IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20111007

Docket: M093425

Registry:
Vancouver

Between:

Melissa Assalone

Plaintiff

And:

Xuan Le and Thi Le

Defendant

Before:
Master MacNaughton

Reasons for Judgment

In
Chambers

[1]            
The defendant seeks an order that the plaintiff attend an independent
medical examination (“IME”) originally scheduled to be conducted by Dr. Andrew
Hepburn on Monday, September 19, 2011 at 10:00 a.m. The parties were advised
that they could not expect to receive a decision in time for the scheduled
appointment.

Background to the Application

[2]            
This action arises as a result of injuries the plaintiff suffered in a motor
vehicle accident on April 28, 2009. She was involved in a second accident on
January 11, 2010. Liability for both accidents has been admitted. Both
actions are to be tried together on January 23, 2012.

[3]            
Prior to entering an appearance in the action arising from the first
accident, and on April 28, 2010, ICBC arranged for Ms. Assalone to attend
a medical examination with Dr. Peter J. Kokan, an orthopaedic surgeon, following
which Dr. Kokan produced a report.

[4]            
The defendants submit that there are three reasons why Ms. Assalone
should be compelled to attend an examination by Dr. Hepburn. First, the
defendants say that Dr. Kokan’s report was for the purposes of adjusting
the plaintiff’s entitlement to benefits under Part VII of her own ICBC
coverage, and not for the purposes of this tort action.

[5]            
Second, they say that Dr. Kokan has retired from the practice of
medicine and his son’s office, with whom he previously practiced medicine, says
that Dr. Kokan is unavailable to provide a supplementary report or to
confirm his attendance at the trial of this action. As a result, the defendants
say that they will be left with no medical expert evidence at trial.

[6]            
Third, they say that Dr. Kokan’s report is deficient because it
occurred three months after Ms. Assalone’s second accident when all the
medical information was not available and Dr. Kokan was unable to comment
on a number of significant issues that have since arisen.

[7]            
In response, Ms. Assalone says that Dr. Kokan’s report was not
limited to her entitlement to Part VII benefits but is, in fact, a full
medical-legal report. She also says that, when Dr. Kokan’s report was
prepared, there were no outstanding benefits to which she was entitled from the
first accident as she had completed her treatments. In addition, the report
goes beyond looking at what Part VII benefits she might then require and makes
future treatment recommendations.

[8]            
Ms. Assalone also says that she has spoken to Dr. Kokan’s
office and that he would do a supplementary review and attend the trial if
required. Ms. Assalone says that, based on the conflicting evidence before
me, I cannot conclude that Dr. Kokan would be unavailable for trial.

[9]            
Finally, Ms. Assalone submits that the only reason for this request
is that ICBC does not consider Dr. Kokan’s report helpful to it and it is
seeking an opinion more favourable to the defence.

Analysis

[10]        
Rule 7-6 provides for the medical examination of a person where their
physical or mental condition is an issue in the action. The rule provides:

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.

The rule also provides for subsequent examinations in
subrule 2.

[11]        
There have been a number of cases which have addressed a request for an
examination in tort proceedings following a motor vehicle accident, when there
has been an earlier examination for the purposes of the plaintiff’s Part VII
benefits under their own insurance policy.

[12]        
In Higgins v. McGuigan and McAlister (11 October 2005), Victoria
03-4330 (S.C.), in Master McCallum’s oral reasons for judgment, the Court
proceeded on the basis that a request for an examination by the orthopaedic
surgeon who examined the plaintiff prior to the litigation being commenced was
a request for a second examination.

[13]        
Other cases have determined that an examination conducted for the
purposes of Part VII benefits is not to be considered a first examination when
a request is made for an examination in tort proceedings.

[14]        
In Teichroab v. Poyner, 2008 BCSC 1130, Mr. Justice Barrow,
sitting on an appeal from an order of Master Young, set out the conflicting
case law at para. 23. He concluded at para. 24 that in his view:

… the wording of the Rule and
the weight of authority supports the conclusion that the "further
examination" contemplated by Rule 30(2) means an examination in addition
to one ordered under Rule 30(1). To the extent that is so, there can be no question
but that the examination ordered by the master was a first examination for
purposes of the Rule. The examination carried out by Dr. Laidlow was not
ordered under Rule 30(1). Thus, it cannot be that the examination ordered by
the master was a "further" examination which fell to be decided under
Rule 30(2).

[15]        
Applying that reasoning, I conclude that the initial examination by Dr. Kokan
cannot be considered a first examination for the purposes of Rule 7-6(2) and
that what is before me is a request for an examination under Rule 7-6(1).

[16]        
That being said, a review of the cases indicates that I may take into
account the earlier examination when deciding whether to exercise my discretion
under Rule 7-6(1):  see Harmada v. Semple (11 October 1983),
Vancouver BA20642 (BCSC) as interpreted by the BC Court of Appeal in Vorasarn
v. Manning (1997), 30 B.C.L.R. (3d) 62, para. 22, and Teichroab,
para. 24.

[17]        
As Justice Barrow said in Teichroab, it may be that in most cases
the distinction of whether the request is for a first or second examination makes
little difference to the analysis because the same factors, factors which are
to guide the exercise of discretion under Rule 7-6(2), will inform a decision
to be made under 7‑6(1), when there has been an earlier assessment.

[18]        
In the circumstances of this case, while I accept the Dr. Kokan’s
report has some characteristics of a medical‑legal report as opposed to a
report strictly for the purposes of assessing entitlement to Part VII benefits,
and that, in some respects, the report may not be helpful to the defence, I
have concluded that I should exercise my discretion to order an examination by Dr. Hepburn.

[19]        
The determining factor here is the uncertainty about whether Dr. Kokan
will be available to provide a supplementary report or to appear at trial. In
my view, that uncertainty may well result in the defendants being hampered in
their ability to fully defend this case. As a result, the defendant’s
application is allowed and Ms. Assalone will be required to attend for an
examination before Dr. Hepburn at a date and time to be arranged.

[20]        
Costs of this application will be in the cause.

“MacNaughton M.”