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Tag: Jones v. Donaghey

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.

The BC Supreme Court and Adjournments of Lengthy Trials: The "20-Plus" Program

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

I’ve previously written about adjournment applications in the BC Supreme Court and that Judges hearing such applications must consider a “balancing (of) the interests of the parties” . Reasons for judgement were released this week by the BC Supreme Court indicating that, at least with lengthy trials, a third factor is in play; specifically the “public interest” must be considered.
In this week’s case (Jones v. Donaghey) the Plaintiff sued for damages claiming he was seriously brain damaged when one of the Defendant’s assaulted him.   The Plaintiff was a newborn at the time of the alleged assault and would be four years old at the time of the proposed trial.
The defendants sought an adjournment of the trial arguing that further time was needed in order to obtain proper medical evidence.  Ultimately Mr. Justice Macaulay disagreed and refused the adjournment application.  Prior to doing so, however, the Court indicated that the interests of not only the parties must be considered in adjournment applications of lengthy trials, but also the public interest.  Mr. Justice Macaulay provided the following useful reasons:

[3] Although I address the balancing of the interests of the parties separately below, the public interest is also impacted by the scheduling, and any potential rescheduling of lengthy trials. Considerable public and judicial resources are tied up in the intensive pre-trial management and conduct of trials under what is colloquially known as the “20-plus” program. The court instituted the program some time ago to assist in the management and scheduling of complex civil cases.

[4] Generally, in my view, every effort should be made to avoid the adjournment of trials once set under the program, as litigants in other cases have had to forgo the opportunity to set down their applications or trials for hearing, because either or both the trial management judge’s rota time and court time have been reserved for a 20?plus case.

[5] In more general terms, perhaps, Levine J., as she then was, referred to the need to consider such broader interests of justice when deciding an adjournment application respecting a long trial in Strata Plan VR No. 2000 v. Shaw, at para. 26. Justice Dorgan referred to the above with apparent approval in denying a defence application for an adjournment in J.S. (Guardian ad litem of) v. D.S., at para 17.