IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date:
20100202

Docket:
M105392

Registry: New Westminster

Between:

Robert Raposo Barbosa

Plaintiff

And:

Jesus Alcantara Castillo

Defendant

Before: The Honourable Mr. Justice Schultes

On Appeal from
a Master’s decision in the Supreme Court of British Columbia, dated September
15, 2009, Barbosa v. Castillo, Docket No. M105392

Oral Reasons for Judgment

In
Chambers

[1]
THE COURT:  This is an appeal by the defendant in this personal injury matter
from the decision of a master refusing his application, made pursuant to Rule
30 of the Rules of Court, to have the plaintiff examined by a
neurologist.  The claim arises from a motor vehicle accident that occurred in
2006.  The defendant’s vehicle is alleged to have struck the plaintiff’s
motorcycle from the rear.

[2]
The plaintiff is said to have suffered various
injuries, including an injury to his shoulder that required surgery.  He missed
several months of work after the accident and then had to engage in a graduated
return to work after his shoulder surgery.

[3]
The plaintiff is an ambulance attendant.  His
claims include a past income loss and loss of future earning capacity.  The
defendant disputes both his liability for the injuries and the damages
claimed.  The trial is set for September of this year.

[4]
At the request of the defendant, the plaintiff
saw Dr. Loomer, an orthopedic surgeon, for an independent medical examination.
Dr. Loomer prepared a report dated December 16, 2008. 

[5]
As to the shoulder injury, Dr. Loomer found a
good likelihood that the plaintiff would return to close to normal function.
However, he noted that a full recovery could take up to 12 months.

[6]
Dr. Loomer expected that the plaintiff would
continue to have symptoms in his back for another year or so but that there was
a good chance of gradual improvement “to or towards” full recovery.

[7]
With respect to any neurological complaints, Dr.
Loomer noted that the plaintiff’s problems with numbness and paresthesia in his
left hand had improved considerably since the accident and were not a
“functional problem for him” any longer.

[8]
His review of the plaintiff’s medical
information had included a letter from Dr. Sadowski, a neurosurgeon who
had done nerve conduction studies on the plaintiff and who felt that the nerve
damage was likely at the left elbow.

[9]
Dr. Loomer described conducting a neurological
examination of the plaintiff’s “upper and lower extremities”, which I infer was
undertaken within the context of his own specialty of orthopedics.

[10]
During the examination for this report, the
plaintiff told Dr. Loomer that he had been referred to, or was contemplating a
referral to, a neurosurgeon.  In his examination for discovery in September
2008, prior to the examination by Dr. Loomer, the plaintiff described
numbness and tingling in the underside of his left arm and between the little
and ring fingers of his left hand.

[11]
As of the time of the examination by Dr. Loomer,
the plaintiff had not served any medical reports on the defendant.  On January
29, 2009, the plaintiff served the reports of two doctors and a psychologist.
The relevant report with respect to this application was that of of Dr. Hunt, a
neurologist.  The critical findings in his report were:

1)  the plaintiff had significant pre-existing degenerative changes of
his spine that rendered him significantly more vulnerable to the effects of the
accident, in particular at the L1 lumbar level;

2)  the plaintiff has suffered injuries to the capsular fibres of the
facet joints throughout the spine and to the annular fibres of a number of
intervertebral discs at multiple levels of the spine;

3)  the plaintiff had suffered an irritation of the left C8 and T1 nerve
roots and had a history supporting an irritation of the left ulnar nerve at the
elbow.  Dr. Hunt said these were clinical findings “in keeping with” the
weakness of the intrinsic muscles of the left hand; and

4)  the plaintiff has been rendered less capable of performing his job
as an ambulance attendant.

[12]
The defendant sought to respond to these
findings by retaining a neurologist to conduct a further examination of the
plaintiff.  Dr. Hashimoto is scheduled to perform this examination on June 18th
of this year, subject to my ruling in this application.

[13]
The plaintiff was not in a position to consent
to such a further examination, and so on September 15, 2009, the parties
appeared before a master to resolve the issue.  After hearing submissions, the
learned master denied the defendant’s request for a further examination by Dr. Hashimoto.
His essential reasons for reaching this decision were:

1)  despite the plaintiff having adverted to “nerve type
difficulties” in his examination for discovery, the defendant nonetheless
chose to have an independent medical examination conducted by an orthopedic
surgeon;

2)  Dr. Loomer’s report contains reference to his having conducted some
neurological examination of the plaintiff;

3)  there was no evidence before the master explaining why Dr. Hashimoto
would need to see the plaintiff in person in order to rebut Dr. Hunt’s findings;
and

4)  he characterized the application as being for a second Rule 30
examination “by a specialist in a complementary field.”

[14]
Before proceeding further, it is necessary to
establish the applicable standard of review of the learned master’s decision.
It is well established that on purely interlocutory matters, it must be
demonstrated that the master was “clearly wrong” in his or her
decision. However, when the ruling raises questions that are vital to the final
issue in the case, the reviewing court approaches the matter as a rehearing.
When the master’s decision deals with a question of law, the standard of review
is correctness: Abermin Corp. v. Granges Exploration Ltd., [1990]
B.C.J. No. 1060 (S.C.), and Joubarne v. Sandes, 2009 BCSC 1413 at para.
14.

[15]
A decision to deny a defendant the opportunity
to have an independent medical examination conducted of the plaintiff can raise
questions that are vital to the final issue in the case.  In Belke v.
Bennett, 2006 BCSC 536, Mr. Justice Barrow provided the following helpful
approach at para. 5:

If the Master’s
order amounts to a refusal, whether in whole or in part, of an application to
have the plaintiff submit to an independent medical examination, it may deprive
the defendant of discovering evidence necessary for a full examination of the
plaintiff’s claim or of a defence advanced.  It is in that sense that a
decision may be said to go to an issue vital to the trial. […]  If, on the
other hand, the Master’s order simply sets terms on which the independent
medical examination is to be conducted or directs that such an examination not
be performed by a particular professional, the defendant is not deprived of
potential evidence, and the order cannot be characterized as going to an issue
that may be vital to a final issue at the trial.

[16]
I adopt this analysis.  I think the master’s
decision in this case fell within the first situation envisioned in Belke.
Denying the defendant’s application effectively foreclosed any exploration of
Dr. Hunt’s opinion, let alone any rebuttal of it, on behalf of the defendant by
an expert with the specific expertise necessary to cope with the report on its
own terms.

[17]
If uncontradicted, Dr. Hunt’s opinion could be
determinative of several of the kinds of damages claimed by the plaintiff, in
particular as to the true nature and extent of his injuries and their impact on
his future earning capacity.  These questions appear to be vital to several
final issues.  Accordingly, I will treat this appeal as a rehearing.

[18]
In view of this conclusion, it is not necessary
for me to consider the fresh evidence that has been offered by the defendant on
the issue of why Dr. Hashimoto would need to see the plaintiff in person, and I
therefore decline to admit it on this appeal.

[19]
Turning to the actual merits of the defendant’s
application on the rehearing, an excellent summary of the applicable law in
this area was provided by Madam Justice D. Smith, then a member of this court,
in McKay v. Passmore, 2005 BCSC 570 at paras. 15 – 19:

15.       The
principles to be followed in deciding whether the defendants have shown an
adequate basis for a second IME are set out in Trahan v. West Coast
Amusements Ltd. [2000] BCSC 691 (CanLII), [2000] BCSC 691, at para. 48:

The authorities establish that additional
medical examinations are in the discretion of the court …  (citations
omitted).

That discretion is to be exercised
judicially, considering the evidence adduced.  A second examination to permit
the defendant a second opinion on the same subject matter will not be allowed.
A second examination may be appropriate where there is some question which
could not have been dealt with on the first examination … (Citations
omitted).

That the magnitude of the loss is greater
than previously known is not in and of itself sufficient to permit a second
examination … (Citations omitted).

Where diagnosis is difficult and existing
assessments are aged, further assessment may be required …

And in Roberge
v. Canada Life Assurance Co. [2002] BCSC 1500 (CanLII), [2002] BCSC 1500 at
paragraph 9:

The distinction is quite important.  Simply
put, when a person in litigation makes a claim for a personal injury, the
defendant is, without oversimplifying the matter, almost always entitled to a
medical examination of the plaintiff.  A much higher standard is imposed when
the defendant seeks a second medical examination of the plaintiff.

16.       The
overriding question is whether a second medical examination is necessary to
ensure reasonable equality between the parties in their preparation of a case
for trial: Wildemann v. Webster [1990] CanLII 206 (BC C.A.), [1991] 50
B.C.L.R. (2d) 244 (C.A.).

17.       Reasonable
equality does not mean that the defendant must be able to match expert for
expert or report for report.  I refer to Trahan v. West Coast Amusement Ltd.
and to MacNevin v. Vroom [21 December 2004] New Westminster S072995
(S.C.).

18.       The
defendants must satisfy the court that there is some question or matter that
could not have been dealt with at the first examination: Jackson v. Miller
[1999] B.C.J. No. 2751 (S.C.).

19.       In considering
how to exercise the discretion to grant a second IME, the court should take
into account the timeliness of the application in the light of Rule 40A and the
practicalities of trial preparation… [citations omitted.]

[20]
In this case, I think that the report of Dr.
Hashimoto is necessary in order to ensure reasonable equality between the
parties in their preparation for trial.  In this regard, I draw a distinction
between situations in which the defendant seeks to have a further examination
performed by a particular kind of specialist for no other apparent reason than that
the plaintiff has had himself examined by one, and cases in which a report by a
medical expert for a plaintiff provides critical evidence that was not within
the expertise of the first defence expert to provide and that was unknown to the
defendant at the time of that first examination.

[21]
I am mindful of the fact that the plaintiff
raised concerns with respect to his left arm and hand, which have a
neurological component, in his examination for discovery prior to being
examined by Dr. Loomer, and that Dr. Loomer himself considered and gave an
opinion with respect to those symptoms and the plaintiff’s back symptoms in his
report.

[22]
No doubt orthopedic surgeons are required to
have an excellent understanding of the nervous system as it impacts upon the
practice of their specialty, but at the end of the day, an orthopedic surgeon
is not a neurosurgeon or a neurologist and it is not correct to say that Dr.
Loomer had or would have at trial the knowledge base to respond to Dr. Hunt’s
detailed findings with respect to the injuries to the fibres and nerves of the
plaintiff’s spine.

[23]
To preclude the defendant from involving its own
neurologist at this stage would be to impose what is essentially a “one-shot”
rule on defendants that would be just as unrealistic as allowing them to match
plaintiffs expert for expert.  The reality is that Dr. Hunt has uncovered new
and significant medical issues that neither Dr. Loomer nor the defendant could
have been expected to foresee.

[24]
I am also mindful of the comments in McKay
that these decisions should be made in light of Rule 40A and the practicalities
of trial preparation.  The delay in obtaining available appointments for
independent medical examinations by neurologists as described in the material
is most unfortunate and it is even now by no means certain that Dr. Hashimoto’s
report can be admitted under the time limits that will come into effect with
the new Rules of Court in July.

[25]
I do not think that this difficulty should
deprive the defendant of an opportunity to obtain the report and to attempt to
have it entered at trial.  The effect on the plaintiff of the relatively short
notice that he will receive of Dr. Hashimoto’s report before trial may be
ameliorated by the fact that this report will in essence be replying to the one
that Dr. Hunt has long since provided.

[26]
For these reasons, the appeal is allowed and the
plaintiff is ordered to submit to the medical examination by Dr. Hashimoto that
is presently scheduled for June 18, 2010, or on any earlier examination date that
the defendant may be able to obtain subsequent to this order.

[27]
Costs in this matter will be in the cause.

“Schultes J.”