Court rules that voluntary attendance at IME does not constitute a "first examination" under Rule 7-6

In reasons for judgment released today, the court in Kenny v. Bateman, 2017 BCSC 900, addressed the issue of whether an IME was a "second IME" under Rule 7-6 given that the plaintiff had voluntarily attended a previous IME.  The court concluded that the second IME was not a "second IME" for the purposes of the Rule.  Mr. Justice Blok said:

[40]         Voluntary attendance at a medical examination does not constitute a first examination under the Rule: Teichroab v. Poyner, 2008 BCSC 1130 at para. 24 [Teichroab].

[41]         In contrast, the express mention of Rule 7-6 in the correspondence between counsel lends support for the plaintiff’s argument that the IME by Dr. Russell must be considered a Rule 7-6 examination.

[42]         The correspondence between counsel leaves the exact nature of the examination unclear.  There is support for both views.  I conclude, however, that the defendant’s argument is the stronger one because the Rule refers to an order being made,  a point mentioned by Barrow J. in Teichroab, where the former iteration of the Rule (Rule 30) was at issue:

[24] In my view, the wording of the Rule and the weight of authority supports the conclusion that the “further examination” contemplated by Rule 30(2) means an examination in addition to one ordered under Rule 30(1).  To the extent that is so, there can be no question but that the examination ordered by the master was a first examination for purposes of the Rule.  The examination carried out by Dr. Laidlow was not ordered under Rule 30(1).

[Emphasis added.]

[43]         In the present case the examination by Dr. Russell was not ordered by the Court, there was no express agreement or reference to the examination taking place as if there were an order from the Court, and there was no mention of the examination constituting a first examination under Rule 7-6.  The absence of that type of language distinguishes this case from Stene v. Echols, 2015 BCSC 1063 [Stene] and Stocker v. Osei-Appiah, 2015 BCSC 2312, both cited by the plaintiff.  The mere mention of the Rule in the correspondence was, in my view, not enough.

[44]         Accordingly, I conclude that the application for a neuropsychological examination of the plaintiff by Dr. Lysak was a first examination under the Rule.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/09/2017BCSC0900.htm

Court refuses defence application for IME with "unnamed clinician with unknown expertise"

In reasons for judgment released this week, the court in Benoit v. Banfield, 2017 BCSC 2237, refused the defence application that the plaintiff attend an IME for "genetic assessment".  The court said:

[1]             In this action, the plaintiff, Danielle Nicole Benoit, by her litigation guardian, claims damages for brain injuries suffered in a fall on or about April 9, 1994 from an exterior staircase on property belonging to the defendant Margaret Jean Banfield.

[2]             At the time of the fall, the plaintiff was three and a half years old.  She claims to have suffered a traumatic brain injury with psychological/psychiatric behavioural consequences, including depression and a significant impairment of her cognitive abilities.

...

[5]             The defendant, City of Surrey, applies pursuant to Rule 7-6(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, for an order that the plaintiff will attend for genetic assessment at the medical genetics department of the BC Children's Hospital at a date and a time to be agreed between the plaintiff and the applicant, and no later than August 31, 2012.

...

[59]         In my view, the issue of whether the plaintiff suffers from a pre-existing congenital condition from a genetic abnormality is not adequately raised on any of the pleadings in this case so as to warrant an order that she submit to genetic testing.  There is no extant pleading of a pre-existing congenital condition by the applicant, and the pleading by the defendant Margaret Banfield is no more than a bare assertion that the plaintiff suffered injury, loss or damage attributable to congenital defects.  This is a bare allegation boilerplate form.

[60]         Furthermore, the defendant has failed to identify the qualified medical practitioner to conduct testing.  The plaintiff has aptly described the application at para. 35 of her written submissions where she states that:

The applicant is proposing that an unnamed clinician with unknown expertise will provide a list of unknown diagnostic considerations and the testing recommendations for a test be conducted and interpreted by unknown consultants.

[61]         Having regard to the importance of a qualified practitioner in the field of genetics undertaking the design and supervision of the genetic testing contemplated in this case, in my view the plaintiff is entitled to know the identity of the person who will conduct that testing and have an opportunity to consider their qualifications before she is compelled to submit to tests which have the potential to result in a significant invasion of privacy.  I say this because genetic testing involves an examination of the test person's genetic composition and may involve the identification of a wide range of medical conditions.

...

[64]         Without information identifying the medical practitioner who will conduct the test, and information describing the scope of the testing that expert proposes to perform, and on the current state of the pleadings, I am not persuaded that there is any sound basis for the court to exercise its discretion in favour of the defendant Surrey.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/12/22/2012BCSC2237.htm

 

Court refuses to bar surveillance of plaintiff attending at IME; says it is a "legal discovery tool"

In reasons for judgment released this week, the court in Marques v. Stefanov, 2016 BCSC 2589, refused a plaintiff's application for a condition barring surveillance on his attendance at an IME.  The court refused to impose a blanket condition against surveillance of the plaintiff saying it was an "otherwise legal discovery tool".  Madam Justice Dorgan said:

[1]             THE COURT:  The application in this motor vehicle accident case concerns an independent medical examination of the plaintiff sought by the defendant.

...

[6]             The condition the plaintiff seeks to impose as a condition of attendance, which is not agreed to, concerns surveillance.  The plaintiff asserts that it would be appropriate for the court to order that the defendant not be entitled or not be able to surveil the plaintiff as he travels to and from the independent medical examination appointment.  It is agreed between the parties that there will be no surveillance of the plaintiff during the course of the medical examination.

...

[18]         Without more, and with all due respect, I do not consider myself bound by these statements in respect of surveillance.  To impose the general conditions sought by the plaintiff would, in my view, unduly restrict the defendants' right of discovery without compelling evidence of why it would be reasonable to do so and why it would be required and necessary to do so in order to achieve parity between the parties.

[19]         Such a general “rule”, if imposed, would, in a motor vehicle case, limit a defendant's ability to surveil a plaintiff where, for example, the plaintiff is compelled by a subpoena to attend court.  It could be in an unrelated case, but compelled nonetheless to attend court in order to provide evidence.

[20]         That, in my view, is a restriction which ought to be avoided unless the evidence and the arguments convince a court in the exercise of its discretion that such a restriction is necessary to achieve parity between the parties.  I know that Mr. Collins, during argument, suggested that a plaintiff could be surveilled at the courthouse and indeed Mr. Collins points out that within the courthouse itself there are signs to indicate that surveillance is in place.  That, in my view, is different than having a defendant in a case like this conduct surveillance.  A defendant would not be able to surveil a party inside the courthouse.  The surveillance signs Mr. Collins refers to are signs to indicate security surveillance is in place.

[21]         In my view, the imposition of a broad, all‑encompassing restriction, as is sought here, of an otherwise legal discovery tool should be avoided.  Such restriction, if any, should be imposed by a court exercising discretion judicially, on evidence, which would lead the court to conclude that the restriction was necessary in order to achieve parity between the parties, and is therefore a reasonable restriction of an otherwise legal discovery tool.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2589.htm

 

Court denies ICBC’s request for Independent Medical Examination with Orthopaedic Surgeon

In a decision published yesterday, the court in Pridge v. Barnett, 2016 BCSC 2556, denied ICBC’s request for an Independent Medical Examination with an Orthopaedic Surgeon on the basis that the plaintiff had already been examined by an ICBC appointed Physiatrist.  Madam Justice Power said:

[1]             THE COURT:  This is the defence application that the plaintiff attend an independent medical examination with Dr. Darius Viskontis, an orthopaedic surgeon.

...

[4]             The plaintiff also argues that this is not a first independent medical examination, but a second one, and that the court should not exercise its discretion in favour of granting a further independent medical examination.

...

[14]         The parties have placed a number of authorities before me, both in the application and response.  Having considered those materials, I am of the view that the weight of the materials satisfies me that this is a second examination and is not required to ensure reasonable equality between the parties in the preparation of the case for trial.

[15]         The defence has the benefit of two reports of Dr. Filbey which are comprehensive and two reports of Mark Swain, an occupational therapist.  The plaintiff does not intend to call an orthopaedic surgeon at trial.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2556.htm

Plaintiff ordered to attend IME with defence psychiatrist

In reasons for judgment released today, the court in Huang v. Bertelsen, 2015 BCSC 2650, ordered the plaintiff to attend an independent medical examination with a defence psychiatrist.  The plaintiff in Huang objected to the attendance on the basis that she had a trip booked to Las Vegas that conflicted with the examination date.   The court was not impressed with this argument, as the plaintiff had prior knowledge the IME would take place on that day.  In ordering the plaintiff’s attendance (and awarding the defence its costs), Madam Justice Fenlon said as follows:

[6]             The only issue is the convenience of the plaintiff. She says she will be greatly inconvenienced by having to attend the IME. She is starting a new business, a store which sells items to adults. It has been described as an exotic or erotic boutique, and she says that in order to get back on her feet (and although the words were not used also in order to mitigate her losses), she needs to attend this conference in order to make contacts to figure out how best to run this kind of business and to succeed. She says that it will help with her depression to get her boutique underway, and this conference is going to help her do that.

[7]             The convenience of a plaintiff is one of the factors the court considers in determining whether an order should be made directing a plaintiff to attend an IME. In this case the defendants have already accommodated the plaintiff and her objections once. This is a situation in which the plaintiff, faced with knowledge of the date for the IME, subsequently booked flights and hotels in disregard for the commitment she already had to see a busy specialist.

[8]             The competing interests I must balance on this application are the defendants' right to have a level playing field for trial, the right to have an independent medical specialist, a psychiatrist, examine the plaintiff; and on the other hand the plaintiff's desire to attend a conference to help her with her business.

[9]             I conclude that my discretion should be exercised to compel the plaintiff to attend the IME. This is not a situation in which she will have no other opportunity to attend such a conference. In fact, she attended one in September 2014. She will be attending another one from January 14 to 17 in Las Vegas. This would be her third such conference in the space of a number of months. Although they are described as rare, the sheer number that have occurred in the last four months suggests that they are not quite as rare as the plaintiff is suggesting them to be.

[12]         The defendants have been successful on this application. In my view the application should not have been necessary. The defendants are entitled to their costs of the application at Scale B. It is probably clear but that is not forthwith. That is at the end of the proceeding.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/15/26/2015BCSC2650.htm

Court dismisses defence application for Independent Medical Examination with Psychiatrist

In reasons released earlier today the court in Tournier v. Ruckle, 2017 BCSC 308 dismissed the defendant’s application to compel the plaintiff to attend an independent medical examination with a Psychiatrist.  In Tournier, the defence applied for the IME for the purpose of responding to an expert report of the plaintiff’s psychiatrist.  The application was made after the 84-day service deadline.  The defence claimed they were taken by surprise when the plaintiff served a report shortly before the deadline which diagnosed the plaintiff with PTSD.  In finding that the defence should have been aware that a PTSD diagnosis was a live possibility, and thereby dismissing the application, Master Muir said as follows:

[1]            THE COURT:  This is an application by the defendant for an independent medical examination of the plaintiff by Dr. Ursula Gutteridge, a psychiatrist, for the purpose of responding to the expert’s reports of the plaintiff’s psychiatrist, Dr. Christopher Babbage.

...

[20]        The plaintiff submits that this is just another classic example of the defendant failing to obtain any evidence on psychiatric issues when those were clearly apparent and trying to shoehorn in an opinion after the 84‑day deadline is passed.

[21]        I just pause to reflect on the number of these types of applications. They are frequent. The court in Timar, in particular, held that rebuttal reports should be rare and rebuttal reports needing an independent medical examination should be rarer still. What seems to be an issue, and I am not saying it necessarily is the case here, is that defendants seem to want to have the plaintiff’s primary expert’s reports in their hands in order to know exactly what they need to address before they decide whether to obtain an expert’s opinion, but that is not the rule.

[22]        As noted in Timar, both parties have an obligation to turn their mind to the conditions of the plaintiff that may require expert evidence prior to the 84‑day deadline. There is prejudice to the plaintiff in delay in producing reports. The plaintiff submits that the report of Dr. Gutteridge will, of necessity and obviously, be essentially the same as a primary expert’s report, to which they will have no opportunity to respond.

[25]        Counsel for the plaintiff was operating on the exact same playing field as was counsel for the defendant. As was submitted by counsel for the plaintiff, where the defendant is alerted that the plaintiff has significant mental‑health concerns that impact on the issues in the litigation, as in this case, and the defendant decides that an independent primary expert’s report is not necessary, that should not be laid at the feet of the plaintiff unless there is significant surprise.

[26]        In my view, the diagnosis of PTSD here is not sufficiently out of the realm of the symptoms and diagnoses that had been previously revealed to the defendant that this is such a case.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0308.htm

Plaintiff ordered to sign IME consent form or "risk claim being struck"

In reasons for judgment released today, the court in Gill v. Wal-Mart Corporation, 2017 BCSC 135, ordered the plaintiff to sign an “IME consent form” as part of his attendance at a defence-funded Independent Medical Examination.  The plaintiff in Gill refused to sign the consent form, and the defendant brought an application in Chambers.  The presiding Master dismissed the defence motion, ordering that the plaintiff could not be compelled to sign the form.  The defence then appealed the Master’s decision to a judge of the BC Supreme Court.  In allowing the defence appeal, Mr. Justice Funt wrote as follows:

[28]         ... the court can order that a plaintiff sign a medical examiner’s reasonable form in order for an IME to be conducted by the medical examiner...The rule is that where an IME is to be conducted, the court will order a reasonable form of consent to be signed by the examinee.

...

[35]         The Master ruled that Dr. Travlos’s form of consent for the IME to be conducted by him to be not reasonable...

...

[36]         With respect, the form of consent is reasonable.

...

[40]         ...In the case at bar... the court is not forcing the plaintiff to sign the form of consent. If the plaintiff chooses not to sign the form of consent, the plaintiff’s claim may be struck. It is the plaintiff’s choice.

...

[51]         The plaintiff is ordered to attend an independent medical examination to be conducted by Dr. Travlos at a time and location arranged by counsel.

[52]         The plaintiff is ordered to sign the subject form of consent used by Dr. Travlos. If the plaintiff refuses to sign the form of consent, the defendant, Mr. Pandher, is at liberty to apply to have the plaintiff’s claim struck.

[53]         Mr. Pandher is entitled to three-quarters of his costs at Scale B for this hearing and the hearing before the Master in any event of the cause.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/01/2017BCSC0135.htm

Court grants Plaintiff's application to leave ICBC Medical Examination if forced to wait longer than 30 minutes

In the recent decision of Orr v. Pringle, 2015 BCSC 2644, the court granted the Plaintiff’s application to be allowed to leave ICBC’s Medical Examination if forced to wait longer than 30 minutes for the examination to begin.  The court also prohibited ICBC from conducting surveillance of the plaintiff during the exam.  The court said:

[2]             I will order that the plaintiff will be at liberty to leave if either examination does not proceed within 30 minutes, but I am not prepared to make the order that that is deemed to have satisfied the requirement to attend an IME. In other words, he can leave if he wants to after 30 minutes on these specific days, but there may be reasons for that delay that may justify the defendant in applying for a replacement date. I am not going to make any comment on whether they will get it or not, but I am not prepared to deem attendance.

[3]             As for surveillance, I agree that is not simply a matter of the plaintiff being potentially subject to surveillance while he is in a public place at a time chosen by the defendant or whenever they can find him. This is a matter where he is at a place at a time that has been ordered by the Court. It is a bit analogous to a plaintiff being under surveillance in the courthouse and that is not appropriate. So I will grant that condition.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc2644/2015bcsc2644.html?resultIndex=1

Court denies ICBC's request for Independent Medical Examination with Physiatrist

In the recent decision of Dippel v. Kraus, 2016 BCSC 2238, the court denied ICBC’s request for an Independent Medical Examination with a Physiatrist on the basis that the plaintiff had already been examined by an ICBC appointed Orthopaedic Surgeon.  The court said:

[1]            THE COURT:  This is an application by the defendant for the plaintiff to attend at the defendant's medical examination with Dr. Gabriel Hirsch, a physiatrist, on Monday next week.

[9]            Dr. Richardson, as an orthopedic surgeon, is a different speciality from Dr. Hirsch, who is a physiatrist; however, it is established by case law and not disputed that there is significant overlap between these two specialties.

[13]        In the absence of any evidence that Dr. Richardson would not be able to provide the evidence as to the plaintiff's rehabilitation, or alternatively any evidence from Dr. Hirsch as to what he could bring to the analysis, or that he could opine on something that Dr. Richardson could not, I am unable to conclude that the defendant has established on the evidence that a second medical examination with Dr. Hirsch is required in these circumstances.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2238/2016bcsc2238.html?resultIndex=1