IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20121206

Docket: 17406

Registry:
Cranbrook

Between:

Wesley Moll by his
litigation guardian Rick Luyendyk,
and the said Wesley Moll

Plaintiff

And

Narinder Singh Parmar

Defendant

Before:
The Honourable Mr. Justice Meiklem

On
appeal from a decision from the Supreme Court of British Columbia dated
November 9, 2012 (Moll v. Parmar, Cranbrook Registry, Docket 17406)

Reasons for Judgment

[1]            
This is an appeal from a Master’s order of November 9, 2012 granting a
defence application under Rule 7-6 of the Supreme Court Civil Rules (the
“Civil Rules”) for an order that the plaintiff attend independent
medical examinations (“IME”s) by physiatrist, Dr. Craig and a
neuropsychologist, Dr. Williams. The plaintiff was examined by Dr. Craig on
November 13, but on November 14, 2012 the Master’s order was stayed by the
assigned trial judge pending appeal, so the plaintiff has not attended to be
examined by Dr. Williams.

[2]            
This case is presently set for a fifteen-day trial on February 13, 2013,
which will also be the seventh anniversary of the motor vehicle accident in
which the plaintiff allegedly suffered head and orthopaedic injuries. He has
not returned to work since the accident. Previous trial dates of January 11,
2011 and August 13, 2012 were set and adjourned.

[3]            
The defence has had the benefit of three previous IMEs, those being by
Dr. Prout, a neurologist, Dr. Graeb, a neuroradiologist and Dr. Steinberg, a
psychiatrist, and the plaintiff consented to and underwent a functional
capacity evaluation by the defendant’s expert, Ms. Jannie Earle, a registered
nurse. The IMEs ordered were the fourth and fifth by medical experts.

[4]            
Dr. Craig and Dr. Williams have provided the defendant with their
respective reports critiquing the reports of the plaintiff’s expert,
physiatrist, Dr. Apel and his neuropsychologist Dr. Martzke. These critique
reports were sought in May 2012 following the delivery of the plaintiff’s expert
reports on May 16, 2012. Dr. Craig’s report and Dr. Williams’ report are both
dated June 19, 2012.

[5]            
Paragraphs 6 through 16 of the Master’s oral reasons for judgement set
out the parties’ arguments and his decision:

[6] The defence asserts that an IME by a physiatrist is
necessary to assist in determining if and when the plaintiff can return to
work. Apparently the plaintiff has not worked since the date of the accident in
2006.

[7] The defence further asserts that a neuropsychologist is
necessary to further opine with respect to the cognitive difficulties, if any,
experienced by the plaintiff concerning the return to work. There are other
issues as well that would be examined by the respective experts, including
causation and rehabilitation with respect to the chronic pain claim.

[8] The plaintiff opposes the application on a number of
grounds, which include the following. The plaintiff says that the defence has
had six years to do this and it is too late in the day. I reject that
submission. lt is a difficult decision to make during the conduct of litigation
as to the appropriate time to obtain an independent medical examination. If it
is sought too early and trials are adjourned, for example, as has been the case
in this instance, then it is difficult and sometimes impossible for the defence
to get an updated report.

[9] The parties have, in my view, up to 84 days prior to
trial to submit a report. It is not for me to question whether they choose to
submit a report based on an IME years earlier or leave it to the 84^th
day. That is a matter of strategy, and I am not going to interfere with that,
and I do not think that is a viable argument. That argument may and does
succeed with respect to different circumstances when the issue is the obtaining
of a responsive or a rebuttal report, but I do not need to get into the details
of that distinction.

[10] Secondly, the plaintiff says that the trial was
scheduled for August and adjourned and the defence was prepared to go to trial
at that time without these experts or reports from these experts and that
nothing has changed since then and there is no prejudice to the defence by
proceeding on February 13^th, the current trial date, if they were
ready to go on August 13^th. Again I reject that submission. It is
nothing to do with prejudice if the defence wishes to change its position.
Apparently the defence got caught and perhaps was not as ready as it hoped to
be in August and was required to proceed on that occasion without the reports
it claims it needs. Adjournments happen and sometimes there are certain
positive consequences for one or the other or both parties with respect to the
timing of matters as a consequence of that adjournment. This is one of those
instances.

[11] Next the plaintiff submits that there is a conflict
between the requested experts being objective with respect to their duties to
the court while previously raising rather significant criticisms of the
plaintiff’s experts. In essence, the plaintiff says there is a lack of
objectivity by these experts.

[12] There may or may not be something to that argument, but
I am of the opinion that is best resolved by the trial judge, either with
respect to admissibility or weight. I do not see the degree of lack of
objectivity such that it would be detrimental to the plaintiff to undergo these
examinations. For example, if these doctors had expressed some comments about
the plaintiff that would make it appear they were completely incapable of
giving a reasonable or objective opinion, that would be a different matter, but
simply critiquing other physicians does not raise this complaint to a level
that would warrant not granting the order. As I said, I think that is more an
issue for the trial judge.

[13] Another submission by the plaintiff is that this is too
late in the day, given that the trial is in February. Again I reject that
submission. Clearly the defence could have had these reports done much earlier.
They run a risk in leaving it this late in the day, if it is late in the day.
By the Rules they have until 84 days before the trial to submit
such a report. That is the defining period of what amounts to "too late in
the day". Anything prior to 84 days would seem to me to be not too late in
the day by any stretch of the imagination. Again, that argument as to lateness
has more persuasiveness with respect to a different fact pattern typically
dealing with a response or rebuttal IME sought within the prescribed 84 or 42
days.

[14] Next the plaintiff submits that there is no evidence
that these doctors need to see the patient. Again, that would be an argument
that would be worthy of serious consideration if we were talking about
obtaining a responsive or rebuttal report as opposed to a report of first
instance. There would be no requirement, in my opinion, for defence counsel to
submit an affidavit or evidence saying that an expert needed to see the
plaintiff if he had applied, for example, three years ago for this IME. I do
not see why that changes because it is 90 days before trial. The only
complicating factor in that respect is that there already has been a critique
of sorts from the two experts, but in my view that does not disentitle the
defence from seeking an independent medical exam.

[15] The order is a discretionary one and the chief
consideration is to ensure that the parties are on an even footing. Everybody
agrees and it is trite to say that does not mean report for report. Here,
having read the material and listened to counsel over two separate days and now
having the benefit of an affidavit obtained between our last attendance and
today establishing the difference between a neurologist and neuropsychologist,
I am satisfied that there is a sufficient difference in those disciplines that
an IME by a physiatrist and a neuropsychologist is warranted and is not
something that could have been properly addressed by a neurologist or a
psychiatrist.

[16] For all of those reasons,
then, I am prepared to order the attendance by the plaintiff as requested. I
make no comment about the admissibility of those reports if they are prepared
and not served within the requisite time period. That again will be a matter
for the trial judge to determine, but I do not want it to be inferred or
assumed that anything I have considered or ordered today in any way is meant to
abridge the necessity to deliver these reports in a timely fashion.

[6]            
The first issue that I must consider is whether the appropriate standard
of review on this appeal is the "clearly wrong" test which applies to
purely interlocutory orders, or whether there should be a re-hearing on the
merits on the basis that the Master’s order can be characterized as involving a
matter that is vital to the final issue in the case.

[7]            
As noted by Justice Leggatt in para. 5 of his reasons in Guglielmucci
v. Makowichuk, [1995] B.C.J. No.1489, there can be a fine distinction
between purely interlocutory matters and matters that are vital to the final
issues in a case. Appeals from Master’s decisions on defence applications for
further medical examinations of a plaintiff have fallen on both sides of that
fine line.

[8]            
The "clearly wrong” standard was applied in Critchley v. McDiarmid,
2009 BCSC 134, Christopherson v. Krahn, 2002 BCSC 1356, Roberge v. Canada
Life Assurance Co., 2002 BCSC 783, Guglielmucci, Teichroab v. Poyner,
2008 BCSC 1130 and Stoneman v. Desjardins, 2004 BCSC 57. In four of
these six cases, the appellant was unsuccessful, and of the two successful
appeals, only one, Christopherson, was a reversal of an order that the
plaintiff submit to a defence specialist.

[9]            
On the other side of the fine line, the following decisions on IMEs have
found the Master’s order vital to a final issue in the case: Horlock v.
Horlock, [1993] B.C.J. No. 422, Bojanowski v. Moschetti, [1993]
B.C.J. No. 790, Siemens v. Motruk, 2000 BCSC 1593, Belke v. Bennett, 2006
BCSC 536, Robertson v. Grist, 2006 BCSC 1245. In Vermeulen-Miller v.
Sanders, 2007 BCSC 1258, counsel agreed on the re-hearing standard and in Scott
v. Ridgway, 2011 BCSC 1552, the court commented that it appeared from the
submissions that the standard of review was a re-hearing because the issue went
to quantum of damages, which was a question vital to the issue between the
parties.

[10]        
While I am persuaded that there are errors in the learned Master’s
decision in this case, which I will comment on briefly, it is also my
conclusion that the Master’s order would be bound to have an effect on the
assessment of damages in the circumstances of this case and is vital to that
final issue. The proper standard of review in this case is a re-hearing.

[11]        
The case of Hamilton v. Pavlova, 2010 BCSC 493 provides a useful
reference for the established principles applicable to applications for medical
examinations of plaintiffs, in paras. 10 to 16:

[10] Rule 30(1) provides discretion to the court to order an
independent medical examination, and under Rule 30(2), more than one
examination may be ordered. Counsels, in their helpful submissions, have
thoroughly canvassed the relative authorities on this point. From those
authorities, certain principles emerge. The case law is against a background of
the rules of court, and in particular, the principle that the rules are
designed to secure a just determination of every proceeding on the merits and
to ensure full disclosure, so the rules should be given a fair and liberal
interpretation to meet those objectives: Wildemann v. Webster, [1990]
B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11] Rule 30(2) is a discretionary rule, and the discretion
must be exercised judicially. An independent examination is granted to ensure a
“reasonable equality between the parties in the preparation of a case for
trial”: Wildemann v. Webster at p. 11 from the separate concurring
reasons of Chief Justice McEachern.

[12] Reasonable equality does not mean that the defendant
should be able to match expert for expert or report for report: McKay v.
Passmore, 2005 BCSC 570 at para. 17, and Christopherson v. Krahn,
2002 BCSC 1356 at para. 9.

[13] A second exam will not be allowed for the purpose of
attempting to bolster an earlier opinion of another expert. That is, there must
be some question or matter that could not have been dealt with at the earlier
examination: Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para.
48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14] There is a higher standard required where the defendant
seeks a second or subsequent medical exam of the plaintiff: McKay v.
Passmore, supra, at para. 17 and para. 29.

[15] The application must be timely. That is, the proposed
examination should be complete and a report available in sufficient time to
comply with the rules of admissibility and to allow enough time for the
plaintiff to assess and respond if necessary: Vermeulen-Miller v. Sanders,
2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001
BCSC 1823.

[16] Finally, subsequent
independent medical examinations should be reserved for cases where there are
some exceptional circumstances: Wildemann v. Webster, supra, at
p. 3.

[12]        
Applying these principles on my re-hearing on its merits of the defence
application for these two further medical examinations, I would not exercise my
discretion in favour of granting the order sought.

[13]        
Turning first to the Master’s errors alleged by the appellant, I
initially gave rather short shrift to Mr. Harris’ submission that Drs. Craig
and Williams had been recruited as advocates for the defence by virtue of the
nature of the defence requests to them and the nature and content of their
reports, that they should be viewed as lacking the necessary objectivity to
warrant being appointed by the court to conduct IMEs of the plaintiff. After
considering the retainer letters and the reports of Drs. Williams and Craig, I
see considerable merit in the appellant’s argument with respect to Dr.
Williams’ compromised objectivity. The circumstances in respect of Dr. Craig’s
report are somewhat different.

[14]        
The appellant’s concern was not only the advocacy bias apprehended by
the plaintiff, but also the bias concerning the plaintiff’s condition that was
already demonstrated by the roles these experts were retained for and the
reports they had already delivered. He considered it highly improbable and
purely theoretical that either of these specialists would be able to change any
previously expressed views after their examinations of the plaintiff.

[15]        
Dr. Williams’ report emanated from a retainer letter wherein the
pertinent paragraph stated simply that Mr. Moll was advancing a claim for a
head injury in a highway collision and then stated: "I ask that you please
kindly review the enclosed report of Dr. Jeffrey Martzke dated May 1, 2012,
together with the enclosed documentation set out in the attached schedule
"A", with a view to discussing Mr. Moll’s claim with me." The letter
promised to forward Dr. Martzke’s raw test data, which was forwarded in due
course and reviewed by Dr. Williams.

[16]        
Dr. Williams described the purpose of his report as responding to the
reports of Dr. Martzke and Dr. Wallace (the plaintiff’s vocational consultant)
and he said he limited his comments to aspects pertaining to the methods,
procedures and process of the reports, as well as the sufficiency of the
conclusions recommendations or diagnoses of Drs. Martzke and Wallace.

[17]        
Dr. Williams’ report is, however, a very rigorous critique of Dr.
Martzke’s methods and testing, as well as his conclusions, and in my view does
at least border on advocacy, as argued by Mr. Harris. Dr. Williams’ criticisms
of Dr. Martzke’s report and findings may well be found to be completely
correct, and my comments will not fetter the trial judge’s rulings if the
report is tendered, but I do not think it is appropriate for the court to order
a medical examination of a plaintiff by an expert who has previously taken such
a strong stance in accepting the role as a reviewer of a previous examiner’s
report, particularly in view of the specific provisions of Rule 11-2(1) of the Civil
Rules.

[18]        
Rule 11-2(1) states:

(1) In giving an opinion to the court, an expert appointed
under this Part by one or more parties or by the court has a duty to assist the
court and is not to be an advocate for any party

[19]        
I agree with the appellant that in leaving the matter of objectivity to
the trial judge, the Master did not appear to heed the comments of the court in
Wong v. Wong, 2006 BCCA 540, at paras. 28 and 41:

[28] A medical examination under Rule 30, although part of
the discovery process, is quite different in nature. The examination is often
referred to as an “independent medical examination” (IME), and with good
reason. The examination may only be conducted by “a medical practitioner or
other qualified person”. The examiner must have qualifications as a expert in
some aspect of medicine or other relevant discipline. The examination may
only be compelled on court order. This provides the means of assuring that the
proposed examiner is truly qualified, that his qualifications are in a relevant
field of medicine, and that he is independent and therefore likely to be
impartial and objective.

…

[41] A fundamental premise for the admission of expert
opinion evidence, whether tendered for the plaintiff or defence, is that it is prima
facie objective and impartial. That premise can of course be challenged by
cross-examination or by contradictory evidence. But in the typical case,
differing opinions usually arise from honest, professional disagreements, and
nothing more. If there is any legitimate concern that a proposed medical
examiner may have a bias in favour of the party seeking his appointment, the
time to raise that objection is on the application to the court for his or her
appointment under the rule. In the absence of any such objection, the
examination should proceed on the footing that the medical examiner, or other
expert, will conduct the examination, report what the patient says, and express
his or her opinions, in a fair and objective manner. These presumptions are, of
course, always open to attack or rebuttal at trial in the usual ways.

[Italics
added]

[20]        
Defendant’s counsel’s retainer letter to Dr. Craig stated that he was
being retained to conduct a chart review with a view towards critiquing and
possibly preparing a written rebuttal to Dr Apel’s report, but 18 of the 19
specific questions posed were based on Dr. Craig accepting Dr. Apel’s physical
examination findings; only the 19th question related to critiquing, by asking
if there was anything in the enclosed medical records or reports that Dr. Craig
disagreed with. Dr. Craig’s report describes his stated purpose as providing
diagnosis and prognosis for this patient, stating assumptions forming the basis
of the report, providing advice regarding future treatments and commenting on
likely restrictions on employment and recreational activities. His only
directly stated disagreement with Dr. Apel was to suggest there was a
reasonable probability of improved cognitive function if the plaintiff’s mood
issues were adequately addressed, which could lead to him being capable of at
least part-time sedentary work.

[21]        
The evidence before the Master included detailed correspondence from
plaintiff’s counsel to defendant’s counsel expressing concerns with the
admissibility of the existing written reports of Drs. Craig and Williams. The
principal objection to Dr. Craig’s report was that he was expressing opinions
regarding diagnosis, prognosis and disabilities without having examined the
patient, and relying only on his presumed acceptance of Dr. Apel’s examination
findings. The plaintiff took the position that, in the absence of his own
examination of the plaintiff, many of his opinions and comments were
prejudicial and inappropriate and his entire report should be inadmissible.

[22]        
The prospect of that argument prevailing at trial suggests that Dr.
Craig’s existing report is probably not sufficient to contribute to reasonable
equality between the parties, unless it is validated by an examination of the
patient. I do not see that as a second examination improperly bolstering an
earlier one by another expert, but rather as a necessary step to render Dr.
Craig’s report more useful to the parties and, potentially, to the trial judge.

[23]        
I do not have the same level of concern about Dr. Craig’s objectivity
being compromised by his first report, and I think that permitting the
examination of the plaintiff by Dr. Craig to proceed will maintain the parties
on an equal footing in their preparation for trial. It is true that Dr. Craig
did not express a need to examine the plaintiff, but that is relatively
immaterial in the circumstances.

[24]        
In conclusion, I allow the appeal in respect of the examination by Dr.
Williams, neuropsychologist, and dismiss the appeal in respect of the
examination by Dr. Craig, physiatrist.

[25]        
Costs will be in the cause.

“I.C. Meiklem J.”

MEIKLEM J.