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Tag: Master Bouck

Court Finds BCSC Rules Require Actual Insurance Policy Production

Written by admin on . Posted in BCSC Civil Rule 7.

Several years back the BC Supreme Court Rules were amended requiring parties to a lawsuit to disclose any policy of insurance that’s in play that may satisfy a judgment granted in the action.
Since the rule amendment came into force I am unaware of any cases commenting on its scope of disclosure (other than cases commenting on the relevance of insurance on costs orders) until now.  This week the BC Supreme Court, Victoria Registry, published reasons for judgement finding this rule requires the full policy to be disclosed.
In this week’s case (Sinnett v. Loewen) the Plaintiff sued for damages following a vehicle collision.  The Defendant, after being pressed for disclosure, provided “a screenshot taken from ICBC’s records of the particulars of the defendant’s insurance in effect at the time of the accident”.
The Plaintiff brought application seeking disclosure of the actual policy in place.  In granting the request Master Bouck provided the following reasons:

[15]         In its decision, the Court of Appeal takes a broad view of what information should produced pursuant to the above-cited rule. For example, such information is not limited to an actual document detailing a policy of insurance but rather encompasses information about “insurance coverage.”

[16]         Furthermore, that Court found that all Supreme Court Civil Rules ought to be interpreted in such a fashion as to encourage the settlement of claims: para. 129. Thus, by disclosing their respective insurance coverages (including any UMP coverage available to the plaintiff), the parties in this case will be in a more informed position to reach a negotiated settlement.

[17]         The defendant in the case at bar further submits that there is no evidence before the court to suggest that another insurance policy (that is, one providing “excess coverage”) exists. This is true, but given the mandatory language used in SCCR 7‑1(3), there is an obligation on the defendant to list any such documents. If no such document appears on the defendant’s list, the plaintiff may choose to pursue the existence of the documents at an examination for discovery. If listed, the issue of a particular document’s relevancy and thus its admissibility into evidence can still be challenged by the defendant at trial: SCCR 7‑1(4).

[18]         In the result, there will be an order that the defendant include in his list of documents any insurance policy or certificate of insurance or any other type of document that discloses insurance coverage under which an insurer may be liable to satisfy in whole or any part of a judgment granted in this action or to indemnify or reimburse the defendant for any money paid by the defendant in satisfaction of the whole or any part of such judgment.

Caselaw Dismissing Opinions of Expert Insufficient to Derail Court Ordered Medical Examination

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, finding that past history of judicially rejected opinions is not in and of itself enough to dis-entitle a Defendant to compel a Plaintiff to attend an independent medical exam with their chosen physician.
In today’s case (Wohlleben v. Dernisky) the Plaintiff sued for personal injuries.  In the lawsuit the Plaintiff agreed to be examined by a defense selected orthopedic surgeon and also agreed that a neurologist examination “was justified” but refused to consent to the Defendant’s chosen physician based on past court judgments rejecting the expert’s opinion.  In finding this was not, in and of itself, sufficient Master Bouck provided the following reasons compelling the appointment

[10]         Here, the plaintiff, in my view, has not demonstrated by a preponderance of evidence that there are sufficient grounds to justify that I should not exercise my discretion in favour of the order that Dr. Dost conduct the examination.

[11]         Wheeler v. White, [1983] B.C.J. No. 2494 is a case where the plaintiff objected to the psychiatrist chosen by the defendant. The master accepted the expert evidence provided by another psychiatrist that, to have a valid psychiatric examination, the plaintiff is required to open up and allow the psychiatrist into their private world. This requires great trust. Further, at para. 7 of theWheeler decision at the chambers level:

[7]        … It is sufficient, in my opinion, for the plaintiff to have a reasonable apprehension that the examination will be fraught with peril. …

[12]         The plaintiff in the present case does not, in my view, have such a reasonable apprehension. If she does have an apprehension that the examination will be fraught with peril, which is not her evidence, her apprehension is not reasonable.

[13]         It is not the law that the plaintiff gets to choose the expert to examine him or her: Sinclair (para. 15). The names of alternatives would only come into play where the plaintiff demonstrates, by a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair (paras. 16 and 17). Questions of fairness, partiality, credibility, and objectivity of a physician are matters for the trial judge, not the motions judge or master on an application: Sinclair (para. 21). Further, at para. 22 of Sinclair:

[22]      … In my view, for the Plaintiff to succeed, there must be evidence of real or effective inappropriate conduct on the part of the nominee doctor, and not simply the whim or idiosyncrasies of the Plaintiff or similar views of his or her Counsel. …

[14]         There is no evidence of inappropriate conduct on the part of Dr. Dost. The views of the plaintiff, in my view, do not reasonably support the opposition to Dr. Dost. For these reasons, I grant the order requiring the plaintiff to attend the examination by Dr. Dost.

ICBC Request for Photos of Dancing, Vacationing and Socializing Dismissed

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dismissing a request for a Plaintiff to produce various photographs.
In today’s case (Wilder v. Munro) the Plaintiff was injured in a 2010 collision and sued for damages.  In the course of the lawsuit ICBC reviewed the Plaintiff’s social media accounts and obtained “ten separate videos of the plaintiff dancing in rehearsals or shows in 2013, 2014 and 2015, photographs of the plaintiff performing dance moves, Facebook status posts discussing upcoming dance shows and auditions in 2011, photographs and posts about Ms. Wilder’s attendance at music festivals in 2014, travel related to the home based business and socializing with friends.“.
The Defendant brought an application requesting that

The plaintiff, within 7 days, deliver an amended list of documents:

a. identifying the photographs and video in her possession and control in which she is featured, identifying them by location, date and time, if available:

1. participating in dance training, rehearsals, auditions or competitions from 29 July 2008 to present;

2. attending music festivals since 29 July 2010;

3. socializing between January 2011 and September 2012;

4. on vacation since 29 July 2010;

ii. The plaintiff may edit the photographs prior to disclosure to protect the privacy of other individuals;

In rejecting this request Master Bouck provided the following reasons:

[16]         A party’s obligation to disclose social media content has been addressed in a number of decisions under the Supreme Court Civil Rules, including Fric v. Gershman, 2012 BCSC 614; Cui v. Metcalfe, 2015 BCSC 1195; and Dosanjh v. Leblanc, 2011 BCSC 1660. Generally speaking, the considerations for the court on this type of application include the probative value of the information sought, privacy concerns, potential prejudice to the plaintiff and proportionality: Cui at para. 9.

[17]         All three of the noted cases were personal injury actions. In all three, the plaintiff’s post-accident physical capabilities were in issue as was the impact of alleged injuries on the particular plaintiff’s social life. In the first two cases, disclosure of the plaintiff’s social media content was ordered; in Dosanjh it was not. While the plaintiff’s circumstances as described in Cui bear some resemblance to the case at bar, the result can be distinguished. Like the case at bar, the defence had obtained photographs, postings, and the like from the plaintiff’s social media platforms. However, unlike here, the defence was unable to identify the dates of the photographs or videos and thus correlate the content to either the pre or post-accident period. The court ordered the plaintiff to disclose additional social media content and identify the date or time frame of content’s creation. Of note is that this additional disclosure may not have been ordered had Ms. Cui provided the dates of the videos, photographs pursuant to the defendants’ notice to admit: para. 33. Instead, the plaintiff declined to make any such admissions thus necessitating the chambers application.

[18]         In terms of the proportionality factors, the plaintiff’s claim is not complex. There is no debate that this action will proceed to trial under Rule 15-1. The defendants filed the fast track notice and the plaintiff has no intention of having the action removed from the rule’s operation. The parties appear to agree that the trial can be completed in three days. While the plaintiff’s damages are not limited to $100,000, the evidence on this application suggests that the claim will not greatly exceed that figure, if at all.

[19]         The plaintiff is employed with no limitations on her ability to function at that job. It will be up to the trial judge to decide what compensation, if any, Ms. Wilder deserves for an overall reduced earning capacity. However, the defendants’ submissions on this application presume that a career in dance is financially lucrative and thus the potential award for this capital asset loss justifies the breadth of the order sought. If this theory was reasonably accurate, it would be expected that one or both of the parties would wish to remove the proceeding from fast track.

[20]         On the question of probative value, the defendants already have in their possession dozens of photographs and more than ten videos which show the plaintiff’s physical abilities and social activities in the years following the accident. I am not persuaded that adding to this collection is necessary to disprove the plaintiff’s claims. Moreover, the defendants have other evidence in the form of Dr. Winston’s report to also disprove the plaintiff’s claim of a lost dancing career.

[21]         Finally, I agree with the plaintiff that the defendants have failed to demonstrate the probative value of any photographs or videos depicting the plaintiff socializing or on vacation. If I am wrong on the question of probative value, then I find that the production of this information, including all that would be entailed in protecting the privacy rights of third parties, is not proportionate to the issues to be determined at trial.

Liberal Use of Discovery Transcripts Granted in Case of Indivisible Injuries

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Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, considering whether defendants in separate actions could use each others examination for discovery transcripts of the Plaintiff in trial.
In today’s case (Elworthy v. Tillit) the Plaintiff alleged personal injury from two separate matters.  Both parties agreed the separate lawsuits should be heard together given overlapping injury but could not agree if both defendants could use the Plaintiff’s examination for discovery transcripts from the separate actions.  In finding they could Master Bouck provided the following reasons:

6]             The defendant Stewart led the submissions on the law with references to several common law authorities including Gill v. Gill, 2013 BCSC 2365. In that case, the court decided that the implied undertaking rule could be waived so that a transcript of the plaintiff’s examination for discovery in a Part 7 action could be used in the plaintiff’s tort action, and vice versa.

[7]             Although not precisely the same factual matrix as the case at bar, I find that the legal analysis and result in Gill v. Gill should be followed here. The same concerns raised by the plaintiff in this case were considered and rejected by the court in Gill. Here, the issues of causation and indivisible injuries provide the commonality between the actions.

[8]             The defendants differ on the language to be used in this particular case plan order. In my view, the appropriate language is that found in Peel v. Western Delta, 2003 BCSC 784 at para. 30. The order pronounced is that the evidence that is otherwise admissible and relevant, obtained at the examination for discovery in Victoria Registry action no.14-0946 (either concluded or future) will be admissible both in that action and in Victoria Registry action no. 15-2263 as if the evidence had been obtained in the other action.

Future Income Loss Awards Immune From Creditors via Bankruptcy Protection

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Reasons for judgement were released today by the BC  Supreme Court, Victoria Registry, addressing whether a Plaintiff’s funds for ‘future income loss’ in a personal injury lawsuit, where the Plaintiff has made an assignment into bankruptcy, are ‘property’ that creditors can access.  In short the answer was no.
In today’s case (Kuta (Re)) the Plaintiff was injured in a 2008 collision.  In 2010 the Plaintiff made an assignment into bankruptcy.  Following his discharge he settled his personal injury claim which included $248,000 for ‘future wage loss’.    Appriximatley $200,000 would have satisfied all of the claims of the Plaintiff’s creditors.  The Court was asked whether the creditors can go after these funds.  In finding they were immune Master Bouck provided the following reasons:

[16]         Central to the court’s analysis in Bell (Re) is the characterization of future income loss as the loss or impairment of property, being the capacity to earn income. The court declined to adopt the contrary analysis made by the Ontario Court of Justice in Lang v. McKenna, 1994 CarswellOnt 295 (Ct. J. (Gen. Div.)). In Lang, the court found that monies paid to an individual while he is incapacitated from earning a living for himself and his family do not form part of the bankrupt’s estate.

[17]         Bell (Re) has been followed in at least two other reported cases: Mostajo (Re), 2006 CarswellOnt 6421 (S.C.J.), and MacLeod (Re), 2008 CanLII 32835 (Ont. S.C.J. (Bank. & Ins. Div.)).

[18]         In contrast, the court’s characterization of a future income loss as found in Lang has been followed in Re Anderson, 2004 ABQB 349, Conforti (Re), 2012 ONSC 199, and Re Snow, (ONSC, unreported). In Gurniak v. Royal Bank of Canada, 2011 CarswellSask 507 (Q.B.), the court found it “debatable” as to whether a future income loss award falls within s. 68 but declined to include any such award in the bankrupt’s estate: para. 49.

[19]         In Conforti (Re), the court addresses whether an award for “loss of competitive advantage” is the property or income of a bankrupt. While the semantics differ, the loss which the court was asked to characterize is “distinct but related to” a future income loss award: para. 36. In a most thorough analysis of both the case law to date as well as the statutory provisions which apply, the court decided that:

a. the concept of a capital loss as discussed in Andrews should not be imported into the bankruptcy context. This is particularly so given the subsequent Supreme Court of Canada ruling in Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (following Marzetti v. Marzetti, [1994] 2 S.C.R. 765, a decision regarding the application of s. 68 but one which is not mentioned in Bell (Re)). Wallace determined that s. 68 applies to an award for damages for wrongful dismissal. The Court found that a broad and purposive approach is necessary when determining whether a particular receipt is income for the purposes of s. 68: Conforti (Re) at paras. 12-13. Thus, the broadest definition of income ought to be made by the court before any monies received by the bankrupt are deemed to fall within s. 67;

b. In any event, “it is abundantly clear” on a reading of Andrews that the description by the Court of the “capitalized loss” was intended to avoid income tax consequences on the award at that time. That does not mean that “capital” loss translates to “property” under s. 67 in the bankruptcy context: para. 20; and

c. the essential nature of the monies paid for the future loss of income must be considered. The monies are intended to compensate an individual for lost income due to a reduced capacity to earn that income, or to replace income that will never be made as a result of the tortious act. As such, the monies are “akin to income” and fall within the definition of s. 68(2) (a) of the Act: paras. 25-28. As Wallace decided, a damages award that is “filling the pocket that would otherwise have been filled by salary or wages” is not property available to a bankrupt’s creditors: Wallace, para. 69. See also Julyan (Re), 2009 SKQB 321 (Registrar) where workers’ compensation income loss replacement monies were found to fall within s. 68.

[20]         The bankrupt further submits that the analysis and conclusions in Bell (Re) have been overtaken by developments of the law in British Columbia on the characterization of a future income loss in the personal injury context. Specifically, the Court of Appeal has determined that a future loss of income award is not necessarily determined on a loss of capital asset approach. That same loss can be assessed on the “real or substantial possibility” that a future event will occur leading to loss of income: Perren v. Lalari, [2010] B.C.J. No. 455 (C.A.) at para. 7. Thus, the bankrupt submits, the importation of the “capital asset” concept from personal injury law into the bankruptcy context is no longer valid even if Bell (Re) was correctly decided at the time.

[21]         Furthermore, the objectives of the Act itself, being to balance the rights of the creditors and the integrity of the bankruptcy system with the bankrupt’s entitlement to make a fresh start in the financial world, must be considered. It is submitted that the Settlement monies for future income loss is not a financial windfall such as an inheritance. Rather, the monies represent the means of putting an individual back in the financial place that he would have been had the tortious act not occurred. It is submitted that a manifestly unjust result would occur if the bankrupt was compelled to pay current creditors with monies intended to compensate the bankrupt for future circumstances: see Lang at paras. 41-42.

[22]         In summary, the bankrupt says that the capital asset cases ought not to be followed, given developments in the law since Bell (Re). And further, that Marzetti, a case not cited in Bell (Re), is the guiding and binding judicial authority. As such, a lump sum future income loss payment must be “income” under s. 68 as the monies are intended to replace an individual’s lost income stream. By their very nature, these monies can never be considered property under s. 67 of the Act.

[23]         The preceding summary does not do justice to the complete submissions of the bankrupt. It does provide some basis for my decision to go against Bell (Re). In my respectful view, Conforti (Re) accurately reflects the proper approach to be taken by the court when asked to characterize “income” (or “property”, for that matter) under the Act. I also reiterate that Conforti (Re) references and follows Marzetti, a case which does not appear to have been considered in Bell (Re) despite the relevancy of the case to the question before the court.

[24]         In the result, I find that the monies which are intended to compensate Mr. Kuta for future loss of income do not vest in the trustee under s. 67 of the Act.

Costs Ordered Following "Unnecessary" Defence Case Planning Conference

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 5, Civil Procedure. 45 Comments on Costs Ordered Following "Unnecessary" Defence Case Planning Conference

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing when Case Planning Conferences are unnecessary and finding that a costs order is appropriate in the face of such a CPC.
In today’s case (Stewart v. Robinson) the Plaintiff was involved in a collision and sued for damages.  The Defendant set down a CPC seeking an order requiring the Plaintiff to reveal the “the areas of expertise” of the experts the Plaintiff would rely on at trial.  The Defendant also sought a few collateral orders such updated lists of documents and timelines for discoveries.  The Court held that the first order was one the Court had no jurisdiction to make and that the further orders were unnecessary given that the Plaintiff was fulfilling their disclosure duties under the Rules of Court.
Master Bouck dismissed the Defendant’s application and in doing so found it was an uncessary hearing and ordered that costs be paid.  In reaching this result the Court provided the following reasons:
[25]         Rule 5-3 (3) requires the court to make a case plan order following a CPC. In my view, that requirement presumes that the CPC served some purpose…
[28]         The plaintiff submits that the sole purpose of the case planning conference was an attempt by the defence to ferret out information about the plaintiff’s experts even though such a purpose is contrary to well-established law. The plaintiff also cites Galvon v. Hopkins, 2011 BCSC 1835, and Amezcua v. Norlander, 2012 BCSC 719 (Master)…
[34]         Read together, the above authorities stand for these propositions:
1.  rules of civil procedure do not trump substantive law, including the principle of litigation privilege;
2.  a party is not required to reveal, in a case plan proposal or order or otherwise, the name of any expert or the area of expertise of any intended expert before the 84-day deadline for the service of expert reports; but
3.  the court may order that the service requirements under Rule 11-6 (3) be abridged such that expert reports are to be served earlier than the 84 days before trial. Such an order will only be made in exceptional cases where a compelling reason for early disclosure is demonstrated.
[35]         While a party may volunteer details of their expert evidence in advance of the 84-day deadline, a CPC is not required for that purpose. The information can simply be provided in correspondence without the necessity of judicial involvement. As the court determined in Dhugha, the omission of the name of an expert or his or her area of expertise from a case plan order does not preclude the admission of that expert evidence at trial.
[36]         Thus, the order sought in the defendant’s case plan proposal with respect to experts could not be made by the court. The order proposed by the defence at the CPC with respect to experts is not necessary.
[37]         That leads to the next question: was a CPC necessary for any other purpose? In my view, it was not.
[38]         An order requiring the parties to exchange further amended lists of documents by certain dates is not necessary. Both counsel acknowledge the duty to provide ongoing document disclosure as required by theSCCR. The suggested deadlines micromanages a case that does not require such management.
[39]         An order requiring delivery of a certain therapist’s records by a specified date is also not required. The plaintiff has volunteered to provide those records.
[40]         An order identifying the timing and length of examinations for discovery is also unnecessary. The parties have agreed to examination dates. The length of these examinations was not seriously in dispute at this conference and did not require judicial management.
[41]         In short, I find that no case plan order ought to or need be made at this time…
[46]         Having already concluded that the CPC was unnecessary, I award the plaintiff costs related to counsel’s preparation and attendance and the conference. Those costs are fixed at $750 all inclusive, not payable forthwith.
 

Case Planning Conference Transcripts Are Tough To Come By

Written by admin on . Posted in BCSC Civil Rule 7.

BC Supreme Court  Rule 5-2(7) states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order“.  The few cases released to date interpreting this rule have made it clear that the Court is reluctant to deviate from this fall back position.  Reasons for judgement were released today the BC Supreme Court, Nanaimo Registry, following this trend.
In today’s case (Darel v. Samy) a variety of orders were made at a case planning conference.  The Plaintiff applied for reasons to be published arging that these were desirable “for the intended purpose of bringing the “conduct” of the defendants “to light”. ”
Master Bouck rejected this request and in doing so provided the following brief reasons:
[5]             The plaintiff’s request for release of the transcript is denied for the reasons articulated in Parti v. Pokorny. Firstly, a transcript is not required to resolve any dispute about the terms of the case plan order. Second, there is no precedential value in any of the terms of the order. Third, the court does not issue reasons for judgment at the request of a party. And finally, the comments of a presider are not rulings or reasons.
 

Doubling Up On Rule 15 Costs

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When two Rule 15 claims are joined for the purposes of trial the Court has discretion with respect to the costs parties are entitled to.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing this and awarding the Plaintiff two sets of costs.
In today’s case (Harvey v. Tooshley) “by order of the court, the trials in these actions were to be heard at the same time. The two actions were settled for a global figure about four days before the commencement of trial.”.  The parties could not agree on costs with ICBC arguing “ there ought to be a reduction in the fees claimed in each action to reflect the savings and efficiencies achieved by having these matters joined for the purposes of trial.”.  Master Bouck disagreed and ordered that the Plaintiff receive two sets of costs.  In reaching this conclusion the Court provided the following reasons:
30]         It is now well established that the registrar has some discretion to reduce the lump sum fee portion of costs allowed under Rule 15-1 if the action is settled before trial. That discretion is said to be a “rough and ready” exercise and allows the registrar to consider the steps been taken to the date of settlement. Nevertheless, the registrar is not expected to parse out those steps as if the tariff to Appendix B applies.
[31]         The approach by assessing officers has been to make some reduction for the costs that might be attributed to attendance at trial and allow the balance as so-called preparation costs. Assessing officers have allowed $6,500 for these preparation costs, whether the matter settled three months before or on the eve of trial. The court has endorsed this approach: Christen v. McKenzie, 2013 BCSC 1317.
[32]         Moreover, this approach is consistent with the purpose of Rule 15-1 which is to provide a simplified and streamlined litigation process, including the costs assessment process.
[33]         The plaintiff is entitled to two sets of costs, regardless of the efficiencies accomplished by joining these actions for trial: Peacock v. Battel, 2013 BCSC 1902.
[34]         I allow the sum of $6,500 in fees for each action.

Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

Written by admin on . Posted in BCSC Civil Rule 15. 64 Comments on Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

In 2011 the BC Supreme Court confirmed that the factors listed in the overhauled fast track rule (case value and trial length) were exclusive of each other and if either was satisfied that was sufficient for a fast track proceeding.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, confirming this interpretation of the Rule.
In last week’s case (Foster v. Chandel) the Defendant brought an application to remove a case from Rule 15 arguing the claim was not suitable for fast track prosecution.  The Plaintiff conceded that the case “might exceed $100,000” but the Court noted that this in and of itself was insufficient to take a case out of Rule 15.  In dismissing the defense application Master Bouck provided the following reasons:
[25]         It appears on the evidence before me that the trial can be completed in three days. The plaintiff says that she can complete her case in just over one day. The defendants’ need to cross-examine the plaintiff’s two experts has not been firmly determined, but the time required for this purpose should not be more than one day. That leaves sufficient time to hear the defendants’ witnesses as well as closing submissions. In any event, the defendants are not even certain of the witnesses to be called or the medical evidence that will be led at trial. To a large extent, the defendants’ evidence concerning the length of trial is based on a yet to be determined witness list and trial plan.
[26]         The fact that the plaintiff’s claim for damages might exceed $100,000 is not in and of itself justification for removal of the action from Fast Track: Hemani v. Hillard, [2011] B.C.J. No. 1924 (S.C.).
[27]         Finally, the plaintiff is prepared to continue her examination for discovery for up to three hours beyond the time allowed under Fast Track. That concession removes any potential prejudice to the defendants who say that certain subject matters have yet to be explored. No order is made with respect to the examination time as the relief was not specifically sought. The defendants always have the opportunity to apply for an order extending the time if this remains an area of contention.
[28]         The defendants’ application for removal of this action from Fast Track is at best premature. As the evidence develops, it may become obvious to the parties that the action ought to be removed if only because the trial will certainly consume more than three days. In those circumstances, it might be in the plaintiff’s best interests to consent to the removal to ensure that a trial date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy, 2011 BCSC 1653.

An IME "Should Not Be Ordered Simply To Allow The Defendants To Ask the Same Questions Asked in Discovery"

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing an application for an independent medical exam noting the Defendant’s could have obtained the sought information through the discovery process.
In this week’s case (Foster v. Chandel) the Plaintiff was injured in a 2009 collision.  The Plaintiff agreed to attend a Defense medical exam.  Subsequent to this the Defendant requested a second exam with a psychiatrist.   The Defendant argued that this was necessary because “the plaintiff is taking the maximum dosage of anti-depressant medication; has been seen by a psychiatrist (but not for treatment); and is suggested [by her family doctor] to be suffering from a mood disorder related to chronic pain.“.
Master Bouck dismissed the application noting all of this could be explored through the discovery process.  In reaching this conclusion the Court provided the following reasons:
[18]         There is no evidence from any medically-trained person suggesting that a psychiatric examination is necessary or useful to either diagnose or treat the plaintiff. The plaintiff is taking medication in the dosage recommended by physicians with no suggestion of prescription abuse. The emotional symptoms are said by the medical experts to emanate from the plaintiff’s physical pain, not from any alleged psychiatric condition or disorder.
[19]         The defendants submit that the psychiatric examination may reveal other causes for the plaintiff’s anxiety and depression. It may also reveal the nature and extent of these conditions.
[20]         Such information can be sought at the plaintiff’s examination for discovery. A psychiatric examination should not be ordered simply to allow the defendants to ask the same questions asked in discovery but in a different manner and venue.
[21]         The nature and extent of the plaintiff’s pain disorder and resulting symptoms is revealed in the records and reports of the treating physicians. There is no evidence to suggest that a psychiatrist could offer a “better” diagnosis or prognosis on that condition.
[22]         The facts of this case have many parallels to those discussed in Wocknitz v. Donaldson, 2010 BCSC 1991. As in that case, the defendants do not have the necessary evidentiary foundation to support an order for “this particularly invasive form of examination”: para. 20.