IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110401

Docket: M093786

Registry:
Vancouver

Between:

Rajvinder Mahil

Plaintiff

And

Stephen Price and
Susan Bell

Defendants

Before:
The Honourable Mr. Justice Voith

Oral Reasons for Judgment

In
Chambers

[1]          
These reasons arise out of an application brought by the defendants, Mr. Price
and Ms. Bell, to have the plaintiff, Mr. Mahil, examined by Dr. Peter
Gropper this coming Monday, April 4, 2011. Dr. Gropper is an orthopaedic
specialist.

[2]          
The defendants assert that they require that the plaintiff be examined
by Dr. Gropper in order to respond to both an expert report from Dr. le
Nobel dated January 20, 2011 and to a magnetic resonance imaging scan report
dated March 4, 2011, both delivered to the defendants on March 16, 2011, ("the
Reports").

[3]          
The action arises out of a motor vehicle accident which occurred on
August 25, 2007. The trial of the matter is scheduled to commence on June 13,
2011 and is presently set for ten days.

[4]          
The timing of this application and its relationship to the trial date is
directly relevant to the issue before me.

[5]          
Rule 11-6(3) requires, unless otherwise ordered, that expert reports be
served at least 84 days before the scheduled trial date. Rule 11-6(4) requires,
unless otherwise ordered, that responsive expert reports be served at least 42
days before the scheduled trial date. Thus, this application takes place
outside of the permitted time frame for the filing of an initial expert report,
but within the time period permitted for properly responsive reports.

[6]          
The facts which underlie the present application are straightforward and
not in dispute.

[7]          
The plaintiff filed his Writ and Statement of Claim in August 2009. Of
relevance for the purposes of this application is that that Statement of Claim
identified that Mr. Mahil suffered from, inter alia, the
following injuries:  neck ache, back aches, sprain and strain to the neck,
shoulders and back, flexion extension injuries to the cervical, thoracic, and lumbar
spine as well as the surrounding musculoskeletal system, numbness, pain and weakness
in the shoulders, arms and hands, as well as numbness, pain and weakness in the
legs.

[8]          
The defendants accept that they received all relevant medical or
clinical records some time ago and the defendants further accept that those
records reveal both that the plaintiff had some degenerative changes in his
cervical spine at the C6-7 level, and that he complained of back pain,
including lower back pain, neck and shoulder pain and numbness following the
accident.

[9]          
The plaintiff attended at an examination for discovery on March 1, 2010,
more than two and one-half years after the accident. The defendants again
accept that the plaintiff, at that discovery, identified that he had suffered
from neck, shoulder and back pain as well as from numbness in his right hand
and in his legs. Many of those difficulties, though they had improved or become
more manageable, continued as at the date of the discovery.

[10]       
Notwithstanding the defendants’ awareness of the relevance of these
issues, the defendants did not, until recently, seek any independent medical
examination of Mr. Mahil. Apparently the first such request was made by
the defendants to counsel for the plaintiff on March 14, 2011.

[11]       
The defendants now say that the Reports identify issues or conditions
they were unaware of and which require that they obtain responsive expert
evidence. The obvious question which arises as a result of the timing issues that
I have alluded to, is whether what the defendants seek is "truly
responsive rebuttal evidence", per Williamson J. in Kelley
v. Kelley (1995), 20 B.C.L.R. (3d) 232 at para. 13 (S.C.).

[12]       
The difficulty which arises is that the defendants are still well
outside of the 42 day time frame for the filing of a responsive report. If the
report they obtained from Dr. Gropper was properly limited to responsive
evidence there would be no basis to prevent the examination which is being
sought from taking place.

[13]       
The defendants assert that they wish, with Dr. Gropper’s evidence, to
respond to three narrow issues which arise from the report of Dr. le Nobel,
with one of those issues being tied to the March 4, 2011 magnetic resonance
imaging report. Each of these three issues arises from opinions which are
expressed by Dr. le Nobel at page 1.3 of his report. First, Dr. le Nobel
has opined:

It is now three years and four
months since the August 25, 2007 motor vehicle collision. Based on the time
elapsed since being injured and the presence of ongoing pain for over three
years and four months I diagnose Rajvinder’s pain symptoms as chronic. Chronic
pain symptoms are pain symptoms which persist for longer than tissue healing is
felt to require. Tissue healing is generally felt to occur within 10 to 12
months following injury.

[14]       
The defendants say the issue of chronic pain was not raised in the
pleadings and that they did not apprehend this was an issue they would have to
respond to.

[15]       
The defendants acknowledge that the plaintiff continued to complain
about given symptoms at his discovery more than two and one-half years after
the accident. The foregoing opinion expressed by Dr. le Nobel appears to
be largely definitional — the plaintiff has pain that has continued, hence it
is chronic. It is not quite clear to me why an examination by Dr. Gropper
is necessary to address this issue.

[16]       
Second, Dr. le Nobel has said:

Given his history of prior motor
vehicle collisions and prior symptoms and his x-ray findings in the cervical
spine subsequent to the August 25, 2007 motor vehicle collision, he was likely
at some increased risk for more severe consequences in the August 2007 motor
vehicle collision.

[17]       
The defendants argue that this opinion raises the question of whether
the plaintiff, as a result of his existing spinal condition, was a "thin
skull plaintiff," and wish to respond to this assertion.

[18]       
Third, Dr. le Nobel has said:

His assessment features neck pain
and restricted cervical spine range of motion. Radiating numbness into his
right index and long fingers are consistent with irritation of the nerve
supplying the right index and long finger nerves. The evaluation of the
cervical spine with magnetic resonance scanning would be of help in determining
whether there has been an injury to one of the cervical intervertebral discs,
possibly contributing to his neck and upper limb symptoms.

[19]       
Following Dr. le Nobel’s recommendation, a magnetic resonance scan
was conducted and the March 4, 2011 report advances the following observation
or opinion:

Impression.

There are changes of moderate
cervical spondylosis which are maximal at the C6-7 level and of particular note
there is severe right neuroforaminal canal narrowing at this level requiring
clinical correlation with right C7 nerve root signs and symptoms. Other
particular findings are detailed above.

[20]       
The defendants wish to have Dr. Gropper address the conclusions of
the magnetic resonance imaging report as they relate to the plaintiff’s ongoing
difficulties with numbness.

[21]       
Rule 7-6(1), formerly Rule 30, allows for the conduct of an independent
medical examination. The object of Rule 30 was succinctly described by Finch
J.A., as he then was, in Stainer v. ICBC, 2001 BCCA 133 at
para. 8:

…the purpose of Rule 30 is to
put the parties on an equal footing with respect to medical evidence. …

[22]       
The object of placing the parties on an equal footing is, however, only
achieved in real terms if the parties also adhere to those rules which govern
the timely exchange of both initial expert reports and responsive expert
reports.

[23]       
The important relationship of what was Rule 30 and what is now Rule
7-6(1) and those Rules which pertain to the time limits for the exchange of
expert reports has been recognized in other decisions. In Wright
v. Brauer, 2010 BCSC 1282, Savage J. said at para. 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.

[24]       
In the case of Mackichan v. June and Takeshi, 2004
BCSC 1441, Master Groves, as he then was, said at para. 11:

… It is not simply a question
of putting the parties on a level playing field at this stage, it is a question
of really balancing the prejudice which will result to the defendants in not
having a report and the prejudice that will result to the plaintiff in having a
report prepared late which would no doubt, I expect, cause an adjournment of
the trial.

[25]       
If the defendants have Dr. Gropper prepare a properly responsive
report, and if that report is delivered in accordance with the Rules, the
interests of both parties are concurrently advanced and safeguarded.

[26]       
I have, based on a request I made, been advised by counsel for the
defendants that Dr. Gropper would be able to deliver his report in advance
of the 42 days provided for in Rule 11-6(4).

[27]       
Notwithstanding some misgivings about some of the issues advanced by the
defendants, I do not believe that it would be either prudent or appropriate for
me to pre-determine that the specific concerns raised by the defendants will
not, in fact, be properly responsive to the Reports.

[28]       
I have, however, earlier in these reasons, identified with some
precision the very narrow issues that the defendants assert they wish to
respond to in the Reports. These reasons should provide some safeguard against Dr. Gropper’s
report extending or straying beyond its permitted ambit, whether inadvertently
or otherwise. I note, as did Saunders J., as she then was, in Kroll v. Eli
Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 at para. 7 (S.C.), that
truly responsive evidence:

… does not permit fresh evidence
to masquerade as an answer to the other side’s report.

[29]       
I am therefore prepared to grant the defendants’ application. Costs are
to be in the cause.

[30]       
I should also observe that counsel for the defendants agreed that it was
open to the plaintiff to have Dr. le Nobel provide some brief comment on
the conclusions contained in the magnetic resonance imaging report that was
undertaken at his instance. I would expect Dr. le Nobel to be equally
circumspect about the breadth of his comments.

“Voith
J.”