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The High Cost of Losing an ICBC Injury Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, BCSC Civil Rule 9, Uncategorized.


I’ve written many times about the significant costs a party can be exposed to for being on the losing end of a BC Supreme Court lawsuit.  Reasons for judgement were released today further demonstrating this reality under the New BC Supreme Court Rules.
In today’s case (Chen v. Beltran) the young Plaintiff entered an intersection against a red light on his skateboard.  He was struck by a vehicle operated by the Defendant and sustained injuries.  He sued for damages but his claim was dismissed with the Court finding him entirely at fault for the accident.
Rule 14-1(9) of the BC Supreme Court Rules typically requires a losing party to pay costs to a successful party.  ICBC relied on this section and requested that their costs of over $75,000 be paid by the Plaintiff’s family.   The Plaintiff opposed arguing that no costs should be awarded.  One of the reasons advanced by the Plaintiff was that such an order would “financially cripple the (plaintiff’s) family“.
Mr. Justice Greyell rejected this argument.  The Court, while disallowing some of the most significant disbursements claimed by the Defendant, did go on to order that the Plaintiff pay the Defendant’s costs.  In rejecting the “financially crippling” argument Mr. Justice Greyell reasoned as follows:
[11] The first basis upon which the plaintiff says the defendants should be denied costs is that Allan suffered significant injuries in the Accident and will require ongoing medical and psychological care throughout his life.  His ongoing care will involve significant cost to both his parents.  Allan’s parents have already incurred substantial debt to prosecute the lawsuit, have limited financial resources and will have difficulty providing for Allan’s future care even if they are successful on this application.  The plaintiff says that an order for costs will financially “cripple” the family.  While I have great sympathy for Allan’s parents the case law is clear that the financial circumstances of a litigant, standing alone, are not to be taken into consideration as a factor in the awarding of costs…

[14]         It is clear based on the above authorities that this Court is unable, on any principled basis, to take the plaintiff’s financial circumstances into account in determining whether to award costs.

[15]         To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper.  It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.

It is worth noting that this result should be contrasted with cases decided under Rule 9-1(5) where the Court does have a discretion to consider a party’s financial circumstances following trial where a formal offer of settlement was made.
Today’s case demonstrates the real world expenses that can be associated with losing an ICBC Claim in the BC Supreme Court.  It is vital to gauge these costs and the risks of trial prior to putting a case before a Judge or Jury.

Examinations for Discovery and Location: When Parties Live Outside BC

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 60 Comments on Examinations for Discovery and Location: When Parties Live Outside BC


I recently looked into the issue of location for examinations for discovery where a party to the lawsuit resides out of the Country.  I came across a useful decision (Bronson v. Hewitt) addressing this issue under the former Rules of Court.
In Bronson, a lawsuit was started in the BC Supreme Court, Vancouver Registry.  The trial was scheduled to be heard in Vancouver and all the lawyers involved in the case practiced in Vancouver.  The Defendants lived in South Carolina.  The Plaintiff wanted to force the Defendants to come to Vancouver for examination for discovery.  The Defendants opposed arguing the discovery should take place in South Carolina.  Mr. Justice Goepel agreed with the Defendants.  In doing so the Court provided the following reasons:

Lewis and Browning rely on R. 27(14).  That Rule reads:

Unless the court otherwise orders, or the parties to the examination consent, an examination for discovery shall take place at a location within 10 kilometres of the registry that is nearest to the place where the person to be examined resides.

Lewis and Browning submit that R. 27(14) supports their contention that prima facie a party has a right to be examined at their residence and that the plaintiffs have not filed any material which would lead the court to rule otherwise.

In Banque Indosuez v. Canadian Overseas Airlines Ltd. et al., [1989] B.C.J. No. 930 (S.C.) Skipp L.J.S.C.  reviewed the authorities and concluded:

I respectfully adopt the reasoning of Trainor J. in Hamstra v. B.C. Rugby Union et al., Vancouver Registry C865223 (B.C.S.C.), to the effect that if anyone seeks to vary the prima facie location being the residence of the person sought to be examined the court then looks at what is just and convenient for the person to be examined rather than for the solicitor of the person to be examined.

In Lo v. Lo, [1991] B.C.J. No. 3005 (S.C.) Master Wilson stated:

I understand Banque Indosuez to be authority for this principle, that subrule 14 is the primary determinant of the place for the examination for discovery of persons residing outside of British Columbia.

If the prima facie rule is to be changed then the court looks at what is just and convenient for the person to be examined, not for counsel.

I am of a similar view.  The default position is that non-resident parties are entitled to be examined at their place of residence.  This conclusion is consistent with R. 27(26), which sets out that the rules governing discovery apply so far as practical to persons residing outside the province.   One of those rules is R. 27(14) which sets out that absent consent or a court order, a party is entitled to be discovered at the registry nearest to the party’s residence.  There is no reason why a non-resident party should be treated any less generously than a party who resides in British Columbia.  All parties have a prima facie right to be discovered where they reside.

The court does have the power to order that a discovery take place at a different location.  In making such an order, the court’s main consideration is the convenience of the party being examined.  Convenience of counsel is not a proper basis to compel a party to travel to Vancouver for a discovery.

In the circumstances of this case, it would not be just or convenient to compel Ms. Lewis or Ms. Browning to come to Vancouver.  They are entitled to be examined at their place of residence.  Their discovery will be in Greenville, South Carolina.

This decision was based on the former Rules of Court and to my knowledge no reported decisions address the issue of location for discovery under the New Rules.  The result, however, would likely be identical under the New Rules because the former Rule 27(14) is substantively reproduced at Rule 7-2(11) of the New Rules and the former Rule 27(26) is reproduced at Rule 7-2(27) of the New Rules.

"It was the Deer's Fault" Defence Rejected in BC Injury Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 108 Comments on "It was the Deer's Fault" Defence Rejected in BC Injury Claim


Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, addressing the issue of fault for a single vehicle collision.
In today’s case (Bassi v. Bassi) the Plaintiffs were passengers in a vehicle driven by the Defendant.  The Defendant lost control resulting in a roll-over crash.   The passengers were injured and sued for compensation claiming the Defendant was careless.  The Defendant argued that he was not and that he lost control due to a deer in the roadway.  Mr. Justice Cullen found the Defendant entirely at fault for the crash and in doing so provided the following analysis:

[20]         As I see it, the issue in the present case is whether the defendant’s explanation of the accident, involving as it does the mechanism of a deer running onto the highway from his left, neutralizes the inference that by leaving his lane of travel onto the right gravel shoulder, then crossing both lanes of the highway to the opposite gravel shoulder, and ultimately losing control of his vehicle and causing it to roll over involved negligent driving on his part.  In my view, it does not.  Although the deer running onto the highway presents a basis for an explanation that the accident could have happened without negligence, the explanation actually advanced by the defendant is inadequate to offset the inference that his negligence had a significant role in the accident.

[21]         In the first place, there is no clear evidence where the deer was in relation to the defendant’s vehicle when he saw it or whether the action he took was the only or most effective way to evade the deer.  The defendant said he swerved because he “got a little nervous.”  It is unclear whether he was simply startled and overreacted or whether he took the only evasive manoeuvre open to him in the circumstances.  There is simply no evidence of what actual crisis the defendant was confronted with or how imminent it was.

[22]         Secondly, although the defendant asserts the deer came from his left from behind the bluff and he noticed it partway through the curve, it appears from the plaintiff Ms. Bassi’s uncontradicted pictures – and explanation that the defendant’s vehicle did not swerve off the road to the right until some distance past the corner down the straightaway which cast some doubt in the absence of the clearer evidence as to the nature and duration of the defendant’s reaction to seeing the deer or where he was when he reacted or where the deer was when he first saw it.

[23]         Third, the defendant asserts, at least in his affidavit, that the reason he went across the highway to the left gravel shoulder was because “the turn in the highway was so sharp.”  It is evident, however, from the defendant’s evidence on discovery and the photographs that the curve in the highway is not sharp, but is, in fact, quite gradual.  Moreover, based on the uncontradicted photographs and affidavit of the defendant, Ms. Bassi, at the point where the van turned back onto the highway from the right gravel shoulder, it was well out of the curve and on the straightaway.  There was no turn in the highway at all to cause the defendant to go “right across the highway and onto the left shoulder.”

[24]         In his discovery, the defendant testified that when he tried to bring the van back onto the highway, “The turn was so sharp, it started going the other way right away on the other side of the highway.”  It is not clear in that passage whether he was referencing the turn in the road or his own turn of the van in trying to bring the vehicle back onto the highway.  Although he clarified that in his affidavit, his explanation appears quite at odds with the nature of the highway where he is said to have lost control and that significantly attenuates the value of his explanation because it fails to answer why he veered back across the highway to the opposite side.

[25]         The defendant’s explanation also lacks any indication that he considered or attempted any other means of avoiding the accident such as by braking either when he first saw the deer or as he veered off the road to the right.  There is no evidence of any skid marks, brake marks, distances, or reaction times that would aid in understanding how the accident took place or whether the defendant’s explanation could adequately account for what occurred.

[26]         In my view, this is a case in which the plaintiffs have established a prima facie case of negligence and, while the defendant has offered an explanation of what occurred, it lacks cogent detail and is not sufficiently full, complete, or consistent with the existing conditions to neutralize the inference of negligence arising from the circumstances of the accident.  In short, the defendant’s explanation does not adequately ground a non-negligence version of how and why he came to lose control of his vehicle.

[27]         I conclude that all the circumstances, including the evidence that the defendant had not slept for nearly 24 hours and had driven for about four-and-a-half hours through the night before the accident occurred, establishes on a balance of balance of probabilities that the accident was a product of his negligence notwithstanding the explanation he advanced involving his reaction to seeing a deer coming onto the highway from his left.  I, therefore, find liability in favour of the plaintiffs.

Who's Paying The "Independent" Medical Examiner in Your Injury Claim?

Written by admin on . Posted in independent medical exams, Uncategorized.


I’ve written many times about the lucrative business of ‘independent‘ medical exams in the context of personal injury claims.  Since ICBC is a public institution they disclose annual financial statements documenting how much they have paid various doctors.  A review of these statements reveals that a handful of doctors get a lot of repeat business from ICBC and that some earn hundreds of thousands of dollars per year doing this work.
Another useful source of information is the Ministry of Health “Blue Book” which is published each year and reveals annual MSP “Payments to Practitioners“.
If you cross reference these two sources of information you can gain useful insight into some of the various streams of income of independent medical examiners.
One quick illustration are the reported ICBC and MSP billings of Dr. J. F. Schweigel.  If you look at his company’s ICBC billings for 2009 and contrast these with his MSP billings for the same year it becomes clear just how lucrative the independent medical examination business can be for a practicing doctor.
2009 ICBC Billings

2009 MSP Billings

If you’re interested in learning who’s paying your indepdendent medical examiner some quick homework can reveal very useful information.
(Note: it’s worth pointing out that MSP billings are not the only source of income for physicians’ clinical practices in BC.  One noteworthy example would be Health Authority Billings where  a doctor has hospital privileges.  When scrutinizing physician billings its good practice to get as much information as possible from all sources to get a fair and objective picture.)

$155,000 Non-Pecuniary Damages Agreement for Serious Knee Injury

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC Liability (fault) Cases, Uncategorized. 94 Comments on $155,000 Non-Pecuniary Damages Agreement for Serious Knee Injury


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing compensation for a serious knee injury following a motor vehicle collision.
In last week’s case (Stevanovic v. Petrovic) the Plaintiff was struck by a vehicle driven by the Defendant.  The Plaintiff was standing in the middle of a residential road when the Defendant approached in his vehicle.  The Plaintiff was friends with the Defendant and was expecting the Defendant to pick him up.  The Defendant attempted to show off and drive his vehicle dangerously close to the Plaintiff.  He miscalculated and struck the Plaintiff causing injury.  The Defendant denied fault but Mr. Justice Sigurdson found him entirely liable for the collision.
The parties were able to agree on several heads of damages including the claim for non-pecuniary loss (pain and suffering and loss of enjoyment of life).   The balance of the trial focused on the Plaintiff’s damages for cost of future care and diminished earning capacity.
The parties settled the value of the pain and suffering claim at $155,000.   Since the issue was privately settled this case is not a true ‘precedent‘.  Despite this I thought this case would be worth summarizing given the relatively few precedents dealing with unique and complex knee injuries.  The Court made the following findings with respect to the severity and extent of the Plaintiff’s physical injury:

[88]         The purpose of the review of the injuries that the plaintiff suffered is not to revisit the issue of non-pecuniary damages, which was agreed, but for the purpose of the assessment of his loss of earning capacity and cost of future care.

[89]         The injuries suffered by the plaintiff were summarized by Dr. Anton, a physiatrist, in his medical report of August 21, 2008:

1.         multiple injuries to the right knee including

(a)        a patellar dislocation with a residual osteocondral defect in the articular (joint) surface of the patella;

(b)        an impacted fracture of the lateral femoral condyle;

(c)        evulsion of the anterior cruciatr ligament from the tibial spine;

(d)        a lateral tibial-plateau fracture, and

(e)        a bucket handle tear in the anterior portion of the lateral meniscus;

2.         a closed head injury including a laceration, nasal fracture, and probable mild traumatic brain injury;

3.         a fracture of the proximal fibula of the right leg;

4.         an injury to the left shoulder involving the supraspinatis tendon of the rotator cuff and anterosuperior glenoid labrum; and

5.         multiple soft tissue injuries including a probable soft tissue injury to the cervical spine.

…

[91]         The plaintiff’s most serious physical injury was the damage to his right knee, which required surgery on four occasions by Dr. Pierre Guy, an orthopaedic surgeon.  The plaintiff also required shoulder surgery in 2008 by Dr. Gilbert, which surgery was successfully completed.  In more recent times, the plaintiff has developed and has complained of hip pain.

[92]         The knee injury was described by the doctors as serious and complex, and is significant for the loss of earning capacity claim, because it affects and continues to affect his ability to bend his knee, go up or down stairs, or crouch, squat, kneel, or run without pain.  As a result of his knee injury, notwithstanding the successful surgeries, it is now apparent, with his knee pain, and difficulty crouching and bending, that he would not be able to continue employment as a copier repair person, which was what he had done at RISO before the accident.

[93] I find that the plaintiff continues to suffer from pain to his knee and that further surgical options are limited until much later.  A total knee replacement at a much later age appears to be the only possible surgical solution to deal with ongoing pain and discomfort.

BC Court of Appeal Discusses Independent Medical Exams Under the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 56 Comments on BC Court of Appeal Discusses Independent Medical Exams Under the New Rules of Court


Both the former and the new BC Supreme Court Civil Rules provide parties to a lawsuit with an ability to request an independent medical exam of the opposing party  “If the physical or mental condition of a person is in issue in an action“.
Reasons for judgement were released today by the BC Court of Appeal explaining exactly what “in issue” means.
In today’s case (Jones v. Donaghey) the Plaintiff was an infant.   He was removed from his home by the BC Ministry of Children and placed into foster care with the Defendants.  The Plaintiff alleged that while in foster care the foster parents intentionally assaulted him by “violently shaking the infant“.  The Plaintiff sued for damages.
In the course of the lawsuit the Plaintiff argued that the Defendant had anger management issues.  In order to explore these the Plaintiff obtained a Court Order requiring the Defendant to be examined by a physician under Rule 7-6(1).  The Defendant appealed the order.  The BC Court of Appeal set aside the order finding that the Defendant’s mental condition was not “in issue” therefore the Rules of Court did not allow this to be explored through the independent medical exam process.
The BC Court of Appeal provided the following reasons:

[14]         …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.”…

[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. Donaghey’s mental condition is not put “in issue” by the pleadings.

[30]         The issue raised by Ms. Donaghey’s 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. Donaghey’s 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. Donaghey’s 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 person’s mental condition itself must be in issue to warrant an order pursuant to the rule and none of these allegations put Ms. Donaghey’s 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 defendant’s denial puts the plaintiff’s condition, whether physical or mental or both, “in issue”.  The plaintiff’s 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 plaintiff’s 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 plaintiff’s application.

Mike de Jong Addresses Wrongful Death Law Reform in BC

Written by admin on . Posted in Tort Reform, Uncategorized. 60 Comments on Mike de Jong Addresses Wrongful Death Law Reform in BC

As I’ve previously discussed, if a person dies through the carelessness of others in British Columbia claims for damages by surviving family members must be brought under the BC Family Compensation Act. This outdated law has been the subject of much criticism due to its restrictions for survivors claims. You can find an in-depth analysis on this topic here.
Recently BC Liberal leadership candidate Mike de Jong gave the following invitation:

I took this opportunity to ask Mike the following two questions:

Mike was kind enough to answer my first question on this recent video he uploaded to YouTube:

My question is addressed 1:13 into the clip.  For the sake of convenience here is Mike’s answer transcribed:
“That’s a good question because I think our laws in BC have fallen a little out of step with what’s happened in other jurisdictions and my belief is that if an accident occurs and someone loses a loved one they should be entitled to the same type of compensation as is available to the families elsewhere in Canada and that is not presently the case in British Columbia and I think it’s time we updated our laws in that respect.  It’s really about fairness for BC families.  Thanks for the question”
Maybe Mike will tackle my second question on his next episode of Open Mike Mailbag.  Given Mike’s views on wrongful death laws I’m optimistic he is not a tort ‘reformer‘  (for those unfamiliar with the phrase, tort reform generally refers to limiting the rights of those injured through the carelessness of others to the beneift of insurance company profits)  but a clear stance is always appreciated.  Thanks Mike.

ICBC Injury Settlements – Selling Your Right To Sue

Written by admin on . Posted in Uncategorized. 2 Comments on ICBC Injury Settlements – Selling Your Right To Sue

The best way to think of an ICBC tort settlement is not as compensation but as a sale.  In a settlement ICBC will pay you money but they are actually buying something from you in the process.  The asset for sale is your right to sue the person that injured you.
Prior signing the “full and final release” you need to know the fair value of what you are selling.  You should establish what your potential or actual lawsuit may be worth and the risks and rewards of trial so you can have an informed negotiation with ICBC.  Earlier this year I discussed some of the factors that go into valuing a tort claim in the below video:

I further discussed the factors Courts consider in valuing claims for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) in this previous podcast.
Don’t take the settlement process lightly.  Appreciate that settlement negotiations involve a business deal.  Value your claim appropriately and come to the negotiating table well informed.

Removing a Case from Rule 15 – Trial Length

Written by admin on . Posted in BCSC Civil Rule 15, Uncategorized. 51 Comments on Removing a Case from Rule 15 – Trial Length


Rule 15 is the new BC Fast Track Litigation Rule and it is mandatory for cases for damages seeking less than $100,000 and for cases that “can be completed within 3 days“.   Rule 15-1(6) permits a court to remove a case from Fast Track Litigation.  The first case I’m aware of dealing with such an application was released this week by the BC Supreme Court, Vancouver Registry.
In today’s case (Jones v. Stratford Hall) the Plaintiff sued using the mandatory fast track rule.  The Defendant applied to remove the case arguing that the trial would take more than 3 days.  Master Bishop refused to remove the case from the Fast Track finding that there was a “rational possibility” the case could be concluded in 3 days.  The Court provided the following short but helpful reasons:
[3] With respect to the first application, that is a little bit more difficult of a question to resolve, but in my view, given the test set out by Master Bolton that the defendant must show quite clearly that the matter cannot be completed in two days ?? three days, sorry, I believe the defendant fails on that basis.  I believe there is a rational possibility that counsel, particularly given the case management conference that is happening tomorrow, can complete matters within the three days, and therefore that application is dismissed.
Master Bishop refers to a case where Master Bolton appears to have addressed this issue previously (and perhaps in more detail) although the reasons for judgement do not indicate which authority the Court is relying on.   Until more precedents are developed interpreting Rule 15, authorities addressing the former Rule 68 may be of some assistance and guidance.  You can access my archived posts addressing the former Rule 68 here.

Caselaw Update: Independent Medical Exams and Responding Reports

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 48 Comments on Caselaw Update: Independent Medical Exams and Responding Reports


As previously discussed, Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an “independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.
Two further cases have been brought to my attention addressing this topic and with these the bulk of the judicial authorities to date demonstrate that it may be very difficult for a Defendant to force a late ‘independent‘ examination to obtain a responding report.
Both of the recent cases (Crane v. Lee and Boudreau v. Logan) involve ICBC injury claims.  In both the Plaintiff served expert reports discussing the extent of their accident related injuries.  The Defendants applied to compel the Plaintiff to attend an independent exam inside the 84 day deadline in order to obtain responding reports.  Master Caldwell presided over both applications and dismissed them both.  In doing so the Court relied on Mr. Justice Savage’s reasoning in Wright v. Brauer and ruled that that precedent was “on all fours” with the present applications.  Master Caldwell repeated the following reasons from Mr. Justice Savage:

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

These cases, in total, seem to stand for the proposition that a Defendant needs to have sworn evidence from the proposed medical examiner explaining why physical examination is required in order to provide a responding report (which is what happened in Luedecke v. Hillman).  Absent this, late independent medical exam applications are being dismissed by the BC Supreme Court.

As of today’s date the Crane and Boudreau decisions are unpublished.  As always I’m happy to provide a copy of these cases to anyone who could benefit from them.  You can request a copy by filling out the form on this link.