Tag: Rule 7-6

Multi-Disciplinary Medical Assessment Denied In ICBC UMP Claim

Reasons for judgement were released last week in an ICBC UMP claim dealing with multiple defence medical exams in the context of a serious injury claim.
In last week’s case (G v. ICBC) the Claimant suffered a “severe traumatic brain injury” in a 2008 collision.  The at fault motorist was underinsured and the Claimant applied for payment of damages under his own UMP coverage with ICBC.
In the course of arbitration the Plaintiff agreed to be assessed by five different physicians of ICBC’s choosing.  These included two neuropsychologists, a neurologist, a psychiatrist and a physiatrist.  ICBC then requested a further assessment, specifically a Multi-Disciplinary Fetal Alcohol Syndrome Disorder Assessment over the course of two days.  The Claimant refused resulting in an ICBC application to compel attendance.
The parties agreed to apply the BC Supreme Court Rules in the course of the arbitration (click here to read an article discussing the lack of jurisdiction for an UMP Arbitrator to compel an independent medical exam when the BC Supreme Court Rules are not used).  In dismissing the application Arbitrator Yule canvassed some of the well known authorities considering BC Supreme Court Rule 7-6(1) and (2).  Arbitrator Yule provided the following summary of the applicable legal principles:
49…
1.  An order for a subsequent medical exam is discretionary but the discretion must be excercised judicially;
2.  Independent medical exams are granted to ensure “a reasonable equality between the parties in the preparation of a case for trial”; reasonable equality does not mean that a defendant should be able to match expert for expert or report for report;
3.  A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert; there must be some question or matter that could not have been dealt with at the earlier examination; and
4.  There is a higher standard required where the Defendant seeks subsequent medical exams.
Arbitrator Yule went on to rule that the playing field was reasonably equal after five ICBC directed medical exams such that a further exam was not warranted.  He specifically pointed out that ICBC’s experts already opined on the issue of pre-existing fetal alcohol disorder without reservation and a further report would simply seek to bolster these opinions.
As of today’s date this judgement is not yet publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests one.


The "Shoehorn" Prohibition To Responsive Defence Medical Exam Requests

(Image via wikipedia)
One rule that has perhaps received more attention than other in recent years is Rule 11-6(4) in the context of Responsive Medical Exams.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic and coining the “shoehorn” prohibition to responsive independent medical exams.
In this weeks’ case (Turnbull v. Tarnohammadi) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff was assessed by Dr. Salvian who expressed concern that the Plaintiff suffered from Thoracic Outlet Syndrome.  His records were exchanged in the litigation process.  As the expert evidence deadline neared the Plaintiff served a proper expert report setting out Dr. Salvian’s findings.
The Defendant then brought an application for the Plaintiff to attend a physician to obtain a ‘responsive‘ report.  Master Baker dismissed the application noting it should have been brought sooner and parties are not allowed to “shoehorn” a late request for a medical exam into the responsive evidence rule.  In dismissing the application Master Baker provided the following reasons:

[13] Dr. Salvian was consulted and gave a report which became part of the clinical records of the family doctor, Dr. Murphy.  The clinical records, including that report, were made known to the defence long ago.  In fact, Dr. Salvian’s, I will call it report number one, which was dated 2010, was listed in the plaintiff’s list of documents in April of 2011.

[14] In that report it is clear that Dr. Salvian, if he did not very specifically diagnose carpal tunnel syndrome or thoracic outlet syndrome — and I do not decide at this point whether he did or he did not — made it absolutely clear, at least to me, that that was a significant factor in his mind.

[15] On the last page of his report, page 20, he says:

In any event, it is my opinion that the carpal tunnel syndrome and the post-traumatic thoracic outlet syndrome and the soft tissue injury of the neck are directly caused by the flexion extension injury, …

He then talks a little more about spontaneous carpal tunnel syndrome.

[16] I also agree with Mr. Parsons that his latter report does not add significantly to that, not in such a fresh way that would justify surprise on the part of the defence.

[17] That being the case, I take Mr. Parsons at his word, and I agree it would have been perfectly appropriate had at some point before the 84-day deadline the defence requested an IME to deal with Dr. Salvian’s perspectives;  that would have been appropriate.

[18] To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.

[19] Again, nothing in this precludes the defence from delivering a responsive medical report.  It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.

Late DME Application Dismissed; Responsive Exam Limitations Discussed

Helpful reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, dismissing a defence application to have a Plaintiff assessed by a neurosurgeon.  In short the Court found the application was brought too late in the claim and that there was insufficient evidence to justify a physical exam for a truly ‘responsive‘ medical report.
In the recent case (Dhaliwal v. Owens) the Plaintiff was injured in a 2009 collision.  The injuries included low back pain.  Surgery was anticipated but as time went on the Plaintiff experienced some symptom improvement and surgery became less likely.
In the course of the lawsuit the Defendants put the matter into fast track litigation (Rule 15).  They failed to obtain a medical report in a timely fashion.  When they finally did apply the 84 day service deadline set out in Rule 11-6(3) had come and gone.  The Defendants argued that they needed the report for responsive purposes and further that the cancellation of the Plaintiff’s anticipated surgery amounted to a change of circumstances justifying the late application.   Master Keighley rejected both of these arguments and dismissed the application.  In doing so the Court provided the following reasons:
[7]  Now, I had indicated earlier that it is likely that had this matter come to light a year ago, this application would not have been before me today.  What causes the problem is Rule 11-6(3) which requires that an expert report, in general terms, be delivered at least 84 days prior to the scheduled trial date.  The 84th day, I am told by counsel who have done the arithmetic, passed…almost a couple of weeks ago…
[14]  Now, this is not a situation, and we do sometimes see it, where the physician has either directly or indirectly provided evidence with respect to the necessity of a physical examination of a party.  There is nothing before me in the material to explain why a physical examination is required in this case other than the statements from the paralegal that I have referred to.
[15]  In the case of Wright v. Brauer, a decision of Mr. Justice Savage reported as 2010 BCSC 1282, Justice Savage considering similar circumstances said at paragraph 22
In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4)”
Justice Savage dismissed the application and is reference to Rule 11-6(4) harks back to his remarks at paragraph 12 of that decision where he said:

Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.”

He noted that in the case before him, the defendants were, as here, limited by the Rule to what referred to as Justice Williamson in the case of Kelly v. Kelly (1995), 20 BCLR (3d) 232 “truly responsive rebuttal evidence” by virtue of the provisions of Rule 11-6.
[16]  Similarly, Mr. Justice Cullen in the case of Ludecke v. Hillman, 2010 BCSC 1538, considered an appeal from a master’s order which has allowed an examination to provide “truly responsive” evidence.  Justice Cullen upheld the master’s order determining that the necessary evidentiary foundation for the examination was found in the material before him.  In reaching that conclusion, he said:
“To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.”
[17]  The plaintiff’s injuries, it seems to me, have not really changed in this case.  She has more or less since the outset complained of low back pain, low back problems.  What has changed, if anything, in recent months is the decision of the medical practitioners treating her with regard to the advisability of surgery.  It appears that they have decided for the meantime that surgery is the less desirable option.  Notwithstanding that decision, the plaintiff continues to suffer pain to the extent that she remains, apparently, unable to work.  There has been ample time int his litigation, even before this change in the plaintiff’s circumstances, for the defence to seek and obtain evidence from a neurosurgeon or other specialist with respect to her condition.  Although the provisions of Rule 7-6 and its predecessor Rule were enacted to attempt to affect a level playing field between the parties with respect to medical evidence, I do not see that the defence will be prejudiced by being restricted to an opportunity to have Dr. Turnbull or another practitioner of their choice examine the available evidence and render an opinion at trial as to the appropriate treatment of the plaintiff’s injuries.  Overall, of course, I have been considering the issue of proportionality and in the particularly refined context of an application brought in a case governed by Rule 15-1.
[18]  The application is dismissed.
As of today this case is unreported but, as always, I’m happy to provide a copy of the reasons for judgement to anyone who contacts me and requests these.

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.

More on the Responding Report "IME" Limitation


Adding to this growing database of caselaw considering the relationship of Rule 7-6 and  Rule 11-6(4), reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demonstrating that “responding” independent medical exams will not be granted as a matter of course.
In the recent case (Godfrey v. Black) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Her pleadings specifically identified an alleged TMJ Injury.  In the course of the lawsuit the Plaintiff was examined for discovery with respect to her TMJ pain.  She also served an expert report addressing this injury in compliance with the time-lines set out in the Rules of Court.
The Defendant brought an application for the Plaintiff to be assessed by a TMJ specialist of their choosing.  Their application was brought after expiry of the 84 day expert report service deadline   They argued an exam was necessary in order to obtain a responding report under Rule 11-6(4).   Master Caldwell disagreed and dismissed the motion finding no sufficient evidence was tendered to explain the need for a physical exam.  In doing so the Court provided the following reasons:
[2]  I am told that the pleadings, when they were issued, specifically identified among other things injury to the temporomandibular joint (“TMJ”).  That, it is said, and I agree, put the defence on specific notice that there was an issue relating to the jaw and the TMJ…
[9]  There is no evidence before me to indicate why this particular dental expert believes it necessary for him to do a physical examination of the patient.  In fact, the instruction letter from counsel specifically asks for among other things a critique of the report of the first dentist.  Many of those bullets which appear in the letter which I will not make further reference to appear able to be done on the basis of a criticism of methodology or findings as opposed to requiring an independent examination of the person of the plaintiff…
[13]  I have been referred to several cases, but the one which I find the most helpful is the case of Wright v. Brauer, 2010 BCSC 1282 a decision of Mr. Justice Savage in similar circumstances where he was dealing with a trial date in the near future and an examination such as this where there was no medical evidence as to why a physical examination was necessary in order to provide a truly rebuttal or critical report…
[15]  In my view, the same reasoning applies in this case…
[18]  This application comes late in the day, a year after the defence was well aware that TMJ was an issue that should be looked into.  Had they wished to get a full report, they were well able to make that application or the request earlier.  I am not satisfied on the material that there is a basis for me to infer from the submissions of counsel or the material filed that an independent medical examination of the person of the plaintiff is required in order for this dentist to provide a truly rebuttal report.
These reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

More on the Prohibition of Recording Court Ordered Medical Exams


Reasons for judgement were published this week demonstrating that while the BC Supreme Court has discretion to permit a Plaintiff to tape record a Court-ordered medical exam, this discretion is rarely exercised.
In this week’s case (Colby v. Stopforth) the Plaintiff and her litigation guardian were ordered to attend a series of medical exams.  The Plaintiff sought permission to tape record these.  Madam Justice Dardi refused to allow this and in doing so provided the following comments:

[18] However, that is not the end of the analysis. I must next consider whether in the unique circumstances of this case the plaintiff has nonetheless adduced cogent evidence that the use of an audiotape would advance the interests of justice.

[19] The plaintiff forcefully argues that the audio recordings are required to protect Mr. Rogers. The plaintiff’s overarching concern is the potential for an evidentiary conflict between Mr. Rogers and an examiner, particularly given that Mr. Rogers is a key witness whose credibility will be a central issue at trial. Mr. Rogers also asserts that he requires this procedural safeguard because of his status as Ms. Colby’s committee—as a fiduciary he is required to act in her best interests.

[20] The court in Wong observed that a medical examination, although part of the discovery process, is quite different in nature from statements made to an independent medical examiner and cannot be equated with the statements taken under oath on an examination for discovery: Wong at paras. 27-29.

[21] As I mentioned in my earlier ruling, I am not persuaded that the potential for an evidentiary conflict between Mr. Rogers and the examiners is, in itself, a cogent reason for ordering an audio recording. Plaintiffs routinely answer questions at independent medical examinations, as they are required to do under the Rules, when their credibility is at issue.

[22] Nor upon careful consideration am I persuaded on the evidence that Mr. Rogers’ status as a committee, in itself, is a sufficiently compelling or cogent reason to warrant the use of an audio recording. To permit the use of audio recording here would be to place Mr. Rogers in a preferred or advantageous position to that of a plaintiff who attends an independent medical examination on his or her on behalf. There may be cases where it is appropriate that a litigation guardian or committee should be permitted the opportunity to have the independent medical examination audio recorded, but on the evidence adduced this is not one of them.

[23] In summary, the evidence in this case falls short of establishing that the use of an audiotape recording would advance the interests of justice. Based on the reasoning articulated by the Court of Appeal in Wong, I cannot conclude on any principled basis that the plaintiff has met the onus in the circumstances of this case for showing that the use of an audiotape recording at the independent medical examinations will advance the interests of justice. I therefore decline to make any orders in this regard.

For more on this topic you can click here to access my archived posts discussing recording what transpires at independent medical exams.

More on the DME Prohibition of Bolstering Previous Opinions

While Plaintiff’s in personal injury lawsuits sometimes have to be subjected to multiple defence medical exams (DME) one well-settled principle is that subsequent exams to bolster a previous defence opinion are not permitted.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, demonstrating this principle in action.
In last week’s case (Dillon v. Montgomery) the Plaintiff was involved in two motor vehicle collisions.  He sued for damages with both claims set for trial at the same time.   In the course of the lawsuit he agreed to attend a defence medical exam with an orthopaedic surgeon.  The examination included a neurological assessment.
The Defendant then applied for a second exam, this time with a neurologist, arguing this was necessary “to ensure reasonable equality between the parties in the preparation of a case for trial“.  Master Bouck disagreed finding a further exam was not necessary in the circumstances and amounted to an effort to “bolster” the previous opinion.  In dismissing the application the Court provided the following reasons:

[17] Dr. McGraw reviews the findings contained in the neurological consult report in his own report. In additon, Dr. McGraw conducted a neurological examination.

[18] This expert’s opinion is that the plaintiff’s “back pain is of muscular origin and not related to intervertebral disc disease, arthritis of the apophyseal joints, or nerve root irritation”…

[28] In the case at bar, I determined that an examination by Dr. Moll is not necessary to put the parties on equal footing.

[29] First, there was nothing new in the medical evidence since the examination by Dr. McGraw that might justify an examination by a neurologist. The only alleged new information is the plaintiff’s ongoing complaints of tingling in his arms and legs. These complaints are of long standing and even pre-date the accidents.

[30] Second, a neurological opinion has been obtained [by the plaintiff] which negates any correlation between the plaintiff’s symptoms and the motor vehicle accidents. Indeed, Dr. Shtybel’s resident made no findings of neurological impairment whatsoever. In other words, the only purpose of an independent medical examination by a neurologist would be to prove a negative, or, perhaps bolster Dr. McGraw’s opinion. This circumstance is different than the one considered in Kim v. Lin where there had yet to be any medical opinions proferred to explain ongoing (and even worsening) accident related complaints.

[31] Finally, the fact that the plaintiff has ongoing complaints that may be considered neurological symptoms does not warrant this second examination. The defence is “not entitled to pursue every potential medical possibility” to address the plaintiff’s subjective complaints: Lowry v. Spencer, (10 December, 1990) Vancouver Registry No. B883909 as cited in Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 49.

For more on this topic you can click here to access my archived posts summarizing the judicial application of Rule 7-6(2).

Why Physical Examination Is Not Always Necessary for a "Balanced Playing Field"

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that a physical examination is not always necessary for parties to put themselves on a ‘balanced playing field‘ in a personal injury claim.
In this week’s case (De Sousa v. Bradaric) the Defendant appealed from a Master’s decision refusing to permit a second psychiatric independent medical exam of the Plaintiff.  You can click here for my original post discussing the initial applicaiton.
As previously summarized, the Plaintiff was injured in a 2003 collision which allegedly caused physical and psychiatric consequences.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a psychiatrist of their choosing.  This psychiatrist (Dr. Davis) concluded that there was “no psychosis“.
Shortly after this the Plaintiff was admitted in hospital on multiple occasions.  She was ultimately diagnosed with “chronic paranoid schizophrenia” by her treating physicians.  These records were shared with Dr. Davis but despite the diagnosis from treating specialists he “rigidly and categorically rejected any diagnosis of a psychotic conditions“.  For this reason the Master refused to order a second examination.
In the appeal Mr. Justice Smith allowed the introduction of new evidence, specifically a further report from Dr. Davis indicating that he had a terminal illness and will not be able to participate in trial.  The Defendant’s argued that in these circumstances a further exam should be ordered.  Mr. Justice Smith found that while that could be the case, here it was not necessary because the Defendant had already received a report from their second psychiatrist who opined about the Plaintiff’s condition despite not physically examining her.   In dismissing the application the Court provided the following reasons:

[16] The question that arises on the new evidence, given the unavailability of Dr. Davis for trial, is whether the defendant needs a new psychiatric examination to be placed on that all important equal footing. For that purpose I turn to the report of Dr. Vallance that was before the master. This is of course a report that the defendant has, can rely upon at trial, and presumably Dr. Vallance will be available to be cross-examined on it.

[17] Dr. Vallance prefaces his report by stating:

I have not personally examined Ms. De Sousa. Consequently such opinions as I offer in this report are offered only on the understanding that such opinions are significantly limited in the weight that can be given to them absent such an examination.

As a general statement, that is undoubtedly true. However, it must be reviewed in the context of this case and the issues that will be before the court on which medical opinion evidence will be necessary.

[18] Dr. Vallance states that, based on his review of the records, there is no doubt about the fact that the plaintiff now suffers from paranoid schizophrenia. So he does not suggest that he needs to conduct an independent medical examination to confirm or exclude that diagnosis.

[19] The real issue in this case is whether that condition was caused or contributed to by the accident. On that point Dr. Vallance gives a firm opinion. He states:

I believe that if her physical condition and such anxiety as she had arising from the traumata that she experienced had been significant stressors timing the onset of that first episode, then her psychotic illness would have developed sooner rather than later. I believe that her psychosis began out of the blue, as it usually does, and at an age that is usual for the appearance of a first episode.

He then says:

Such diagnoses as paranoid schizophrenia often reveal themselves slowly over time, and therefore, based on the longitudinal history rather than cross-sectional examination, earlier episodes are often diagnosed as other conditions until the full picture is revealed.

[20] Thus on the crucial causation issue, Dr. Vallance’s own report does not support the suggestion that an independent medical examination is needed to place the parties on an equal footing. Indeed he specifically questions the usefulness of a single medical examination and stresses the need to review the entire history, as he has already done, based on the records.

[21] There is also evidence before me from the plaintiff’s family physician that in light of the plaintiff’s present psychiatric condition, a further medical examination at this time will actually be harmful to her health. That prejudice to the plaintiff must, in my view, be considered, although if I thought that a further psychiatric examination was necessary to put the parties on an equal footing, I would have said that means would need to be devised to manage that risk, perhaps with the assistance of the treating psychiatrist.

[22] However, that is not the case here. It appears to me from the evidence of Dr. Vallance that the defendants are in as good a position as they are likely to be to advance their position that this severe psychiatric condition is causally unrelated to the motor vehicle accident. I am not satisfied that a further psychiatric examination will add anything to the matter or will be of any further assistance for the court.

Court Holds Rule 15 Costs Cap Can Apply to Trials Prosecuted Outside of the Fast Track


Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, addressing whether the Rule 15 Costs ‘cap‘ can apply to non-Rule 15 lawsuits that proceed to trial but result in judgement below $100,000.  In short the Court ruled that the cap should apply in these circumstances.
In last week’s case (Affleck v. Palmer) the Plaintiff sued the Defendants for damages.  The claim was not filed under the fast track provisions of Rule 15.  The case proceeded by way of summary trial under Rule 9-7 and was successful.  The judgement is unclear of the damages awarded but they were apparently over $25,000 under $100,000.  The summary trial lasted one day.
The Plaintiff brought an application for lump sum costs of $8,000 under Rule 15-1(15).  Mr. Justice Brown agreed that this was appropriate even though the lawsuit was not filed under the provisions of Rule 15.  In reaching this conclusion the Court provided the following reasons:

[4] Rule 14-1(1)(f) states that costs payable under the Civil Rules or by court order must be assessed as party and party costs under Appendix B, unless:

(f)         subject to subrule (10) of this rule,

(i)         the only relief granted in the action is one or more of money, real property, a builder’s lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs, or

(ii)        the trial of the action was completed within 3 days or less,

in which event, Rule 15-1(15) to (17) applies to the action unless the court orders otherwise.

[5] There are other exceptions under Rule 14-1(1), but subsection (f) is the significant one in this case. Rule 14-1(10), which pertains to plaintiffs who recover in this Court a sum within the jurisdiction of the Provincial Court, does not apply in this case.

[6] Rule 15-1(15)(a) states a party in a fast track action is entitled to costs of $8,000, exclusive of disbursements, if the time spent on the hearing is one day or less, unless the court orders otherwise or the parties consent.

[7] I agree with the plaintiffs that although they had proceeded by way of summary trial and did not file a notice of fast track action, the wording of Rule15-1(1) governs and the action qualifies as a fast track action under Rule 15-1(1)(a) or 15-1(1)(b).

[8] As the plaintiffs point out, because they claimed various forms of relief under the Business Corporations Act, S.B.C. 2002, c. 57 [Business Corporations Act], it is arguable they were claiming more than monetary relief. Even so, the action still completed under Rule 9-7 in less than one day.

[9] The plaintiffs submit it would be appropriate for me to order $8,000 in costs. This represents the amount payable in a fast track action; and, despite the fact that the plaintiffs proceeded by way of summary trial under Rule 9-7, the plaintiffs submit an order for $8,000 in costs is appropriate in this case. I find the $8,000 set out in Rule 15-1(15)(a) is appropriate in this case.

This case is also a useful precedent because as set out in paragraph 8 the Court suggests that Rule 15 applies regardless of quantum provided the trial takes three days or less.

This case is worth reading in conjunction with the recent case of Johnson v. Axten which held that the Rule 15 costs cap can apply to pre-trial settlements of under $100,000 even if the case was not prosecuted under the fast track rule.

Compelled Independent Medical Exams and "Consent"


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a much debated topic; can a Plaintiff be forced to sign a ‘consent‘ document when compelled to attend an independent medical exam under the Rules of Court.  In short the Court held that this was possible.
In this week’s case (Kalaora v. Gordon) the Plaintiff was injured in a motor vehicle collision and sued for damages.  In the course of the lawsuit the Plaintiff agreed to attend a defence medical exam.  At the appointment the physician asked the Plaintiff to sign a consent form authorizing the physician to proceed with the medical examination.  The Plaintiff refused to sign this.  The Defendant brought an application to compel this document to be signed.  In granting the application Madam Justice Hyslop provided the following reasons:

[79] Rule 13-1(19) of the Supreme Court Civil Rules provides assistance in this matter:

Orders on terms and conditions

(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[80] In Nikolic, Mr. Justice Williams stated that Rule 1(12) (the former Rule)

grants the court wide discretionary powers, in the making of orders, to impose terms and conditions and give directions as its thinks just. Read collectively [he is referring to the then document rules], a master or judge of this Court has the jurisdiction to create the mechanisms by which relevant non-privileged documents in a litigant’s “power” will be produced, including the jurisdiction to order him or her to execute the necessary documentation allowing a record-holder, whether residing in or outside British Columbia, to effect the release of those documents.

Rule 13-1(19) together with Rule 7-6(1), (the medical examination rule) read together, permit the court to order that the plaintiff to sign an authorization.

[81] By refusing to sign a consent or give a verbal agreement, Dr. Smith is open to charges of assault and battery. To insist that the defendant find another psychiatrist to pursue the medical examination without the consent of the plaintiff is unlikely.

[82] When plaintiff’s counsel consented to the medical examination of Mr. Kalaora by Dr. Smith, and Mr. Kalaora appeared at Dr. Smith’s office as scheduled, it certainly could be inferred that Mr. Kalaora agreed to the medical examination. However, when he refused to sign the consent or consent verbally, he withdrew that consent.

[83] Based on the case law, the Supreme Court Civil Rules and their purpose, the underlying need for full disclosure, the court can order a litigant to sign a consent or authorization.

[84] The plaintiff made it clear that they are agreeable to attending a medical examination with Dr. Smith. I order that the plaintiff attend a medical examination with Dr. Smith at a time and place as agreed. I order that the plaintiff sign an authorization or consent in the exact terms as sought by Dr. Smith for the original medical examination which did not proceed.

For two recent case summaries further discussing the Court’s ability to order a Plaintiff to sign authorizations/waivers you can click here and here.  From my perspective there appears to be some inconsistency in the authorities addressing the power of the BC Supreme Court to order a Plaintiff to sign an authorization and clarification from the BC Court of Appeal or by way of Rules Amendment would be helpful.

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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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