Tag: critchley v. McDiarmid

ICBC Injury Claims and Late Independent Medical Exams

When advancing an Injury Claim in the BC Supreme Court the Defendant’s are entitled to send the injured plaintiff to an independent medical exam or exams in order to ‘level the playing field’.
If a litigant wishes to rely on expert evidence addressing injuries Rule 40A of the BC Supreme Court Rules sets out the timelines for disclosure of such evidence to the opposing side.  Sometimes, ICBC defence lawyers apply for multiple independent medical exams and sometimes these applications are brought late into the pre-trial process such that any report generated will not comply with the timelines of Rule 40A.
Reasons for judgement were released today (Critchley v. McDiarmid) by Mr. Justice Burnyeat of the BC Supreme Court clarifying the law as it relates to late applications for independent medical exams.  In today’s case the court ordered that the Plaintiff see a psychiatrist even though the scheduled appointment was to take place outside of the timelines required by Rule 40A.  In reaching this decision the court summarized the relevant legal principles as follows:

[16] In Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (B.C.C.A.) Finch, J.A., as he then was, stated on behalf of the Court that the purpose of Rule 30 was:

This Court has repeatedly said that the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence.  What steps are necessary to achieve that end is a matter of discretion for the chambers judge to assess in the circumstances of each case.

[17] Subsequent decisions have established  the following general principles: (a) the timing of the request for the independent medical examination is a relevant consideration in that a late request by a defendant may create a prejudice to the plaintiff by placing the plaintiff in a situation where he or she is either unable to respond to the proposed examination or is forced to seek an adjournment of the trial; (b) an inability to respond to a proposed examination constitutes prejudice to a plaintiff; (c) and an adjournment of a trial constitutes prejudice to a plaintiff.

[18] I am of the view that the exercise that was before the Learned Master was as set out by Master Groves, as he then was, in Mackichan v. June and Takeshi, [2004] B.C.J. (Q.L.) No. 2296 (B.C.S.C.):

The argument for a late medical examination is really a complication, or better put, an extension of the Stainer v. Plaza reasoning in that, I believe, the court must consider fairness between the parties and a balancing of prejudice when a request for a late medical examination is made.  It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I accept, cause an adjournment of the trial.

(at para. 11)

[19] While I am satisfied that the question of whether an independent medical examination raises a question vital to the final issue including the quantum of damages so that it is appropriate that there be a re-hearing of the matters which were before the Learned Master, the submission made on behalf of Mr. Critchley was that this was a purely interlocutory matter and that the Court on a review would have to find that the Learned Master was clearly wrong.

[20] On the assumption that the appeal must be heard on that basis, I have come to the conclusion that the Learned Master was clearly wrong in reaching his decision.  First, I cannot be satisfied that the Learned Master considered whether or not the proposed independent medical examination was required to put the Defendant on equal footing with the Plaintiff.  Nowhere in his Reasons does the Learned Master make this finding or give full consideration to this question.

[21] The Learned Master also fell into error by requiring the Plaintiff to establish with near certainty that the Trial would be adjourned.  By using the phrases “would be adjourned”, “why an adjournment would be inevitable”, “it is not automatic that the trial will be adjourned”, and “I have no evidence to conclude that there would be an adjournment ….”, the Learned Master was in error.  The Learned Master pointed out in his Reasons that which is obvious – the question of whether an opinion produced after an independent medical examination will result in an application for an adjournment can only be answered after an expert opinion is tendered under Rule 40A of the Rules of Court.  Here, it may well be that there is no need for the Plaintiff to arrange for an expert opinion to counter what might appear in the expert opinion flowing from the independent medical examination requested.  Accordingly, it is never correct to require a party to show that an adjournment would be “inevitable”.

[22] The nature of the findings in an opinion after an independent medical examination, the timing of the receipt of it, and the proximity of the likely receipt of it in relation to the date set for the Trial are factors which must be taken into account but whether or not an adjournment will be inevitable is not a factor which need be shown.  The question of whether an adjournment may be required is merely one of the factors which should be considered.  However, it is not the sole factor to be considered on the question of whether the independent medical examination should be ordered.

[23] I am also satisfied that the Learned Master erred by taking into account an earlier examination date which Mr. Critchley was not able to attend and by concluding that, had this earlier examination taken place, there would have been no prejudice to the Plaintiff.  I am satisfied that the Learned Master should only have given consideration to the proposed date of the examination and not an earlier date.

[24] In the circumstances, I can conclude that the Learned Master was clearly wrong and that the Order made should be set aside.

More on ICBC Injury Claims and Independent Medical Exams

One of the most frequently litigated issues in ICBC claims is the nature and number of ‘indpendent’ medical examiners (“IME”) that Defendants are entitled to have Plaintiffs examined by.
Reasons for judgement were released today by the BC Supreme Court ordering a Plaintiff to be examined by a psychiatrist of the Defendant’s choosing.  In this case the Defendant’s need for a psychiatric IME of the Plaintiff was not seriously challenged, what was challenged was the timing.
Rule 40-A of the Supreme Court Rules deals with the admissibility of expert opinion evidence in Supreme Court trials.   Rule 40A(5) requires such expert evidence to be exchanged with the other party 60 days before it is tendered in evidence.
In today’s case the requested examination would take place less than 60 days from trial.  The Plaintiff argued that if the medical exam went ahead he would be prejudiced because the Plaintiff would have insufficient time to hire his own expert to respond to the opinion that was being sought.  This, the Plaintiff argued, would likely lead to an adjournment which would be prejudicial to the Plaintiff.
Master Tokarek of the BC Supreme Court ordered that the medical exam proceed despite the Plaintiff’s objection.  In doing so he stated that “the timing of the application, without more, is largely irrelevant”.  The key reasons are set out in paragraphs 23-27 which I set out below:

[23]            The comment about the balancing of prejudice is of some significance in the context of submissions made in the case at bar with respect to when defence counsel could or would be able to seek an IME.  Plaintiff’s counsel submitted that whenever the plaintiff would be unable to obtain expert evidence to rebut or deal with any defence IME report, an order should not be made.  Counsel indicated that his dilemma would be the same even if this application was brought in December because he would need approximately one year to get an appointment with his own expert.  The logic of that seems to be that unless defence counsel applied for the psychiatric IME a year or more in advance of the trial date, the application should be denied because plaintiff’s counsel would be in exactly the same position of not being able to get his expert to deal with it and prejudiced because of an adjournment.  I utterly reject that logic

[24]            I believe the more appropriate approach is to balance the prejudice of a potential adjournment against the prejudice to the defendant in not obtaining relevant evidence.  Here the requested IME is not with respect to an inconsequential or insignificant issue.  The defendant seeks to reasonably establish that the plaintiff’s complaints are wholly or largely unconnected to the MVA.

[25]            The balance of the authorities are similarly either distinguishable or unhelpful.  Master Barber, in the Bubra decision said:

. . . the defendant has had full opportunity to have this matter brought forward at an earlier date so that these matters could be dealt with in a reasonable way.  For their own reasons, they have not done so. 

I do not find that to be the situation here.

[26]            The last authority, the Barron case, is another decision of Master Patterson.  At paragraph 21 he said:

. . . it seems to me that it is the obligation of the defence to not sit and wait until the last minute and then scramble to bring an application like this on.

With all due respect, the timing of the application without more, is largely irrelevant.  All of the authorities relied on by the plaintiff came to the conclusion, in some fashion unknown to me, certainly not discernable from the reasons, that the timing would lead to an adjournment and that an adjournment would prejudice the plaintiff.  Apart from the Mackichan decision, there is nothing to suggest that any consideration was given to balancing the prejudice to the plaintiff against that of the defendant.

[27]            In this case, I have no evidence to conclude that there would be an adjournment or that if that was so, it would amount to a prejudice that outweighs the prejudice to the defendant in not being able to obtain material evidence going to the heart of the plaintiff’s claim.  Consequently I grant the application and order that an IME take place as requested.

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

ERIK
MAGRAKEN

Personal Injury Lawyer

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

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