Tag: Master Harper

Defense Expert Appointment Dismissed for "Waiting at their Peril"

Unpublished reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing a defence application for an independent medical assessment for being brought too late in the process.
In the recent case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages.  The Defendant requested the Plaintiff to attend a 2 day Functional Capacity Assessment less than 84 days before trial.  The Plaintiff refused and a court application to compel attendance was brought.  Master Harper dismissed the application finding the Defendant was too late and waited at their peril.  In dismissing the application the Court provided the following reasons:
Quote late DME dismissal

No Forced "Consent" When Attending Court Ordered Medical Examination

Update January 30, 2017the below case, in reasons for judgement released today, was largely overturned on appeal
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Although there are conflicting authorities on the subject in British Columbia, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding it is not appropriate for a Court to order a Plaintiff to sign a ‘consent’ form when attending a court ordered independent medical exam.
In today’s case (Gill v. Wal-Mart Canada Corporation) the Plaintiff sued the Defendant for personal injuries after a slip and fall incident.  In the course of the lawsuit the Plaintiff agreed to be examined by a physician of the Defendant’s choosing but refused to sign a ‘consent’ form the physician required.  The Defendant asked the Court to order the Plaintiff to sign the consent form but the application was dismissed.  In finding judicially ordered ‘consent’ to be inappropriate Master Harper provided the following reasons:

[31]         In my view, because an order compelling an IME is discretionary, I am not bound by Kalaora or Nikolic to order that the plaintiff sign the consent form. I prefer to follow the reasoning of Peel. In addition, although Dr. Travlos and the College have a legitimate interest in ensuring that a person attending for an IME is properly informed about all aspects of the IME, there are alternative methods to compelled consent to convey the information. I conclude that the plaintiff in this case should not be compelled to sign the consent form required by Dr. Travlos.

[32]         Even if I were of the view that Ms. Gill should be compelled to sign a reasonable consent form, Dr. Travlos’s consent form contains clauses that are not reasonable.

i)       First, Ms. Gill should not be expected to have to agree in writing as to the definition of physiatrist: Slobodzian v. Mitchell and Hameiri (unreported, February 2, 2015, Courtenay Supreme Court Action S085376);

ii)     Second, the last paragraph of the consent form contains this statement: “I am signing this document voluntarily …”. Ms. Gill would not be signing the document voluntarily if compelled to do so by court order;

iii)    Third, the consent form says:

I hereby release Dr. Travlos, his employees and agents, from any and all claims whatsoever, which may arise as a result of the release of the above information.

The clause is difficult to interpret. Dr. Travlos might mean that he is released from liability for releasing the report to the referring source. Or, he might mean that he is released from liability for releasing the report to someone other than the referring source. In either case, a release of liability goes beyond the bounds of a reasonable consent form.

[33]         In Mund v. Braun, 2010 BCSC 1714, the IME doctor required the execution of a jurisdiction agreement. The plaintiff declined to sign it and the court declined to order the plaintiff to sign it on the basis that the court did not have jurisdiction to order the plaintiff to sign a jurisdiction agreement. The release of liability in Dr. Travlos’s consent form is in the same category and is therefore objectionable.

[34]         Both Dr. Travlos and the College have a legitimate interest in ensuring that persons attending IMEs understand the nature and purpose of the IME. Clarity is always better than confusion.

[35]         The options presented on this application were limited to the court ordering the consent form be signed, or not. In my view, there are other options. The desired outcome of a party attending an IME fully informed about the IME could be met if the court were asked to incorporate reasonable terms into the order granting the IME. Those terms would meet the reasonable and legitimate interests of the plaintiff, the defendant, the examining doctor and the College.

[36]         Of course, the terms would have to be acceptable to the doctor or the exercise is meaningless. A drawback to this option is the unnecessary increase in court applications. Both Dr. Travlos and the doctor in Kalaora said that most people seeing them for IMEs consent. It would not be proportionate to require all applications for IMEs to result in a court order.

[37]         The concerns about “improved communication by physicians” and “enhanced understanding by patients” expressed in the guideline could also be met by the doctor providing written information about the IME to the party in advance of the examination. This option would be simpler and less expensive than a court order incorporating the information the doctor seeks to convey to the person being examined.

[38]         An even better option might be for the College to amend its guideline to provide recommendations for physicians conducting IMEs that are court-ordered and not by consent. 

Applications For Responsive Reports Ought to be "Extremely Rare"

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, criticizing the volume of applications the Court is seeing with Defendants arguing that they need to subject plaintiff’s to physical examinations in order to obtain ‘responsive’ expert opinion evidence.
In today’s case (Falbo v. Ryan) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff attended several defence medical appointments, specifically with a physiatrist, a psychiatrist, a dental expert, and a rheumatologist.  The Plaintiff then served two functional capacity reports outlining vocational limitations.  The Defendant argued they needed a further evaluation to obtain a ‘responsive’ report.  In dismissing the application Master Harper provided the following reasons :

[10]        There are numerous cases that have dealt with these types of applications.  The plaintiff in fact produced a binder of 21 case authorities.  One of the cases that I find most persuasive in this matter is Timar v. Barson, 2015 BCSC 340.  In that case, Mr. Justice Smith said that IMEs for responsive reports should be rare.  I agree.

[11]        In my view, the defendants cannot reasonably claim to be surprised by the subject matter of the report, and further, it is my view that it is not necessary in order to provide a responsive report for the plaintiff to be subjected to a physical examination.  These types of orders are discretionary.  They ought to be rare.  There is, unfortunately in my view, what seems to be an acceleration of these types of applications.  They should be extremely rare, and in my view the defendants do not require a physical examination of the plaintiff in order to properly respond to Ms. Craig’s two functional capacity evaluations.

No Medical Report Thwarts Request for Second Defence Medical Exam

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defense application for a defense medical exam where they had not provided a report following an initial exam.
In today’s case (Thandi v. Higuchi) the Plaintiff agreed to be assessed by an orthopedic surgeon selected by the Defendant.  No report was produced following this assessment and the Defendant requested a further a exam with a neurologist.  In dismissing the application the Court noted that the lack of a report left the court without a proper evidentiary foundation respecting the equality of the playing field.  Master Harper provided the following reasons:

[6]             The major impediment to the defendant’s application in this case is the absence of Dr. Loomer’s report. It might be the case that the defendant could establish the necessity for a third independent medical examination before a neurologist, but the Court does not have sufficient evidence to assess that issue. Here, I rely on Koulechov v. Dunstan, 2015 BCSC 393 at para. 6, which is on all fours with this application:

[6]        It is counsel’s prerogative, of course, to control the timing of disclosure in a civil case. However, an order for a second independent medical examination under Rule 7-6 is a discretionary remedy that will only go if it is required to put the parties on an equal footing with respect to medical evidence: Stainer v. Plaza, 2001 BCCA 133 at para. 8. In the present application, in the absence of Dr. Gittens’ report, it is impossible for me to evaluate if there is any inequality in evidence or if an orthopaedic IME could redress it. …

[7]             Applying the Koulechov decision to the present application, I am not in a position to assess whether the medical complaints that involve neurological complaints were addressed by Dr. Loomer, could have been addressed by Dr. Loomer, or whether Dr. Loomer declined to opine on any neurological complaints because it was outside his area of expertise.

[8]             So quite simply, the defendant has not met the evidentiary burden necessary to justify the order sought and, therefore, I dismiss the application.

Plaintiff Fined $25,000 For Not Complying With Document Production Orders

Update April 1, 2015I am advised that the below decision is presently under appeal
Update July 3, 2015– the below decision was overturned on appeal with the Court noting a Master has no jurisdiction to make such an order.
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Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, leveling sanctions against a Plaintiff in a personal injury lawsuit for not complying with Court document production orders.
In the recent case (Badreldin v. Swatridge) the Plaintiff was injured in a 2010 collision.  The Plaintiff was a physiotherapist and claimed diminished earning capacity.  The Defendant obtained Court orders for production of records relating to the Plaintiff’s business losses and these were not wholly complied with.  The Defendant asked that the Plaintiff’s action be dismissed but the Court noted this was too harsh of a remedy.  In ordering a $25,000 fine to be paid Master Harper provided the following reasons:

[46]         The defendant has been put through too much extra time, trouble, and expense in its efforts to limit the order just to compel the plaintiff to produce the documents and information. There has been a persistent pattern of non-compliance. The plaintiff has downplayed his responsibility for the non-compliance with the two court orders. As he has had legal counsel throughout, there is no excuse for his not understanding his responsibilities.

[47]         The production of the documents and information that did occur at the last minute and over a short period of time shows that it was possible to produce the documents and information in a timely fashion.

[48]         I find, therefore, that there has been no lawful excuse for the plaintiff’s non-compliance with the two court orders. I must now consider the sanction…

[53]         In my view, the sanction has to be sufficient to bring home to the plaintiff the point that court orders must be obeyed. In addition, the defendant is entitled to be compensated for the time, trouble, and expense of dealing with this issue, as well as the prejudice caused by the late production of documents and information, and the uncertainty with respect to how the work calendars are going to be used. There is a looming trial date of March 16, 2015. It is uncertain at this point as to whether the trial will go ahead. The loss of a trial date because of this late production is an additional prejudice to the defendant.

[54]         So balancing all of those factors, in my view, a sanction of $25,000 would be appropriate. I therefore order that the plaintiff pay to the defendant the sum of $25,000. The $25,000 will be used to offset against any settlement or judgment the plaintiff receives in this action.

No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a witness who is willing to communicate through counsel should not be compelled to attend a pre-trial examination under oath.
In today’s case (Cabezas v. HMTQ) the Plaintiff was involved in a single vehicle accident and sued the Defendants claiming negligent highway maintenance.  In the course of the lawsuit the Plaintiff attempted to speak with and the “Capilano defendants provided a summary of the evidence Mr. Colville was expected to give should the matter proceed to trial. She stated further: “to the extent that you still wish to speak to Mr. Colville, he has asked that this be arranged through us and that we be present.
The Plaintiff brought an application to compel pre trial examination under oath of this witness but this was dismissed with the Court noting that a witness willing to speak through counsel is indeed being responsive.  In reaching this conclusion Master Harper provided the following reasons:

[4]             Rule 7-5(1) provides as follows:

(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may:

(a) order that the person be examined on oath on the matters in question in the action, and

(b) either before or after the examination, order that the examining party pay reasonable lawyer’s costs of the person relating to the application and the examination…

[11]         Rule 7-5 sets out a protocol which must be followed before an application for an order for a pre-trial examination of a witness can be made. The applicant must establish that the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing relating to the witness’ knowledge of the matter in question or has given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).

[12]         The fact that the witness has chosen to communicate through counsel does not amount to a refusal to give a responsive statement (Rintoul v. Granger, 2008 BCSC 1852 at para. 24).

[13]          Mr. Colville is agreeable to attending an interview in the presence of counsel.

Increased "Sexually Aberrant Behavior" Brain Injury Claim Leads to Police File Disclosure

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing document relevancy issues in a disputed brain injury claim.
In today’s case (Mackinnon v. Rabeco Holdings (1989) Ltd.) the Plaintiff was involved in a 2010 vehicle collision.  He sued for damages alleging that “he sustained a brain injury…as a result of the accident which caused or contributed to an increase in the frequency and severity of his pre-accident sexually aberrant behaviour culminating ultimately in a criminal conviction“.
Prior to the collision “the plaintiff took clandestine photos of a woman. The incident was reported to police in Langley who investigated, but no charges were laid.”.  In a post collision incident, the Plaintiff plead guilty to “surreptitiously unlawfully observing or recording for a sexual purpose a person in circumstances that give rise to an expectation of privacy contrary to s.162(1)(c) of the Criminal Code”.
The Defendant sought production of police materials from these incidents arguing the documents were relevant given the allegations in the lawsuit.  Master Harper agreed and ordered production.  In doing so the Court provided the following reasons:
[17]         The plaintiff will attempt to prove at trial that the injuries sustained in the motor vehicle accident caused or contributed to the escalation of his sexual proclivities. That fact, if found by the trier of fact, is material. The defendants seek to obtain evidence as to the timeline of the escalation in the Plaintiff’s sexually aberrant behaviour and compare his behaviour pre- and post-accident…

[22]         Because the defendants are not seeking production of the videos and photographs themselves (sensibly, in my view because I would not have ordered their production), secondary documents which refer to the nature of the images and the dates on which they were made are a reasonable substitute for those original documents. I find that certain specific documents in the possession of the RCMP with respect to the 2009 incident should be produced. These are: the incident report; any statements made by the plaintiff to the RCMP and the investigating police officer’s notes, with identifying information of the victims to be redacted.

[23]         I find that certain specific documents in the possession of the RCMP with respect to the June 25, 2012 incident should be produced. These are: the Narrative Report to Crown Counsel; the notes of the investigating police officer or officers and any statements made by the plaintiff to the RCMP.

[24]         The video catalogue was referred to by Crown Counsel as being made by someone other than Crown Counsel. There is no evidence as to who that someone is. It is possible that the video catalogue was not made by the RCMP and is not in the possession of the RCMP. There is no evidence before me in this application that the video catalogue is in the possession of the RCMP and no evidence from which I can draw an inference that the video catalogue is probably in the possession of the RCMP. Therefore, I dismiss that part of the application.

[25]         As stated above, counsel for the Defendants is not seeking disclosure of the videos and photos themselves. Any identifying information of the victims will be redacted.

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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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