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.

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[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.

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[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.

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[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.

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[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.

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[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