Tag: Master Cameron

Yet To Be Produced Defence Medical Report Derails Request For Second Defence Medical Exam

Last week I highlighted reasons dismissing a defence application for a second independent medical exam where they had the benefit a first exam but no report was yet produced.  Today similar reasons were published by the BC Supreme Court, Vancouver Registry.

In today’s case (Rong v. Yelland) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff consented to be assessed by an orthopedic surgeon of the Defendant’s choosing.  After the assessment but prior to any report from the assessment being produced the Defendant requested that the Plaintiff also attend a functional capacity evaluation with a kinesiologist.  The Plaintiff declined.

The Defendant brought an application to compel attendance.  In dismissing this application the Court noted there is no way of knowing whether the medical ‘playing field‘ was even without the defence surgeon’s report.  Master Cameron provided the following reasons:

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Imminent Trial Thwarts Defense Clinical Record and Medical Examination Request

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, denying a defence application for production of various clinical records and requesting a defence medical exam largely based on the proximity of trial.

In the recent case (Shannon v. Cook) the Plaintiff was involved in a vehicle collision and claimed damages.   Various pre collision medical records were produced.   With trial only three months away the Defendant brought an application for a host of further records to be produced along with a request for a further defence medical examination.

The Court dismissed both applications finding that with the trial being just around the corner the expert medical evidence should be mature and it was simply too late in the process for such an application to be granted.  In dismissing the applications Master Cameron provided the following reasons:

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ICBC Ordered to Pay $250 for "Misguided" Refusal to Pay $15 Fee

When people hire a lawyer in British Columbia a $15 ‘trust administration fee’ must be paid to the Law Society of BC.  Basically a mandatory tax.
When a plaintiff hires a lawyer to resolve a dispute with ICBC this fee needs to be paid.  If the Plaintiff is a successful litigant ICBC needs to indemnify this fee as a disbursement.  They don’t like to do so.  Today, reasons for judgement were published by the BC Supreme Court, Vancouver Registry, (Garayt v. Deneumoustier) with some harsh words for ICBC’s routine ‘misguided’ refusal to accept this disbursement.  In ordering the disbursement paid along with a $250 award in further costs Registrar Cameron provided the following reasons:

[6]            I agree with these submissions and would add that on numerous occasions on assessments that I have presided over I have advised counsel for the Insurance Corporation of British Columbia, who are retained to defend these motor vehicle related personal injury claims under our provincial automobile insurance program, that unless there is an issue as to whether or not the Plaintiff’s counsel has received a deposit into trust in respect of resolution of the litigation, there is absolutely no justification to put the trust administration fee into issue.

[7]            I have said to counsel, who come with instructions to oppose the TAF disbursement that those instructions are simply misguided and the matter ought not to be raised on an assessment unless there is an issue about the deposit being made. There is no such issue in this case.

[8]            I have jurisdiction pursuant to Supreme Court Rule 14-1(14) to award costs arising from an improper act or omission. The applicable Rule reads as follows:

Costs arising from improper act or omission

(14)   If anything is done or omitted improperly or unnecessarily, by or on behalf of a party, the court or a registrar may order

(a)  that any costs arising from or associated with any matter related to the act or omission not be allowed to the party, or

(b) that the party pay the costs incurred by any other party by reason of the act or omission.

[9]            In this case the Plaintiff was put to unnecessary cost to address this objection to the TAF and I am satisfied that it is appropriate pursuant to Rule 14-1(14)(b) to allow an additional amount for costs in recognition of the failure of the Insurance Corporation of British Columbia to abide by the very clear case law not to make TAF an issue unless there is a proper basis for doing so.

[10]        Finding that there was no proper basis in this case and that the concession was only made this morning, I allow the Plaintiff an additional $250 in costs.

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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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