IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100910

Docket: M085647

Registry:
Vancouver

Between:

Leah
Melinda Wright

Plaintiff

And:

Corey
Brauer and Karen Brauer

Defendants

Before: The Honourable Mr. Justice
Savage

Oral Reasons for Judgment

In
Chambers

I.                
Introduction

[1]            
This is an application by the defendants in a motor vehicle accident
case to have the plaintiff attend and submit to a medical examination by an
orthopaedic surgeon September 9, 2010.  The trial in this action is set
for November 18, 2010.

[2]            
The application was made on Short Notice on September 8, 2010.

[3]            
On August 26 or 27, 2010, the plaintiff served on the defendants two
medical/legal reports.  One was prepared by the plaintiff’s family physician
and the other by a physical medicine and rehabilitation specialist who the plaintiff
saw at the request of her counsel (the “Reports”).  The Reports say that the plaintiff
is suffering from chronic or ongoing back pain as a result of the motor vehicle
accident.

[4]            
On September 1, 2010, the defendants requested that the plaintiff
attend a medical examination by an orthopaedic surgeon on September 9,
2010 (the “Examination”).  The plaintiff refused to attend the Examination on
the basis that the time for delivery of expert reports had passed.

[5]            
Rule 11-6(3) requires a party to serve expert reports on all other
parties at least 84 days before the scheduled trial date.  That deadline has
passed.  However, Rule 11-6(4) permits a party to serve response reports
up to 42 days before trial.  The deadline for response reports is nearly a
month away; the defendants say that deadline is October 5, 2010.

[6]            
At the conclusion of the hearing I advised the parties that the plaintiff
was not required to attend the Examination (the appointment was scheduled for yesterday)
and that I would deliver my Reasons today.

II.              
The New Rules and Rule 40A

[7]            
Rule 7-6(1) provides as follows:

(1)  If the
physical or mental condition of a person is in issue in an action, the court
may order that the person submit to examination by a medical practitioner or
other qualified person, and if the court makes an order under this subrule, the
court may also make

(a)  an order respecting any expenses
connected with the examination, and

(b)  an order that the result of the
examination be put in writing and that copies be made available to interested
parties of record.

[8]            
Rule 7-6 was formerly Rule 30.  The purpose of Rule 30
was succinctly set out by Finch J.A., as he then was, in Stainer v.
ICBC, 2001 BCCA 133.  Speaking for the Court, Mr. Justice Finch
said, at paragraph 8, “the purpose of Rule 30 is to put the parties on an
equal footing with respect to medical evidence”.

[9]            
In the context of an action seeking compensation for personal injuries, the
parties are on equal footing with respect to medical evidence if they can
independently obtain medical evidence and if such evidence is served in
accordance with the Rules.

[10]        
The procedure for exchanging independent medical evidence is laid out in
Rule 11-6.  Rule 11-6(3)(a) provides as follows:

(3)  Unless the
court otherwise orders, at least 84 days before the scheduled trial date, an
expert’s report, other than the report of an expert appointed by the court
under Rule 11-5, must be served on every party of record, along with written
notice that the report is being served under this rule,

(a)  by the party who intends, with leave
of the court under Rule 11-3 (9) or otherwise, to tender the expert’s report at
trial, …

[11]        
Rule 11-6(4) provides as follows:

(4)  Unless the
court otherwise orders, if a party intends to tender an expert’s report at
trial to respond to an expert witness whose report is served under subrule (3),
the party must serve on every party of record, at least 42 days before the
scheduled trial date,

(a)  the responding report, and

(b)  notice that the responding report is
being served under this rule.

[12]        
Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the
former Rules, Rule 40A permitted parties to call expert evidence in reply
without notice at trial.  In order for such evidence to be admitted, however,
it had to be truly responsive to the expert evidence of a witness called by the
opposing party.

[13]        
In Stainer, supra, the British Columbia Court of Appeal considered
Rule 40A(3) and the scope of the Court’s discretion to admit responsive
evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now
governed by Rule 40A(3)

An expert may give oral opinion evidence of a written
statement if the opinion has been delivered to every party of record at least
sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the
normal course, a defendant will wish to protect his right to adduce expert
evidence at trial by giving the notice required by that rule.  But the court
retains a discretion to admit responsive evidence of which notice has not been
given: Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll
v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v.
Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice
Williamson said:

I would restrict, of course, as courts I think must, the
practice of having opinion evidence without notice strictly to truly responsive
rebuttal evidence, and I think that if that rule is carefully observed, there
should be no difficulties.

[18]      That is, in my
respectful view, a correct statement of the proper practice.

III.            
Are the Defendants Entitled to the Examination?

[14]        
The defendants argue that Rule 11-6(4) and/or Rule 7-6(1)
entitle them to require the plaintiff to attend the Examination.

[15]        
Amongst other things, the parties argued before me regarding whether the
new Rules have substantively changed the practice which existed under Rule
40A.  They agreed that this is an important practice point, and a case of first
impression.

[16]        
Rule 40A gave the Court discretion to admit responsive evidence of which
notice had not been given.  Rule 11-6(4) now provides that notice must be
given of responsive expert evidence (although I note that the Court retains
discretion to admit expert evidence of which sufficient notice has not been
given).

[17]        
I would expect that, in the ordinary course, an examination would be
ordered under Rule 7-6(1) where a person’s medical condition was in issue in an
action, provided it was requested in a timely way.

[18]        
However, at this point in time in the action, the defendants are limited
to what Mr. Justice Williamson referred to in Kelly, supra, as
“truly responsive rebuttal evidence”.  The application must be considered in
that light; the question on this application is not one of notice, but whether
the Examination should be ordered to enable the defendant to file responsive
evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]        
In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7,
Sanders J., as she then was, noted that “true response evidence, does not
permit fresh opinion evidence to masquerade as answer to the other side’s
reports”.

[20]        
In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002
BCSC 1669, Henderson J. considered the admissability of “reply
reports” holding that only the portions of the reports that provided a critical
analysis of the methodology of the opposing expert were admissible as
responsive evidence.  The portions of the reports describing the authors’ own
opinions on the matters in issue were not admitted.

[21]        
In this case, the defendants do not explain why an examination is
required in these circumstances, other than a statement by a legal assistant
that counsel says such is “necessary to properly defend this action and to
respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master
McCallum in White v. Gait, 2003 BCSC 2023 declined to order an
examination where it had not been shown why such was required to produce a
responsive report.

[22]        
In my opinion, the bare assertion reported to a legal assistant in this
case is insufficient to support an order under Rule 7-6(1) that the
plaintiff attend the Examination, when the defendants are limited to providing
response reports under Rule 11-6(4).  In the circumstances, the
application is dismissed.  The plaintiff is entitled to costs of the
application.

“The Honourable
Mr. Justice Savage”