Tag: Master Bouck

Private MRI Disbursement Disallowed Due To Lack of Evidence of Urgency

Adding to this site’s arcived decisions addressing the recovery of private MRI costs as a disbursement, reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, disallowing such a claim.
In the recent case (Cooknell v. Quinn) the parties could not agree on the reasonableness of a variety of disbursement items including a privately funded MRI.  In rejecting this item Master Bouck held that the claim must fail as there was no evidence supporting the need for a privately funded MRI.  Master Bouck provided the following reasons:
[38]         Dealing firstly with the MRI disbursement, the facts of this case are somewhat analogous to those described by then Registrar Blok in Phelan v. Newcombe.
[39]         Although Dr. Smith did recommend an MRI in this case (it is not clear exactly when), there is no explanation offered for proceeding to a private clinic when a publicly funded scan was available — or at least no evidence to suggest that such a process was unavailable. As the MRI charge is disallowed on this basis, I do not need to consider whether such an investigation was necessary or proper.

Translator's "Poor Performance" Gives Way to Further Examination for Discovery

The current BC Supreme Court Rules cap examinations for discovery in a conventional prosecution at 7 hours unless the Court otherwise orders.   Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing one circumstance when prolonging this cap was appropriate.
In the recent case (Dhami v. Bath) the Plaintiff attended 8 hours of discovery.  A translator was used who “did a poor job“.  The Court exercised its discretion to allow a further 2 hours of discovery and in doing so provided the following reasons:
[5]             This application must be determined on the evidence before the court. The only evidence with respect to the examination itself are the excerpts revealing the translator’s poor performance which objectively interfered with counsel’s ability to conduct the examination in an efficient manner. Put another way, I find that the translator’s conduct made it reasonably impractical to complete the examination for discovery in the time spent to date.
[6]             I am not persuaded that the examination of the plaintiff was concluded such that the defendant must meet the heavy onus suggested in Hogg v. Hansen, 2007 BCSC 958, for a second examination. The additional two hours is allowed to the defendant to complete the one and only examination.

ICBC Application To Withdraw Liability Admission Denied

Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court.  When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a vehicle   He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury.  ICBC initially looked at the liability situation and placed the Defendant at fault.  After the lawsuit started liability was formally admitted in the pleadings.  As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence.  The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation.  In dismissing the application Master Bouck provided the following reasons:
[35]         The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.
[36]         The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.
[37]         In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.
[38]         The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.
[39]         The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the Supreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.
[40]         This case bears some resemblance to the circumstances discussed in Rohling (Guardian ad litem of) v. Proudman, [1998] B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:
I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.
[41]         A similar analysis of this question is given in Oostendorp v. Sarai, [1973] B.C.J. No. 570 at para. 10:
It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.
[42]         I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories: Rohling (Guardian ad litem of) v. Proudman at para. 19.
[43]         In the result, I find that the application ought to be dismissed, with costs to the plaintiff.

Medico-Legal Reports from Previous Lawsuit Ordered Disclosed in Subsequent Litigation

In the ever developing landscape of disclosure obligations in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing the discoverability of medico-legal reports obtained in previous litigation.
In the recent case (Wright v. Thomas) the Plaintiff was involved in a personal injury lawsuit that went to trial in 2007.  In that lawsuit various expert reports were introduced into evidence.  The Plaintiff was injured in a subsequent collision and advanced another lawsuit.  The Defendant wished to rely on the previous medico-legal reports but the Plaintiff objected arguing these reports were not relevant and production violated the implied undertaking of confidentiality.  In ordering that the reports be produced Master Bouck provided the following reasons:
[16]         Whether the implied undertaking rule even applies in this case might be in doubt. In Cochrane v. Heir, 2011 BCSC 477, the court ruled that a plaintiff must provide records obtained in a previous personal injury action as part of disclosure obligations under Rule 7?1. Furthermore, one might query whether evidence disclosed at a public trial and now part of a public record is subject to the implied undertaking rule. The underlying purpose of the implied undertaking rule is to protect the privacy of an individual who is compelled to disclose certain information in the pre?trial process.
[17]         In the case at bar, I understand that some of the reports were used at trial and thus any breach of privacy has already happened. However, this last point was not argued, so I must still determine whether the documents at issue involving the same plaintiff also concerned the same or similar issues to the case at bar…
[21]         In the present action, the clinicians also make mention of possible conversion disorder.
[22]         The alleged probative value of the reports in the earlier action is to show that the plaintiff has a history of, or perhaps a susceptibility to, these non?organic conditions.
[23]         In my view, in the absence of some medical evidence in support, the court should not make the leap and decide that all of the above?described conditions fall within the same diagnostic category. In fact, the only similar or same diagnosis is the conversion disorder. Presumably the existence of this condition historically forms the factual basis for one of the defences to this action, otherwise the defendant would not be pursuing the application.
[24]         The defendant’s pleadings were not before me. It might have been helpful to have that pleading as an exhibit to an affidavit. One option for the court would be to dismiss the application with liberty to reapply upon providing such evidence. Obviously a further application will result in additional cost to one or both parties. To avoid such cost, I have instead reviewed the electronic record of this pleading, which is a matter of public record. The presumption of the plea of pre?existing condition was confirmed.
[25]         Thus, in my view, the defendant has met the threshold test of relevancy with respect to the following reports: Dr. Rocheleau dated October 24, 2005; Dr. Rocheleau dated December 21, 2005; and Dr. Kemble dated November 28, 2005…
[27]         I now turn to the question of prejudice. First, there is no evidence from the plaintiff that she is prejudiced by the use of this information. The contents of the affidavit of Katheryn MacDonald can be given no weight, as any statements regarding possible prejudice are based on double hearsay. Other parts of the affidavit are akin to argument.
[28]         In any event, the implied undertaking rule is not intended to prevent attacks on the plaintiff’s credibility. Indeed, in many of the cases before me, leave is granted to permit a challenge to a party’s credibility using the evidence given at a previous examination for discovery. Prejudice to the plaintiff has not been established.
[29]         Nevertheless, in my view, the order sought by the defendant with respect to the use of the reports at trial is too broad. Rather, the order will go that the defendant is given leave to list the three reports in her list of documents.

"Silence Does Not Mean Consent" – Examination for Discovery Caselaw Update


 
Adding to this site’s archived caselaw addressing examination for discovery, useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, making the following points:
1. silence (or even agreement) to a discovery request does not compel a party to comply with it
2. the court has no power to order that answers to questions outstadning at an examination for discovery be put in writing
3.  the narrower scope for document production requirements is not circumvented simply by asking for production of documents at an examination for discovery
In this week’s case (LaPrarie Crane (Alberta) Ltd. v. Triton Projects Inc.)Master Bouck provided the following reasons addressing these points:
[32]         As for the outstanding requests from the examinations, Triton submits that  when there is no objection to production on the record — or indeed, where a positive response from the examinee is made — such requests must be answered : Winkler v. Lower Mainland Publishing Ltd., 2002 BCSC 40 at para. 17. In other words, the party being examined is not able to reflect upon requests unless counsel states on the record that the request will be taken under advisement or an objection is raised. Nor can a party have a change of mind upon reflection, or upon taking legal advice.
[33]         The principle that a party should not be permitted to subsequently revoke agreements made at an examination for discovery is laudable. However, silence does not mean consent: Gellen v. British Columbia (Public Guardian and Trustee of), 2005 BCSC 1615 at para. 17 (S.C.). Furthermore, it is difficult to see how the principle enunciated in Winkler can be applied after the introduction of time limited examinations for discovery: Rule 7-2 (2).
[34]         If counsel is expected to pause and consider the relevancy of every question asked of the witness, the time allotted for a party’s examination might well be consumed by objections, interventions and even argument. In recent decisions, the court has strongly discourage such intervention at examinations for discovery: see More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166 at para. 13 foll’g Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para. 18. Given this change in procedure, I decline to follow Winkler.
[35]         If a person declines to provide the additional information requested, the examining party is not without a remedy: Rules 7-2 (22)-(24). This appears to be the remedy pursued on this application. Nonetheless, the court has no power to order that answers to questions outstanding at an examination for discovery be put in writing: Diachem Industries Ltd. v. Buckman (1994), 91 B.C.L.R. (2D) 312 at p. 314 (S.C.) [my emphasis].
[36]         Finally, it is acknowledged that under the SCCR, the duty to answer questions at an examination is broader than the duty to produce documents: More Marine Ltd. v. Shearwater Marine Ltd., supra, at para. 7. However, a party does not get around the application of Kaladjian v. Jose principles by asking for the documents at these examinations: Maxam Opportunities Fund (International) Ltd. Partnership v. 893353 Alberta Inc., 2012 BCSC 553.
 

MSP and Pharmanet Printouts Disclosable on a Case by Case Basis


Two documents that ICBC routinely asks Plaintiff’s to produce in the course of personal injury lawsuits are MSP and Pharmanet Printouts.  These are documents which essentially keep track of all of a Plaintiff’s medical visits and prescription medication fillings.  Does a Plaintiff need to comply with a request to produce these documents?  Reasons for judgement were released last month by the BC Supreme Court, Victoria Registry, addressing this issue finding that these documents are not automatically producible but very well may be depending on the facts of the case.
In last month’s case (Edwards v. Ganzer) the Plaintiff was injured in a 2008 collision.  In the course of the lawsuit ICBC requested that the Plaintiff produce her MSP and Pharmanet Printouts for various periods of time.  Ultimately the Plaintiff was required to produce some of these records.  Prior to making the production order Master Bouck provided the following reasons addressing production requests for these records:

[51] Thus, in a personal injury action, a plaintiff’s MSP and Med Profile will not be ordered produced to the defence regardless of the facts of the case. At the very least, there must be some “air of reality” between the documents and the issues in the action: Moukhine v. Collins at para. 22.

[52] Correspondingly, decisions where the production of these kinds of records have been denied will likely have little or no precedential value to the plaintiff here as the facts are bound to differ from those in the case at bar.

[53] Neither of these propositions represents a change in the law since the introduction of the SCCR.

[54] What is new to this discussion is the role that proportionality plays in making an order under Rule 7-1(14). Although not specifically provided for in Rule 7-1, it is only logical that the court should take into account the objects stated in Rule 1?3 (2) when exercising its discretion with respect to compliance with the broader disclosure demand: see Kim v. Lin, 2010 BCSC 1386 at para. 29. Indeed, those objectives have been considered by the court in the decisions already cited.

[55] In terms of relevancy, the plaintiff has already acknowledged the relevancy of the MSP and Med Profile records by disclosing these records on her initial list of documents. It would seem apparent that the plaintiff concedes that this document ought to be produced under the Guano test.

[56] While the plaintiff’s submissions suggest that privacy concerns come into play, there is no evidence from the plaintiff herself (either directly or on information and belief) which might justify aHalliday form of order: Gorse v. Straker, 2010 BCSC 119 at paras. 12, 13 and 36.

[57] Paraphrasing the test set out in Global Pacific, the issue to be determined is whether the MSP and/or Med Profile records sought can properly be said to contain information which mayenable the defendant to advance his case or damage the case of the plaintiff, if it is a document which may fairly lead to a train of inquiry, or if it may have either of these consequences.

[58] Both the evidence and pleadings raised issues of mitigation (i.e. rehabilitation efforts; following professional advice on medication). In that respect, both the MSP and Med Profile record may enable the defence to prove that the plaintiff has failed to mitigate her damages. In addition, these records may serve the purpose described in Creed v. Dorio; that is, to test the credibility and reliability of the evidence presented by the plaintiff to date on her post-accident health.

[59] I have concluded that on the facts of this case, the plaintiff’s MSP record and the post-accident Med Profile ought to be listed and produced pursuant to the demand made under Rule 7-1(11).

Document Production Obligations and the New Supreme Court Civil Rules


One of the goals of the New Rules of Court was to make litigation “just, speedy and inexpensive” and to simplify the process.  One area where the Rules have fallen short of this goal is the area of pre-trial document disclosure obligations.  Under the former Rules parties were bound by one consistent (but arguably over-broad) test.  Now parties are met with a host of obligations which were well summarized in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Edwards v. Ganzer) the Plaintiff was injured in a motor vehicle collision.  A dispute arose with respect the Plaintiff’s disclosure obligations.  In resolving the dispute Master Bouck provided the following reasons summarizing the legal disclosure obligations (and dispute process) under Rule 7-1:

[39] Biehl v. Strang is the seminal decision of Punnett J. addressing (mostly) the primary obligation of document disclosure under Rule 7-1(1) (a). The remaining decisions touch upon, if not directly address, the document disclosure obligations under both Rule 7-1(1)(a) and Rule 7-1(14) of the SCCR.

[40] In addition, Master Baker has recently discussed the application of Rule 7-1 in Burgess v. Buell Distribution Corp., 2011 BCSC 1740.

[41] I understand the principles outlined in these various decisions, together with the applicable Rules, to be as follows:

a. The initial production obligation under Rule 7-1 (1) (a) (i) is limited to what is required to prove or disprove a material fact: Biehl v. Strang at para. 14;

b.  Rule 7-1(10) allows the opposing party to issue a written demand requiring the listing party to amend the original list and produce documents that should have been disclosed under Rule 7-1(1)(a)(i);

c.  In addition, Rule 7-1(11) allows the opposing party to issue a written demand requiring the listing party to amend the list and produce documents which ought to be disclosed under a test “close to” that set out in Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63, (the “Guano test”): Global Pacific at para. 9;

d.  The distinction between the two types of disclosure provided for under Rule 7-1 is stated in Global Pacific as follows:

The question is whether a document can properly be said to contain information which may enable the party requiring the document either to advance his own case or damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, or if it may have either of those two consequences. Therefore, it is acknowledged that the initial disclosure under Rule 7-1(1) relates to a materiality requirement, but that a party can apply to the court, as the defendant did here, for broader disclosure pursuant to Rule 7-1(14).

(my emphasis.)

Para. 9

e.  Both the demand by the requesting party and the response of the opposing party should be set out in writing addressing the terms and criteria used in Rule 7-1. Whether the demand and response provide sufficient particularity is a matter of the court’s discretion;

f.  If an application is brought under Rule 7-1(13) for the listing or production of  documents, the court may either order compliance with the demand, excuse full compliance, or order partial compliance: Rule 7-1(14);

g.  The objectives of the SCCR, including proportionality, may be taken into account by the court when exercising its discretion under Rule 7-1(14). The proportionality rule can be applied to either expand or restrict the required production of documents: Global Pacific citing Whitcombe v. Avec Insurance Managers Inc., 2011 BCSC 204.

[42] Interestingly, a party may be excused from compliance with Rule 7-1(1) generally, but the court is not given the specific power to order compliance with a demand made for the listing and production of the so-called “materiality” documents. Rule 7-1(14) only specifically allows for an order requiring compliance with a broader disclosure demand under Rule 7-1(11): Global Pacific; Burgess v. Buell Distribution Corp. Whether this distinction is an oversight or intentional is difficult to say. It might well be the former, given that Rule 7-1(13) contemplates a compliance order by the court if a demand for the “material” documents is issued. The distinction is more fully canvassed in Burgess v. Buell Distribution Corp. at para. 15.

Defence Psychatric Exam Request Dismissed for Being Brought Too Late

Reasons for judgment were released last month dismissing an ICBC request to have a Plaintiff examined by a psychiatrist finding that the application was brought too late in the litigation and would unfairly balance the playing field should the Plaintiff need to respond to the examination.
In last month’s case (De Corde v. De Corde) the Plaintiff was injured in a 2007 collision.  She alleged physical injuries, a head injury and also “emotional distress“.
In the course of the lawsuit the Plaintiff agreed to be assessed by three physicians chosen by the Defendant (or their insurer ICBC).  Specifically a general practitioner, a neurologist and an orthopaedic surgeon.  The Defendant brought an application for the Plaintiff to also be assessed by a psychiatrist.  The application was brought with just barely sufficient time to have a report generated to comply with the time lines set out in the Rules of Court.
Master Bouck dismissed the application finding the medical playing field was already balanced and an additional report by a psychiatrist served on the cusp of the deadline set by the Rules of Court would be prejudicial to the Plaintiff.  The Court provided the following reasons:

[37] The overriding principle is that an independent medical examination ought to be permitted if necessary to ensure reasonable equality between the parties in their preparations for trial.

[38] In this case, there are at least two considerations that compelled the dismissal of the application.

[39] First, there is no basis to suggest that the defendant is at a disadvantage in terms of evidence.

[40] Second, the application is brought so close to trial that the plaintiff might be prejudiced (by the adjournment of the trial) if the order was granted.

[41] This is not a case where a new diagnosis or symptom has arisen since the last independent medical examination. Indeed, much of the information that is relied on by defence in this application was in that party’s possession before the plaintiff attended the examinations by Drs. Wahl and Moll.

[42] The plaintiff’s mental health is commented upon in all of the reports presented to the court. None of the various medical professionals have recommended psychiatric treatment or diagnosis. It is appreciated that the diagnosis of the plaintiff’s symptoms differs as between these medical professionals. However, regardless of the diagnosis, all of these professionals suggest a treatment plan. That plan ranges from simple reassurance to medication to counselling to future neuropsychological reassessments…

[45] In short, there is simply no basis to suggest that the evidence presented to date requires a psychiatric opinion in order to “level the playing field”. Experts on both side of this case make certain treatment recommendations that will probably lead to some resolution of the plaintiff’s mental health symptoms. Whether the plaintiff follows those recommendations goes to the question of mitigation.

[46] Another important factor to consider is the timeliness of the defendant’s request, particularly when the opinions of the three defence experts (let alone those of the plaintiff) have been known for several months.

[47] I accept the submission that given the type of specialist involved, the plaintiff would have been hard pressed to answer Dr. Solomon’s opinion in time for trial. Thus, the plaintiff may be compelled to seek an adjournment of the trial which is scheduled to occur nearly five years after the accident. Such a result would hardly be in keeping with a speedy resolution to the claim: Rule1-3.

[48] In considering the question of prejudice, I presumed that Dr. Solomons would be able to comply with the 84-day deadline. But that deadline is not really the issue. It is the deadlines that the plaintiff must meet that leads to the possible prejudice.

[49] The plaintiff need only demonstrate that an adjournment of the trial is a possibility: Critchley v. McDiarmid, 2009 BCSC 134 at paras. 21 and 22…

[62] Given the timelines that must be met under SCCR together with the common acknowledgment that psychiatric assessments are not so easily obtained on short notice, there appeared to be a real possibility that the trial would be adjourned to allow the plaintiff to address the defence’ s new expert evidence.

[63] Thus, an order requiring the plaintiff’s attendance at a psychiatric independent examination would result in an inequality of evidence favouring the defence. I have already made the same finding in the case at bar.

ICBC Ordered to Share Witness Statement With Plaintiff

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dealing with document production requests in an ICBC Claim.
In this week’s case (Polianskaia v. Melanson) the Plaintiff was a passenger in a vehicle driven by her mother.  She was involved in a crash with the Defendants vehicle which apparently “failed to yield the right of way to the Plaintiff’s vehicle“.  The Plaintiff was injured and sued for damages.
Following the collision the Plaintiff’s mother (who was not a defendant in the lawsuit) “signed a written statement prepared by a representative of ICBC“.  The Defendant did not disclose this document in their list of documents.  The Plaintiff brought an application to compel production.  The Court granted this application and provided the following reasons:

[32] This second aspect of the plaintiff’s application is more straightforward.

[33] There is no evidence before the court which suggests that ICBC might have a statement from the plaintiff herself. The evidence addresses only the possible existence of statements made to ICBC by each of the plaintiff’s parents.

[34] The plaintiff’s mother deposes to having signed a written statement prepared by a representative of ICBC. Through defence counsel’s correspondence, the existence of such a statement is denied. The correspondence is not sworn evidence of either indirect or direct knowledge of the existence of this statement. In those circumstances, the court has no reliable evidence to weigh against the contrary evidence of the plaintiff’s mother. In the absence of such evidence, the order will go that ICBC is to produce to the plaintiff any written statement in its possession or control signed by Elvira Polianskaia.

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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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