Court shields identity of plaintiff saying publicity “could be harmful to his mental health”

In reasons for judgment released today, the court in G.P. v. W.B., 2017 BCSC 297, ordered the names of both the plaintiff and defendant in a personal injury action iniitialized, and the court file sealed, as the court found that “publicity which identifies [the plaintiff] could definitely be harmful to [the plaintiff's] mental health“.  The plaintiff in G.B. had long-standing mental health issues, including bi-polar disorder and obsessive compulsive disorder.  On his own motion, the trial judge questioned the plaintiff’s treating psychiatrist whether it was possible that “publicity would affect G.P.’s mental well-being”.  The psychiatrist said it might.  On this basis the court raised the issue with counsel, and the order was subsequently made.  In finding this "exceptional" order to be justified, Mr. Justice Funt said as follows:

[13]         At the conclusion of his expert testimony, I asked Dr. H. Gopinath, G.P.’s psychiatrist, whether publicity would affect G.P.’s mental well-being. Dr. Gopinath testified that publicity which identifies G.P. could definitely be harmful to G.P.’s mental health.

[14]         I subsequently raised with counsel whether the Court should anonymize the names of the parties and the witnesses by initializing their names in the reasons for judgment (except for the names of doctors) and whether the file should be sealed.

[15]         G.P.’s counsel asked for the names in the reasons for judgment to be initialized as I had suggested and that the file be sealed. Defendants’ counsel took no position. Accordingly, I made the necessary order. Authority for such an exceptional approach and order may be found in C.W. v. L.G.M., 2004 BCSC 1499 at paras. 6 to 9 and 25 and C.P. v. RBC Life Insurance Company, 2014 BCSC 117, appeal dismissed except for a variation of costs, 2015 BCCA 30, leave to appeal ref’d.

[16]         G.P.’s counsel co‑ordinated the sealing in accordance with Practice Direction PD - 35 Sealing Orders in Civil and Family Proceedings. The sealing order allows members of the public or the press to apply upon reasonable notice to counsel to have parts of the file unsealed.  The Court must balance transparency of the proceedings with the medically recognized potential of serious mental harm to G.P.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/02/2017BCSC0297.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