IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101202

Docket: M112551

Registry:
New Westminster

Between:

Jaswant Singh Mund

Plaintiff

And

Edward Braun and

Herbert William
Evans

Defendant

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment

[1]            
The defendant seeks orders pursuant to Rules 7-6 of the Civil Rules of
Court that the plaintiff submit to a medical (neurological) examination by Dr.
V. Makin on Friday, December 3, 2010 at 9:30 a.m. at #201 – 527 – 17 Street,
West Vancouver, British Columbia. The plaintiff consents to that, but objects
to extending it to include electro-diagnostic testing Dr. Makin wishes to
conduct, should his clinical examination and history taken from the plaintiff
lead him to see it as necessary to form or confirm his diagnosis.

[2]            
The defendant also seeks an order that the plaintiff answer all relevant
questions concerning his medical condition and history. The plaintiff consents
to that order.

[3]            
The defendant has agreed to pay reasonable conduct money for the
plaintiff’s travel to and from the appointment by taxi.

[4]            
In sum, the plaintiff opposes the defendant’s application for orders
that the plaintiff:

3.       submit
to electro-diagnostic testing, if required, by Dr. Makin at the time of the
subject medical examination;

4.       execute
a copy of Dr. Makin’s Governing Law and Jurisdiction Agreement prior to his
attendance at the subject medical examination (copy attached as Annexure “A”)

6.       pay
cancellation fees and other costs thrown away relating to his non-attendance at
the medical examination originally scheduled for September 3, 2010.

7.       pay
the costs of this application to the Defendants in any event of the cause.

[5]            
The action arises from two motor vehicle accidents, the first on October
10, 2007, the second July 8, 2009. The plaintiff has not worked as a short haul
truck driver since 2007 and claims, as a result of the two accidents; he has
suffered pain, disability and impairment of his ability and capacity to
continue working.

[6]            
The trial is set for April 4, 2011.

[7]            
The plaintiff claims multiple symptoms. They chiefly involve neck pain,
right shoulder pain, numbness and tingling in his right arm and fingers present
since the first accident, and aggravated by the second.

[8]            
The diagnostic medical-legal issues are the extents, if any, to which
the plaintiff’s alleged symptoms and disability result from: a post traumatic
thoracic outlet syndrome; a myofascial pain syndrome; a frozen shoulder; ulnar
nerve damage; degenerative disc changes in his cervical spine; or any
combination of these.

[9]            
Some of the plaintiff’s own experts comment on the multi-factorial
nature of the plaintiff’s medical condition. Plaintiff medical-legal reports served
on the plaintiff to date include:

1.       November
25, 2008, and the May 13, 2009, reports of Dr. Salvian, Vascular Surgeon.

2.       August
6, 2009, by Dr. Chin, Orthopedic Surgeon.

3.       September
11, 2009, by Dr. Sahjpaul, Neurosurgeon.

4.       November
16, 2009, by Dr. Shearer, Physiatrist.

5.       July
2, 2010, by Dr. Lau, pain specialist and anaesthesiologist

[10]        
Dr. Salvian, a vascular surgeon, referred the plaintiff to Dr. Prout, a
neurologist, who performed nerve conduction studies. Dr. Prout thought these
revealed very mild changes in the ulnar nerve at the elbow. Dr. Prout also
commented on other aspects of the plaintiff’s symptoms, concluding the
plaintiff had “primary pain of soft tissue origin and the upper trapezius and
neck region, with probable cervicogenic headaches.” He said this, and the shoulder
pathology, together with significant limitations of shoulder movements “will
likely result in a component of secondary thoracic outlet syndrome resulting in
sensory symptoms in the hand and arm.” He also thought the plaintiff’s very
mild ulnar nerve irritation at the elbow might have contributed to his symptoms
as well.

[11]        
The plaintiff underwent a medical examination, performed by Dr. Kendall,
an orthopaedic surgeon, on or about November 6, 2009, at the request of the
defendant. At p. 9 of his report Dr. Kendall concluded:

In conclusion, it appears that he has a complex myofascial
pain syndrome with no evidence of true organic origin for his pain…

Given the complexity of his current symptom complex, it is
difficult to prognosticate on a resolution. It would be helpful to have any
other documents which may help to gain insight into whether this gentleman has
been off for prolonged periods of time in the past because of physical
complaints.

I would not recommend any further investigations, as they are
unlikely going to shed light on the source of his discomfort. He is certainly being
followed by a plethora of specialists and thankfully, to date, none have chosen
to proceed with operative intervention.

A multi-disciplinary approach to
pain control may eventually prove to be necessary in this gentleman’s
condition.

[12]        
It is not necessary to decide whether the defendant has demonstrated
adequate reason for a second medical examination so as to give grounds, as
neatly summarized by Schultes J. in Barbosa v. Castillo, 2010 B.C.J. No.
270, for exercise of the court’s jurisdiction.

[13]        
However, the plaintiff submits the defendant has failed to demonstrate a
basis for further nerve conduction studies. He submits Dr. Makin can refer to
studies already conducted. He submits the defence is on a fishing expedition
and relies on Dr. Kendall’s remarks to the effect he felt no further investigations
were necessary.

[14]        
The defendant points out Dr. Prout’s and Dr. O’Connor’s studies were
performed over a year ago, in January and April 2009, respectively. Dr. Makin has
explained he considers electric diagnostic testing an extension of the
neurological examination. Such testing will consist mostly of nerve stimulation.
In his November 10, 2010, letter to defendant’s counsel he states:

Electrodiagnostic testing is
considered an extension of the neurological examination rather than a routine
laboratory test. As such, I may feel it is important to do once I have seen Mr.
Mund. It is hard to predict this in advance, and I would not repeat it if the
studies done by Dr. Prout or Dr. O’Connor in the past can substitute. It
consists mostly of nerve stimulation that the majority of patients do not find
particularly uncomfortable. It will not be performed without Mr. Mund’s
consent, however, if he refuses to consent, and depending on the circumstances,
I may need to draw conclusions based on what I think the test would have shown.

[15]        
In his November 16, 2010, letter, when asked to provide further details
on the type of studies which might be involved, he further explains:

Which studies are appropriate will depend on how the history
and neurological examination unfold, consistent with providing the Court with a
firm and useful opinion. I do not want to prejudge what the differential
diagnosis will be at that point. Some of the repeat studies would use different
machine parameters, electronic averaging, etc.

The following would give an idea, but I cannot make final
decisions until obtaining the history and examining Mr. Mund:

Repeat of
studies previously done elsewhere in 2009:

·       
ulnar nerve motor study

·       
median and ulnar nerve sensory potentials

Probably
not necessary to repeat:

·       
F wave studies,

·       
most or all of the needle electromyography

Possible
new studies:

·       
inching study of ulnar nerve

·       
medial antebrachial cutaneous nerve

·       
median nerve motor and/or sensory studies

·       
transcarpal sensory potentials

Possible
control measurements from the other arm

·       
medical antebrachial cutaneous nerve

·       
ulnar nerve sensory potential

[16]        
I accept Dr. Makin’s explanation that electro-diagnostic studies are
considered an extension of neurological examinations. I find the testing is
minimally invasive, and would not invade the plaintiff’s privacy.

[17]        
In Siemens v. Motruk and Coote, 2000 BCSC 1593, Burnyeat J. dealt
with an appeal of order by the Master requiring the plaintiff should provide
blood and urine samples for analysis, the order having been made pursuant to
Rule 30(1) – now Rule 7-6(1). Burnyeat J. noted, after reviewing the evidence,
the Master had concluded a taking of the urine sample would not be invasive and
would result in only a limited amount of time being expended by the plaintiff.
At paras. 12-15 Burnyeat J. states:

[12] Rule 30(1) provides a pre-condition before an order can
be made. The court may only order an examination: "Where the physical or
mental condition of a person is in issue in a proceeding … ." The first
ground raised by the plaintiff is that the blood composition of the plaintiff
is not a physical condition in issue in the proceedings. That ground of appeal
is answered by the decision in Bauman v. Kovacs (1986), 10 B.C.L.R. (2d)
218 (B.C.C.A.), where Lambert J.A. on behalf of the court stated:

In my opinion, the composition of a person’s blood is a
physical condition of a person, and the requirement of the rule that the order
that a person submit to examination must be in relation to a physical or mental
condition is met in this case. (at p.221)

[13] The plaintiff also objects
on the basis that the taking of the samples would be an invasion of privacy. I
agree with the comments made by the Learned Master in this regard. The taking
of a urine sample would not be invasive and the giving of a blood sample would
only result in a limited invasive procedure. Counsel for the plaintiff advises
me that there are no religious or other objections to a blood sample being
taken. Accordingly, the potential probative value of the blood sample must be
weighed against the proposed procedure. Because the pleadings put into issue the
cause of the alleged current disabilities, all avenues for discovery provided
by the Rules should be available to ensure that the litigants obtain access to
all potentially relevant evidence and information to permit the discovery
process to provide answers to the questions in issue between the parties.

[18]        
The plaintiff has already submitted to nerve conduction studies.

[19]        
Given the variety of causes attributed to the plaintiff’s symptoms,
which include thoracic outlet syndrome, myofascial factors, soft tissue pathology
in the neck and right shoulder, cervical spine disc disease with a degenerative
factor and even diabetes II, diagnosis is obviously a not straight forward
exercise in this case.

[20]        
I am satisfied nerve conductions studies are relevant to the issues raised
and the pleadings and in the medical reports written for the plaintiff. The
defendant submits there is at least a possibility the plaintiff’s tingling and
numbness could result from degeneration in his cervical spine or unrelated
nerve problems in his right arm; and the origin and causation of his neck,
shoulder and arm symptoms are related to the pleadings.

[21]        
I also agree that affording Dr. Makin leeway to conduct nerve conduction
studies he sees as necessary is required in order to ensure reasonable equality
between the parties. The studies will not necessarily duplicate earlier ones. An
electro-diagnostic study is a reasonable extension of the clinical examination
if the examining physician comes to judge it necessary to form, or confirm,
their professional diagnostic opinion.

[22]        
Therefore, the plaintiff will submit to electro-diagnostic testing by
Dr. Makin if requested to do so.

Signing of Governing Law and
Jurisdiction Agreement

[23]        
The defendant had initially scheduled a medical examination with Dr.
Makin for September 3, 2010. The plaintiff agreed to attend, provided certain
conditions such as transportation were met. The plaintiff also required the
defendant to provide, in advance, copies of any forms Dr. Makin would require
the plaintiff to complete. Likewise, there was to be no out of office testing
without prior approval of court order.

[24]        
On August 17, 2010, counsel for the defendant wrote counsel for the
plaintiff as follows:

Please be advised that we have scheduled the following
independent medical examination of your client:

Practitioner:     Dr.
Makin

Location:         Suite
201, 520 17 Street

 West
Vancouver, BC  V7V 3S8

Date:               September
3, 2010

Time:               9:30
a.m.

We advise that in the event of a
late cancellation which is $2,000 or a “no show”, we will be looking to your
client for payment of the fees. Please ensure that your client is notified of
the above appointment and confirm, in writing, before August 18, 2010 which is
the cancellation date, whether or not he is able to attend.

[25]        
On August 18, 2010 counsel for the plaintiff replied as follows:

Jesse Mund will attend for examination by Dr. Makin on the
time and date stipulated in your letter of August 17, 2010, provided that the
following conditions are met:

1.         Taxi
arrangements are made by your office to pick up and return Jesse Mund to his
house [Redacted] on September 3, 2010;

2.         You
will provide our office with an advance copy of authorizations, questionnaires,
or any other forms that Dr. Makin wants Jesse Mund to sign or complete;

3.         No out
of office testing [blood, x-rays, MRI, CT’s, etc] are to be conducted without
our prior approval or court order;

Jesse Mund’s command of the English language is limited, the
assistance of a Punjabi speaking interpreter should be provided.

We look forward to acceptance of
the commitments sought and confirmation with respect to taxi arrangements.

[26]        
On August 19, 2010, counsel for defendant replied saying, among other
things, Dr. Makin has the plaintiff sign a form that says the person “will not
sue Dr. Makin outside of B.C. Once we have received this form from Dr. Makin
our office will forward to you.” It also stated that there was a possibility of
EMG testing if Dr. Makin deems necessary to form or confirm a diagnosis.

[27]        
August 23, 2010, counsel for the plaintiff advised counsel for the
defendant that “We see no need for EMG testing, when the same has already been
done by Dr.’s O’Connor and Prout.”

[28]        
Although the plaintiff refused to undergo any electro-diagnostic testing
the defence decided to proceed with the medical examination without the
testing.

[29]        
Paragraph 19 of the defendant’s statement of facts states that on
August 31, 2010:

…the Defence learned that Dr.
Makin also required patients to sign a Governing Law and Jurisdiction
agreement. This is a standard form in which the patient agrees that should he
or she sue Dr. Makin, any action will brought in British Columbia and would be
governed by British Columbia law. It is not a waiver of any rights the
Plaintiff would have to sue Dr. Makin, if he so chose.

[30]        
The affidavit material filed by the defendant in support does not state August
31, 2010, was when the defence first learned of Dr. Makin’s requirement. As
noted, the Governing Law and Jurisdiction Agreement was specifically referred
to in the defence counsel’s letter sent August 19, 2010, and the letter summarized
briefly, but adequately, what the agreement requires of the plaintiff.

[31]        
On August 24, 2010, counsel for the defendant wrote, noting counsel for
the defendant had not heard from plaintiff’s counsel regarding the plaintiff’s
attendance at the medical examination of Dr. Makin.

[32]        
This was followed by the August 31, 2010, letter from defence counsel to
plaintiff’s counsel. It enclosed the jurisdiction form Dr. Makin has his
patients sign before the independent medical examination.

[33]        
On September 1, 2010, plaintiff’s counsel wrote defence counsel and
stated that “Mr. Mund is not required to sign Dr. Makin’s Governing Law and
Jurisdiction Agreement, therefore, he will not.”

[34]        
It appears Dr. Makin would not proceed without the plaintiff’s signature
on the agreement, which he said was required by his insurer to ensure insurance
coverage. The insurer does not extend coverage to lawsuits commenced outside
the jurisdiction.

[35]        
As a result of the cancellation, Dr. Makin incurred cancellation fees
for the cost of chaperon. He was also unable to schedule any further
appointments in the short time between when he received notice of the
plaintiff’s refusal to sign the form and the appointment date. The combination
of the lost appointment time and chaperon fees incurred was approximately
$2,217.

[36]        
The defendant now seeks an order requiring the plaintiff to sign the
form as well as pay the late cancellation fees. The plaintiff submits the court
cannot order the plaintiff to give up his right of action or subject himself to
stipulations as to how he might chose to conduct potential litigation. Dr.
Makin’s concern is more than academic because the plaintiff had earlier sued Dr.
O.M. Sovio, a physician who conducted a medical examination for ICBC in this
case. Pursuant to part 7 of the Insurance (Motor Vehicle) Regulations, B.C. Reg
447/83 s. 79, Hyslop J. dismissed Mr. Mund’s claim for failure to disclose a
reasonable cause of action (Mund v. Sovio, 2010 BCSC 252).

[37]        
I had insufficient evidence before me to conclude whether Dr. Makin
required the plaintiff’s signature because it has now become a standard requirement
of the physician’s insurer or because of concerns arising from the insurer’s
experience with the plaintiff and Dr. Sovio.

[38]        
In any case, on the question of requiring the plaintiff to sign the
Jurisdiction agreement, I am bound by Desjardins (Litigation guardian of) v.
Huser, 2010 BCSC 977; Kobzos v. Dupuis, 2006 BCSC 2047; Stead v.
Brown, 2010 BCSC 312; Peel Financial Holdings Ltd. v. Western Delta
Lands, 2003 BCCA 180; Rafferty v. Power (1993), 15 C.P.C. (3d) 48
(BCSC); and Allan-Trensholme v. Simmie, [2006] B.C.J. No. 720 (BCCA). I
do not have jurisdiction to order the plaintiff to sign the Jurisdiction
Agreement. On the narrow point of whether jurisdiction remains with the court
under the Civil Rules to require a party to sign an authorization for documents
in the possession of a third party but over which the party has sufficient control,
e.g. the party’s clinical records kept by their physician, that is governed by
the cited cases until such time as the Court of Appeal specifically rules on
that. For now, the general question appears settled; and as for the facts at
bar, in my view, the consent in this case falls squarely within the ambit of
the authorities cited.

[39]        
I understand it was Dr. Makin who refused to proceed without the
plaintiff’s signature on what could be best characterized as a release of a
right of action brought outside the jurisdiction. It would be unfair to
criticize Dr. Makin for his concerns, however remote the chance of the supposed
event occurring, since he could be left exposed without indemnity from his
insurer if he failed to comply with their requirements; and conceivably could
be required to bear considerable legal expenses for defending himself. It is
difficult to see the plaintiff’s refusal to sign the authorization as
reasonable, given the minuscule chance he would want to bring legal proceedings
outside of British Columbia, let alone conceive how this could be accomplished
jurisdictionally. On the other hand, the plaintiff submits Dr. Makin’s position
is not inherently reasonable; he submits Dr. Makin is protected by witness
immunity as found by Hyslop J. in Mund v. Sovio, and submits the concern
is based on farfetched concerns; and therefore, the form is unnecessary.

[40]        
In the interim, this may remain for now an impasse to be resolved practically,
as between ICBC as the defendant’s insurer and Dr. Makin’s professional
liability insurer.

[41]        
What now remains for me to decide is whether the plaintiff should be
required to pay Dr. Makin’s cancellation fee because the plaintiff did not
raise any objection until mid-afternoon on September 1, 2010, to the Jurisdiction
Agreement form defence counsel referred to in their August 19, 2010, letter sent
to plaintiff’s counsel.

[42]        
Plaintiff’s counsel did not initially request a copy of the Jurisdiction
Agreement form. When defendant’s counsel raised it, on August 19, 2010, it was
not yet in their possession, but said that once they did they would forward it
to plaintiff’s counsel. This did not occur until August 31, 2010.

[43]        
I understand the Jurisdiction Agreement form basically details what
defence counsel’s August 19, 2010, letter adequately describes, so plaintiff’s
counsel knew the essence of what was required. Still, defence counsel did
undertake to send the form; and plaintiff’s counsel was entitled to see it
before finalizing the plaintiff’s position on the question of the plaintiff’s
signing it.

[44]        
In the circumstances, I cannot say the plaintiff is in breach of the medical
examination agreement, so far as it went, for his attendance at the September
3, 2010, scheduled medical-legal examination with Dr. Makin.

[45]        
I decline to order the plaintiff reimburse Dr. Makin for his expenses.

[46]        
Since success was divided, each party shall bear their own costs.

“N. Brown J.”