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Tag: Rule 7-6(1)

Defence Medical Exams and Cancellation Fees

Reason for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing cancellation fees charged by doctors when a Plaintiff fails to attend a previously agreed to independent medical exam.
In today’s case (Minhas v. Virk) the Plaintiff was involved in a 2007 BC motor vehicle collision.  The Plaintiff alleged brain injury.  The Plaintiff attended two independent examinations with specialists of the Defendant’s choosing and agreed to attend a third appointment.  As the third exam date approached the Plaintiff ultimately reneged on his agreement by adding a condition that the Defence was not prepared to agree to.
The doctor’s office had a policy to charge $1,650 unless he was given 2 months notice of cancellation.  The Plaintiff did not comply with this policy and instead gave just over 2 working days of notice.
The Defendant brought a motion seeking to have the Plaintiff assessed by the doctor and to pay the cancellation fee.  Master Caldwell ruled that it was inappropriate for the Plaintiff to “unilaterally rewrite” the previous agreement to see the doctor and ordered the Plaintiff undergo the independent medical exam.  The Court refused, however, to order that the Plaintiff pay the cancellation fee finding 2 days notice was sufficient.  Master Caldwell provided the following useful reasons:
[15] The request that the plaintiff be required to pay the cancellation fee for the December 21 appointment is dismissed.  There is no evidence before me which indicates what, if any, efforts the doctor made to fill that appointment slot or to otherwise mitigate his loss.  In addition, I find Dr. Wong’s requirement of 2 months notice to be unreasonable, particularly in the absence of any explanation.  In this case the cancellation occurred on either the 15th or 16th of December (if not earlier) thus providing at least 2 full working days notice and probably more.  The material before me which simply states the doctor’s cancellation policy and nothing more, simply does not support the order sought.
The Court was also asked to order a further medical exam with a different specialist.  This application was dismissed with the Court noting that one of the purposes of the New Rules of Court is to “move toward a focusing and limiting of experts and expert opinion“.

More on The New Rules of Court, IME's and "Responding" Medical Reports


Precedents addressing whether an independent medical exam can be ordered to permit a Defendant to obtain a ‘responding‘ report are still being worked out by the BC Supreme Court.  (You can click here to read my archived posts addressing this topic) Reasons for judgement were released today by the BCSC, Victoria Registry, further addressing this issue.
In today’s case (Hamilton v. Demandre) the Plaintiff was involved in 2 separate motor vehicle collisions.  She claimed she was injured in the first and that those injuries were aggravated in the second crash.  Both lawsuits were set for trial at the same time.   One of the alleged injuries was “visual vestibular mismatch with associated dizziness, motion sickness, balance problems and double vision“.
The Plaintiff submitted to medical exams with a neurologist and an orthopaedic surgeon at the request of the Defendant in the first crash.  The Plaintiff also attended an examination with a psychiatrist at the request of the Defendant in the second crash.
In support of her claim, the Plaintiff served reports from various experts including an ENT specialist.    These reports were served in compliance with the time lines set out in the Rules of Court.  The Defendant in the second crash then asked that the Plaintiff attend a further exam with an ENT of their choosing.  The examination was to take place less than 84 days before trial.
The Defendant argued that this exam was necessary in order to obtain a ‘responding‘ report.  The Plaintiff opposed arguing a further exam was not necessary.  Master Bouck agreed with the Plaintiff and dismissed the application.  In doing so the Court provided the following useful reasons:

[33] In a nutshell, the defendant submits that an ENT examination is required to rebut the opinion that the plaintiff’s ocular vestibular problems have worsened as a result of the second accident.

[34] Dr. Longridge’s report predates the second accident; as such, it is not of assistance to the defendant’s argument. If anyone were to rely on this report to obtain a rebuttal examination, it would be the defendants in the First Action.

[35] In any event, the complaints of ocular vestibular problems are of longstanding. This is not a case of a new diagnosis or even a suggestion that a referral to such an ENT specialist is medically required. Dr. Ballard merely opines that a referral to such a specialist is a possibility if the plaintiff’s symptoms continue. Moreover, Dr. Moll, whose opinion was clearly available to the defendant for some time, discusses these symptoms in his report of January 21, 2009.

[36] As submitted by the plaintiff, the defendant chose to pursue a psychiatric, rather than ENT opinion, knowing that the ocular vestibular complaints formed a significant part of the plaintiff’s claim.

[37] As for the other opinions offered, the experts are in agreement that the plaintiff’s condition has worsened, but that treatment may yet alleviate or reduce those symptoms.

[38] The defence clearly has a theory:  the plaintiff is malingering and/or suffers a somatoform disorder. To have the plaintiff examined by an ENT specialist for an assessment that will either be diagnostic in nature and thus not true rebuttal; or merely to prove a negative, that is to confirm that there is no physiological cause for the balance and visual disturbances, would be inconsistent not only with the authorities cited to me, but also with the purposes of Rule 7?6 and 11?6 (4).

[39] On the material before me, I conclude that any report forthcoming from Dr. Bell would be fresh opinion evidence masquerading as answer to the plaintiff’s reports.

[40] In short, the defendant has failed to meet the necessary evidentiary threshold which might support an order for the examinations requested. The application is thus dismissed with costs in the cause.


BC Court of Appeal Discusses Independent Medical Exams Under the New Rules of Court


Both the former and the new BC Supreme Court Civil Rules provide parties to a lawsuit with an ability to request an independent medical exam of the opposing party  “If the physical or mental condition of a person is in issue in an action“.
Reasons for judgement were released today by the BC Court of Appeal explaining exactly what “in issue” means.
In today’s case (Jones v. Donaghey) the Plaintiff was an infant.   He was removed from his home by the BC Ministry of Children and placed into foster care with the Defendants.  The Plaintiff alleged that while in foster care the foster parents intentionally assaulted him by “violently shaking the infant“.  The Plaintiff sued for damages.
In the course of the lawsuit the Plaintiff argued that the Defendant had anger management issues.  In order to explore these the Plaintiff obtained a Court Order requiring the Defendant to be examined by a physician under Rule 7-6(1).  The Defendant appealed the order.  The BC Court of Appeal set aside the order finding that the Defendant’s mental condition was not “in issue” therefore the Rules of Court did not allow this to be explored through the independent medical exam process.
The BC Court of Appeal provided the following reasons:

[14]         …since the purpose of pleadings is to define the “issues” of material or ultimate fact as between the parties, whether a proposition of fact is “in issue” for purposes of Rule 7-6(1) must be determined from an examination of the pleadings:  Astels v. Canada Life Assurance Co., 2006 BCCA 110 at para. 4, 23 C.P.C. (6th) 266.

[15]         “Relevant”, the term used by the chambers judge, belongs to the law of evidence.

[16]         The relationship between relevance and issues of material or ultimate fact was explained in R. v. Watson (1996), 30 O.R. (3d) 161 at 172, 108 C.C.C. (3d) 310 (C.A.):

Relevance … requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”.  If it does then “Fact A” is relevant to “Fact B”.  As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.

[17]         This concept is succinctly illustrated, albeit using different terminology, in R. v. White, [1926] 2 W.W.R. 481 at 485, 45 C.C.C. 328 (B.C.C.A.), where the Court adopted a passage from S. L. Phipson, ed., Best on Evidence, 12th ed. (London: Sweet & Maxwell, 1922) at 6 that included these words:

The fact sought to be proved is termed the “principal fact”; the fact which tends to establish it, “the evidentiary fact”.  When the chain consists of more than two parts, the intermediate links are principal facts with respect to those below, and evidentiary facts with respect to those above them.

[18]         Thus, a material fact is the ultimate fact, sometimes called “ultimate issue”, to the proof of which evidence is directed.  It is the last in a series or progression of facts.  It is the fact put “in issue” by the pleadings.  Facts that tend to prove the fact in issue, or to prove another fact that tends to prove the fact in issue, are evidentiary or “relevant” facts.  And, as Professor Thayer said at 197, “Issues are not taken upon evidential matter.”…

[29]         In my view, the chambers judge erred.  The test under Rule 7-6(1) is not whether the mental condition of a person is “relevant” to an issue; rather, it is whether the mental condition is itself “in issue”.  Moreover, Ms. Donaghey’s mental condition is not put “in issue” by the pleadings.

[30]         The issue raised by Ms. Donaghey’s denial of the allegation in paragraph 16 of the statement of claim is whether she intentionally assaulted the plaintiff by violently shaking him.  That Ms. Donaghey suffered from a personality disorder is not a material fact in respect of this issue, that is, proof that she suffered from a personality disorder would not in itself have legal consequences as between these parties.

[31]         The “issue” raised between the plaintiff and Ms. Donaghey in paragraph 27 is whether Ms. Donaghey breached her duty of care to the plaintiff in any one or more of the specified ways.  None of these allegations put Ms. Donaghey’s mental condition in issue.

[32]         The issues raised as between the plaintiff and Ms. King and as between the plaintiff and the Director respectively in paragraphs 28(d) and 29(n) of the statement of claim are whether these defendants breached their duty of care to the plaintiff by leaving him with Ms. Donaghey when they “knew or ought to have known” one or more of the particularized facts.  Thus, the issue in each case is the state of mind of these defendants.  Proof that Ms. Donaghey suffered from a personality disorder would not entitle the plaintiff to success on these issues.  Her mental condition is not a “definite proposition of … fact, asserted by [the plaintiff] and denied by [Ms. King/the Director], … which both agree to be the point which they wish to have decided”:  Odgers, supra, at para. 5.

[33]         Ms. Donaghey’s mental condition might be an evidentiary fact relevant to the issues raised in the paragraphs under discussion, as the chambers judge concluded.  However, as I have said, relevance of the mental condition of a person to an issue is not the test under Rule 7-6(1).  Rather, the person’s mental condition itself must be in issue to warrant an order pursuant to the rule and none of these allegations put Ms. Donaghey’s mental condition in issue.

[34]         This situation may be contrasted with the more common situation in which a plaintiff claims damages on the basis that a defendant has negligently caused him or her personal injury.  In such a case, the defendant’s denial puts the plaintiff’s condition, whether physical or mental or both, “in issue”.  The plaintiff’s injury is a material fact and the failure to prove it will be fatal to the action.  Accordingly, the defendant may be entitled to a medical examination pursuant to Rule 7-6(1) to obtain evidence of the plaintiff’s physical or mental condition.  However, as I have explained, this is not such a case.

[35]         For those reasons, I would allow the appeal, set aside the order that Ms. Donaghey attend for a psychiatric examination, and dismiss the plaintiff’s application.

Caselaw Update: Independent Medical Exams and Responding Reports


As previously discussed, Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.
Two further cases have been brought to my attention addressing this topic and with these the bulk of the judicial authorities to date demonstrate that it may be very difficult for a Defendant to force a late ‘independent‘ examination to obtain a responding report.
Both of the recent cases (Crane v. Lee and Boudreau v. Logan) involve ICBC injury claims.  In both the Plaintiff served expert reports discussing the extent of their accident related injuries.  The Defendants applied to compel the Plaintiff to attend an independent exam inside the 84 day deadline in order to obtain responding reports.  Master Caldwell presided over both applications and dismissed them both.  In doing so the Court relied on Mr. Justice Savage’s reasoning in Wright v. Brauer and ruled that that precedent was “on all fours” with the present applications.  Master Caldwell repeated the following reasons from Mr. Justice Savage:

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

These cases, in total, seem to stand for the proposition that a Defendant needs to have sworn evidence from the proposed medical examiner explaining why physical examination is required in order to provide a responding report (which is what happened in Luedecke v. Hillman).  Absent this, late independent medical exam applications are being dismissed by the BC Supreme Court.

As of today’s date the Crane and Boudreau decisions are unpublished.  As always I’m happy to provide a copy of these cases to anyone who could benefit from them.  You can request a copy by filling out the form on this link.

Independent Medical Exams and Forced "Waivers"


When Plaintiffs attend defence medical exams some doctors require patients to fill out questionnaires and waivers of liability.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law and concluding that Plaintiffs cannot be forced to sign waivers through the Court ordered independent medical exam process.
In today’s case (Mund v. Braun) the Plaintiff was involved in a motor vehicle collision and allegedly sustained some complex injuries.  In the lawsuit the Plaintiff agreed to attend a defence medical exam with a neurologist (Dr. Makin).  Dr. Makin requested that the Plaintiff sign a waiver form indicating that the Plaintiff “will not sue Dr. Makin outside of BC.”.  As previously discussed, BC law provides doctors with a strong immunity from lawsuits arising from carelessness in the independent medical examination process.  The reason for this waiver was to apparently protect the doctor against the remote chance that the Plaintiff could sue outside of BC.  The Plaintiff refused to sign the waiver.
The Defendant brought a motion and the BC Supreme Court was asked to decide whether the Plaintiff could be forced to sign such a waiver.  Mr. Justice Brown dismissed this motion finding that unless the Court of Appeal rules otherwise the law is settled that BC Courts don’t have jurisdiction to force plaintiff’s to sign such waivers.  In addressing this point Mr.  Justice Brown held as follows:
[38] In any case, on the question of requiring the plaintiff to sign the Jurisdiction agreement, I am bound by Desjardins (Litigation guardian of) v. Huser, 2010 BCSC 977; Kobzos v. Dupuis, 2006 BCSC 2047; Stead v. Brown, 2010 BCSC 312; Peel Financial Holdings Ltd. v. Western Delta Lands, 2003 BCCA 180; Rafferty v. Power (1993), 15 C.P.C. (3d) 48 (BCSC); and Allan-Trensholme v. Simmie, [2006] B.C.J. No. 720 (BCCA). I do not have jurisdiction to order the plaintiff to sign the Jurisdiction Agreement. On the narrow point of whether jurisdiction remains with the court under the Civil Rules to require a party to sign an authorization for documents in the possession of a third party but over which the party has sufficient control, e.g. the party’s clinical records kept by their physician, that is governed by the cited cases until such time as the Court of Appeal specifically rules on that. For now, the general question appears settled; and as for the facts at bar, in my view, the consent in this case falls squarely within the ambit of the authorities cited.
This case is also worth reviewing for the Court’s discussion of the extent of testing that can take place during a Court ordered exam.  Dr. Mund wished to conduct electro-diagnostic testing of the Plaintiff.  The Plaintiff refused.  Mr. Justice Brown held that this test was permitted and in so finding stated as follows about doctors discretion during the testing process:
[16] I accept Dr. Makin’s explanation that electro-diagnostic studies are considered an extension of neurological examinations. I find the testing is minimally invasive, and would not invade the plaintiff’s privacy…

[19]         Given the variety of causes attributed to the plaintiff’s symptoms, which include thoracic outlet syndrome, myofascial factors, soft tissue pathology in the neck and right shoulder, cervical spine disc disease with a degenerative factor and even diabetes II, diagnosis is obviously a not straight forward exercise in this case.

[20]         I am satisfied nerve conductions studies are relevant to the issues raised and the pleadings and in the medical reports written for the plaintiff. The defendant submits there is at least a possibility the plaintiff’s tingling and numbness could result from degeneration in his cervical spine or unrelated nerve problems in his right arm; and the origin and causation of his neck, shoulder and arm symptoms are related to the pleadings.

[21]         I also agree that affording Dr. Makin leeway to conduct nerve conduction studies he sees as necessary is required in order to ensure reasonable equality between the parties. The studies will not necessarily duplicate earlier ones. An electro-diagnostic study is a reasonable extension of the clinical examination if the examining physician comes to judge it necessary to form, or confirm, their professional diagnostic opinion.

[22]         Therefore, the plaintiff will submit to electro-diagnostic testing by Dr. Makin if requested to do so.

The Debate Goes On… Independent Medical Exams and "Responsive" Expert Evidence


Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an “independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.  Reasons for judgement were released last week demonstrating this matter remains a live issue.
Earlier this year, Mr. Justice Savage declined a defence motion to compel a Plaintiff to attend a doctor’s examination to obtain a responding report finding that an independent examination of a Plaintiff is not necessarily required since responding reports are to be strictly limited to “a critical analysis of the methodology of the opposing expert”
In a case released last week the Court reached a seemingly opposite result with a finding that an independent medical exam can be compelled to allow a Defendant to obtain a responding report in a personal injury claim.
In last week’s case (Luedecke v. Hillman) the Plaintiff was injured in a BC motor vehicle collision.  He served his expert reports in the timelines required by the Rules of Court.  The Defendant sought an order for an independent medical exam to obtain a responding opinion.  The Plaintiff opposed arguing that a medical examination is not necessary to obtain a truly responding opinion.  Mr. Justice Cullen disagreed and upheld a Master’s order compelling the Plaintiff to see the Defendant’s doctor.  In doing so the Court noted as follows:

[49]        Although the plaintiff submits that Dr. Reebye should be limited in his report to “criticizing the methodology or the research or pointing out facts apparent from the records which the other examiners may have overlooked” based on Justice Savage’s apparent reliance on C.N. Rail, supra, I do not take from Savage J.’s judgment that responsive opinions are invariably limited to “a critical analysis of the methodology of the opposing expert.”

[50]        In C.N. Rail, supra, Henderson J. was dealing with rebuttal evidence in the classic sense described by Southin J.A. in Sterritt v. McLeod, supra, as simply evidence responsive to some point in the oral evidence of the witness called by the defendant.

[51]        What is at issue in the present case is a different form of responsive evidence, recognized in Stainer v. Plaza, supra, as distinct in paragraph 15, where Finch J.A. ( as he then was) noted:

The third condition in the order is directed to the third party calling an independent medical examiner “for rebuttal evidence” I understand from counsel that this refers not to rebuttal evidence as generally understood, but to evidence that is purely responsive to medical evidence which the plaintiff has led as part of her case.  It would not apply to opinion evidence offered by the third party on subject matters not adduced in the medical evidence adduced by the plaintiff. [underlining added]

[52]        I thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal evidence such as that called by a plaintiff in response to a defendant’s case, with its consequent limitations.  Nor is it akin to expert evidence that responds generally to the subject matter of the plaintiff’s case.  Rather, it refers to evidence that is “purely responsive” to the medical evidence which the other party has called.

[53]        As such, it has inherent limitations, but not necessarily the same limitations that Henderson J imposed on the true rebuttal evidence he was dealing with in C.N. Rail, supra.

[54]        I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer, supra, to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert’s report under Rule 11-6(4).  That threshold is different from that for ordering an expert’s report under Rule 11-6(3).  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.  It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff’s case.

[55]        Clearly, that threshold was not met in the case before Savage J.  In the case before me there is an affidavit from Dr. Reebye setting forth a basis for the examination sought, although ultimately what Dr. Reebye may regard as purely responsive may be different from that which the trial judge eventually concludes to be so.  That issue must await another day.  Here I am dealing with a more limited issue, and I am satisfied that on the basis of Dr. Reebye’s affidavit the evidentiary threshold is met and the order of Master Scarth should be upheld.

[56]        I am alive to the concern expressed by the plaintiff’s counsel that Rule 11-6(4) may be seen as a means for defendants to circumvent the more onerous notice provisions of 11-6(3) and routinely seek to obtain reports that more properly should be sought under that latter rule.  I conclude, however, that such a concern can be met as it was with the practice of having opinion evidence without notice under the old Rule 40A.  In that regard, the words of Williamson J. in Kelley v. Kelley (1995), 20 B.C.L.R. (3d) 232 (S.C.) are apt:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think if that rule is carefully observed, there should be no difficulties.

As with judicial precedents developed under the former rules, I expect there will be some seemingly inconsistent judgements dealing with the issue of independent medical exams under the current rules and eventually the BC Court of Appeal will likely weigh in on the issue to bring some clarity to the law.

Can A Litigation Guardian Be Ordered to Attend an Independent Medical Exam?


(UPDATE:  Please note Leave to Appeal the Below Decision was granted by the BCCA on January 25, 2011)
When a mentally incompetent person brings a lawsuit in BC they must do so through a litigation guardian or a committee.  Generally, when personal injuries are the subject of a lawsuit, the Defendant is entitled to have the Plaintiff attend an ‘independent’ medical exam.  What about the litigation guardian?  Can they be ordered to attend an independent medical exam?  The BC Supreme Court Civil Rules are silent on this point however, reasons for judgement were released today considering this question using the Court’s ‘inherent jurisdiction’.
In today’s case (Bishop v. Minichiello) the Plaintiff was injured in a 2005 motor vehicle collision.  He was an infant at the time and brought the lawsuit by way of litigation guardian.  The Plaintiff became an adult prior to the lawsuit resolving.  Normally, when this occurs, the Plaintiff files an affidavit and overtakes the lawsuit without the litigation guardian.  In today’s case the Plaintiff did not do this apparently because his injuries may have rendered him “unable to appreciate the extent of his own injuries and unable to effectively conduct the litigation on his own behalf.”.
The Defendant brought a motion that both the Plaintiff and his litigation guardian attend a series of medical exams.  The Plaintiff opposed arguing that the Rule authorizing the Court to compel a Plaintiff to attend an Independent Medical Exam does not empower a Court to extend the order to a litigation guardian.  Mr. Justice McEwan noted that while this was true it could be remedied by resorting to the Court’s inherent jurisdiction.  In granting the application the Court noted as follows:
[12] The defendant submits that although Rule 7-6 (1)-(3) makes no specific provision for a person other than the party to be examined to attend and answer questions, Wong (guardian ad litem) v. Wong [2006] B.C.J. No. 3123 (C.A.) established that the court may, in the interests of justice make ancillary orders to give effect to the purpose of the Rules, found in Rule 1(5) [now Rule 1-3]. In Wong, the question was whether the court could order a plaintiff to video tape an examination…

[13]         Rule 20-2 reads:

(3)        Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must:

(b)        be invoked against the party by invoking the same against the party’s litigation guardian.

[14]         Rule 13-1 reads:

(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.

[15]         On the question of inherent jurisdiction I think the characterization found in R & J Siever Holdings Ltd. v. Moldenhauer 2008 BCCA 59, is most apt:

In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg. Prob. 23 at 23-25. As the author said, at 25,

The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.

[16]         The Rules do not, properly speaking, confer jurisdiction. To the extent that they reflect a consensus of the Judiciary (and the Bar) as to the presumptions, or expectations, or shifts in onus that will contribute to the just and expedient conduct of litigation, they are useful in bringing predictability and stability to civil procedure. To the extent that they do not reflect such a consensus, they cannot be regarded as mandatory impediments to doing the right thing in any particular case.

[17]         The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.

[18]         Whether such an order is appropriate requires the court to weigh the plaintiff’s objection against the defendant’s rationale for the request…

[20]         The plaintiff’s objection to the attendance of the litigation guardian is primarily that a conversation between the litigation guardian and the examining physician creates a form of statement that is not controlled within the process and that might well lead to conflict or confusion later, if the guardian and the Doctor do not agree as to what was said.

[21]         The defendant’s point is, primarily, that in a case where the defence is guessing as to the mental status of the plaintiff, it would be prudent to have the person who knows him best, and who is also the litigation guardian, available to answer questions about his condition, especially where it is suggested that, among the effects of the injuries suffered in the accident, is a lack of insight or appreciation on Brandon Bishop’s part of the harm that has occurred.

[22]         In Tsantilas (Litigation Guardian) v. Johnson, Cranbrook Registry #18128 (20100211) Melnick, J. made a similar order in a case involving both counsel who appear in this proceeding. In what I gather to be a case of an under-age person, the court ordered the attendance of the litigation guardian at an assessment…

[23]         I think that as long as the case continues to be conducted by Charlotte Bishop as litigation guardian, the implication that, for reasons related to his injuries Brandon Bishop is unable to conduct the litigation will remain, along with the implication that talking to him will not yield the whole story. The plaintiff’s concerns about possible confusion do not outweigh the defendant’s interest in the appointed examiners getting accurate and complete information. Accordingly, Charlotte Bishop, as litigation guardian, must attend and answer the questions posed by the examiners as they require.

"Proportionality" and Multiple Independent Medical Exams


One of the biggest changes in the New BC Supreme Court Civil Rules is the requirement that the court secure the determination of a proceeding in ways that are “proportionate to the amount involved in the proceeding, the importance of the issues in dispute, and the complexity of the proceeding“.
Reasons for judgement were released today considering this concept in relation to ICBC’s request for multiple independent medical exams in an injury lawsuit.
In today’s case (Kim v. Lin) the Plaintiff was injured in a 2006 BC collision.  She sued for damages and ICBC defended as statutory third party.  The Plaintiff gave evidence at her discovery that she suffered from pain in numerous areas in her body including “problems with her eyes, ringing in her ears, neck pain, problems with her shoulders and shoulder blades, her upper back, her hip, her lower back, bruising to her hips, leg, knee and ankle pain, as well as headaches, dizziness, hair loss, weight problems and a variety of emotional problems, including impaired memory and concentration, sleep, fatigue and decreased energy levels“.
In the course of the claim the Plaintiff attended two medical appointments arranged by ICBC, the first with a neurologist, the second with a psychiatrist.   ICBC had also secured reports from two of the Plaintiff’s treating physicians.  ICBC wished to have the Plaintiff assessed by an orthopaedic surgeon but the Plaintiff refused arguing such an application was not necessary.  Mr. Justice Voith ultimately decided that this assessment was necessary in order to ‘balance the playing field’ and ordered that the Plaintiff attend.
In reaching this decision the Court considered the role that proportionality plays when a defendant asks a plaintiff to attend multiple independent medical exams.  Mr. Justice Voith provided the following useful discussion:

[28]        Finally, I turn to the relevance of the severity of the plaintiff’s injuries and the alleged impact of those injuries on Ms. Kim. These issues are also germane to the plaintiff’s submission that “proportionality” should influence the outcome of this application. While R. 1-3(2) establishes that “proportionality” is an over-arching consideration which informs the interpretation and implementation of the Rules, its significance, however, is greater for some Rules then for others.

[29]        Thus, for example, the former R. 26, which related to document production, imposed a uniform obligation to produce documents under the well-known Peruvian Guano standard, affirmed inFraser River v. Can-Dive, 2002 BCCA 219 at 12, 100 B.C.L.R. (3d) 146. Rule 7-1(1) has modified this uniform standard. Instead, Rules 7-1(11)-(14) dictate how and when the production of additional documents may be required. Within this regime, “proportionality” will no doubt have much influence.

[30]        In other cases or for other Rules, however, the reality is that “proportionality”, though not expressed in precisely those terms, has historically and inherently already played a significant role. The former R. 30(1) is an example of this. Under R. 30(1), courts routinely considered, as one of many factors, the severity of the plaintiff’s injuries and the potential magnitude of the plaintiff’s claim in addressing the appropriateness of further independent medical examinations.

[31]        Thus, for example, in Gulamani v. Chandra, 2008 BCSC, 1601 Madam Justice Arnold-Bailey, in addressing the factors that underlay her decision said, in part, at para.34:

…Third, the nature of some of the plaintiff’s claims in this case, including a thoracic outlet syndrome and chronic pain syndrome, and the plaintiff’s claim relating to her ongoing physical and mental disability such that she is unable to practice her profession and properly care for her family, make it a case of significant size and medical complexity.

[32]        Similarly, the former R. 68, regarding expedited litigation, engaged in very similar considerations, with its reference to “proportionality” in R.68(13) and its presumptive direction of “not more than one expert” in R.68(33).

[33]        Ms. Kim is a young woman. She says she suffers severely from multiple complaints. She asserts that many of these injuries are acute in terms of their severity and the ongoing difficulty they cause her. By way of example, and without addressing each of her injuries, Ms. Kim claims that she presently suffers from both headache and neck pain which she rates on a pain scale at an 8 or 9 out of 10, where 0 equates to no pain and 10 equates to such severe pain that it would cause one to seek emergency medical treatment. She has discontinued her studies. The report of Dr. Tessler at page 3 indicates that she now only works two days a week.

[34]        If it can be established that Ms. Kim’s present circumstances were caused by the Accident, the “amount involved” in her claim has the prospect of being quite significant, a relevant consideration under R.1-3(2)(a). Similarly, the “issues in dispute”, a relevant consideration under R.1-3(2)(b), are important for both parties.

[35]        Accordingly, I am satisfied that considerations of “proportionality” do not militate against the third party’s application but rather support the appropriateness of the medical examination before Dr. Kendall that it seeks. Further, I do not consider that the purpose of the report of Dr. Kendall can properly be said to either bolster the report of Dr. Tessler or to undermine its findings. Instead, I am satisfied that a further examination of Ms. Kim by Dr. Kendall is necessary to have the plaintiff’s concerns properly addressed by a physician with the requisite or appropriate expertise.

ICBC Tort Claims, Part 7 Benefits and Multiple "Independent" Medical Exams


As I’ve previously written, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an ‘insured’ applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
As a monopoly insurer ICBC often has one adjuster assigned to look after a person’s claim for no-fault benefits and at the same time look after the defendant’s interests in the Plaintiff’s tort claim.  Often times ICBC will obtain a no-fault benefits medical exam and then once a tort claim is launched seek a second exam with a different physician pursuant to the BC Supreme Court Rules.  Can ICBC do this?  The answer is sometimes yes but is highly factually dependent and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In today’s case (Imeri v. Janczukowski) the Plaintiff was injured in a motor vehicle collision in 2005.  The Plaintiff and Defendant were insured with ICBC.  The same ICBC adjuster was looking after the Plaintiff’s no-fault benefits claim and acting on behalf of the defendant in the tort claim.  ICBC sent the Plaintiff for an IME with an orthopaedic surgeon (Dr. Boyle) as part of the no-fault benefits application process.  In the course of the tort claim the Defendant then sought an order sending the Plaintiff for an IME with a different orthopaedic surgeon (Dr. McGraw).  The Plaintiff opposed this motion and argued that if ICBC is entitled to a second exam it should be with the the same doctor.  Master Shaw sided with the Plaintiff.  In doing so the Court provided the following useful reasons:

[17]        Rule 7-6(1), which is the new Rule 30, provides as follows:

Order for medical examination

(1) If the physical or mental condition of a person is in issue in an action, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order under this subrule, the court may also make

(a) an order respecting any expenses connected with the examination, and

(b) an order that the result of the examination be put in writing and that copies be made available to interested parties of record.

[18]        In Stainer v. Plaza, 2001 BCCA 133, Finch J.A. (as he then was) said at para. 8:

… the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence.

[19]        Although the first question would be whether the defence needs an IME of an orthopaedic specialist to put the parties on an equal footing with respect to medical evidence, counsel for the plaintiff did not oppose the plaintiff attending a defence IME with an orthopaedic specialist as long as it was Dr. Boyle. The plaintiff agrees to go back to Dr. Boyle for the IME.

[20]        The plaintiff’s submission is that the plaintiff has already attended a first IME for tort purposes with Dr. Boyle and, if a further IME is appropriate, it should be a follow-up with the original expert for the defence.

[21]        In Rowe v. Kim, 2008 BCSC 1710, Master Keighley at para. 14 states:

A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v. Grewal, [1993] 45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple, [1983] B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner. It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.

[22]        The evidence submitted in this matter does not set out why it would not be appropriate to send the plaintiff back to Dr. Boyle. There was no evidence why Dr. McGraw should be preferred over Dr. Boyle.

[23]        The plaintiff does not resist seeing Dr. Boyle. It is not necessary to find sufficient reasoning for the further examination by Dr. Boyle.

[24]        I find the February 28, 2006 report of Dr. Boyle contains opinion relevant to both the Part 7 claim and the tort claim. The defence has not provided any evidence to explain the opinion content in the report relevant to the tort claim, other than the statement of the adjuster in her letter to the plaintiff setting the appointment that the IME is for the Part 7 claim purposes. It is not known what the request or instructions to Dr. Boyle were. Based on the content of the resulting report, there is opinion relevant to the tort claim. I find the IME by Dr. Boyle on February 28, 2006 is a first examination by an orthopaedic specialist in the tort claim as well as for a Part 7 claim.

The New BC Supreme Court Rules and "Responsive" Expert Reports


Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time.  This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive.  The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash.  Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court.  The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report.  The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report.  Mr. Justice Savage agreed with the Plaintiff and dismissed the motion.  In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:

[12]         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.

[13]         In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now governed by Rule 40A(3)

An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule.  But the court retains a discretion to admit responsive evidence of which notice has not been given:  Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice Williamson said:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.

[18]      That is, in my respectful view, a correct statement of the proper practice. …

[15]         Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A.  They agreed that this is an important practice point, and a case of first impression.

[16]         Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given.  Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).

[17]         I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

[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).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.