IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101008

Docket: M085649

Registry:
Vancouver

Between:

Steven Luedecke

Plaintiff

And:

Kent Francis
Hillman

Defendant

Before:
The Honourable Mr. Justice Cullen

Oral Reasons for Judgment

In
Chambers

[1]          
THE COURT: This is an appeal from an order made by Master Scarth
requiring the plaintiff to attend at the office of Dr. Reebye, a physiatrist,
in New Westminster at 8:30 on September 30th, 2010 and submit to a medical
examination "to provide a response report pursuant to Rule 11-6(4).”

[2]          
That rule reads as follows:

Service of responding report

(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.

[3]          
Rule 11-6(3) reads as follows:

Service of report

(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, or

(b) if 2 or more parties jointly appointed the expert, by
each party who intends to tender the expert’s report at trial.

[4]          
The application before Master Scarth proceeded on September 27th, 2010
and was determined on that date.

[5]          
In her reasons, Master Scarth noted that the issue before her

… is whether it is appropriate
to order an independent medical examination of the plaintiff by Dr. Reebye for
the purposes of the preparation of a responding report to the report of Dr.
Armstrong, which was delivered by the plaintiff at the 11th hour on the 84th
day deadline under Rule 11-6.

[6]          
Her reasoning for coming to the conclusion that she did is set forth in
paragraphs 9 to 12 of her reasons for judgment as follows:

[9]  Firstly, the application is for an IME for a responding
report.  The deadline set out in the rules for a responding report is 42 days,
pursuant to Rule 11-6(4).  Based on the submissions of the defendant, the
report will be delivered prior to that deadline.  The examination is scheduled
for this week, and I will point out that this application is brought on a short
leave as a result.

[10]  Secondly, the determination as to whether the report is
properly responsive – whether the report is admissible and for what purpose –
is for the trial judge.  Savage J in Wright considered the CNR
case for purposes of interpreting what is appropriate as rebuttal evidence, but
in my view, the definition in CNR is not conclusive here.  As the
defendant submits, Stainer suggests a broader approach to what is proper
rebuttal.  Dr. Reebye says he needs an examination to provide an opinion in
response to the plaintiff’s expert, and it is for the trial judge to determine
whether or not the report which is ultimately produced falls within the scope
of Rule 11-6(4).

[11]  Thirdly, it has not been established that, to the
extent a balancing of prejudice is to be conducted, the balance here favours
the plaintiff.  The examination will take place 74 days before trial, and as I
said earlier, the report will arguably be in time under Rule 11-6(4).  The
plaintiff will have to attend for an examination, but the situation is not what
it was in White v. Gait, 2003 BCSC 2023, where the examination was to
take place within 30 days of trial.  The concern of Master McCallum in White
was that the plaintiff would be involved in preparing for trial.  That kind of
difficulty or prejudice is not present here.

[12]  On the other hand, the
defendant is prejudiced in not having a report for trial.  While it was a
deliberate choice on the part of the defendant not to obtain a report, it was
based on the state of the medical evidence up until the 84-day deadline.  The
delivery of Dr. Armstrong’s report at the 84-day deadline has altered that
situation and I am satisfied that the defendant would be prejudiced proceeding
without a responding report in the circumstances.

[7]          
Dr. Armstrong is a pain specialist who in his report diagnoses
"spinal pelvic instability due to hypermobility and subluxation of the S1
joints and spinal misalignment."  His prognosis is:

The plaintiff will likely be
eventually unable to work and will therefore experience a loss of earnings
potential, which will have profound repercussions for him.

And it

is very guarded, indeed, to
successfully return to his life before the MVA again and take up his career path
to becoming an airline pilot.

[8]          
Until the report from Dr. Armstrong, which was delivered on September
20th, 2010, the defendant had one expert report from an expert engaged by the
plaintiff, Dr. Helper, which did not raise the issue of his eventual inability
to work or to become an airline pilot.  The defendant did conduct an
examination for discovery of the plaintiff in April of 2009, during which the
plaintiff raised the issue that but for the accident, he, "would probably
be flying an airplane right now."

[9]          
Counsel for the defendant set the IME for September 30th, 2010,
notifying the plaintiff’s counsel of that on August 16th, 2010 (before the
receipt of Dr. Armstrong’s report).  There was evidence before Master Scarth
that the IME was scheduled against the possibility of there being an additional
medical report raising issues not in Dr. Helper’s report on the 84th day before
trial.

[10]       
Counsel for the plaintiff took the position that the plaintiff would not
attend the appointment as it was set to commence after the deadline for service
of expert reports.

[11]       
The application before Master Scarth was set on short leave on September
22^nd, 2010 after the defendant was served with Dr. Armstrong’s
report on September 20^th, 84 days before trial, which is to set
commence on December 13^th for five days.

[12]       
The defendant was also served with two other expert reports at the same
time, a second report from Dr. Helper and a report from Dr. Hainc, the
plaintiff’s treating physician.

[13]       
The defendant is entitled to serve a responsive report 42 days before
trial, which would be November 1^st, 2010.

[14]       
The principal thrust of the plaintiff’s argument before Master Scarth
and before me is that, in essence, the defendant is seeking to circumvent the
effect of the Rules by obtaining an independent medical examination for an
expert report masquerading as a responsive report, but which in reality, will
be a report reflecting fresh opinion evidence concerning a principal issue in
the trial.

[15]       
The plaintiff submits that if in the case at bar I accede to the
defendant’s application and uphold Master Scarth’s order, it is an order that
will be invariably sought by counsel for defendants in personal injury cases to
obtain fresh or new opinion evidence addressing the principal issue in the case
under the guise of seeking a report responsive to the plaintiff’s expert.  The
plaintiff notes that he served his report within time, that it was not late,
but fell squarely within the rule permitting service of his report.

[16]       
The plaintiff submits that in seeking an IME in the circumstances at
bar, the defendant has conflated (and the master has fallen into error by
accepting the defendant’s submission) the nature and purpose of the responsive
expert evidence, which is governed by Rule 11-6(4) and the nature and use of
expert evidence unrelated to a responsive function, which is governed by Rule
11-6(3).  The plaintiff says, in effect, the courts must be very careful in
limiting the scope of 11-6(4) to cases of truly responsive evidence and ought
not to exercise discretion to order a plaintiff to attend an IME to enable a
report under 11-6(4) without some persuasive evidence that it is justified or
necessary.

[17]       
As illuminating of the issue, the plaintiff refers to the judgment of
Madam Justice Southin in Sterritt v. McLeod, [2000] B.C.J. No. 971.

[18]       
In that case, under the old rule 40A a trial judge ruled, in effect,
that the requirement to give notice of expert evidence was dependent upon where
the burden of proof lay.  In that case, at issue was the contributory
negligence of the plaintiff, who removed her seatbelt before the accident.  The
judge ruled that as the burden of proof was on the defendant to prove the
plaintiff’s contributory negligence, the plaintiff was able to call evidence in
rebuttal to the defendant’s evidence without delivering any statement of that
evidence under Rule 40A.

[19]       
In overturning that ruling, Madam Justice Southin identified two types
of reply or rebuttal evidence "which a plaintiff adduces after a defendant
has put in his or her case."

[20]       
The first is

evidence going to an issue the
burden of proof of which lies upon the defendant.  The other is simply evidence
responsive to some point made in the oral evidence of the witnesses called by
the defendant."

[21]       
Southin JA noted in the first circumstance, the plaintiff

… has no obligation to adduce
any evidence on the issue until the defendant’s case has gone in.  He then has
a right to answer if he considers it necessary to answer.

[22]       
Southin J.A. pointed out, however, that if the proposition accepted by
the trial judge was applicable in those circumstances and the plaintiff had no
obligation to give notice of his expert evidence resisting the case called by
the defendant to meet his burden of proof,

… then logically a defendant
answering the case of the plaintiff on an issue the burden of proof of which is
on the plaintiff would also be entitled to withhold his statements of expert
evidence.

[23]       
Southin J.A. concluded as follows:

To so hold would defeat the
rule.  The reason is really quite simple.  A principal purpose of Rule 40A is
to ensure that neither side will be taken by surprise by expert evidence.  To
put it another way, the requirements of Rule 40A are not limited to a party
upon whom the burden of proof lies.

[24]       
Southin J.A. also referred to the second kind of responsive evidence:

… responsive to some point made
in the oral evidence of the witnesses called by the defendant.

[25]       
In relation to that sort of responsive evidence, Southin J.A. noted that
it was what was being referred to in Pedersen and Degelder (1985), 62
B.C.L.R. 253 at 259 where Bouck J held as follows:

On the other hand, a defendant may call oral testimony of an
expert to reply to the written or oral evidence of an expert called by the
plaintiff.  Similarly, a plaintiff may call rebuttal expert testimony in
suitable circumstances to rebut the written or oral testimony of expert
evidence tendered by the defendant.  This is because the Evidence Act
does not contemplate the use of ss. 10 and 11 as a method of defending or
rebutting expert evidence tendered by the opposite side.

[26]       
Southin J.A. adopted the characterization and limitation of that sort of
responsive evidence advanced by Saunders J, as she then was, in Kroll v. Eli
Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.), at page 9:

In my view, R. 40A(3) was not intended to prevent the court’s
receipt of evidence from expert witnesses which is in response to the opinion
of experts presented by other parties to the action.  While it will often be
desirable that notice of such evidence be provided to a party prior to
commencement of trial, and this will often be agreed by parties in litigation
in which the action is subject to case management, such notice is not required,
in my view, by the new Rule.  I consider that the law as enunciated in Pedersen
v. Degelder is still applicable to response to expert reports, and note
that this exception to the requirement for advance written notice of the
expert’s view, limited strictly to true response evidence, does not permit
fresh opinion evidence to masquerade as answer to the other side’s reports.

[Emphasis added by Southin J.A.]

[27]       
Rule 40(3) read as follows:

An expert may give oral opinion
evidence if a written statement of the opinion has been delivered to every
party of record at least 60 days before the expert testifies.

[28]       
As to the scope and effect of the new rule, 11-6(4), in the context of
the distinctions drawn in Sterritt v. McLeod, supra, between
expert evidence responsive to the case mounted by the opposite party and
opinion evidence responsive to the evidence of the opposite
party’s expert, the plaintiff relies on the recent case of Wright v.
Brauer, 2010 BCSC 1282, a decision of Mr. Justice Savage.

[29]       
The issues before Savage J. are not dissimilar from those in the case at
bar.  In that case the plaintiff served on the defendant two medical/legal
reports on August 26th or 27th which opined that the plaintiff was suffering
from chronic back pain resulting from the accident.  The defendant requested
that the plaintiff attend an IME.  The plaintiff refused as the time for
delivery of expert evidence had passed.

[30]       
Savage J. noted that the old Rule 30 permitting the court to order an
IME appears in the new rules as Rule 7-6(1) and has as its purpose "to put
the parties on an equal footing with respect to medical evidence," citing Stainer
v. ICBC, 2001 BCCA 133.

[31]       
Savage J. noted in the context of a personal injury action:

… 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.

[32]       
He further noted:

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.

[33]       
He quoted from Stainer v. ICBC, supra, at paragraphs 16 to
18 as follows, to describe the distinction between expert evidence for which
notice was required to be given and expert evidence which required no notice:

[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 CanLII 430 (BC S.C.), (1985), 62
B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. 1995 CanLII 1981
(BC S.C.), (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelley v. Kelley
reflex, (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."

[34]       
Justice Savage reasoned that where Rule 40A gave the court discretion to
admit responsive expert evidence without notice, Rule 11-6(4) now requires
notice of responsive evidence to be given, ultimately subject to a discretion
to admit where the required notice has not been given.

[35]       
In that context, Savage J. reasoned that at a point in the action when
it was too late to give notice under Rule 11-6(3) an application under 7-6(1)
for an IME should be scrutinized to determine whether it should be granted
"to enable the defendant to file responsive evidence" rather than to
permit fresh opinion evidence masquerading as responsive evidence.

[36]       
In connection with that observation, Savage J. cited Kroll v. Eli
Lilly Canada Inc., supra, and C.N. Railway v. H.M.T.Q. in
Right of Canada, 2002 BCSC 1669.

[37]       
In C.N. Railway v. Her Majesty the Queen, Mr. Justice Henderson
was considering the admissibility of reports delivered by the plaintiff CN as
reply reports.  Those reports purported to respond to the defendant’s reports. 
The defendant opposed the admission of the entirety of one report and portions
of the other reports on the basis that the impugned report and impugned
portions of the other reports relied on new materials and assumptions
"which depart from the assumptions used in CN’s original expert
report."

[38]       
The defendant submitted that the "reply" reports were not
properly in the nature of reply and hence offended the timing requirements of
Rule 40A.

[39]       
Justice Henderson noted that the confusion can arise "with respect
to the admissibility of evidence in reply or rebuttal" in the context of
the practice of delivering expert reports prior to trial in accordance with
Rule 40A.  He observed that "for the sake of analysis" the matter
should be approached as though the evidence is being introduced "orally
through the mouths of the expert at trial in the traditional manner."

[40]       
Using that approach, he relied on the decision of the Ontario Court of
Appeal in Allcock Laight and Westwood Ltd. v. Patten and others, [1967],
1 O.R. 18 as capturing the rule regarding admissibility of such evidence.  He
quoted from that judgment in part as follows:

It is well settled, where there
is a single issue only to be tried, the party beginning must exhaust his
evidence in the first instance and may not split his case by first relying on
prima facie proof and, when this has been shaken by his adversary, adducing
confirmatory evidence: …The rule is now so well settled that it requires no
further elaboration.  It is important in the trial of actions, whether before a
jury or a Judge alone, that this rule should be observed.  A defendant is
entitled to know the case which he has to meet when he presents his defence,
and it is not open to a plaintiff, under the guise of replying, to reconfirm
the case which he was required to make out in the first instance or take the
risk of non-persuasion.

[41]       
Henderson J. then quoted from Kroll v. Eli Lilly Canada Inc., supra,
Stainer v. Plaza, supra, and Kelley v. Kelley, supra,
and concluded as follows on the issue before him in paragraphs 25 and 26:

[25]  When I come to apply that settled principle of law to
these reports, I find that the Byrne report is clearly inadmissible as reply or
rebuttal evidence, in its entirely.  It is simply a fresh opinion on the
merits.  It makes no effort to respond directly to the defence experts or to
criticize their assumptions and methodology.  It simply asserts (or reasserts)
the merits of the plaintiff’s claim.  The report represents a classic instance
of case splitting and should be adduced, if it is adduced at all, as part of
the plaintiff’s case in chief.

[26]  Parts of the Bredehoeft report
are admissible as reply evidence and parts are not.  Those portions of the
Bredehoeft report which consist of a critical review (in the words of the
authors) of the analysis of the defence expert reports are admissible as true
rebuttal or reply evidence.  Those portions which describe the author’s own
assessment of the cause of the embankment failure are not admissible as reply
evidence and must be admitted, if they are admitted at all, as part of the
plaintiff’s case in chief.

[42]       
In Wright v. Brauer, supra, Savage J., after noting that
Henderson J. held that only the portions of the report that provided a critical
analysis of the methodology of the opposing expert were admissible, not
"the author’s own opinions in the matters in issue," went on to
conclude as follows at paragraphs 21 to 22:

[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.

[43]       
The plaintiff says that the judgment of Justice Savage is apposite to
the case at bar, that the defence application under 7-6(1) is essentially in
furtherance of seeking a report that is not in substance responsive but is
fresh evidence to address the substance of the plaintiff’s case.  The plaintiff
says Dr. Reebye does not require an IME for a responsive report, which he
submits is confined to "commenting on the methodology and analysis of the
other expert."

[44]       
The plaintiff says the defence had full knowledge before Dr. Armstrong’s
report that the plaintiff’s inability to train and work as a pilot would be an
issue in the case and that if he, that is, the defendant, wished to address
that issue through expert evidence, he should have done so in accordance with
Rule 11-6(3), but not use 11-6(4) for that purpose.

[45]       
The plaintiff says his intended use of an expert report does not trigger
a corresponding right in the defendant.  The defendant’s right is as the
plaintiff’s, to acquire and give notice of an expert opinion in accordance with
the provisions of Rule 11-6(3) to address the substantive issues in the trial.

[46]       
Both counsel agreed that the determination of this issue "is vital
to a final issue in this case" and hence the review of the master’s order
"is by way of a rehearing unfettered by any deference to the order under
appeal."

[47]       
I have concluded that the order of Master Scarth should be upheld in the
circumstances of this case.

[48]       
In the proceedings before Master Scarth, the defendant adduced evidence
from Dr. Reebye to the effect that he considered it necessary to conduct an
examination of the plaintiff to provide an opinion that was responsive to that
of Drs. Helper, Hainc and Armstrong.  He deposed in part as follows:

4.  I understand that court rules provide that expert reports
delivered after 84 days prior to trial are to be limited in their scope to
opinions which are purely responsive to medical evidence which the plaintiff
has led as part of his case and not on subject matters which were not addressed
in the medical evidence adduced by the plaintiff.

5.  I intend to prepare my report in accordance with those
rules.

6.  I do, however, need to physically examine the plaintiff
and ask him the usual questions that a doctor would ask in order to elicit
information upon which to ground my opinions.

7.  I understand that the plaintiff has been assessed by Dr.
Helper, Dr. Hainc, and Dr. Armstrong, whose reports I have not reviewed
extensively, but sufficiently to determine that these examiners noted the
plaintiff’s complaints of neck pain and stiffness, low back pain and stiffness,
cognitive problems and mild anxiety.  Between them, they reviewed the
plaintiff’s history and accident information provided by the plaintiff, and
conducted physical examinations and a mental status assessment.

8.  The examiners stated their diagnosis, prognosis,
recommendations and analysis of etiology based on the foregoing.  Some
expressed opinions, citing research statistics.

9.  I would need to conduct the
same type of in-person assessment in order to provide my opinion in response to
the opinions provided by Dr. Helper, Dr. Hainc and Dr. Armstrong.  One
cannot properly give responsive rebuttal opinions on a patient’s movement,
functioning, diagnosis, prognosis, distribution of symptoms, recommendations,
suitability for work, and etiology without examining (including, where
appropriate, palpating) the patient.  Without examining the patient in person,
I would be limited to critiquing the methodology or the research or pointing
out facts, apparent from the records, which the other examiners may have
overlooked."

[49]       
Although the plaintiff submits that Dr. Reebye should be limited in his
report to "criticizing the methodology or the research or pointing out
facts apparent from the records which the other examiners may have
overlooked" based on Justice Savage’s apparent reliance on C.N. Rail,
supra, I do not take from Savage J.’s judgment that responsive opinions are
invariably limited to "a critical analysis of the methodology of the
opposing expert."

[50]       
In C.N. Rail, supra, Henderson J. was dealing with
rebuttal evidence in the classic sense described by Southin J.A. in Sterritt
v. McLeod, supra, as simply evidence responsive to some point in the
oral evidence of the witness called by the defendant.

[51]       
What is at issue in the present case is a different form of responsive
evidence, recognized in Stainer v. Plaza, supra, as distinct in
paragraph 15, where Finch J.A. ( as he then was) noted:

The third condition in the order
is directed to the third party calling an independent medical examiner
"for rebuttal evidence" I understand from counsel that this refers
not to rebuttal evidence as generally understood, but to evidence that is purely
responsive to medical evidence which the plaintiff has led as part of her
case.  It would not apply to opinion evidence offered by the third party on
subject matters not adduced in the medical evidence adduced by the plaintiff.
[underlining added]

[52]       
I thus conclude that what is referred to in Rule 11-6(4) is not akin to
rebuttal evidence such as that called by a plaintiff in response to a
defendant’s case, with its consequent limitations.  Nor is it akin to expert
evidence that responds generally to the subject matter of the plaintiff’s
case.  Rather, it refers to evidence that is "purely responsive" to
the medical evidence which the other party has called.

[53]       
As such, it has inherent limitations, but not necessarily the same
limitations that Henderson J imposed on the true rebuttal evidence he was
dealing with in C.N. Rail, supra.

[54]       
I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer,
supra, to the effect that there is an evidentiary threshold to be met
before an order under Rule 7-6(1) should be made in contemplation of an
expert’s report under Rule 11-6(4).  That threshold is different from that for
ordering an expert’s report under Rule 11-6(3).  To reach the requisite
threshold under Rule 11-6(4) the applicant must establish a basis of necessity
for the examination to properly respond to the expert witness whose report is
served under subrule (3) by the other party.  It is not simply a matter of
demonstrating a need to respond to the subject matter of the plaintiff’s case.

[55]       
Clearly, that threshold was not met in the case before Savage J.  In the
case before me there is an affidavit from Dr. Reebye setting forth a basis for
the examination sought, although ultimately what Dr. Reebye may regard as
purely responsive may be different from that which the trial judge eventually
concludes to be so.  That issue must await another day.  Here I am dealing with
a more limited issue, and I am satisfied that on the basis of Dr. Reebye’s
affidavit the evidentiary threshold is met and the order of Master Scarth
should be upheld.

[56]       
I am alive to the concern expressed by the plaintiff’s counsel that Rule
11-6(4) may be seen as a means for defendants to circumvent the more onerous
notice provisions of 11-6(3) and routinely seek to obtain reports that more
properly should be sought under that latter rule.  I conclude, however, that
such a concern can be met as it was with the practice of having opinion
evidence without notice under the old Rule 40A.  In that regard, the words of
Williamson J. in Kelley v. Kelley (1995), 20 B.C.L.R. (3d) 232 (S.C.)
are apt:

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 if that rule is
carefully observed, there should be no difficulties.

[57]       
All right.  Thank you, counsel.

[58]       
MR. SEALE:  Do we address costs at this time, My Lord?

[59]       
About these proceedings, I think there — my submission would be that
the — clearly the defendant has won on both levels, and costs be to the
defendant in any event of the cause for this hearing of the appeal and for the
hearing before Master Scarth and for the hearing where Master Scarth ordered
that her order be stayed.  And I’m asking also for you to order, of course, that
that stay order be lifted.

[60]       
THE COURT:  I will order that.

[61]       
Yes.  Mr. Parsons, what do you say about the costs issue?

(SUBMISSIONS RE COSTS AND SETTING OF EXAMINATION FOR
DISCOVERY DATE)

[62]       
THE COURT:  I will make that order:  costs to the defendant in any event
of the cause, to be assessed and paid at the end of the action.

Cullen J.