Tag: Master Muir

Discovery Continuation Distinct from a Further Examination

As previously discussed, the law sets a heavy burden when a party seeks a second examination for discovery in a lawsuit in the BC Supreme Court.  There is a distinction, however, between a second discovery and a continuation of an incomplete one.  This distinction was discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Li v. Oneil) the Plaintiff was examined for discovery at which various requests for further information were made.  When the Defendant sought to schedule a continuation of the discovery the Plaintiff opposed arguing the heavy burden for a further discovery was not met.  Master Muir granted the application noting the distinction between concluding an incomplete discovery based on outstanding requests and a genuine further examination.  The Court provided the following reasons:
[11]         The application before me, despite being framed as an application for a further discovery, was in reality an application that the examination of the plaintiff continue, both in accordance with R. 7-2(22) and generally, based on production of new material such as the list of special damages, medical records and employment records. In support, he relies on the decisions in Cowan v. Davies, 2008 BCSC 1239, and Dhami v. Bath, 2012 BCSC 2077…
[15]         I am of the view that the examination for discovery was adjourned as contemplated by these rules. Thus, the defendant is entitled to continue its examination for discovery regarding questions left on the record and I am of the view that logically extends to questions based on documents requested at the discovery and subsequently produced.
[16]         As the examination for discovery was not concluded, the heavy onus required to justify a further discovery referred to in Sutherland v. Lucas is not engaged. Given the extensive document production since the examination for discovery was conducted, I am also of the view that the defendant is entitled to continue its examination for discovery based on the new material, whether or not it was produced in accordance with a request left on the record.
[17]         If this was an application for a second examination for discovery I would come to a similar conclusion.
[18]         On a review of the listing of documents produced by the plaintiff since her examination for discovery as set out in the defendant’s notice of application, it is clear that many are documents that could prove or disprove a material fact and that they were in existence prior to her examination for discovery and as such required to be produced under rules 7-1(1) and 7-1(9).
[19]         The defendant submits that is sufficient to constitute a failure to make full and frank disclosure as contemplated in Sutherland v. Lucas and is such as to warrant a second discovery.
[20]         I agree. In my view it does not behoove a party to fail to make complete document disclosure prior to an examination for discovery and then to take the position that the examination cannot be continued when proper disclosure is made.
[21]         Thus, in the circumstances of this case I am satisfied that the defendant did not conclude its discovery and thus the heavy onus referred to in Sutherland v. Lucas does not apply. The defendant is entitled to continue its examination for discovery on the new matters, but is not entitled to examine on matters covered on the first day of examination for discovery.

"Mere Possibility" of Pre-Existing Injury Not Sufficient To Justify Document Disclosure Request

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further judicially shaping document disclosure obligations under the new rules of court.
In last week’s case (Bains v. Hookstra) the Plaintiff was injured in a 2009 motor vehicle collision.  The Plaintiff agreed to produce his MSP Printout, Pharmanet Records and WCB records from the time of the crash onwards.  The Defendant was not satisfied with this timeframe and sought these records from before the collision.  In support of their application the Defendant produced evidence that the Plaintiff was involved in two collisions in the year prior to the accident at issue in the lawsuit.  The Defendant plead that there was a pre-existing injury but the Court noted this was done in a “very pro-forma way“.
Master Muir ultimately rejected the application finding that evidence of previous collisions leads to no more than “mere speculation” of a pre-existing injury.  In dismissing the application the Court provided the following reasons:
[14]         The applicant must demonstrate a connection between the documents sought and the issues beyond a “mere possibility”: Przybysz v. Crowe, 2011 BCSC 731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53, and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138, at para. 51, “there must be some ‘air of reality’ between the documents and the issues in the action ….”
[15]         The plaintiff has clearly denied that he was suffering from any pre-existing injury at the time of the accident in question or for two years prior. He has further denied that he made any WCB claim during that two-year period.
[16]         The evidence put forward by the defendant does no more than raise the mere possibility of a prior existing condition. In the circumstances of the plaintiff’s denial, that evidence is insufficient to warrant an order for the production of the documents sought.
[17]         The defendant’s application is therefore dismissed

Making the Doctor Come To You! Defence Medical Exams and Court Ordered Conditions

The BC Supreme Court has the discretion to impose appropriate terms and conditions when forcing a Plaintiff to undergo a Defence Medical Exam in the course of an injury lawsuit.  Unreported reasons for judgement were recently released and shared by Plaintiff lawyer Thomas Harding discussing this and imposing a variety of interesting conditions connected to such an order.
In the recent case (Carta v. Browne) the Plaintiff sued for damages as a result of as 2009 collision.  Prior to this the Plaintiff was injured in a 2002 collision which resulted in him being rendered paraplegic confining him to a wheelchair.
The claimed damages from the 2009 collision included psychiatric injuries.  The Defendant requested a Defence Medical Exam with a psychiatrist in Vancouver.  The Plaintiff objected both to the date proposed and to the location of the examination as the Plaintiff lived in Kelowna and travel was difficult due to his pre-existing disability.
Master Muir agreed that while a psychiatric assessment was appropriate and that the Defendant could choose their expert the Plaintiff was entitled to reasonable accommodation with respect to the timing of the appointment and further that given the Plaintiff’s travel difficulties he was entitled to having the appointment take place in Kelowna.  The Court went on to impose a variety of further conditions providing the following reasons:
[8] …I am satisfied that there are considerations that go beyond simple convenience that dictate that this examination should not be conducted in Vancouver but should be conducted in Kelowna and that it not be conducted on July 30th, which is a time that is more than inconvenient for the plaintiff; it interferes with a scheduled festival that he is planning to attend as a part of a developing business.  Therefore if the defendants are going to insist that the examination be conducted by Dr. Riar, it is my order that Dr. Riar attend in Kelowna at a time convenient to all parties, and I will order that certain conditions be complied with.
[9]  The first condition sought is that the defendants set out exactly what examinations DR. Riar wishes to conduct.  The defendants have indicated that this is a psychiatric examination, that the examination is not to be an invasive one but will consist of conversations between the plaintiff, and I trust that Dr. Riar, being a professional, will confine himself accordingly.  It is of course ordered that ICBC is to pay the reasonable costs of attendance of the plaintiff at the examination.
[10]  I do order that the plaintiff is at liberty to be accompanied by a person of his choice.  This person is to be merely an observer and not participate in or interfere with the exaninaiton in any manner whatsoever.  Dr. Riar will not attempt to get any information from the companion…
[12]  And I so order here that the examination is to be commenced within 30 minutees of the scheduled start time, after which, if the examination has not proceeded, the plaintiff is entitled to depart, and his attendance will be credited as having satisfied the order…
[15]  With respect to item (i) of the response of the plaintiff here, the plaintiff is seeking that there be no surveillance of him during any part of the defence medical examination or during his arrival or departure from there.  In my view this is in the nature of being required to attend court, and it is my view that any such surveillance would be unseemly, and I therefore grant the order.
To my knowledge these reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

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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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