Trial Adjourned Where IME’s “Frustrated” Due to Misunderstanding of Covid-19 Related Deadlines

Interesting reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, granting a defence adjournment request where defence failed to obtain needed defense medical opinion evidence in part due to a misunderstanding of the waiver of service deadlines due to Covid-19.

In the recent case (Sidhu v. Sidhu) the parties agreed that the plaintiff would be examined by a defence physiatrist.  When defence counsel selected a date the Plaintiff was of the view that it was beyond the date of the service of reports noting

“We write regarding your letter requesting the plaintiff’s attendance at an IME with a physiatrist.

We do not agree that the Rule 11-6 deadline for service of originating reports 84 days before trial has been suspended. You are now in receipt of the plaintiff’s expert reports. You are entitled to respond to those reports but the time for fresh opinion based on a physical assessment has passed. This is unrelated to the COVID‑19 epidemic.“

The Plaintiff did not attend.  Defence counsel did not bring an application to compel attendance in part relying on the assertion of plaintiff;s counsel.  In granting an adjournment the Court noted the above premise was incorrect as Covid-19 Notice #8 suspended the deadlines for the service of reports.

The court found that the IME process was ‘frustrated‘ by this misunderstanding and found a trial adjournment was an appropriate remedy. In reaching this conclusion Master Cameron provided the following reasons:

[10]         While I do not agree with defence counsel that a discrete application could not be brought, given the plaintiff’s refusal to attend the IME, it is also true that defence counsel did not get the litigation ball rolling down the wrong path respecting the IME issue. The stalemate left the defence in a position where they did not have an IME from a physiatrist in a case where the plaintiff’s future loss of capacity to earn income is a very significant feature based on the advice of counsel that the plaintiff has not been able to return to work in a meaningful way since the accident in 2015.

[11]         On an application to adjourn a trial, the court has to be cognizant of ensuring that the decision is focussed on what is necessary in the interests of justice, and that always requires balancing the interests of the parties. There also has to be a reckoning of the parties’ ability to be prepared to proceed to trial and to conduct the trial in a way in which they are not unfairly hampered or prejudiced in any way.

[12]         The plaintiff, quite understandably, seeks closure in a case that goes back five years, where he has continued to suffer from a significant disability and the adjournment is opposed with that in mind.

[13]         However, in these rather unique circumstances, it is beyond question that the objection by the plaintiff to the attendance with a physiatrist was based on an erroneous premise. It has set matters back, and has put the parties in a position where all the requisite medical evidence cannot be made available in time for trial. That is as a direct result of the plaintiff frustrating the completion of the last IME requested by the defence and where the objection was not based upon any other ground than the erroneous premise that any report would be out of time.

[14]         In these circumstances, I am of the view that the interests of justice require that the trial be adjourned.