IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110216

Docket: M113705

Registry:
New Westminster

Between:

Rahul Minhas by
and through his Litigation Guardian, Ranbir Minhas

Plaintiff

And

Sarbjit Singh
Virk, Varun Vir Singh Minhas, Narinder Kaur Kandola and Hardeep Singh Kandola

Defendants

Before:
Master Caldwell

Reasons for Judgment

[1]            
This is an application by the defence to have the plaintiff attend a
medical examination on Feb. 22 with Dr. Wong (a paediatric neurologist)
and on March 2 with Dr. Smith (a psychiatrist).  The defendant also seeks
to have the plaintiff ordered to pay a cancellation fee of Dr. Wong from
Dec. 21.

[2]            
The plaintiff was involved in a motor vehicle accident in September of
2007; he was a minor at the time and later commenced action by his litigation
guardian alleging, among other things, a brain injury which he says affects his
memory.

[3]            
The plaintiff turned 19 in November 2010 and is currently attending
college and maintaining an average or better standing.

[4]            
Plaintiff’s counsel has tendered expert reports of
Dr. O’Shaughnessy (psychiatrist) and Tracy Berry (occupational
therapist).  The plaintiff was seen by Dr. Tessler (neurologist) but no
report related report has been delivered; plaintiff counsel has advised that he
does not intend to pursue or tender expert evidence from a neurologist.

[5]            
Defence counsel requested that the plaintiff attend medical examinations
by Dr. Leith (orthopaedic surgeon) and Dr. Nix (educational
psychologist); the plaintiff attended both examinations by consent.  Defence
counsel now seeks the additional examinations as identified above.

[6]            
Rule 7-6 provides as follows:

Order for medical examination

(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.

Subsequent examinations

(2)  The court may order a further examination under this
rule.

Questions by examiner

(3)  A person who is making an examination under this rule
may ask any relevant question concerning the medical condition or history of
the person being examined.

Order for inspection and preservation of property

(4)  If the court considers it necessary or expedient for the
purpose of obtaining full information or evidence, it may

(a) order the production,
inspection and preservation of any property, and

(b) authorize

(i)  samples to be taken or
observations to be made of the property, or

(ii)  experiments
to be conducted on or with the property.

Entry on land or building

(5)  For the purpose of enabling an order under this rule to
be carried out, the court may authorize a person to enter on any land or
building.

Application to persons outside British Columbia

(6)  Rule 7-2 (27) and (28)
applies to examinations and inspections ordered under this rule.

[7]            
While the rule remains essentially unchanged from the previous Rule 30
and provides the basis for the exercise of discretion in ordering examinations,
it is important to note that in this case there were extensive discussions and
correspondence between counsel regarding the plaintiff’s attendance at the
various examinations.

[8]            
In addition to the terms associated with the Leith attendance there was
correspondence between counsel regarding the Wong and Smith appointments.  In
short, plaintiff’s counsel took the position that the defendant could have an
exam by either Dr. Wong or Dr. Smith but not both.  Following several
e-mails back and forth, plaintiff’s counsel wrote at 12:13 on November 19 that:

“you can have the IME with
Dr. Wong and we can argue about Dr. Smith (motion or informal) in the
new year.  Agreed?”

[9]            
Defence counsel responded by e-mail at 1:05 on the same day:

“okay”.

[10]        
Eleven days later, at 3:15 on November 30, plaintiff’s counsel e-mailed
defence counsel adding the additional term that the plaintiff would be
attending with a chaperone who would be taking notes.  In spite of a further
exchange of e-mail between counsel, no agreement to the additional condition
was reached and sometime between the 13th and 16th of December the December 21
appointment with Dr. Wong was cancelled.

[11]        
In his affidavit Dr. Wong states that his policy is to charge a
cancellation fee of $1650 plus HST unless he is given 2 months notice of the
cancellation.

[12]        
The issue of the attendance of a chaperone or the taping of an IME has
been canvassed in several cases including the case of Wong v. Wong, 2006
BCCA 540 however in my view the issue of the Wong attendance stands to be
decided on another basis.

[13]        
There was an agreement that the plaintiff would attend for an IME by
Dr. Wong; that agreement was reached on November 19 and it was not open to
plaintiff’s counsel to unilaterally rewrite that agreement.  The course of
litigation relies upon such agreements as part of the overall process
especially where, as here, they come about after considerable discussion and
attention to detail on the part of two experienced counsel.

[14]        
The plaintiff is ordered to attend the new appointment with
Dr. Wong on February 22, 2011 as requested in the motion and without a
chaperone.

[15]        
The request that the plaintiff be required to pay the cancellation fee
for the December 21 appointment is dismissed.  There is no evidence before me
which indicates what, if any, efforts the doctor made to fill that appointment
slot or to otherwise mitigate his loss.  In addition, I find
Dr. Wong’s requirement of 2 months notice to be unreasonable, particularly
in the absence of any explanation.  In this case the cancellation occurred on
either the 15th or 16th of December (if not earlier) thus providing at least 2
full working days notice and probably more.  The material before me which
simply states the doctor’s cancellation policy and nothing more, simply does
not support the order sought.

[16]        
Dealing with the matter of the psychiatric exam with Dr. Smith, I
again proceed on the basis that Rule 7-6 provides the court with the discretion
to order such an attendance in order to “level the playing field”.

[17]        
In assessing that field in this case I note that the defence has already
sought and received two examinations by consent and has now succeeded in
obtaining a third examination by order of the court.  One of the IMEs which the
defence obtained was by Dr. Nix, who I am advised, is an educational psychologist. 
Plaintiff’s counsel submits that this expert is an expert in the
psychological/psychiatric arena and that therefore the defence should not be
entitled to a second expert in the same general field, particularly now that
the defence seeks the Wong examination.  The defence counters that the role of
Dr. Nix was only to investigate the plaintiff’s educational issues and
compare his performance before and after the accident and that Dr. Wong as
a neurologist cannot address psychiatric issues; he says further that the
plaintiff now has Dr. O’Shaughnessy and that he should be entitled to a
psychiatrist to counter that specialist.

[18]        
The defence chose early; it chose a narrow psychological specialty and
it requires that the plaintiff submit to a neurological examination in spite of
the fact that plaintiff’s counsel advises on the record that he will not be
leading expert neurological evidence.  The defence now wants to be able to add
a psychiatric specialist as well because the plaintiff has a general psychiatric
expert report.

[19]        
In my view, this runs too close to simply matching (or even
over-matching given the absence of a neurologist for the plaintiff) expert for
expert, a practice which the case law does not support.  The defence elected an
expert in the area of psychology/psychiatry and an expert in the area of
neurology; if those choices were made too early in the process or may in
hindsight prove to have been improperly focussed and thus of little use, that
is not the plaintiff’s concern.  Plaintiff counsel offered a psychiatric exam
to the defence; the defence says that it wants both a psychiatric and a
neurological exam; that is not a level playing field.

[20]        
The new rules move toward a focussing and limiting of experts and expert
opinion; in my view to accede to the defence application regarding
Dr. Smith in addition to the three IMEs, which the defence has or will
receive as a result of this order runs counter to that initiative.

[21]        
The application for an order that the plaintiff attend for an IME with
Dr. Smith is dismissed.

[22]        
In light of the outcomes each party will bear their own costs.

“Master
Caldwell”