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Limitation Period Not Postponed Where "Injuries Prove to be More Severe Than Initially Believed"

Written by admin on . Posted in Uncategorized.

Today the BC Court of Appeal published reasons for judgement upholding the dismissal of a medical malpractice claim that was brought out of time.
In today’s case (Bell v. Wigmore) the Defendant “ performed a syringing procedure, irrigating and flushing” the Plaintiff’s ear.  The Plaintiff alleged this was done negligently and as a result the Plaintiff went on to suffer from long term dysfunction.   The Plaintiff started the lawsuit almost 6 years after the incident when the applicable limitation period was two years.
The case was dismissed at trial and the Plaintiff appealed arguing the limitation period should have been postponed because in the initial period “he had every reason to believe that his injuries were transient and relatively minor”.
The BC Court of Appeal dismissed the appeal finding there was no good reason to postpone the running of the limitation period.  In reaching this conclusion the Court provided the following legal summary:

23]        The mere fact that injuries prove to be more severe than initially believed will not serve to postpone the running of the limitation period: Peixeiro v. Haberman, [1997] 3 S.C.R. 549; Craig v. Insurance Corporation of British Columbia, 2005 BCCA 275. On the other hand, where it can be shown that the injuries were not, initially, sufficiently serious that a reasonable person would seek advice concerning a lawsuit, the running of the limitation period may be postponed to a time when the seriousness of the injuries became evident.

[24]        In Brooks v. Jackson, the plaintiff experienced a hemorrhage following the birth of her child. She was advised that “she should expect to be unwell for approximately two years, the length of time it would take to get her blood back and recover from the delivery.” Some four years later, she was diagnosed with Sheehan’s Syndrome, and soon after determined that the syndrome could have been brought on by the hemorrhage.

[25]        This Court found that the limitation period did not start to run until the plaintiff was diagnosed with Sheehan’s Syndrome:

[32]        In my opinion, a reasonable person in the position of Ms. Brooks would not have sought legal advice or further medical advice prior to the diagnosis of Sheehan’s Syndrome. She was advised in January 1998 she had no physical sequela from the delivery and she was satisfied with the answers Dr. Jackson gave to her questions. A reasonable person, in those circumstances, would not seek legal advice to determine whether there was a cause of action against Dr. Jackson. Ms. Brooks had no reason to believe that the temporary loss of blood had caused a permanent injury of a qualitatively different nature. It is my view that a reasonable person would not have sought legal advice until realizing the damage was more than transient in nature. Accordingly, the running of time in the limitation period was postponed until Ms. Brooks was diagnosed with Sheehan’s Syndrome, and the limitation period had not expired prior to the commencement of the action.

[26]        Brooks does not stand for the proposition that the running of a limitation period is postponed whenever a plaintiff has reason to believe that a condition will eventually subside. The question of whether a reasonable person would seek further advice turns on a number of factors. A court must consider the apparent severity of the injury and the duration and magnitude of its impact on the plaintiff’s lifestyle. A court will also consider whether, in the circumstances of the case, the plaintiff had good reason to suspect that someone was at fault in causing their injuries.

[27]        In Brooks, legal and medical advice, if taken early on, might have led the plaintiff to understand that she had a reasonable cause of action. It would not, however, have been reasonable for her to take such advice, as she was unaware that she had suffered serious harm, and had little reason to suspect that the harm she had suffered was a result of negligence.

$50,000 Assessment for 6 Years of Back Pain

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries arising from a vehicle collision.
In today’s case (Harder v. Poettcker) the Plaintiff was involved in a 2009 collision.  The matter proceeded to jury trial where a jury found the Plaintiff 85% at fault for the crash with the Defendant shouldering the rest of the blame.
The Plaintiff suffered a back injury.  He suffered from pre-existing back problems and fibromyalgia.  The court found that while the Plaintiff’s symptoms lingered at the time of trial after the 6 year mark these symptoms were due to the pre-existing issues.  In assessing non-pecuniary damages at $50,000 Mr. Justice Sigurdson provided the following reasons:

[77]         The plaintiff suffered a moderate soft tissue injury to his lower back and neck in the motor vehicle accident. Those soft tissue injuries were more painful and discomforting to the plaintiff than they otherwise would have been because he has a troublesome back that had in the past required surgery on two occasions.

[78]         However, the evidence does not disclose that the accident caused the need for the plaintiff’s back surgery. In that respect I prefer the evidence of the surgeon Dr. Splawinski to the evidence of the rheumatologist.

[79]         I expect that Mr. Harder became more uncomfortable as a result of the accident and decided to have the surgery privately. I think that he had the surgery more quickly than he otherwise would have had it because of the soft tissue injuries he suffered. That finding is relevant to whether the cost of the private surgery with a shorter waiting list is recoverable.

[80]         I have also concluded that on the evidence the plaintiff has not demonstrated that his fibromyalgia was brought on by the trauma in the motor vehicle accident. However, like his pre-existing back condition, it was an aspect of his pre-existing condition that on the evidence waxed and waned in any event and I think was an aspect of his condition that probably made his injuries from the accident more uncomfortable and debilitating when he had fibromyalgia.

[81]         How long did the injuries from the accident to his lower back and his neck persist?

[82]         Dr. Shuckett thought (as she described in 2015) that they probably continued as he had probably achieved maximum medical improvement. Dr. Splawinski thought that he suffered a soft tissue injury to his neck and lower back and that the symptoms of neck and lower back pain settled down relatively quickly. Dr. Wade described his injury as a mild to moderate soft tissue injury.

[83]         I find that the injuries were soft tissue injuries suffered by the plaintiff that largely resolved by trial more than six years after the accident and any continuing discomfort that Mr. Harder suffers is largely related to his pre-existing back problem or his fibromyalgia which I find was not caused by the accident. The discomfort and pain suffered by Mr. Harder during the recovery period was however more significant than otherwise because they occurred to a man with a troublesome back and waxing and waning fibromyalgia. The defendant concedes that there was at least an acute period of discomfort and restricted activity.

…

[90]         Considering all of the evidence, I assess the plaintiff’s non-pecuniary damages at $50,000.

Double Costs Awarded After Trial Judgement Nearly Doubles Plaintiff Formal Offer

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs after obtaining judgement nearly doubling her pre trial formal settlement offer.
In the recent case (Risling v. Riches-Glazema) the Plaintiff was inured in a motor vehicle collision and prior to trial made a formal settlement offer of $315,000.  The Defendants rejected the offer and proceeded to trial where damages of $622,500 were awarded.  The Plaintiff sought and was granted post offer double costs.  In agreeing these were warranted Mr. Justice Affleck provided the following reasons:

[7]             In my view:

a)              The plaintiff’s case was well known to the defendants at the time of the offer. The plaintiff had been examined for discovery on two occasions; had attended two medical examinations at the request of the defendants, and a mediation had taken place in June 2016;

b)              the offer was made one week before the trial began which gave the defendants a full opportunity to consider it;

c)               the offer had a relationship to the claim and could not be characterized as a “nuisance offer”; and

d)              the offer was expressed in plain language and thus easily evaluated.

[8]             The final judgment of the court greatly exceeded the offer. The plaintiff submits her offer was a true attempt to reach a reasonable compromise of the claim and that the rationale for the double cost rule is to encourage parties to settle by taking a realistic view of the probable outcome of a trial. The plaintiff submits that rationale would be thwarted if in the present circumstances she is not entitled to double costs.

…

[10]         The defendants submit their limited understanding of the case made it difficult to quantify the claim and that, while the rationale for the rule for double costs is acknowledged, the defendants ought not to have been deterred from defending the claim for fear of a “punishing costs award”. Currie v. McKinnon, 2012 BCSC 1165 is relied on in support of that argument.

[11]         The defendants also submit that “no rationale for the offer was provided” in the plaintiff’s letter of August 15, 2016.

[12]         I do not agree that no rationale was provided. The plaintiff described the heads of damages she would advance at the trial and advised that the offer took into account “Part 7 Benefits paid or payable pursuant to Section 83 of the Insurance (Vehicle) Act”. Furthermore, the defendants had an opportunity on the mediation to canvas fully with the plaintiff’s legal advisers the extent of the plaintiff’s claim and the evidence at trial which would be advanced to support the claim.

[13]         I am also mindful that in Hartshorne the Court of Appeal expressed the view that the list of factors described in para. 27 of its reasons need not be relevant in every case.

[14]         Currie v. McKinnon does not help the defendants on this application. That case involved a personal injury claim with an award of damages which fell within the monetary jurisdiction of the Small Claims Court. Double costs were not awarded. In short Currie v. McKinnon is distinguishable on its facts from the matter before me to such an extent that it cannot usefully be called in aid of the defendants’ argument.

[15]         The plaintiff is entitled to the costs of this action including double costs from the date of the offer.

$110,000 Non-Pecuniary Assessment for "Likely Permanent" Vertigo

Written by admin on . Posted in ICBC Dizziness Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary loss at $110,000 for chronic vertigo symptoms.
In today’s case (Wright v. Mistry) the Plaintiff was involved in a 2006 collision.  Liability was disputed but the Court found the Defendant fully at fault.
The Plaintiff suffered chronic vertigo and an exacerbation of pre-existing depression.  In assessing non-pecuniary damages t $110,000 Madam Justice Choi provided the following reasons:

[54]         While each case depends on its own facts, the award should be fair and measured against other similar cases. In Stapley v. Hesjlet, 2006 BCCA 34 at paras. 45-46, the Court of Appeal set out a non-exhaustive list of factors to be considered in making this award. These include the age of the plaintiff; the nature of the injury; severity and duration of the pain; disability; impairment of life; impairment of family, marital and social relationships; impairment of physical and mental abilities; and loss of lifestyle. The plaintiff’s stoicism should not penalize the plaintiff.

[55]         Mr. Wright was 56 at the time of the accident and was 65 at the time of trial.

[56]         Mr. Wright suffered a number of injuries in the accident. He had soft tissue injuries that resolved within six months of the accident. He developed vertigo which has lasted for ten years and is likely a permanent condition. In addition, he has ongoing testicular pain from a fall related to the vertigo. His impairment also caused exacerbation of his pre-existing depression.

[57]         Mr. Wright noted that his vertigo has robbed him of much of his enjoyment of life, especially by limiting how much time he can spend with his grandson, and how they can play together…

[60]         I find the facts in Moukhine to be most helpful here. Moukhine considered a 53- year-old computer programmer who developed Visual Vestibular Mismatch after a motor vehicle accident. Madam Justice Watchuk awarded $90,000 for general, non-pecuniary losses.

[61]         Non-pecuniary awards will always turn on a complex factual matrix. I find, considering all of the circumstances, that $110,000 is fair and just compensation for Mr. Wright’s loss.

Lack of Timely Notice Derails ICBC Unidentified Motorist Lawsuit

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a wrongful death allegation seeking damages from ICBC on behalf of an unidentified motorist.
In today’s case (Parmar Estate v. British Columbia) the Plaintiff estate sued numerous defendants alleging they were at fault for a fatal collision.  ICBC was named as a nominal defendant on the allegation that an unidentified motorist was responsible for the collision.  ICBC succeeded in having the claim against them dismissed for failure of the Plaintiff giving them notice of the allegation within 6 months of the collision.  In dismissing the claim against ICBC Madam Justice Gropper provided the following reasons:

[15]         I do not accept the plaintiffs’ interpretation of s. 24 of the Act. Their reliance on the Jamt decision is misplaced, particularly, as noted in that decision, ICBC was named as a nominal defendant at the commencement of this action.

[16]         Here, it is clear that ICBC did not receive notice of the allegations against an unknown driver within six months of the accident. The notice of civil claim can serve as notice to ICBC under s. 24(2). Even so, the notice of civil claim was not filed until two years after the accident and was not served until three years after the accident.

[17]         The plaintiffs provide no explanation for the lack of notice or for the failure to serve the notice of claim for a year following its filing. As noted in the chronology, the accident was not reported to ICBC until March or April 2014. There is no basis upon which I can conclude that the notice was given to ICBC “as soon as reasonably practicable”. The lack of notice is fatal to the plaintiffs’ claim.

[18]         I am satisfied that the action against ICBC raises no genuine triable issue and must be dismissed.

Adverse Costs Insurance "Is Not a Proper or Necessary Disbursement "

Written by admin on . Posted in BC Supreme Court Costs Cases.

Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, finding that the cost of an insurance policy protecting a plaintiff from adverse costs/disbursements consequences should the prosecution of an injury claim not proceed favorably is not a recoverable disbursement.
In the recent case (Wynia v. Soviskov) the Plaintiff hoped to recover the costs of the insurance policy from the Defendant in the underlying tort action. In finding the expense was not a recoverable disbursement District Registrar Nielsen provided the following reasons:

[4]             The plaintiff has raised the novel issue of whether the cost of an insurance policy obtained by the plaintiff to insure against own disbursements, and opponents’ costs and disbursements, in a lost or abandoned court case, is a recoverable disbursement pursuant to SCCR 14-1 (5). 

[5]             The defendants object to this particular disbursement and rely upon an Ontario case, Markovic v. Richards et al, 2015 ONSC 6983, in support of their position. In Markovic v. Richards, supra, the issue was stated succinctly as “Is the plaintiff’s premium for after-the-event insurance, a compensable disbursement”. The court concluded at paragraph 7 that it was not, stating:

While it is clearly the plaintiff’s prerogative to obtain ATE insurance [which is after-the-event insurance], I do not accept that such premium should be reimbursed by the defendants as a compensable disbursement. Such disbursements have not, as far as I am aware, ever been entertained in Canada and have certainly not been the subject of legislative reform as was the case in the UK. I can think of no policy reason that such should be compensated as a taxable disbursement. Existence of the policy may well provide comfort to the plaintiff, it is however an expense that is entirely discretionary, does nothing to advance the litigation, and may in fact even act as a disincentive to thoughtful, well-reasoned resolution of claims.   

[6]             In British Columbia, to be recoverable as a disbursement SCCR 14-1(5) provides that the disbursement must have been necessarily or properly incurred in the conduct of the proceeding.  The phrase “necessarily or properly incurred in the conduct of the proceeding” was recently addressed by the Court of Appeal in MacKenzie v. Rogalasky, 2014 BCCA 446. The Court of Appeal  states at paragraphs 78 through 80:

[78]      In my opinion, the various iterations of the rule set out above permitting recovery of expenses focuses most naturally on the exigencies inherent in the particular litigation rather than capturing expenses arising from the financial circumstances or other choices of a party. Embedded in the rule is the requirement for a causal connection between the issues in the case and the expense incurred to prove or disprove them.

[79]      The rule, in its current form, permits the recovery of “disbursements … incurred in the conduct of the proceeding”. In my view, quite apart from the language “incurred in the conduct of the proceeding” the term “disbursement”, when used in the context of a costs rule that relates to the taxation of costs in particular litigation, does contain limits that narrow its potential broad applicability. It appears to me that the purpose of permitting the recovery of disbursements in the context of a costs regime is to permit the recovery of those expenses that arise inherently and directly from the issues in the case which relate, as the appellants suggest, to the direction, management, or control of litigation and which pay for materials and services used to prove a claim or defence. These expenses arise directly from the nature and conduct of the allegations in a proceeding. By contrast, interest expenses do not arise from the nature of the allegations or the conduct of proceedings, they arise from unrelated causes including the financial circumstances of a party. In my view, as such, they do not fall within the meaning of the word “disbursements” in the context of a costs rule.

[80]      It will be apparent that the conclusion I have reached does not depend on limiting the applicability of the word “disbursements” by reference to the phrase “incurred in the conduct of the proceeding”. I consider that the meaning of the words “disbursement” or “expense” has always excluded out-of-pocket interest expenses. The addition of the phrase “incurred in the conduct of the proceeding” in the rule in 1990 did not narrow or change the meaning of the word “disbursement” or otherwise limit its application. Rather, the phrase reinforces and confirms what has always been the case. To be recoverable a disbursement must arise directly from the exigencies of the proceeding and relate directly to the management and proof of allegations, facts and issues in litigation, not from other sources. In my view, that is what is captured by the phrase “the conduct of the proceeding”.

[7]             In my view, applying the reasons of the BCCA in MacKenzie v. Rogalasky, supra, the cost of insurance coverage is not a proper or necessary disbursement incurred in the conduct of the proceeding. No doubt it provides a measure of financial comfort to the plaintiff, however, it does not arise from the exigencies of the proceeding and relate directly to the direction, management, or control of the litigation used to prove a claim against the defendants. Accordingly, the cost of the insurance coverage is disallowed.

Lost Trial Date Due To Lack of Trial Briefs Not Saved By Late Filing

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.

Reasons for judgement were released today demonstrating that filing a late trial brief is no remedy once a trial date is lost due to lack of compliance with the Rules of Court.
In today’s case (Carleton v. North Island Brewing Corporation) the parties were scheduled for trial and apparently by consent agreed to file trial briefs “outside the times prescribed by the Rules.“.
The Court did not grant the request for lack of sufficient evidence supporting it and struck the trial date.  The parties hoped late briefs would salvage the trial date but the Court declined.  In doing so Mr. Justice Smith provided the following reasons:

[2]            Rule 12-2(1) requires a trial management conference to be held at least 28 days before trial. The plaintiff must file a trial brief at least 28 days before the date of the trial management conference (R. 12-2(2)) and other parties must file their trial briefs at least 21 days before the trial management conference (R. 12-2(3.1)). If no trial briefs are filed as required, the matter is removed from the trial list (Rule 12-2 (3.3).

[3]            These Rules are intended in part to assist the court in determining what cases are ready for trial, which in turn assists the court in the allocation of scarce judicial resources. They are not Rules that counsel and parties may opt out of at their convenience. At the very least, any application to extend the time for filing of a trial brief must be accompanied by a reasonable explanation as to why it was not filed in time as well as a proposed new date by which it will be filed.

[4]            In this case, neither party filed a trial brief and counsel simply submitted a draft consent order that “trial briefs of the plaintiff and defendant be filed outside the times prescribed” by the Rules. There was no explanation of why no one had filed a trial brief and no suggestion of when briefs would be filed. The absence of that material was in itself sufficient grounds to deny the application, but a subsequent review of the court record indicated that the matter had already been struck from the trial list.

[5]            The trial management conference had been set for February 16, 2017 and the requisition seeking a consent order for late filing was not submitted until January 30. In other words, the parties were seeking to file trial briefs after the date on which the Rules required the case to be struck from the trial list.

[6]            Rule 12-2 (3.3) reads

(3.3) Unless the court otherwise orders, a trial must be removed from the trial list if no trial brief has been filed under subrule (3) or (3.1).

[7]            Therefore, where a matter is struck from the trial list pursuant to that Rule, it cannot be restored simply by late filing of trial briefs, even if the court permits late filing. At least one party must make a proper application to restore the trial to the list. The question of late filing of trial briefs will only become relevant if that application is successful. Whether such an application is successful will depend on the circumstances, but I expect that in most cases applicants will be required to show both a reasonable excuse for the failure to file trial briefs and some serious prejudice if the trial does not go ahead.

$80,000 Non-Pecuniary Assessment for Chronic Myofascial Pain and TOS

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Thoracic Outlet Syndrome Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic myofascial pain and thoracic outlet syndrome following a collision.
In today’s case (Kodelja v. Johal) the Plaintiff was involved in a 2012 collision that the Defendant accepted responsibility for.  The Plaintiff suffered chronic injuries which remained symptomatic by the time of trial and were partially limiting but not disabling.  In assessing non-pecuniary damages at $80,000 Mr. Justice Masuhara provided the following reasons:

[92]         Therefore, my summary of findings regarding the plaintiff’s injuries is: 

(a)            The Accident caused the plaintiff’s chronic myofascial pain syndrome and post traumatic thoracic outlet syndrome.  The pain is in her left neck, left shoulder and upper back.  She also has paresthesia in her left arm as a result of the thoracic outlet syndrome. 

(b)            The Accident caused the plaintiff to suffer headaches which continue.  The headache pain ranges from dull, to mild to severe.  She gets dull or mild headaches every other day and manages without medication.  She has more significant headaches once every two weeks.  They can be managed with Tylenol and Advil. 

(c)            The major areas of the pain are in her left neck, shoulder and upper back.  The right hip and groin area pain is minor and was an aggravation of a prior condition. 

(d)            The pain in her neck, shoulder and back ranges from mild to moderate. 

(e)            Her overall condition since the Accident has improved at least 50%. 

(f)              The numbness and tingling in the plaintiff’s left arm is intermittent and infrequent, the last occurrence was, at least over a year ago.  It is not disabling. 

(g)            The plaintiff has normal range of motion of the left shoulder.  Her right shoulder movements are full.  She has full flexion and extension in her cervical spine. 

(h)            The plaintiff has some physical limitations, however, she is able to carry out normal day-to-day activities including teaching, with the work support and prep time available to her, and home cleaning and cooking. 

(i)              The plaintiff is functional for basic handling, reaching, balance, stooping, lifting and carrying for amounts tested, sitting, standing and walking.  She is able to do housecleaning though has difficulty with heavier activities for which she requires some assistance. 

(j)              She is able to participate in social and recreational activities such as camping, holiday travel, and sailing, but is restricted from participation in more rigorous recreational activities such as running and swimming.  But for the demands of her work on her time, she is able to maintain a social life. 

(k)            She is able to perform her teaching duties, including leading or assisting in after school student extra-curricular activities. 

 
…
[102]     The ranges the parties rely on are not too far apart.  The assessment in this case, while guided by other cases, is tailored to the specifics of the present case.  My review of the cases handed up and my findings lead me to assess damages under this head at $80,000. 

Full Fast Track Costs Awarded in "Simple" Case Settled 7 Months Pre-Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff full fast track costs despite settlement 7 months pre-trial.
In today’s case (Yuan v. Fan) the Plaintiff was involved in a head on collision in 2012.  She sued for damages and fault was admitted.  7 months pre trial the case settled for $48,000 plus costs but the parties could not agree on their assessment with the Defendant arguing that full fast track costs should not be awarded as there was still significant trial prep work needed.  District Registrar Nielsen disagreed and awarded the full costs.  In doing so the Court provided the following reasons:

[9]             The defendants take the view that the plaintiff had significant work left to do in order to be prepared for trial. They submit the plaintiff would have to meet with her experts prior to trial and prepare lists of questions for their witness’s.  I agree.  However, that still begs the question of whether “significant preparation for trial” had taken place in the current circumstances.

[10]         In the present case liability was admitted, therefore work in that regard wasn’t needed. The plaintiff abandoned her claim for wage loss, and therefore, no pre-trial work was necessary in that regard.  Discoveries had been completed, document exchanges had been completed, and medicolegal reports had been obtained. Detailed settlement offers had been exchanged. All that remained to be done was the filing of a trial brief, attending a trial management conference, and immediate trial preparation. Immediate trial preparation is required in each and every case whether settlement occurs two weeks, or two months prior to trial.

[11]         This was not a complex case.  It was a simple case of assessing damages where there wasn’t a wage loss claim.  Simple cases require less work to be ready for trial.  The plaintiff’s case has met the threshold of being significantly prepared for trial in all the circumstances.  I award the full fast track cap.

Court – Consent to Defendant Medical Exam Terms Or Risk Claim Dismissal

Written by admin on . Posted in independent medical exams.

Forced consent is a strange concept and one that has found its way into injury litigation yet again.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a plaintiff to attend a Defence medical exam and to sign a consent form or risk claim dismissal.
In today’s case (Gill v. Wal-Mart Corporation) the Plaintiff alleged injury following a slip and fall.  The Plaintiff agreed to attend an independent medical assessment requested by the Defendant but refused to sign the doctor’s ‘consent’ form.  In ordering the Plaintiff to sign or risk claim dismissal Mr. Justice Funt provided the following reasons:

[39]         With respect to the Master’s second reason that the plaintiff would not be signing the form of consent voluntarily, I respectfully disagree. The plaintiff may choose not to sign the consent form in which case the IME will not be conducted. The defendant may, however, bring an application to strike the plaintiff’s claim against the defendant.

[40]         Although not necessary having regard to the binding authority of Kalaora, I note that the case at bar is readily distinguishable from Peel where our Court of Appeal set aside an order requiring particular parties to endorse a “consent order”. Ordering endorsement of a “consent” court order is not consent. In the case at bar, in context, the court is not forcing the plaintiff to sign the form of consent. If the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck. It is the plaintiff’s choice…

[52]         The plaintiff is ordered to sign the subject form of consent used by Dr. Travlos. If the plaintiff refuses to sign the form of consent, the defendant, Mr. Pandher, is at liberty to apply to have the plaintiff’s claim struck.