ongoing struggle to comprehend how the accident could have occurred. I accept that she was trying to provide an overall account that she thought was truthful; it was, however, an account that was premised on post hoc reasoning…
[24]          Ms. Delange’s vehicle was the only one present at or near the Intersection that could have triggered any of the embedded traffic sensors. And as I have pointed out, I find that other than Ms. Delange’s vehicle, there was no traffic on the Lougheed Highway or United Boulevard during the relevant time before the accident occurred that would have made any difference to the traffic signals affecting Mr. Kuma-Mintah. That means that if Ms. Delange was stopped at the Intersection as she claims, then she would have been waiting for only 11.3 seconds, and not 30 seconds, before she could proceed to make her left-hand turn. Her vehicle would have automatically triggered the various traffic signals controlling the Intersection to change in accordance with the sequence design….
[29]         I find that Ms. Delange proceeded into the Intersection on a red traffic signal and collided with the vehicle being driven by Mr. Kuma-Mintah, contrary to s. 129(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. Mr. Kuma-Mintah was entitled to proceed through the Intersection on a green traffic signal pursuant to s. 127(1). I accept his explanation that there was insufficient time for him to have taken evasive action.
[30]         My findings are made on a balance of probabilities. My determination of fault is premised on the clear objective evidence concerning the sequence design of the traffic signals and the evidence of the accident reconstruction expert contained in his report. My determination is only partly derived from my assessment of the credibility of the witnesses when they gave their testimony. I have determined that the description provided by Mr. Kuma-Mintah is in “harmony with the preponderance of probabilities”: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); Gariepy v. Ritchie, [1993] B.C.J. No. 2304 (S.C.); and Hou v. McMath, 2012 BCSC 257 at para. 27.

$50,000 Non-Pecuniary Assessment for Chronic Intermittent Lower Back Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases.

Short and to the point reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for a chronic low back injury.
In the recent case (Wong v. Robillo) the Plaintiff was involved in a 2010 collision which resulted in a “severe” impact.  Liability was admitted.  The Plaintiff suffered a neck injury which largely improved and a lower back soft tissue injury which became chronic and posed ongoing, intermittent difficulties by the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Wong provided the following reasons:
[15]         The plaintiff still has chronic intermittent lower back pain which affects his endurance and prolonged walking or sitting.  Although he is able to carry out most household chores, it is with discomfort.  He has dramatically improved, but he has had to live with chronic intermittent pain, anxiety, and uncertainty for almost three years.  I would assess his pain and loss of personal amenities past and future at $50,000.

No Costs Consequences Triggered With Marginal ICBC Victory Over Formal Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing costs consequences following a trial where ICBC marginally beat their pre-trial settlement offer.
In last week’s case (Wattar v. Lu) the Plaintiff  was injured in a collision in which she and the Defendant were found equally at fault.  After the liability split the Plaintiff’s net damages awarded at trial came to $26,000.  Prior to trial ICBC made a formal offer of $27,500.  ICBC applied for costs consequences to flow from the Plaintiff’s choice to proceed to trial.  Mr. Justice Smith exercised his discretion and refused to award such consequences noting that the unrecovered potion of damages due to the operation of the Negligence Act was punishment enough.  The Court provided the following comments:
[13]         This was a three-day trial. In the absence of an offer to settle, the plaintiff would have been entitled to half of her costs, or $5,500, to reflect the division of liability. That would include $2,250, representing half of the costs attributable to three days of trial ($1,500 times three, divided by two). That is the proper amount by which to reduce the plaintiff’s costs as a consequence of her refusal to accept the settlement offer.
[14]         Counsel for the plaintiff argues that the plaintiff should recover all of her disbursements related to damages because she was substantially successful on that issue, but for the reduction resulting from the liability finding. I cannot accept that argument because the offer clearly encompassed a reasonable assessment of the plaintiff’s damages, discounted for the substantial liability risk. Acceptance of the settlement offer would have made it unnecessary for the plaintiff to prove her damages at trial.
[15]         The plaintiff is therefore entitled to costs of $3,250, plus one half of her disbursements to the date of the offer. In view of the modest award and the relatively small gap between the offer and the judgment, I do not consider it appropriate or necessary to further punish the plaintiff with an award of any portion of the defendant’s costs.

No Costs for ICBC Insured Defendant After Beating Formal Settlement Offer in Liability Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9. 56 Comments on No Costs for ICBC Insured Defendant After Beating Formal Settlement Offer in Liability Trial

Three years ago the BC Court of Appeal clarified that a Defendant’s insured status can be taken into account when considering costs consequences in a trial where a formal settlement offer was in place.  Reasons for judgement were released this week by the BC Supreme Court heavily relying on this factor in denying a Defendant post offer costs.
In this week’s case (Currie v. Taylor) the Plaintiff was involved in a 2008 collision.  Prior to trial ICBC offered to settle the issue of liability with the Defendant shouldering 41% of the blame.  The plaintiff rejected this offer and proceeded to trial where a less favorable split of 75/25 was obtained.
The Defendant sought post offer costs.  Mr. Justice Armstrong did strip the Plaintiff of trial costs but did not award these to the Defendant either.  In reaching this conclusion the Court provided the following comments about the significance of the Defendant’s insured status:
[65]         The defendants accept that the plaintiff is financially disadvantaged and that they are represented by an insurer. The defendants’ bill of costs has been presented in the sum of $30,000.32 whereas the plaintiff has disclosed an expenditure of disbursements exceeding $56,000. The plaintiff has not provided a draft bill of costs and I accept that the majority of those disbursements may relate to the issue of quantum. There is simply insufficient evidence on this point to influence the decision.
[66]         However, I am guided by the comments of Sewell J. Wong-Lai where he said:
[52]      I have also given consideration to the relative financial circumstances of the parties. The plaintiff has very limited means. The defendants are covered by insurance and in a very real sense it is the defendants’ insurer who is at risk in this action. I am entitled to take this factor into consideration in exercising my discretion: see Smith v. Tedford, 2010 BCCA 302, 7 B.C.L.R. (5th) 246. Given these circumstances, it is obvious that the relative financial consequences of depriving the plaintiff of her costs are much greater to the plaintiff than to the defendants.
[67]         I accept that there is a significant disparity between the financial resources of the parties and that the plaintiff has very limited means whereas the defendants are supported by an insurer and are at little risk in this action.
[68]         I will not order the plaintiff to pay the defendants’ costs after the delivery of their offer to settle. I have accepted the plaintiff’s arguments: there was a reasonable explanation for the plaintiff’s failure to accept the offer, the magnitude of the plaintiff’s claim is substantial, and there is a substantial discrepancy in the resources of the parties.
[69]         Accordingly, the plaintiff will recover 25% of his costs at Scale B until the date of trial. The defendants will not recover costs.
 

Driver Liable for Collision After He "Dozed Off" at the Wheel

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 61 Comments on Driver Liable for Collision After He "Dozed Off" at the Wheel

Reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, assessing fault for a collision where a motorist lost consciousness while behind the wheel.
In this week’s case (Holt v. Rother) the Defendant motorist lost consciousness while driving his vehicle.  His vehicle veered across the oncoming lane and onto the southwest shoulder where he struck and seriously injured the Plaintiff pedestrian.
The Defendant argued he was not at fault suggesting that an “unexpected and unforeseeable medical condition” caused him to lose consciousness.  Mr. Justice Barrow rejected this explanation finding it was more likely than not that the Defendant simply ‘dozed off’.  In finding the Defendant fully at fault Mr. Justice Barrow provided the following reasons:
[34]         The issue that remains is whether the defendant has rebutted the inference of negligence that arises from the proven manner of driving. He points out that it is impossible to prove what may have caused him to lose consciousness, if that is what happened, and he is not required to do that. It seems to me that it is at least as likely that Mr. Rother dozed off just before he struck the plaintiff as it is that he lost consciousness for some other reason. In fact, I think this is the more likely explanation. He was 76 years old. He had been out in the hot sun all afternoon. He had been intermittently swimming. He had driven 20 or 30 minutes on the highway in the late afternoon. I agree with Dr. Cameron that a syncopal episode, while possible, is not a likely explanation for what happened. Further, I agree that vasovagal fainting, while more likely than a syncopal episode, is less likely than simply dozing off.
[35]         In reaching this conclusion, I have considered the actual driving evidence. It is not necessary to conclude that Mr. Rother was attempting to flee the scene after he struck the plaintiff. I have no doubt that had he been aware he hit the plaintiff, he would have stopped immediately. I think it likely that he was not aware he struck the plaintiff and was not attempting to drive away when he hit the lamp standard. I think it likely that he was aroused from his momentary lapse of consciousness, and before he regained his wits, he struck the lamp standard and his vehicle rolled over.
[36]         As noted by Evans J. in Boomer v. Penn, “[t]he evidence must disclose the probability that the driver’s acts and omissions were not conscious acts of his volition”. Further, he must establish that if he suffered a lapse in consciousness, that it was not reasonably foreseeable. Dr. Francis said, and common experience supports, that drowsiness while driving is usually preceded by some advance warning, such as yawning, heavy eyelids, or a lack of acute awareness. While Mr. Rother did not say that he experienced such symptoms he is, as noted, an unreliable historian, and his memory of events shortly before the accident is not complete.
[37]         I am not satisfied that Mr. Rother has discharged the onus he bears to establish that his driving, on the day in question, was not volitional or, if it was not volitional, that it was the result of something that was not reasonably foreseeable.

Raising the Bar for "Resposive" Independent Medical Exams

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7. 52 Comments on Raising the Bar for "Resposive" Independent Medical Exams

While the BC Supreme Court can order a Plaintiff to undergo an independent medical exam to allow the opposing party to obtain a ‘responsive’ report, a clear evidentiary foundation must exist in order for such an application to succeed.  Unreported reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, demonstrating this.
In the recent case (Becker v. Zetzos) the Plaintiff was injured in a collision.  In support of his claim he served a report from a physiatrist.   As trial neared the Defendant sought an order requiring the Plaintiff to undergo an independent exam with an orthopedic surgeon for a ‘responsive’ report.    This application was brought after the expiry of the 84 day deadline for conventional expert reports to be served.
In support of the application the orthopedic surgeon provided an an affidavit stating as follows:
In order for me to assist the court and properly prepare a rebuttal to the expert report of Dr. Giantomaso I must physically examine the Plaintiff and ask him the usual questions that a doctor would ask in order to elicit any information upon which to ground my expert rebuttal report.  I could not give a proper rebuttal opinion report of the Plaintiff which assist the court and opines on the movement, functioning, diagnosis, prognosis, distribution of symptoms, recommendations, suitability for work, and etiology of the Plaintiff without physically examining the Plaintiff and where appropriate palpating the Plaintiff.
In finding this evidence falls short of the mark, Master McCallum provided the following reasons:
[17]  In this case I say the evidentiary threshold has not been crossed.  Dr. Dommisse’s letter is simply saying that he cannot give a proper rebuttal opinion report to assist the court without examining the plaintiff.  In support of that position he goes through what seems to me to be simply a description of the work he would do if he were preparing a report in the first instance.
[18]  He has Dr. Giantomaso’s report.  He doe snot say, as he could have, what there is about that report that would lead him to think that he himself needs to examine the plaintiff.  The defendant has not met the evidentiary threshold to support the request for a physical examination of the plaintiff prior to preparation of a rebuttal report.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.