IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101220

Docket: M084999

Registry:
Vancouver

Between:

Jesenka
Curak

Plaintiff

And

Jacqueline Marie
Brown, Frederick J. Brown and Bayview Chrysler Dodge Ltd operating as Border
Auto Leasing Limited

Defendants

Before:
Master Scarth

Reasons for Judgment

[1]            
It was a busy morning in chambers when the parties appeared before me on
the defendants’ application for an order that the plaintiff in this personal
injury action attend for two independent medical examinations, the first booked
for the following week.  The application threatened to exceed the estimate
provided by counsel, not an unusual circumstance but one which resulted in part
of the application being adjourned for written submissions.  Given that one of
the examinations was scheduled for the following week and that the parties were
in partial agreement, I made the order for the plaintiff to attend the two
independent medical examinations as follows:

 (a)      an
examination by orthopaedic surgeon Dr. John Oliver on Friday December 3, 2010
at 1:00 p.m.; and

 (b)      a work
capacity evaluation with occupational therapist Jeff Padvaiskas on Monday
January 10, 2011 at 8:30 a.m.

[2]            
The plaintiff consented to this order on terms as sought by the
defendants and as ordered in Stainer v. Plaza 2001 BCCA 133, that:

(a)      In the event that the
defendants request a report from either expert, the report may be requested by
the plaintiff and if requested, will be forwarded to the plaintiff by the defendants,
and the plaintiff will forward to the defendants all medical reports which she
has regardless of whether those reports will be relied upon at trial.

(b)      In the event that the defendants
do not request a report from the experts or either of them, they shall, if
requested by the plaintiff and within a reasonable time, obtain from the experts
a copy of all documents which record the plaintiff’s history and observations
or findings made by the experts on physical examination of the plaintiff and
shall forthwith deliver a true copy to the plaintiff.

[3]            
What was contentious, and what threatened to consume more time that the
parties had on the day, was an additional term sought by the defendants that, in
the event that the defendants are required to produce the history and
observations, as set out in paragraph 2(b) above, the plaintiff is to produce
the same from any experts who have examined the plaintiff.

[4]            
Written submissions on this point arrived this week.  I assume the
examination by Dr. Oliver took place on December 3^rd, as ordered.

[5]            
In summary, the defendants say that this additional term is essential to
put them on equal footing with the plaintiff, given the preceeding terms.  They
concede that this term was not addressed in Stainer but say that to make
the order without it would be inequitable and unjust.

[6]            
The plaintiffs submit that the term requiring the plaintiff to forward
all medical reports in their possession in the event that the defendants order
a report and serve it on the plaintiffs already gives the defendants a
significant advantage, and more than is necessary for equal footing.

[7]            
Ordinarily, on an application pursuant to Rule 7-6, the order that the
plaintiff attend for independent medical examinations is sufficient to put the
parties on equal footing.  They are left to their usual obligations regarding the
disclosure of reports and underlying documents.  Here the defendants having
sought the terms confirmed by the court in Stainer, and the plaintiff
having accepted those terms, it is appropriate to include them in the order. 
However, the defendants have not established that there are special
circumstances here which warrant more disclosure than contemplated in Stainer:
Morey v. Lemon, 2006 BCCA 278, at para. 14.  Accordingly the order will
go without the additional term set out in paragraph 4 of the notice of
application.

[8]            
Costs in the cause.

“Master
Scarth”